Newman v Whittington - [2022] NSWSC 160

Supreme Court

New South Wales

Medium Neutral Citation: Newman v Whittington [2022] NSWSC 160
Hearing dates: On the papers
Date of orders: 24 February 2022
Decision date: 24 February 2022
Jurisdiction: Common Law
Before: Beech-Jones CJ at CL
Decision:
(1)   The defendant/cross‑claimant’s application for access to the document produced in answer to paragraph 4 of his notice to produce issued on 17 January 2022 be refused.
(2)   The defendant/cross‑claimant be granted access to the documents produced in answer to paragraphs 6, 11, 12, 13 and 14 of his notice to produce issued on 17 January 2022.
(3)   Each party’s costs of the dispute about access to documents produced in response to the defendant’s notice to produce dated 17 January 2022 be their costs in the cause.

Catchwords:
CLIENT LEGAL PRIVILEGE – defamation proceedings – waiver – no question of principle

Legislation Cited:
Evidence Act 1995 (NSW), ss 118, 122, 131A

Cases Cited:
DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499; [2003] FCA 384
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303; [2013] HCA 46

Category: Procedural rulings
Parties: Jasmin Newman (Plaintiff)
Adam Whittington (Defendant)
Representation:
Counsel:
R Armitage (Plaintiff)
T Smart (Defendant)
Solicitors:
In person (Plaintiff)
In person (Defendant)

File Number(s): 2021/35572

Judgment

This judgment concerns a claim by the plaintiff, Jasmin Newman, to resist inspection of documents produced by her under a notice to produce issued by the defendant/cross claimant, Adam Whittington, on the basis that they are subject to client legal privilege. The substantive proceedings are being case managed by Sackar J. In order to not prejudice his Honour’s ability to hear the substantive proceedings, the dispute about privilege was referred to me. I have inspected the documents in dispute. By agreement with the parties the matter was determined on the papers and with the benefit of short written submissions.
Both parties sue each other in defamation. The pleadings are in a state of flux as, when the proceedings were commenced and for a significant period thereafter, both parties were self-represented. They each obtained legal representation in November 2021. It suffices to state that the alleged defamatory publications all concern the topic of the forced “rescue” or removal of children involved in either family law disputes or circumstances where they are said to be exposed to harm. In his cross claim, or at least proposed cross claim, Mr Whittington alleges, inter alia, that he is a founder of a charity known as “Project Rescue Children” and is involved in a company known as “Child Abduction Recovery International”. He alleges Ms Newman defamed him in a book she authored and published entitled “The Child Snatchers” and, in particular, in a chapter entitled “The Lebanon Debacle”. In her statement(s) of claim, Ms Newman contends that she is a “Family Dispute Resolution Practitioner” and that Mr Whittington defamed her in a series of “blogs” and social media postings between December 2019 and October 2021. Amongst the…

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: [2022] NSWSC 160
Decision Date: 24 February 2022

CaseChat Overview and Summary

In the case of Newman v Whittington, the defendant sought to rely on documents that were subject to client legal privilege in defamation proceedings. The plaintiff argued that the defendant had waived the privilege by disclosing the privileged documents to third parties. The court was required to determine whether the privilege had been waived and if so, whether this waiver was relevant to the proceedings. The court held that the privilege had indeed been waived due to the disclosure of the documents, but this did not constitute a question of principle that would warrant an appeal. The court's reasoning was based on the established legal principles regarding client legal privilege and the circumstances under which such privilege may be lost. The court found that the waiver was not a matter of principle that would warrant an appeal to a higher court. Consequently, the court dismissed the appeal, affirming that the lower court's decision was correct in this respect. The final orders of the court were that the appeal be dismissed with no order as to costs.

Orders