Loretta Craig v Anthony Johnson - [2020] NSWSC 423

Supreme Court

New South Wales

Medium Neutral Citation: Loretta Craig & Ors v Anthony Johnson & Ors [2020] NSWSC 423
Hearing dates: 19 September 2019
Date of orders: 22 April 2020
Decision date: 22 April 2020
Jurisdiction: Common Law
Before: Lonergan J
Decision:
(1) Pursuant to UCPR 33.4, the subpoena to produce documents issued to Fiona Inverarity filed on 19 June 2019 is set aside.
(2) The plaintiffs are to pay the defendants costs of the notice of motion.
(3) If the defendants wish to press for an additional order that the costs of the motion are to be paid forthwith, notice in writing must be provided to the solicitor for the plaintiffs within 7 days of this judgment and a timetable agreed within 14 days of judgment for the filing and serving of any necessary evidence and written submissions.
(4) A copy of this judgment is to be provided to Ms Inverarity.

Catchwords: CIVIL PROCEDURE — subpoenas — application to set aside — abuse of process — objection to production — legal professional privilege — documents sought under subpoena covered by legal professional privilege — documents sought subject to a previous finding of legal professional privilege
Legislation Cited: Civil Liability Act 2002 (NSW)
Evidence Act 1995 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Grant v Downs (1976) 135 CLR 674; [1976] HCA 63
Loretta Craig & Ors v Anthony Johnson & Ors [2018] NSWSC 1539
Moreay Nominees Pty Ltd v McCarthy (1994) 10 WAR 293
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45
Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198; [2001] NSWCA 142
Category: Procedural and other rulings
Parties: Lorretta Kistmah Craig & Ors (Plaintiffs)
Anthony Francis Johnson & Ors (Defendants)
Representation:
Counsel:
I Archibald (Plaintiffs)
D Lloyd (Defendants)
Solicitors:
Charles Filgate Giles & Associates (Plaintiffs)
Moray & Agnew (Defendants)

File Number(s): 2016/328254
Publication restriction: Nil

Judgment

In November 2016, the plaintiffs (“the Craigs”) commenced professional negligence proceedings against the partners of the legal firm Johnson Winter and Slattery (“JWS”). The Craigs claim that negligent advice was given to them in relation to an offer of settlement made in September 2013 to resolve proceedings that they had commenced in the Commercial List of this Court against an inventor and associated companies – (“the Commercial Proceedings”). The offer was, on advice, “ignored”. In November 2013, the Craigs lost the commercial proceedings.
The Craigs claim damages from JWS for the lost opportunity to accept the settlement offer, or in the alternative, the lost opportunity to negotiate a more favourable outcome and avoiding having to pay the costs of the Commercial Proceedings.
JWS deny liability and contest that the Craigs can establish the case required under ss 5B and 5D of the Civil Liability Act 2002 (NSW). JWS has pleaded s 5O of the Civil Liability Act (the peer professional defence) and denied that any loss or damage was suffered at all. Contributory negligence is also alleged.
In…

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 Loretta Craig v Anthony Johnson

Details

AGLC: Loretta Craig v Anthony Johnson [2020] NSWSC 423
Case: [2020] NSWSC 423
Decision Date: 22 April 2020

CaseChat Overview and Summary

The case of Loretta Craig v Anthony Johnson involved a dispute over the production of documents sought by subpoena. Loretta Craig applied to set aside a subpoena issued to Anthony Johnson, claiming that the subpoena was an abuse of process and that the documents sought were covered by legal professional privilege. The matter was heard in the Federal Court of Australia. The primary issue before the court was whether the documents sought under the subpoena were covered by legal professional privilege. The court had to determine whether the documents were protected by legal professional privilege and whether the subpoena was an abuse of process. The court considered the nature of the documents and the context in which they were created. It found that the documents were indeed subject to legal professional privilege, as they related to legal advice given by a solicitor to their client. The court held that the subpoena was an abuse of process as it sought documents that were protected by legal professional privilege. The court further noted that there had been a previous finding of legal professional privilege over the documents, which reinforced its decision. The court set aside the subpoena, finding it to be an abuse of process, and directed that the documents not be produced. The court's decision underscored the importance of respecting legal professional privilege and the consequences of seeking privileged documents through subpoena.

Orders