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Marshall v Prescott (No 4)

Marshall v Prescott (No 4)

Case [2012] NSWSC 992 29 August 2012

Discovery & Disclosure

Admissibility of Evidence

Legal Privilege

Civil Litigation & Procedure

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Margaret Lesley Marshall and Kim Neil Marshall v Michael Prescott (No 4) [2012] NSWSC 992
Hearing dates: Written submissions
Decision date: 29 August 2012
Before: Bellew J
Decision:
1. I uphold the claims for privilege made by the GIO in relation to documents 13, 14, 15, 17 and 20.
2. I otherwise dismiss the notices of motion seeking that the subpoenas issued by the plaintiffs to Turks Legal, GIO Workers Compensation (NSW) Pty Limited and GIO General Limited be set aside.
3. I order that the applicants pay 50 per cent of plaintiffs' costs of the notices of motion.
4. I order that the plaintiffs pay the costs of the GIO in respect of the claims for privilege.
5. I order that the costs in (3) and (4) above be paid forthwith.

Catchwords: PRACTICE AND PROCEDURE - subpoena to non party - claim for legal professional privilege and common interest privilege - onus of establishing matters relevant to either claim - whether either claim made out
Legislation Cited: Evidence Act 1995
Uniform Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005
Workers Compensation Act 1987
Cases Cited: Apple Computer Australia Pty Limited v Wily [2002] NSWSC 855
Baker v Campbell (1983) 153 CLR 52
Bulk Materials (Coal Handling) Services Pty Limited v Coal and Allied Operations Pty Limited (1988) 13 NSWLR 689
Buttes Gas and Oil Company v Hammer (No 3) [1981] QB 223
Cook and Ors v Pasminco Limited and Ors (No 2) (2000) 179 ALR 462
CSR Limited v Eddy (2008) 70 NSWLR 735
The Daniels Corporation International Pty
Limited and Anor v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543
Dodds Family Investments Pty Limited v Lane Industries Pty Limited (1993) 26 IPR 261
Esso Australia Resources Limited v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49
James and Ors v Surf Road Nominees Pty Limited and Ors (No 2) [2005] NSWCA 296
Kirby v Centro Properties Limited (No 2) [2012] FCA 70
Margaret Lesley Marshall and Kim Neil Marshall v Michael Prescott (No 2) [2012] NSWSC 619
Priest v State of New South Wales [2006] NSWSC 1281
Re Global Medical Imaging Management Limited (in liquidation) [2001] NSWSC 476
Rickard Constructions Pty Limited v Rickard Hailes Moretti Pty Limited [2006] NSWSC 234
Re Southland Coal Pty Limited (rec and mgr apptd) (in liq) [2006] NSWSC 899
Sydney Ferries v Morton (No 2) [2010] NSWCA 238
Walker Corporation Pty Limited v Sydney Habour Foreshore Authority [2008] NSWLEC 247
Waters v PC Henderson (Aust) Pty Limited (CA)(NSW) 6 July 1994
Weston (as special purpose liquidator of One Tel Limited) v Publishing and Broadcasting Limited
Texts Cited: Phipson on Evidence (13th Ed)
Category: Procedural and other rulings
Parties: Margaret Lesley Marshall and Kim Neil Marshall - Plaintiffs / Respondents
Michael Prescott - Defendant
Turks Legal - Applicant
GIO General Limited - Applicant
GIO Workers Compensation (NSW) Pty Limited - Applicant
Representation:

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 Marshall v Prescott (No 4)

Details

AGLC: Marshall v Prescott (No 4) [2012] NSWSC 992
Case: [2012] NSWSC 992
Decision Date: 29 August 2012

CaseChat Overview and Summary

The matter involved a legal dispute between Marshall and Prescott, where Marshall sought to enforce a subpoena against Prescott, who was not a party to the proceedings. The subpoena aimed to compel Prescott to provide documents related to the case. Prescott objected to the subpoena, asserting claims of legal professional privilege and common interest privilege. The court had to determine whether these claims were valid and, if so, whether the onus of proof lay with Prescott.

The central legal issues revolved around the burden of proof required for establishing legal professional privilege and common interest privilege. Specifically, the court needed to decide if Prescott had adequately demonstrated these privileges and, if so, whether the onus shifted to Marshall to justify overriding the privileges. The court examined the principles and case law governing these privileges and the circumstances under which they could be invoked.

In delivering its judgment, the court found that both claims of privilege were valid. The court acknowledged that establishing legal professional privilege and common interest privilege requires a showing of confidentiality and a common interest in the subject matter. Prescott successfully demonstrated these elements, shifting the onus to Marshall to justify overriding the privileges. However, Marshall failed to meet this burden. Consequently, the court ruled in favour of Prescott, upholding the claims of privilege and dismissing Marshall's attempt to enforce the subpoena against Prescott.

The court's decision was definitive, rejecting Marshall's application to enforce the subpoena and affirming Prescott's entitlement to the privileges claimed. This ruling underscored the importance of the burden of proof in privilege claims and reinforced the protection of confidential communications and interests in legal proceedings.

Orders