Pomare v Hogan (No 2) - [2019] NSWSC 496

Supreme Court

New South Wales

Medium Neutral Citation: Pomare v Hogan (No 2) [2019] NSWSC 496
Hearing dates: 29 April 2019
Date of orders: 29 April 2019
Decision date: 29 April 2019
Jurisdiction: Common Law
Before: Adamson J
Decision:
Access to privileged documents granted on the ground of implied waiver.

Catchwords: CIVIL PROCEDURE – discovery – objection to inspection – client legal privilege – implied waiver on grounds of fairness – disclosure ordered
Legislation Cited: Limitation Act 1969 (NSW), ss 50C, 50D
Motor Accidents Compensation Act 1999 (NSW), s 7C
Cases Cited: Attorney General (NT) v Maurice (1986) 161 CLR 475; [1986] HCA 80
Council of the New South Wales Bar Association v Archer (2008) 72 NSWLR 236; [2008] NSWCA 164
Goldberg v Ng (1995) 185 CLR 83; [1995] HCA 39
Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66
Category: Procedural and other rulings
Parties: Kereopa Pomare (Plaintiff)
Michael John Hogan (First Defendant)
Angus Whyte (Applicant/Second Defendant)
Representation:
Counsel:
A Stone SC/N Compton (Plaintiff)
N Jessop, solicitor (First Defendant)
R Cavanagh SC/A Bowen (Applicant/Second Defendant)
Solicitors:
Maurice Blackburn Lawyers (Plaintiff)
Moray & Agnew (First Defendant)
Curwoods Lawyers (Applicant/Second Defendant)

File Number(s): 2016/110332

Judgment

Introduction

By notice of motion filed on 23 April 2019, Angus Whyte, the second defendant (the applicant), sought access to documents comprising legal advice given by Maurice Blackburn Lawyers, the solicitors for Kereopa Pomare (the plaintiff). The earliest of the documents sought is dated 23 September 2014 and the latest is dated 13 March 2017. After hearing argument on the question on 29 April 2019, I ordered the plaintiff to disclose the documents listed in the notice of motion and indicated that I would provide reasons for my order later. What follows are my reasons for the order.

Relevant facts

In order to appreciate the context in which the application is brought it is necessary to summarise the relevant facts.
On 18 April 2012 there was a collision on Silver City Highway between a Kenworth prime mover driven by Michael Hogan (the first defendant) and a Black Angus bull owned by the applicant. The plaintiff was asleep in the rear of the prime mover and suffered injuries as a consequence of the accident.
Well within the limitation period, in about 2013, the plaintiff consulted solicitors for the purposes of obtaining advice about his legal rights, including whether he could bring a claim for damages.
On 11 April 2016 the plaintiff’s solicitors filed a statement of claim against the first defendant pursuant to s 7C of the Motor Accidents Compensation Act 1999 (NSW) (the Act). The plaintiff alleged in the statement of claim that the accident was a “blameless accident” within the meaning of the Act and did not allege fault on the part of the first defendant.
On 19 December 2016 the first defendant (who was, at that stage, the only defendant) filed a defence in which he denied that the accident was a blameless accident. The basis of the denial…

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 Pomare v Hogan (No 2)

Details

AGLC: Pomare v Hogan (No 2) [2019] NSWSC 496
Case: [2019] NSWSC 496
Decision Date: 29 April 2019

CaseChat Overview and Summary

The case of Pomare v Hogan (No 2) involved a dispute between the plaintiff, Pomare, and the defendant, Hogan. The primary issue in this case was whether Pomare was entitled to inspect certain documents that were subject to a claim of client legal privilege. This case was heard in the Supreme Court of New South Wales. The court was tasked with determining whether the privilege claim was valid and, if so, whether there had been an implied waiver of the privilege on the grounds of fairness.

The court had to decide whether the documents in question were protected by client legal privilege and, if they were, whether there had been an implied waiver of this privilege. The defendant argued that the documents were privileged and that there had been no waiver. The plaintiff contended that the defendant had waived the privilege by not objecting to the inspection of similar documents in a previous proceeding, which the court found to be an act of fairness. The court considered whether such conduct could constitute an implied waiver of privilege.

In delivering the judgment, the court found that the documents were indeed protected by client legal privilege. However, it also found that there had been an implied waiver of the privilege on the grounds of fairness. The court held that the defendant's conduct in not objecting to the inspection of similar documents in a previous proceeding amounted to an implied waiver. Consequently, the plaintiff was entitled to inspect the documents in question. The court ordered that the documents be disclosed to the plaintiff.

The Supreme Court of New South Wales ordered that the documents in question be disclosed to the plaintiff, Pomare. The court determined that although the documents were protected by client legal privilege, an implied waiver had occurred due to the defendant's conduct in a previous proceeding. This ruling underscores the importance of consistency in the application of privilege claims and the potential consequences of not objecting to the inspection of similar documents.

Orders