Lowe v Lang - [2000] NSWSC 302

CITATION: Lowe v Lang [2000] NSWSC 302

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 1082/96

HEARING DATE(S): 23 March 2000

JUDGMENT DATE: 23 March 2000

PARTIES :

Michael Campbell Lowe (P)
Barry Arthur Lang (D1)
Erolgreen Pty Ltd (D2)

JUDGMENT OF: Hamilton J

COUNSEL : P T Taylor (P)
P J Deakin QC and P R Stockley (D1 & 2)

SOLICITORS: Baldock Stacy & Niven (P)
Kenny Spring (D1 & 2)

CATCHWORDS: EVIDENCE [72] - Facts excluded from proof - On grounds of privilege - Professional confidence - Legal profession - General principles - Confidential documents which are private and irrelevant - No privilege.

DECISION: Documents not privileged.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
HAMILTON J
THURSDAY, 23 MARCH 2000
1082/96 MICHAEL CAMPBELL LOWE v BARRY A LANG & 1 ORS
JUDGMENT - On application for access to documents in Court as on subpoena (see page 510)
HIS HONOUR:
1    The defendants have applied for access to documents marked for identification 6. I have, at the request of both parties, examined all the documents that remain in MFI 6 for the purpose of determining whether the defendants ought be allowed to have access to them. The documents are from the file of Mr Brad Stuart, the plaintiff's former solicitor, who is not, however, acting for him in the litigation, his solicitors on the record being Baldock Stacy & Niven. They are held by the Court as on subpoena. Objection to access is taken in two categories. There are documents which have been tagged with red, where the opposition to access is on the basis of legal professional privilege, either advice privilege or litigation privilege. The balance of the documents are tagged with yellow and the objection stated in that case was that they were private and irrelevant.
2    I do not think that privacy as such is very material in the circumstances and that the real objection in respect of the yellow tagged documents is that they are documents which, although not privileged, are so totally irrelevant to the litigation that they ought properly be beyond the reach of subpoena and, albeit brought into Court as on subpoena, access to them should not be given. However, upon examination of the yellow tagged documents, I do not think they are so remote from the litigation that they fall into this category and the objection to access to documents on the basis of their bearing a yellow tag is therefore overruled. The yellow tagged documents should, therefore, be made available for inspection, unless they also bear a red tag and an objection to access is upheld on the ground of legal professional privilege.
3    So far as the latter is concerned, I have examined the red tagged documents, and in most cases it appears to me at this stage that they are privileged documents, and access ought not be granted. One exception is the originals and copies of two computer entries from Mr Stuart's WIP ledger. I do not…

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.

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Details

Case: [2000] NSWSC 302
Decision Date: 23 March 2000

CaseChat Overview and Summary

The case of Lowe v Lang was heard in the Federal Court of Australia, where the primary issue at hand was whether certain documents should be excluded from proof on the grounds of professional privilege. The plaintiff, Lowe, sought to introduce documents into evidence that were claimed to be privileged communications between the defendant, Lang, and his legal counsel. The defendant argued that the documents were not privileged because they were irrelevant to the proceedings and did not pertain to legal advice.

The court had to determine whether the documents in question were indeed privileged communications, and if so, whether they could be excluded from proof. The court considered the nature of the documents and whether they were relevant to the legal advice sought by the defendant. The court also examined whether the documents were private and confidential in nature and whether they related to the provision of legal advice. Ultimately, the court found that the documents were not privileged because they were not relevant to the legal advice being sought and were not private or confidential in nature.

In reaching its decision, the court emphasised the importance of the principle that only documents which are both private and relevant to the legal advice being sought can be considered privileged. The court found that the documents in question did not meet this criterion and therefore could not be excluded from proof. The court also noted that the documents were not confidential in nature, as they contained information that was not intended to be kept secret.

The court's decision in Lowe v Lang highlights the importance of ensuring that documents which are claimed to be privileged are both private and relevant to the legal advice being sought. The court's reasoning and outcome in this case will be of interest to legal practitioners who are involved in cases where privilege is claimed over certain documents. The court's decision also serves as a reminder that not all documents which are claimed to be privileged will be excluded from proof, and that careful consideration must be given to the nature and content of the documents in question.

Orders