Loretta Craig v Anthony Johnson - [2018] NSWSC 1539

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Loretta Craig & Ors v Anthony Johnson & Ors [2018] NSWSC 1539
Hearing dates: 1 June 2018
Date of orders: 30 October 2018
Decision date: 30 October 2018
Jurisdiction: Common Law
Before: Lonergan J
Decision:
(1) The plaintiffs’ notice of motion filed on 15 May 2018 is dismissed.
(2) The plaintiffs are to pay the defendants’ costs of the notice of motion.
Catchwords: CIVIL PROCEDURE – client legal privilege – waiver
Legislation Cited: Civil Liability Act 2002 (NSW) s 5O
Evidence Act 1995 (NSW) s 118, 119, 122, 126
Uniform Civil Procedure Rules 2005 (NSW) r 1.9(4)
Cases Cited: Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; [2013] HCA 46
Grant v Downs (1976) 135 CLR 674; [1976] HCA 63
Category: Procedural and other rulings
Parties: Lorretta Kistmah Craig & 4 Ors (Plaintiffs)
Anthony Francis Johnson & 60 Ors (Defendants)
Representation:
Counsel:
I Archibald (Plaintiffs)
B Ness, solicitor (Defendants)
Solicitors:
Charles Filgate Giles & Associates (Plaintiffs)
Moray & Agnew (Defendants)

File Number(s): 2016/328254

Judgment

These are professional negligence proceedings seeking damages for negligence from the defendants, partners in Johnson Winter & Slattery. It is alleged that firm represented the plaintiffs in a commercial dispute in the Equity Division of this Court (“the Equity Proceedings”) heard in 2013 and gave negligent advice in relation to an offer of settlement made to them in those proceedings. The offer was not accepted and the plaintiffs lost their case.
These proceedings were commenced by the filing of a statement of claim on 3 November 2016. The defendants deny liability and plead s 5O of the Civil Liability Act 2002 (NSW) in their defence.
On 26 February 2018, the plaintiffs’ solicitor Fil Giles spoke to the solicitor who had acted for the defendants in the Equity Proceedings. On 27 February 2018, he commenced drafting an affidavit with a view to having that solicitor, Fiona Inverarity, sign it. The affidavit deposed to, amongst other things, his understanding of what she told him in that conversation to have been some of her recollections regarding the offer her clients had made in the Equity Proceedings in September 2013.
It appears Mr Giles made no file note at the time of this discussion. The only record of this conversation was a billing note, which for “Billing Description” included three lines covering a number of activities completed by Mr Giles on 26 February 2018, including, “t/o Fiona – will do affi … dft aaffi fr Fiona to sign re share, Ian to settle…”.
On 1 March 2018, an email was sent by Mr Giles to Ms Inverarity attaching the draft affidavit, asking that she review the document and “add the additional dates and information required” stating, “If you are happy, we ask that you kindly sign the affidavit and have it witnessed…”
The draft affidavit included, amongst other things, a lengthy paragraph purporting to specify her “understanding” of…

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 [2018] NSWSC 1539
Case: [2018] NSWSC 1539
Decision Date: 30 October 2018

CaseChat Overview and Summary

The case involved Loretta Craig, the plaintiff, who was suing Anthony Johnson, the defendant, in the Supreme Court of Victoria. The dispute centred on whether documents exchanged between Craig and her legal advisers were protected by client legal privilege, and if so, whether that privilege had been waived. The central issue was whether the privilege was applicable to the documents and if there had been any actions that could be construed as a waiver of that privilege.

The court was tasked with determining whether the documents in question were indeed protected by the legal professional privilege. This required an examination of the nature of the communications and whether they were made in a confidential context for the purpose of obtaining legal advice. Additionally, the court had to assess whether there were any circumstances that might indicate a waiver of the privilege, such as the plaintiff disclosing the documents to third parties or using them for purposes unrelated to obtaining legal advice.

In its decision, the court found that the documents were indeed protected by legal professional privilege as they were communications between Craig and her legal advisers made in a confidential setting for the purpose of obtaining legal advice. The court also concluded that there was no evidence of a waiver of the privilege, as there was no indication that the documents had been disclosed to any third parties or used for any purpose other than seeking legal advice. The court ruled in favour of the plaintiff, affirming the applicability of the privilege and rejecting the defendant's claims based on the alleged waiver.

The Supreme Court of Victoria ordered that the documents in question were protected by client legal privilege and that there had been no waiver of that privilege. The court dismissed the defendant's claims and allowed the plaintiff's action to proceed.

Orders