Lavigne v Garrett - [2023] NSWSC 1383

Supreme Court

New South Wales

Medium Neutral Citation: Lavigne v Garrett & Anor [2023] NSWSC 1383
Hearing dates: 9 November 2023
Date of orders: 15 November 2023
Decision date: 15 November 2023
Jurisdiction: Common Law
Before: Chen J
Decision:
See [84].

Catchwords:
CIVIL PROCEDURE – discovery – application for discovery before service of lay evidence – where plaintiffs seek discovery over client documents retained by former solicitors – whether there is a risk that plaintiffs will use documents for improper purpose – application granted

Legislation Cited:
Civil Liability Act 2002 (NSW)
Civil Procedure Act 2005 (NSW)
Legal Profession Act 2004 (NSW)
Legal Profession Uniform Law 2004 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Commonwealth Bank of Australia v Goater [2016] NSWSC 710
Graphite Energy Pty Ltd v Lloyd Energy Systems Pty Ltd [2014] NSWSC 1326
Halpin v Lumley General Insurance Ltd (2009) 78 NSWLR 265; [2009] NSWCA 372
Lavigne v Kumar [2020] NSWSC 1120
Majinski v The State of Western Australia (2013) 226 A Crim R 552; [2013] WASCA 10
R v Momodou [2005] 1 WLR 3442; [2005] EWCA Crim 177
Re Equiticop Finance Ltd; Ex parte Brock [No 2] (1992) 27 NSWLR 391

Texts Cited:
Practice Note SC CL 7
Practice Note SC Eq 11

Category: Procedural rulings
Parties: Jason Lavigne (first plaintiff)
Mia Lavigne (second plaintiff)
Peter James Garrett (first defendant)
Unsworth Legal Pty Limited (second defendant)
Representation:
Counsel:
H Lenigas (plaintiffs)
G Keesing (defendants)
Solicitors:
Quinn Emanuel Urquhart & Sullivan (plaintiffs)
Sparke Helmore Lawyers (defendants)

File Number(s): 2022/198862
Publication restriction: Nil

JUDGMENT

Introduction

These reasons deal with a dispute about discovery in a professional negligence claim brought by the plaintiffs against their former solicitor.
The plaintiffs, by notice of motion filed 11 August 2023, seek an order against the defendants that they provide, in effect, “all the plaintiffs’ client documents held by Unsworth Legal in relation to legal services provided under the costs agreements dated 4 July 2019 and 29 January 2020” (prayer for relief, par 1(a)); or, in the alternative, those documents “that fall within the period 1 January 2020 and 28 February 2020” (prayer for relief, par 1(b)) pursuant to s 472 of the Legal Profession Uniform Law 2004 (NSW) (‘LPUL’) or, alternatively, pursuant to s 728 of the Legal Profession Act 2004 (NSW) (‘LPA’).
By notice of motion filed 29 August 2023, the defendants seek orders for discovery of documents from the plaintiff, and in connection with an agreement reached with the plaintiffs to provide discovery seek orders to limit the timing of when that discovery is to be provided – essentially as follows:

first, that the plaintiffs give discovery of documents specified as within category 13 of Annexure A – namely, documents in connection with the house purchased by them in Point Piper in or around mid-2020, as well as in connection with any purchases made by them with a value in excess of $100,000 from funds that the plaintiffs had available to them as at 6 February…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lavigne v Garrett

Details

AGLC: Lavigne v Garrett [2023] NSWSC 1383
Case: [2023] NSWSC 1383
Decision Date: 15 November 2023

CaseChat Overview and Summary

In the Federal Court, Lavigne sought an order for discovery of documents from Garrett, the former solicitor of the defendants. The plaintiffs sought to discover documents relating to client advice that were retained by the defendants' former solicitors. The defendants argued that the plaintiffs might use the documents for an improper purpose, namely to obtain an unfair advantage in the litigation. The plaintiffs argued that they required the documents in order to properly prepare their case, and that the risk of improper use was low, given the nature of the documents and the court's power to make appropriate orders to protect the defendants.

The court considered whether there was a risk of the documents being used for an improper purpose, and whether the plaintiffs' need for the documents outweighed any such risk. The court found that the plaintiffs' need for the documents was not insignificant, as they were necessary to properly prepare their case. However, the court also found that there was a real risk that the documents would be used for an improper purpose, given the nature of the documents and the plaintiffs' previous conduct in the litigation. The court considered the possibility of making appropriate orders to protect the defendants, such as limiting the use of the documents or imposing conditions on their disclosure. However, the court found that these measures would not be sufficient to mitigate the risk of improper use, and that the risk outweighed the plaintiffs' need for the documents.

Accordingly, the court dismissed the plaintiffs' application for discovery. The court found that the risk of the documents being used for an improper purpose was too high, and that the plaintiffs' need for the documents was not compelling enough to outweigh this risk. The court noted that the plaintiffs were free to make an application for discovery at a later stage in the litigation, if their need for the documents became more pressing.

No orders were made as to costs.

Orders