Levy v Bablis

[2012] NSWCA 157

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Levy v Bablis [2012] NSWCA 157

Hearing dates:

24 May 2012

Decision date:

30 May 2012

Before:

Beazley JA

Decision:

Uphold the claim for privilege in respect of the documents produced pursuant to subpoena dated 2 September 2011 addressed to MacGillivrays and order that the appellant Mr Levy not have access to those documents.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PRACTICE & PROCEDURE - Interlocutory application - Application for leave to adduce fresh and further evidence on appeal

EVIDENCE - Subpoena to produce documents - Claim of legal professional privilege over subpoenaed documents - Whether the documents were privileged - Copies of documents submitted to legal advisers for legal advice are privileged - Waiver of privilege - Originals not privileged

Cases Cited:

Commissioner Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; 188 CLR 501
Mann v Carnell [1999] HCA 66; 201 CLR 1

Category:

Interlocutory applications

Parties:

Julian Emmanuel Levy (Appellant)
Peter Bablis (Respondent)

Representation:

Counsel:
P Menzies QC; B K Nolan (Appellant)
M Raine (sol) (Respondent)
M Condon (Sherwood Group)
Solicitors:
Tsolakis Solicitors (Appellant)
Minter Ellison (Respondent)

File Number(s):

CA 2006/260173

Publication restriction:

No

 Decision under appeal 

Citation:

Julian Emmanuel Levy v Peter Bablis & Anor [2011] NSWSC 461

Date of Decision:

2011-05-19 00:00:00

Before:

Slattery J

File Number(s):

2006/260173

Judgment

1. HER HONOUR: Mr Julian Levy is the appellant in an appeal brought from a decision of Slattery J in which his Honour entered judgment for the first respondent, Mr Peter Bablis: Julian Emmanuel Levy v Peter Bablis & Anor [2011] NSWSC 461. The proceedings related to investments Mr Levy made in 2005 in a total sum of $1 M by way of a 'private placement'. Mr Levy deposited the monies with United Producers & Associates Pty Limited (UPA), the second defendant in the proceedings before Slattery J. Mr Levy claimed that Mr Bablis was also liable to him for the monies so paid on the basis of breach of contract, breach of fiduciary duty and/or negligent misstatement. Slattery J rejected each of the claims brought against Mr Bablis, but gave judgment against UPA in the sum of $2 M. The sum of $2 M represented the amount of the investment plus the promised return of 100 per cent within 12 months of the date of the investment.

1. At trial, Mr Bablis contested Mr Levy's claims in their entirety. The trial judge, at [11], identified the principal issues "in contest" between the parties as:

"... whether Mr Levy made a 'private placement' at all or whether…