Jess and Jess and Ors

In this interlocutory proceeding, Bennett J considered an application concerning the production of documents in a family law matter. The parties involved were the husband, the wife, and represented third parties, specifically X Corporation Pty Ltd and its former solicitors, Clayton Utz. The dispute centred on whether certain documents, namely handwritten notes and an agenda from a conference held on 20 June 2003, were subject to legal professional privilege and, if so, whether that privilege had been waived.

The primary legal issue before the court was the discoverability of documents created during a meeting attended by a solicitor from Clayton Utz, Mr N Jess (the first respondent), and others. The husband sought the production of file notes made by the solicitors at this meeting. The court was required to determine if these documents, which were conceded to be accessible to X Corporation Pty Ltd and the represented third parties, were protected by legal professional privilege, and if so, whether any privilege had been waived, particularly in light of the distinction between waiver of joint client legal privilege under section 124 of the *Evidence Act 1995* (Cth) and waiver at common law.

Bennett J reasoned that the documents were relevant to the issues in the proceeding and that the meeting involved legal advice being provided to Mr N Jess and associated companies. The court noted that while Clayton Utz formerly acted for Mr N Jess, they continued to act for X Corporation Pty Ltd, which was no longer controlled by Mr N Jess. The court found that the documents were accessible to X Corporation Pty Ltd and the represented third parties, and that the issue of privilege and potential waiver required determination.

Ultimately, the court ordered that X Corporation Pty Ltd, by not later than 3 p.m. on Tuesday 25 August 2015, cause the documents produced to it by Clayton Utz, specifically the handwritten note and agenda of the conference convened on 20 June 2003, to be produced to the husband via their respective lawyers.