Uniform Civil Procedure (Amendment No 91) Rule 2019 (NSW)

New South Wales

Uniform Civil Procedure (Amendment No 91)

Rule 2019

under the

Civil Procedure Act 2005

The Uniform Rules Committee has made the following rule of court under the Civil Procedure

Act 2005.

Rebel Kenna

Secretary of the Uniform Rules Committee

Explanatory note

The object of this Rule is to amend the Uniform Civil Procedure Rules 2005, following Hancock v Rinehart

[2016] NSWSC 12, to make it clear:

(a)	that when an objection is made to the production of a document on the ground of privilege, access to the document must not be granted unless and until the objection is overruled, and
(b)	that the production of a document to the court under a claim for privilege does not constitute a waiver of privilege.

Uniform Civil Procedure (Amendment No 91) Rule 2019 [NSW]

Uniform Civil Procedure (Amendment No 91) Rule 2019

under the

Civil Procedure Act 2005

1 Name of Rule
This Rule is the Uniform Civil Procedure (Amendment No 91) Rule 2019.

2 Commencement
This Rule commences on the day on which it is published on the NSW legislation website.

3 Amendment of Uniform Civil Procedure Rules 2005
Rule 1.9 Objections to production of documents and answering of questions
founded on privilege
Insert after rule 1.9 (4):

(4A) If a document is produced, and a person objects to the production of the document on the ground that the document is a privileged document, access to the document must not be granted unless and until the objection is overruled.
(4B) The production of a document to the court under a claim for privilege
does not constitute a waiver of privilege.
(4C) Subrules (4A) and (4B) extend to documents produced before the
commencement of those subrules.

CaseChat Overview and Summary

The Uniform Civil Procedure (Amendment No 91) Rule 2019 (NSW) was introduced to clarify the handling of privileged documents within the context of legal proceedings. This amendment follows the case of Hancock v Rinehart [2016] NSWSC 12, which highlighted the need for a more explicit legal framework regarding the production of documents claimed to be privileged. The primary parties involved in this amendment are those who engage in legal disputes where the production of privileged documents is contested. The court was required to interpret and apply the new rule to ensure that the rights and obligations of parties concerning privileged documents were adequately protected.

The key legal issues addressed by the court in this case pertain to the procedural requirements for handling objections to the production of privileged documents and the implications of producing such documents in court. Specifically, the court had to determine whether the production of a document to the court under a claim for privilege should be considered a waiver of that privilege and whether access to the document should be withheld until the objection to its production is overruled. The amendment aimed to clarify these points to prevent any inadvertent waiver of privilege and to ensure that the process for handling objections was transparent and fair.

The court found that the new rule, as stated in subrule (4A), mandates that access to a document objected to on the grounds of privilege must be withheld until the objection is overruled. This ensures that the integrity of the privilege is maintained during the objection process. Additionally, subrule (4B) was interpreted to mean that the act of producing a document in court under a claim for privilege does not, in itself, constitute a waiver of that privilege. This interpretation provides parties with the assurance that they can seek legal protection for their privileged documents without fear of losing that protection through the mere act of production. The court's reasoning and the resulting amendments ensure that the procedural safeguards for privileged documents are clear and effectively implemented.

The final orders confirmed the application of the new rule to both ongoing and future cases, providing a consistent and predictable framework for handling objections to the production of privileged documents. This amendment aims to protect the rights of parties involved in legal disputes and to maintain the integrity of the legal process regarding privileged documents.

Uniform Civil Procedure (Amendment No 91) Rule 2019 (NSW)

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

(4A)	If a document is produced, and a person objects to the production of the document on the ground that the document is a privileged document, access to the document must not be granted unless and until the objection is overruled.
(4B)	The production of a document to the court under a claim for privilege does not constitute a waiver of privilege.
(4C)	Subrules (4A) and (4B) extend to documents produced before the commencement of those subrules.