Smith v Australian Executor Trustees Limited; Creighton v Australian Executor Trustees Limited (No 2)

In this case, Smith and Creighton, the plaintiffs, sought to challenge the decision of the defendant, Australian Executor Trustees Limited, regarding the disclosure of certain privileged documents. The plaintiffs argued that the defendant had improperly disclosed documents that were subject to client legal privilege. The dispute was heard and determined in the Supreme Court of New South Wales.

The central legal issues before the court involved the scope and extent of client legal privilege, particularly whether the privilege could be lost under section 122(2) of the Evidence Act 1995 (NSW). Specifically, the court had to consider whether the plaintiffs' conduct was inconsistent with maintaining the confidentiality of the privileged documents, and whether such inconsistency could occur when the plaintiffs relied on the same documents in their pleadings. Additionally, the court examined whether the forensic advantage gained by the disclosure of privileged documents was relevant in assessing inconsistency.

The court found that the plaintiffs' reliance on privileged documents in their pleadings did not inherently create an inconsistency with the maintenance of privilege. However, the court also held that the forensic advantage derived from the disclosure of privileged documents could be considered in determining whether the plaintiffs' conduct was inconsistent with the preservation of confidentiality. The court concluded that the plaintiffs had not demonstrated that their conduct was inconsistent with the maintenance of the privilege, and thus, the disclosure did not render the documents inadmissible.

The final orders of the court were that the plaintiffs' claims regarding the loss of privilege were dismissed, and the defendant's disclosure of the documents was upheld as permissible. The court did not grant any relief to the plaintiffs on the grounds of privilege.