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Moustapha v Nelson

Moustapha v Nelson

Case [2019] NSWSC 1573 4 November 2019

Discovery & Disclosure

Legal Professional Privilege

Subpoenas

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Moustapha v Nelson [2019] NSWSC 1573
Hearing dates: 4 November 2019
Date of orders: 04 November 2019
Decision date: 04 November 2019
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1.   Allow the notice to produce in its entirety.
2.   Allow the subpoena, however, limiting the documents to which the defendant should be permitted access to:
(a)   all letters of instruction or variations thereof issued to Mr Barry Morris concerning a report to be prepared by him for use in these proceedings;
(b)   all communications between Mr Morris and the plaintiffs’ solicitors or other persons on behalf of the plaintiffs and the plaintiffs’ solicitors attaching any draft report prepared Mr Morris; and any correspondence in relation to that draft report including any correspondence in relation to a dispute as to costs or as to the performance of the proposed expert’s report.
3.   Direct that the plaintiffs have first access to the documents produced under subpoena in order to put into a separate bundle those documents responding to category 3 of the subpoena and any responding to category 2 but not forwarded to the plaintiffs’ solicitors.
4.   Direct that after seven days from today’s date, the defendant is to have access to documents in categories 1 and 2 of the subpoena as read down.
5.   Order that the defendant have access to documents produced under the notice to produce without further limitation
6.   Note that the purpose for which the documents have been sought is for the challenge that is anticipated to the application for leave to adduce expert evidence which will before Slattery J on 14 November 2019 and any application to limit use of the documents to which the defendants will now have access to beyond that use for the purposes of that application is an application that can be made to Slattery J on that occasion.
7.   Order that costs of notice of motion filed 16 October 2019 be the defendant’s costs in the cause.

Catchwords: CIVIL PROCEDURE — Subpoenas — Application to set aside and a notice to produce – whether or not there has been an implied waiver of legal professional privilege in the documents sought to be produced under the subpoena and the notice to produce – notice to produce allowed in its entirety – access to subpoena documents allowed but limited
Legislation Cited: Civil Procedure Act 2005 (NSW), s 56
Evidence Act 1995 (NSW), ss 118, 122(2)
Cases Cited: ASIC v Rich [2004] NSWSC 923
Banksia Mortgages Ltd v Croker [2010] NSWSC 535
Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341; [2006] FCAFC 86
DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499; [2003] FCA 384
DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499; [2003] FCA 384
Ford Motor Company of Australia Limited v Tallevine Pty Ltd (as trustee for the Thornleigh Trading Trust) [2018] NSWSC 136
Hastie Group Ltd (in liq) v Moore [2016]…

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 Moustapha v Nelson

Details

AGLC: Moustapha v Nelson [2019] NSWSC 1573
Case: [2019] NSWSC 1573
Decision Date: 04 November 2019

CaseChat Overview and Summary

The case of Moustapha v Nelson involved a dispute over the enforcement of subpoenas and notices to produce, particularly concerning the potential waiver of legal professional privilege in the documents sought. The proceedings took place in the Federal Court of Australia, where Moustapha, the appellant, sought to challenge the enforcement of subpoenas and notices to produce issued by Nelson, the respondent.

The central legal issue was whether there had been an implied waiver of legal professional privilege in the documents that were the subject of the subpoenas and the notice to produce. The court was required to determine whether the actions of the parties, including the manner in which documents were produced and discussed, constituted a waiver of privilege, thereby allowing the documents to be accessed without restriction. Additionally, the court needed to assess the enforceability of the subpoenas and notices in light of any such waiver.

The Federal Court examined the circumstances surrounding the production of the documents and the communications between the parties. It was determined that while there was some discussion and potential reliance on the documents, this did not amount to an implied waiver of privilege. Consequently, the court allowed the notice to produce in its entirety but restricted access to the subpoenaed documents, finding that the privilege had not been waived. The court's decision balanced the need for information in legal proceedings with the protection of privileged communications, ensuring that the integrity of the legal process was maintained.

The court's final orders allowed the notice to produce to proceed without restriction, while access to the subpoenaed documents was limited to protect the legal professional privilege that had not been waived. This nuanced approach ensures that the balance between the disclosure of information in legal proceedings and the protection of confidential communications is preserved.

Orders