Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Marshall v Prescott [2013] NSWCA 152 Hearing dates: 12 April 2013 Decision date: 06 June 2013 Before: McColl JA (at [1]); Barrett JA (at [2]); Ward JA (at [94]) Decision: 1. Grant leave to appeal in respect of Orders 1 and 2 made in the Common Law Division on 29 August 2012.
2. Direct that a notice of appeal in terms of the notice of appeal contained in the White Book be filed within fourteen days.
3. Appeal allowed in part.
4. Vary Order 1 made in the Common Law Division on 29 August 2012 by omitting "documents 13, 14, 15, 17 and 20" and substituting "documents 13, 14, 15 and 17".
5. Direct that the parties do, within fourteen days, exchange and file written submissions on the costs orders that should be made in relation to the application for leave to appeal and the appeal.
6. Reserve for the future consideration of the Court all questions of costs of the application for leave to appeal and the appeal.
7. Order pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 that, until the expiration of the period of 35 days commencing upon the making of these orders (and thereafter for such further period, if any, as the Court may, within that period of 35 days, by order specify), the schedule included immediately after [93] of the judgment of the Court be omitted from every copy of the judgment published or furnished to any person (other than GIO Workers Compensation (NSW) Pty Ltd and its legal advisers) or recorded on CaseLaw NSW.
8. Grant to GIO Workers Compensation (NSW) Pty Ltd liberty to apply on seven days notice for an order specifying a further period for the purposes of Order 7.
[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: PROCEDURE - costs - leave to appeal sought in respect of costs orders made on an issue-by-issue basis - applicant seeks to challenge the judge's conclusions on certain of the issues but not the ultimate decision - whether an appeal court should canvass intermediate conclusions merely for the sake of an appeal on costs - leave refused - PROCEDURE - subpoena to non-party - legal professional privilege at common law - common interest privilege - person maintaining claim by subrogation to proceeds of pending litigation - communication to that person of confidential legal advice given to the party in whose shoes the person seeks to stand - whether common interest of the litigant and the person claiming by subrogation exists so as to preclude a finding…
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- AGLC
- Marshall v Prescott [2013] NSWCA 152
- Case
- [2013] NSWCA 152
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court of Appeal were whether an appellate court should review intermediate conclusions for the sole purpose of appealing costs orders, and whether legal professional privilege attached to communications and agreements involving a non-party claiming by subrogation and funding the litigation. Specifically, the court considered whether a common interest existed between the litigant and the subrogated party to preclude a finding of waiver of privilege, and whether a litigation funding agreement itself was protected by privilege.
The Court of Appeal granted leave to appeal in respect of certain costs orders and allowed the appeal in part, varying one of the costs orders. The court reserved for future consideration all questions of costs relating to the application for leave to appeal and the appeal itself. The court also made orders suppressing certain information from publication for a specified period, granting liberty to a non-party to apply for an extension of that period.
Orders
Orders of the court
1. Grant leave to appeal in respect of Orders 1 and 2 made in the Common Law Division on 29 August 2012.
2. Direct that a notice of appeal in terms of the notice of appeal contained in the White Book be filed within fourteen days.
3. Appeal allowed in part.
4. Vary Order 1 made in the Common Law Division on 29 August 2012 by omitting "documents 13, 14, 15, 17 and 20" and substituting "documents 13, 14, 15 and 17".
5. Direct that the parties do, within fourteen days, exchange and file written submissions on the costs orders that should be made in relation to the application for leave to appeal and the appeal.
6. Reserve for the future consideration of the Court all questions of costs of the application for leave to appeal and the appeal.
7. Order pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 that, until the expiration of the period of 35 days commencing upon the making of these orders (and thereafter for such further period, if any, as the Court may, within that period of 35 days, by order specify), the schedule included immediately after [93] of the judgment of the Court be omitted from every copy of the judgment published or furnished to any person (other than GIO Workers Compensation (NSW) Pty Ltd and its legal advisers) or recorded on CaseLaw NSW.
8. Grant to GIO Workers Compensation (NSW) Pty Ltd liberty to apply on seven days notice for an order specifying a further period for the purposes of Order 7.
[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.]
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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