Supreme Court
New South Wales
Medium Neutral Citation: Lubeck v NSW Police Force [2019] NSWSC 504 Hearing dates: 21 November 2018 Decision date: 03 May 2019 Jurisdiction: Common Law Before: Button J Decision: (1) A declaration that the defendant, the NSW Police Force, must not access the material identified in this judgment as the “6 page document, the “16 page document” and the “third documents”, seized as a result of the search warrant executed at the premises of Pope & Spinks on 13 July 2018, because of client legal privilege; and
(2) The defendant, the NSW Police Force, must pay the costs of the plaintiff, Mr Jason Lubeck (a pseudonym), of the proceedings before me.Catchwords: EVIDENCE – client legal privilege – criminal charges pending against plaintiff – execution of search warrant at office of solicitor – whether documents the subject of claim for privilege should be inspected by judge – whether claim for privilege has been affirmatively established – claim upheld – declaration made Legislation Cited: Evidence Act 1995 (NSW), ss 69(3)(b), 118, 119, 122, 125, 131A, 133 and 183 Cases Cited: Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Ltd (No 4) [2014] FCA 796
Barnes v Federal Commission of Taxation [2015] FCA 282
Hancock v Rinehart [2016] NSWSC 12
Kennedy v Wallace (2004) 142 FCR 185; [2004] FCAFC 337
Rinehart v Rinehart [2016] NSWCA 58
Tavcol Pty Ltd v Valbeet Pty Ltd [2016] NSWSC 1002
Waugh Asset Management v Merrill Lynch [2010] NSWSC 197Category: Principal judgment Parties: Jason Lubeck (a pseudonym) (Plaintiff)
NSW Police Force (Defendant)Representation: Counsel:
Solicitors:
Ms J Williams (Defendant)
Pope & Spinks Solicitors
Makinson d’Apice Lawyers
File Number(s): 2018/238629 Publication restriction: Pseudonyms adopted for civilians until pendency of criminal trial concluded
Judgment
Introduction
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This seemingly straightforward application for a declaration in order to uphold a disputed claim of client legal privilege, made with regard to documents seized by police pursuant to a search warrant executed upon the office of a solicitor, is, in truth, not without its complexities.
Background
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The following matters were established by way of affidavit evidence before me, constituted by three affidavits with annexures read on behalf of the plaintiff, and one affidavit with annexures of a detective attached to the Organised Crime Squad read on behalf of the defendant. Neither party applied to cross-examine the deponent of the affidavits relied upon by its opponent.
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Part of what follows is also based upon a document sworn in support of the application for the search warrant that was annexed to the affidavit of the detective (in recounting some of its contents, I appreciate that they were not directly sworn to before me, but they were never called into question).
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In or around March 2014, Mr James Pope (the solicitor) was engaged by Mr Jason Lubek (the plaintiff in the proceedings before me) to act on his behalf in civil proceedings against the NSW Police Force (the defendant in the proceedings before me) with regard to various allegations…
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- Case
- [2019] NSWSC 504
- Decision Date
CaseChat Overview and Summary
The legal issues before the court involved determining whether the plaintiff had established the existence of client legal privilege over the documents in question. This required the court to consider the nature of the documents, the context in which they were created, and whether they were prepared for the purpose of obtaining legal advice. Additionally, the court had to decide whether the privilege had been affirmatively established by the plaintiff, and whether the documents should be inspected by the judge to make this determination.
The court found that the plaintiff had indeed established the existence of client legal privilege over the documents in question. The documents were deemed to be prepared for the purpose of obtaining legal advice, and the court concluded that they were protected by privilege. As a result, the court made a declaration that the documents were privileged and should not be disclosed. This decision upheld the plaintiff's claim and protected the confidentiality of the legal advice provided.
The final orders of the court included a declaration that the documents seized from the solicitor's office were subject to client legal privilege and should not be disclosed to the NSW Police Force. This decision reinforced the importance of protecting the confidentiality of legal communications and upheld the rights of the plaintiff in the criminal proceedings against him.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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