Sugden v Sugden

The appeal concerned the discoverability of certain documents, specifically file notes of instructions given by the appellant to his solicitor and a draft statement prepared by an investigator. The respondent, the appellant's son, had instructed his own solicitor, and the appellant had provided instructions to that solicitor, as well as instructing his own solicitor in relation to police inquiries. The central dispute revolved around whether these documents were protected by client legal privilege under the *Evidence Act 1995* (NSW) (as applied in the relevant jurisdiction).

The court was required to determine whether the file notes of instructions given by the appellant to the respondent's solicitor, and subsequently to his own solicitor, constituted confidential communications or confidential documents prepared for the dominant purpose of providing legal advice or for use in anticipated or pending proceedings. Additionally, the court had to consider whether a draft statement, taken by an investigator for the respondent's solicitor from the appellant and later settled by counsel, was a privileged document. The court also had to assess whether any privilege that might have existed had been lost under sections 122 or 124 of the *Evidence Act 1995* (NSW).

The court reasoned that client legal privilege, as defined in sections 118 and 119 of the *Evidence Act 1995* (NSW), protects confidential communications and documents made for the dominant purpose of giving legal advice or for use in anticipated or pending litigation. It was held that a document can be privileged even if the communication it records was not confidential, provided the document itself was brought into existence for the dominant purpose of legal advice or litigation. The court applied this principle to find that the file notes and the draft statement were indeed privileged, as they were created for the dominant purpose of obtaining legal advice and for use in anticipated proceedings. The court found no basis for the loss of privilege under the relevant sections of the Act.

The appeal was dismissed with costs, with the court agreeing that the documents in question were protected by client legal privilege.