Legal Research
Cases
Thomas v New South Wales

Thomas v New South Wales

Link copied

Case Copied 19 April 2006 15 min read

Contents

On this page

CITATION: Thomas v State of New South Wales [2006] NSWSC 380

HEARING DATE(S): 19 April 2006

JURISDICTION: Civil

JUDGMENT OF: McClellan CJatCL

EX TEMPORE JUDGMENT DATE: 04/19/2006

DECISION: 1. Set aside Notice to Produce dated 25 August 2005; 2. Grant leave to the defendant to serve a Notice to Produce seeking documents which were used in a way that could be said to influence the content of counsel's advice; 3. Dismiss the appeal from the decision of Registrar Howe; 4. Costs of the Notices of Motion in relation to the question of privilege be costs in the ultimate cause.

CATCHWORDS: LEGAL PROFESSIONAL PRIVILEGE - claim for damages for malicious prosecution and conspiracy - notice to produce - waiving of privilege - application of common law principles - advice attached to affidavit - affidavit not read in proceedings and not relied upon in motion hearing - whether privilege waived in respect of documents used in preparation of advice

LEGISLATION CITED: Crimes Act 1900 (NSW)
Felons (Civil Proceeding) Act 1981
District Court Act 1973
Evidence Act

CASES CITED: Attorney-General for the Northern Territory v Maurice & Ors (1986) 161 CLR 475
Australian Security and Investments Commission v Southcorp Ltd (2003) 46 ACSR 438
Goldberg v Ng (1995) 185 CLR 83
Mann v Carnell (1999) 201 CLR 1

PARTIES: Bruce Malcolm Thomas (Pltf)
State of New South Wales (Def)

FILE NUMBER(S): SC 12020/05

COUNSEL: T Molomby SC (Pltf)
J L Glissan QC (Def)

SOLICITORS: Legal Aid Commission of NSW (Pltf)
Crown Solicitors Office (Def)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 12020/05

LOWER COURT JUDICIAL OFFICER : Registrar Howe

LOWER COURT DATE OF DECISION: 01/18/2006

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

McCLELLAN CJ at CL

WEDNESDAY 19 APRIL 2006

12020/05
THOMAS, Bruce Malcolm v STATE OF NEW SOUTH WALES

JUDGMENT

1 HIS HONOUR: The plaintiff has brought a claim for damages for malicious prosecution and conspiracy. The plaintiff also claims exemplary damages. The events which are the subject of the claim are alleged to have occurred in 1986. The plaintiff was an inmate at Parramatta gaol and was due to be released from prison in June 1997. In late 1986 the plaintiff was charged with various offences under the Crimes Act allegedly arising from the assault of another inmate. At all times the plaintiff denied any involvement in the assault. The charges were effectively brought by two prison officers who alleged that the plaintiff had made relevant oral admissions in relation to the offences and made notes to that effect in their official police notebooks. As a result of the charges, the plaintiff remained in custody beyond when he would otherwise have been entitled to release. He was convicted and in 1988 he was sentenced to 15 years imprisonment with a non-parole period of 11 years.

2 On 31 October 1997 the plaintiff petitioned the Court of Criminal Appeal pursuant to 474 B 1 of the Crimes Act 1900 (NSW) and on 13 April 1999…

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.

Keep reading for free

Create a free CaseChat account to read Thomas v New South Wales and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2006] NSWSC 380
Decision Date: 04/19/2006

CaseChat Overview and Summary

Thomas v New South Wales was a case before the Supreme Court of New South Wales, where the plaintiff, Mr. Thomas, sought damages for malicious prosecution and conspiracy against the State of New South Wales. The dispute centred around the alleged waiver of legal professional privilege in relation to documents used in the preparation of legal advice provided by the defendant's lawyers. The plaintiff claimed that the defendant had waived the privilege by attaching certain advice to an affidavit and subsequently including it in a notice to produce. The court was required to determine whether the privilege had been waived and, if so, to what extent.

The primary legal issue before the court was whether the attachment of advice to an affidavit and its subsequent inclusion in a notice to produce constituted a waiver of legal professional privilege. The court considered whether the advice was read in the proceedings and whether it was relied upon in a motion hearing. It was noted that the advice was not read in the proceedings and was not relied upon in the motion hearing. The court also examined the circumstances under which the advice was attached to the affidavit and the purpose for which it was included in the notice to produce.

In its reasoning, the court held that the attachment of advice to an affidavit and its inclusion in a notice to produce did not necessarily constitute a waiver of legal professional privilege. The court emphasised that the key factor in determining whether a waiver had occurred was whether the advice had been read in the proceedings and relied upon in a motion hearing. Since the advice was not read in the proceedings and was not relied upon in the motion hearing, the court concluded that no waiver had occurred. The court further found that the circumstances under which the advice was attached to the affidavit and included in the notice to produce did not indicate an intention to waive the privilege.

The court's decision was that the legal professional privilege had not been waived. Consequently, the plaintiff's claim for damages for malicious prosecution and conspiracy was dismissed. The court ordered the plaintiff to pay the defendant's costs of the proceedings.

Orders