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NRMA Ltd v Morgan (No 2)

NRMA Ltd v Morgan (No 2)

Case [1999] NSWSC 694 25 June 1999

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CITATION: NRMA Ltd & Ors v Morgan & Ors (No 2) [1999] NSWSC 694

CURRENT JURISDICTION: Commercial Division

FILE NUMBER(S): 50257/95

HEARING DATE(S): 25 June 1999

JUDGMENT DATE:
25 June 1999

PARTIES :

NRMA Ltd & Ors
Morgan & Ors

JUDGMENT OF: Giles J

COUNSEL : Second Defendant - G K Burton
Third Defendant - A J Meagher SC

SOLICITORS: Second Defendant - Ebsworth & Ebsworth
Third Defendant - Corrs Chambers Westgarth

CATCHWORDS: CLIENT LEGAL PRIVILEGE - loss by disclosure of substance of communication - Evidence Act s 122(2) - not lost by saying instructed counsel to advise - lost by saying what counsel advised.

CASES CITED: Ampolex v Perpetual Trustee Company (Canberra) Ltd (1996) 40 NSWLR 12;
Ampolex v Perpetual Trustee Company (Canberra) Ltd (1966) 137 ALR 28;
Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 153 ALR 393;
Adelaide Steamship Company Ltd v Spalvins (1998) 152 ALR 418;
Southern Cross Airlines Holdings Ltd (in liquidation) v Arthur Andersen & Co (1988) 28 ACSR 455.

DECISION: Access to documents referred to in para 1 given; access given to documents referred to in para 2 to the extent indicated, excluding masked portions.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMERCIAL DIVISION

50257/95

GILES J

Friday 25 June 1999

NRMA LTD & ORS v JOHN KERIN MORGAN
(t/as ALLEN ALLEN & HEMSLEY) & ORS
JUDGMENT

1    GILES JA: I published reasons in these proceedings on 13 May 1999. For present purposes little knowledge of the proceedings is necessary, but in what follows I assume familiarity with those reasons. I also use the acronyms and abbreviations used in the reasons.
2    The proceedings included cross-claims by each of AAH, AT and Mr Heydon against the others of them for indemnity or contribution. The cross-claims were pursuant to s 5 of the LR Act or, as they said, "in equity". By notice of motion filed on 20 May 1999 AT sought leave to file a further cross-claim against Mr Heydon. In the proposed further cross-claim it alleged, first, that Mr Heydon owed to it a duty of care similar to that owed to the NRMA, that he was in breach of that duty of care, and that its damages for the breach of duty of care were the amount for which it was liable to the NRMA; and secondly, that Mr Heydon had been involved in contravention of s 42 of the FT Act and had breached s 996 of he Law and that AT had thereby suffered loss, being its costs and the amount for which it was liable to the NRMA. The hearing of the notice of motion, together with other notices of motion and questions outstanding in the proceedings, is to take place on 23 July 1999.
3    Accompanying the notice of motion was an affidavit of Mr Peter Kennedy sworn 20 May 1999. The affidavit adverted to the decision of the High Court in Astley v Austrust Ltd (1999) 8 HCA 6…

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 NRMA Ltd v Morgan (No 2)

Details

AGLC: NRMA Ltd v Morgan (No 2) [1999] NSWSC 694
Case: [1999] NSWSC 694
Decision Date: 25 June 1999

CaseChat Overview and Summary

NRMA Ltd v Morgan (No 2) involved the National Roads and Motorists' Association (NRMA) as the plaintiff and Morgan as the defendant. The dispute centred on the disclosure of the substance of privileged communications between the client and their legal counsel. The case was heard in the Supreme Court of New South Wales. The NRMA sought to establish that certain communications were privileged and could not be disclosed to the opposing party. This matter was a continuation of a previous litigation, addressing specific issues regarding the loss of privilege under the Evidence Act.

The legal issues the court needed to decide included whether the disclosure of the substance of communications between the client and counsel resulted in the loss of client legal privilege. Specifically, the court examined whether the privilege was lost by simply instructing counsel to advise or whether it was lost by revealing what the counsel had advised. The case hinged on the interpretation of section 122(2) of the Evidence Act, which sets out conditions under which legal professional privilege may be lost.

The court determined that the privilege was indeed lost by revealing the substance of the advice provided by the counsel. The disclosure of the substance of the communication, rather than merely instructing counsel to advise, was sufficient to constitute a loss of privilege under the Evidence Act. The court found that the act of disclosing the counsel's advice amounted to a breach of the confidentiality required to maintain privilege. This decision underscored the importance of maintaining the confidentiality of communications between a client and their legal counsel to preserve the privilege.

The court's final order confirmed that the disclosure of the counsel's advice resulted in the loss of privilege, and the disclosed information could be used in the proceedings. This ruling reinforced the principle that privilege is lost if the substance of the communication is revealed, even if the disclosure is inadvertent or made in the course of litigation.

Orders