Joseph v Spencer

In *Joseph v Spencer*, the applicant sought to set aside a notice to produce documents issued by the respondents under rule 21.10 of the Uniform Civil Procedure Rules 2005 (NSW). The dispute concerned the discoverability of documents that the respondents claimed were relevant to a fact in issue in the underlying proceedings.

The primary legal issues before the court were whether the documents sought by the notice to produce were relevant to a fact in issue, and whether certain documents were protected by client legal privilege or by the provisions of section 34(11) of the *Land and Environment Court Act 1979* (NSW) relating to conciliation conferences. The applicant also contended that privilege had been waived under section 122 of the *Evidence Act 1995* (NSW) and that there was prima facie evidence of misconduct under section 125 of that Act.

Kirk JA found that the summons seeking the documents did not set out serious allegations that would justify their production, and the disputed documents were not relevant to a fact in issue. His Honour also determined that the filing of a document influenced by expert views, the expert's agreement to the expert witness code of conduct, or the provision of a joint expert report to the court did not establish a waiver of client legal privilege or provide prima facie evidence of misconduct. Furthermore, documents prepared for or in the course of a conciliation conference were protected under section 34(11) of the *Land and Environment Court Act 1979* (NSW), with that protection continuing until the final version was presented to a commissioner for the purpose of seeking a decision.

Consequently, the applicant's motion was dismissed, and the applicant was ordered to pay the respondents' costs of the motion. The privileged material was to be returned to the respective solicitors.