Nick Zardo v Mate Ivancic

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.