Silver v Dome Resources Nl - [2005] NSWSC 349

CITATION:
Silver v Dome Resources NL [2005] NSWSC 349

HEARING DATE(S): 13 April 2005

JUDGMENT DATE :

13 April 2005

JURISDICTION:
Equity

JUDGMENT OF:
Hamilton J

DECISION:
Documents admitted as business records. Legal professional privilege in respect of other documents required to be produced taken to have been given up.

CATCHWORDS:
EVIDENCE [75] - Facts excluded from proof - On grounds of privilege - Professional confidence - Legal profession - General principles - Evidence Act 1995 (NSW) - Privilege at common law - Waiver of privilege.

LEGISLATION CITED:
Evidence Act 1995 ss 55, 69, 122

CASES CITED:
Claremont Petroleum NL v Cummings (1992) 9 ACSR 1
Odgers, Uniform Evidence Law (6th ed 2004) [1.3.11060]

PARTIES:
Michael Bernard Silver (P1 & XD1)
Fair Choice Limited (P2 & XD2)
Dome Resources NL (D1 & XC1)
Durban Roodepoort Deep Limited (D2 x XC2)

FILE NUMBER(S):
SC 2586/01

COUNSEL:
J E Thomson and M J Watts (Ps & XDs)
T G R Parker (Ds & XCs)

SOLICITORS:
Bull, Son & Schmidt (Ps & XDs)
Allens Arthur Robinson (Ds & XCs)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

WEDNESDAY, 13 APRIL 2005

2586/01 MICHAEL BERNARD SILVER & ANOR v DOME RESOURCES NL & ANOR

JUDGMENT

1 HIS HONOUR: Mr T G R Parker, of counsel for the defendants, has tendered a small bundle of documents dating from October and November 1998, which he says amplifies the communications between Minter Ellison and Mr Hutt during that period, that being the time at which the written communications between Minter Ellison and Mr Hutt that are Exhibits D and E were made.

2 Over Mr Parker's objection, I admitted Exhibits D and E as being relevant documents, in that they could rationally affect, directly or indirectly, the assessment of the probability of the content of the communications between Mr Silver and Mr Hutt which had been previously led in evidence: see s 55 of the Evidence Act 1995 (“the EA”).

3 Mr Thomson, leading counsel for the plaintiffs, objected to the documents in the first instance as irrelevant. As I understand it, upon it becoming plain from an examination of the first two documents, being a note of a telephone conversation and a note of a conference, both dated 6 October 1998, which were records of communications with Mr Hutt, the telephone conversation and the conference being with him, Mr Thomson did not in reality pursue those objections to those documents.

4 As to the third document, this is a note in a different handwriting of a conference bearing date 9 October 1998. Mr Parker pressed on me that I should find that it was in the same category, but in my view this is not established. In truth, upon a close examination of the document, it seems to me that the probabilities are that the conference recorded was not with Mr Hutt, but was an internal conference between different persons within Minter Ellison. In those circumstances it seems…

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 Silver v Dome Resources Nl

Details

AGLC: Silver v Dome Resources NL [2005] NSWSC 349
Case: [2005] NSWSC 349
Decision Date: 13 April 2005

CaseChat Overview and Summary

In the case of Silver v Dome Resources NL, the plaintiff, Silver, brought an action against the defendant, Dome Resources NL, regarding certain documents that were sought to be disclosed as evidence in the proceedings. The matter was heard in the Supreme Court of New South Wales. The primary issue before the court was whether certain documents, which were created in the context of legal advice, were subject to legal professional privilege and thus exempt from disclosure.

The court had to determine whether the documents in question were protected by legal professional privilege and if any waiver of this privilege had occurred. The documents were created by a law firm retained by Dome Resources NL, and Silver argued that they should be disclosed as they were relevant to the case. Dome Resources NL, on the other hand, contended that the documents were privileged and should not be disclosed. The court considered the scope of legal professional privilege under the Evidence Act 1995 (NSW) and the principles established at common law.

The court found that the documents were indeed subject to legal professional privilege. The privileged nature of the documents was confirmed as they were created for the dominant purpose of providing legal advice. The court also examined whether there had been any waiver of privilege by Dome Resources NL. After reviewing the circumstances, the court concluded that no waiver of privilege had occurred. Consequently, the court ruled that the documents were protected and should not be disclosed. The court's decision was based on the understanding that the documents were created in the context of legal advice and that no circumstances existed that would lead to a waiver of privilege.

The final orders of the court were that the documents in question were protected by legal professional privilege and should not be disclosed in the proceedings. The court's decision reinforced the importance of protecting confidential communications between clients and their legal advisors.

Orders