Nick Zardo v Mate Ivancic - [2002] ACTSC 23

Nick Zardo v Mate Ivancic [2002] ACTSC 23 (5 April 2002)

CATCHWORDS

PRACTICE AND PROCEDURE – Discovery – legal professional privilege – surveillance tapes
EVIDENCE – waiver of privilege – material to be adduced at trial – privilege not waived until evidence adduced at trial

Evidence Act 1995, (Cth), s119
Motor Accidents Act 1988 (NSW), s 66

Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67, (1999) 162 ALR 123
J Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (1992) 110 ALR 510
Konig v Casino Canberra Pty Ltd [2000] ACTSC 67
Pfeiffer v Rogerson [2000] HCA 36; (2000) 172 ALR 625
Sevic v Roarty (1998) 44 NSWLR 287
Zardo v Ivancic [2001] ACTSC 4
Zardo v Ivancic [2001] ACTSC 40

No. SC 772 of 2000

Coram: Master T Connolly
Supreme Court of the ACT
Date: 5 April 2002

IN THE SUPREME COURT OF THE  )
  )              No. SC 772 of 2000
AUSTRALIAN CAPITAL TERRITORY  )

BETWEEN:NICK ZARDO
Plaintiff

AND:MATE IVANCIC
Defendant

ORDER

Coram:  Master T Connolly
Date:  5 April 2002
Place:  Canberra

THE COURT ORDERS THAT:

The notice of motion is dismissed

Costs reserved

This is an application by way of notice of motion of 26 February 2002 that the plaintiff produce certain documents identified in the affidavit of documents. The plaintiff opposes the notice of motion on the basis that the documents are properly subject to legal professional privilege. The substantive matter has a long history. Mr Ivancic claims to have been injured in a motor vehicle accident on 3 July 1997 as a consequence of the negligence of Mr Zardo. The motor vehicle accident is alleged to have occurred in New South Wales, but he issued proceedings in this Court on 29 August 1997. The matter progressed in the ordinary way with a Statement of Particulars and exchanges of certain medical reports, and settlement negotiations took place, with the result that on 14 August 2000 Mr Ivancic and Mr Zardo, through their respective solicitors, executed terms of settlement, and pursuant to these terms of settlement judgment was pronounced by this Court on 15 August 2000 in favour of Mr Ivancic in the sum of $425,000, with an order that Mr Zardo pay Mr Ivancic’s costs agreed in the sum of $30,000. Judgment was formally entered on 16 August 2000.

It should be recalled that, until the decision of the High Court of Australia in Pfeiffer v Rogerson [2000] HCA 36; (2000) 172 ALR 625, which was delivered in June 2000, it was assumed that the law to be applied in this Court in relation to claims in tort, wherever occurring, was the law of the Australian Capital Territory. It is now established by that case that the law to be applied is the law of the place of the accident, where the accident occurred in another Australian jurisdiction. Accordingly, the law to be applied to the claim was the law of New South Wales, and in particular…

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: [2002] ACTSC 23
Decision Date

CaseChat Overview and Summary

The case of Nick Zardo v Mate Ivancic, decided by Master T Connolly in the Supreme Court of the Australian Capital Territory on 5 April 2002, revolves around an application for discovery of documents by the plaintiff, Nick Zardo, against the defendant, Mate Ivancic. The plaintiff opposes the application on the basis that the documents in question are subject to legal professional privilege. The underlying dispute originates from a motor vehicle accident that occurred in New South Wales on 3 July 1997, where Ivancic claims to have been injured due to Zardo's negligence. Ivancic initiated proceedings in the ACT Supreme Court on 29 August 1997. The case has a history of settlement negotiations and a consent judgment in favour of Ivancic, pronounced on 15 August 2000, for $425,000, with additional costs of $30,000. Subsequently, Zardo initiated proceedings against Ivancic under section 66 of the Motor Accidents Act 1988 (NSW), alleging fraudulent conduct by Ivancic in obtaining the settlement.

The legal issues in this case primarily concern the applicability of legal professional privilege to the documents in question and whether any waiver of this privilege has occurred. The plaintiff argues that certain surveillance video material cannot attract legal professional privilege as it does not constitute a confidential communication. Additionally, the plaintiff contends that even if privilege applies, it has been waived as the material will inevitably be introduced at the substantive hearing. The defendant, on the other hand, asserts that the surveillance videos, which are covert and confidential, are properly subject to legal professional privilege and that no waiver has occurred.

Master T Connolly determined that surveillance video material commissioned for the dominant purpose of preparing for personal injuries litigation is properly subject to a claim for legal professional privilege. This conclusion is based on the covert and confidential nature of such surveillance, which is often the only way for a defendant to test the credit of a claimant's disability claims. The Master rejected the argument that privilege would be deemed waived merely because the material might be introduced at the substantive hearing. The ruling emphasized that privilege is waived only by an intentional act inconsistent with the maintenance of confidentiality and not by the mere possibility of future disclosure.

In summary, the court dismissed the notice of motion for discovery of the documents, affirming that the surveillance videos are protected by legal professional privilege and that no waiver has occurred. The court also suggested that if the parties wished to facilitate the running of the hearing, they could seek orders for evidence to be given by affidavit. The question of costs was reserved for further determination.

Orders