Legal Services Commissioner v Scroope

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

Legal Services Commissioner v Scroope [2011] NSWADT 187

Hearing dates:

7 June 2011

Decision date:

03 August 2011

Jurisdiction:

Legal Services Division

Before:

D Patten, Deputy President

Decision:

1. The claim for privilege is upheld in respect of documents 8, 18, 21, 24, 25, 27, 31, 50, 66, 67, 68 and those documents which I have placed in a sealed envelope may be returned to the applicant.

2. The claim for privilege is overruled in respect of documents 28, 33, 34, 35, 36, 37, 54, 59, 65 and those documents which I have placed in an unsealed envelope may be inspected and photocopied by the parties.

Catchwords:

Claim for legal professional privilege - circumstances where claim overruled

Legislation Cited:

Administrative Decisions Tribunal Act 1997
Evidence Act 1995

Cases Cited:

Australian Securities and Investments Commission v Southcorp Ltd 46 ACSR 438
Gillies v Downer EDI Ltd [2010] NSWSC 1323
New Cap Reinsurance Corpn Ltd (In Liq) v Renaissance Reinsurance Ltd [2007] NSWSC 258

Category:

Interlocutory applications

Parties:

Legal Services Commissioner (Applicant)
Mr Philip Scroope (Respondent)

Representation:

Counsel
Ms C Webster (Applicant)
Mr T Lynch (Respondent)
Ms L Muston (Applicant)
Mr T Williams (Respondent)

File Number(s):

092010

REasons for decision

1. LEGAL SERVICES DIVISION (D PATTEN (DEPUTY PRESIDENT)): On 7 June 2011 I heard an application by the respondent to overrule a claim by the applicant that he is entitled to claim privilege in respect of documents produced to the Tribunal pursuant to a summons for production. The nature of the privilege claimed is that of legal professional privilege within ss 118 and 119 of the Evidence Act 1995 (Evidence Act). Those sections provide:

118 Legal advice

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:

(a) a confidential communication made between the client and a lawyer, or

(b) a confidential communication made between 2 or more lawyers acting for the client, or

(c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person,

for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.

119 Litigation

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:

(a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made, or

(b) the contents of a confidential document (whether delivered or not) that was prepared,

for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.

1. The privilege created by ss 118 and 119 may be lost…