Nolan v Nolan

Case [2013] QSC 140

SUPREME COURT OF QUEENSLAND

CITATION:

Nolan v Nolan & Ors [2013] QSC 140

PARTIES:

DONNA MAREE NOLAN
(plaintiff)
v
ANTHONY GERARD NOLAN
(first defendant)

BRIAN KEVIN NOLAN
(second defendant)

MAJELLA ANNE NOLAN
(third defendant)

NOLAN & SON PTY LTD ACN 010 567 174
(fourth defendant)

FILE NO/S:

BS No 3338 of 2010

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

31 May 2013

DELIVERED AT:

Brisbane

HEARING DATE:

18 April 2013

JUDGE:

Ann Lyons J

ORDER:

I will hear from counsel as to the final form of the orders and as to costs.

CATCHWORDS:

PROCEDURE – DISCOVERY – PRODUCTION AND INSPECTION OF DOCUMENTS – GROUNDS FOR RESISTING PRODUCTION – CLIENT LEGAL PRIVILEGE – WHAT CONSTITUTES – where the second and third defendants’ former solicitors produced to the plaintiff certain documents relating to estate planning and the preparation of wills pursuant to a notice of non-party disclosure –  where the second and third defendants subsequently claimed legal professional privilege over those documents – where the plaintiff contended that the documents instructing on the preparation of a will were not prepared for the dominant purpose of providing legal advice and were therefore not subject to legal professional privilege – whether the documents provided to the plaintiff were the subject of legal professional privilege

PROCEDURE – DISCOVERY – PRODUCTION AND INSPECTION OF DOCUMENTS – GROUNDS FOR RESISTING PRODUCTION – CLIENT LEGAL PRIVILEGE – WAIVER OF PRIVILEGE – where the plaintiff’s solicitors served a notice of non-party disclosure on the former solicitors of the second and third defendants – where the defendants’ former solicitors produced documents in response to the notice without the knowledge of the second and third defendants – where a copy of the notice was provided to the defendants’ current solicitors – where the defendants’ current solicitors did not object to the production of the documents – whether the defendants’ current solicitors were agents of the defendants with ostensible authority to waive any legal professional privilege attaching to the documents – whether the defendants’ current solicitors’ failure to assert an available claim of legal professional privilege amounted to waiver

Adamas v O’Connor (2011) 282 ALR 302; [2011] FCA 948
Anford Pty Ltd v GCI Properties Pty Ltd [1999] QSC 358
Commissioner of Taxation v Pratt Holdings (2005) 225 ALR 266
Derby & Co v Weldon [1991] 2 All ER 908
Esso Australia Resources Limited v Commissioner of Taxation (1999) 201 CLR 49
Grant v Downs (1976) 135 CLR 674
Great Atlantic Insurance Co v Home Insurance Co [1981] 2 All ER 485
Griffiths v Evans [1953] 2 All ER 1364
Kabwand Pty Ltd (1988) 81 ALR 721
Kennedy v Wallace (2004) 142 FCR 185
Mann v Carnell (1999) 201 CLR 1
Meltend Pty Ltd & Ors v Restoration Clinics of Australia Pty Ltd & Ors (1997) 145 ALR 391
New South Wales v Betfair Pty Ltd, (2009) 261 ALR 311
Spedley Securities Ltd (in liq) v Bank of New Zealand (1991) 26 NSWLR 711

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Nolan v Nolan & Ors [2013] QSC 140
Case
[2013] QSC 140
Decision Date

CaseChat Overview and Summary

The case of Nolan v Nolan was before the court to address issues surrounding the production of documents in the context of estate planning and the application of legal professional privilege. The plaintiff sought certain documents from the former solicitors of the second and third defendants, who were involved in the estate planning and will preparation process. Upon production, the defendants claimed legal professional privilege over the documents. The plaintiff argued that the documents were not prepared for the dominant purpose of providing legal advice and, therefore, were not subject to legal professional privilege. Additionally, the plaintiff questioned whether the privilege had been waived by the defendants’ current solicitors who did not object to the documents' production.

The court had to determine whether the documents provided to the plaintiff were indeed subject to legal professional privilege and, if so, whether the privilege had been waived by the defendants’ current solicitors. The court considered the nature of the documents, their purpose, and the circumstances under which they were produced. It also examined whether the defendants’ current solicitors, who did not object to the production, acted as agents with ostensible authority to waive any privilege.

The court concluded that the documents were subject to legal professional privilege, but the privilege was waived by the defendants' current solicitors' failure to object to the production of the documents. The court found that the current solicitors had ostensible authority to waive the privilege, as they were acting on behalf of the defendants and had the opportunity to object but did not.

Pending further submissions from counsel, the court is yet to finalise the form of the orders and determine the allocation of costs.

Orders

Orders of the court

I will hear from counsel as to the final form of the orders and as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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