Vashisht Family Pty Ltd atf the Vashisht Family Trust v ADDS (NSW) Pty Ltd; ADDS (NSW) Pty Ltd v Vikas Vashisht

Vashisht Family Pty Ltd atf the Vashisht Family Trust and ADDS (NSW) Pty Ltd were involved in a dispute concerning a series of transactions involving the sale of rural roadside service stations. The plaintiffs alleged that the defendants breached contractual agreements and engaged in misleading and deceptive conduct, while the defendants cross-claimed for misleading and deceptive conduct, outstanding payments, and termination of a sale agreement. The central issue in this case was the admissibility of certain communications between the plaintiffs’ solicitor and the joint solicitor who was engaged by both parties for the transactions. The defendants sought to subpoena these communications, arguing that they were relevant to their cross-claims. The court had to determine whether the matter of granting access to these communications should be governed by the common law principles of legal professional privilege or by the statutory client privilege under the Evidence Act 1995.

The court examined whether the questioned communications were protected by legal professional privilege or client privilege. It found that the communications were made in the course of the joint solicitor's role in facilitating the transactions and were thus covered by legal professional privilege. The court further considered whether any privilege had been waived due to the plaintiffs and defendants retaining the joint solicitor. It held that no waiver occurred because the joint solicitor was engaged to act in the common interest of both parties, and thus, the communications were protected by common interest privilege. The court also ruled that the statutory client privilege under the Evidence Act 1995 did not apply because the plaintiffs and defendants were not clients of the joint solicitor in the relevant sense. Therefore, the defendants' application to access the questioned communications was dismissed.

The court's final orders were that the defendants' application to subpoena the questioned communications from the joint solicitor was dismissed. The court held that the communications were protected by common interest privilege and that no statutory client privilege under the Evidence Act 1995 applied in this context. This decision underscored the importance of the nature of the solicitor's engagement in determining the scope of privilege and reinforced the distinction between common interest privilege and statutory client privilege.