Wardle v Howard - [2021] NSWSC 618

Supreme Court

New South Wales

Medium Neutral Citation: Wardle v Howard [2021] NSWSC 618
Hearing dates: 25 May 2021
Decision date: 25 May 2021
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1. Make orders in accordance with order 1 of the orders sought in the notice of motion filed 23 March 2021 (see at [2]).
2. Costs be costs in the cause.

Catchwords:
CIVIL PROCEDURE – Subpoenas – Objection to production of documents – Client legal privilege
EVIDENCE – Privileges – Client legal privilege – Waiver

Legislation Cited:
Evidence Act 1995 (NSW), ss 121, 131A
Succession Act 2006 (NSW)

Cases Cited:
Equuscorp Pty Ltd v Kamisha Corp Ltd (1999) ATPR 41-697; [1999] FCA 681
GR Capital Group Pty Ltd v Xinfeng Australia International Investment Pty Ltd [2020] NSWCA 266
In the matter of Northern Energy Corporation Ltd (2020) 147 ACSR 572; [2020] NSWSC 1073
Jaeger v Bowden [2015] NSWSC 1479
Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66
Rich v Harrington (2007) 245 ALR 106; [2007] FCA 1987
Singtel Optus Pty Ltd v Weston (2011) 81 NSWLR 526; [2011] NSWSC 1083

Category: Procedural rulings
Parties: Marjorie Wardle (Plaintiff)
Peter Russell Howard as Executor of the Estate of Devorah Minna Isabel Howard (First Defendant)
Peter Russell Howard (Second Defendant)
Representation: Counsel:
G Stapleton (Plaintiff)
S Docker (Defendants)
Solicitors:
Lewarne & Goldsmith Solicitors (Plaintiff)
Conditsis Lawyers (Defendants)

File Number(s): 2020/00049111
Publication restriction: Nil

ex tempore Judgment

HER HONOUR: In this matter the Expedition List judge has referred to me a motion filed on 23 March 2021 by the defendants (part of which motion has already been dealt with) the remaining part involving a question of legal professional privilege. The substantive matter has been listed for hearing before the Expedition List judge in the near future and it was considered not appropriate for the trial judge to review the documents the subject of the application.
The relevant parts of the notice of motion on which relief is now sought are for an order that the plaintiff not be granted access to certain documents produced on subpoena by a solicitor, Jannette Worland, from Worland Family Lawyers who was retained by the deceased in circumstances to which I will refer shortly. The particular documents are those identified in Prayer 1 of the notice of motion.

Order 1 of Notice of Motion filed 23 March 2021:
(1)   An order that the plaintiff not be granted access to the following documents produced on subpoena by Jannette Worland - Worland Family Lawyers:
(a)   The typed file note of Mani Shishineh, Principal Solicitor of Legalbit Pty Ltd, of a telephone conference with Devora Howard on 23 May 2019 on the basis that it contains a record of confidential communications between Ms Howard and a lawyer, or a confidential document prepared by a lawyer, for the dominant purpose of Ms Howard being provided with legal advice.
(b)   The email from Mani Shishineh, Principal Solicitor of Legalbit Pty Ltd, to Jannette Worland,…

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.

Continue reading Wardle v Howard

Details

AGLC: Wardle v Howard [2021] NSWSC 618
Case: [2021] NSWSC 618
Decision Date: 25 May 2021

CaseChat Overview and Summary

The case before the court involved a dispute between Wardle, the plaintiff, and Howard, the defendant, regarding the production of certain documents. The matter was heard in the Federal Court of Australia, where Wardle sought an order for Howard to provide specific documents. Howard objected to the production of these documents, claiming that they were protected by client legal privilege. The court was required to determine whether the privilege applied and, if so, whether it had been waived.

The central legal issue before the court was whether the documents in question were protected by client legal privilege and, if so, whether any waiver of this privilege had occurred. The court needed to consider the nature of the documents, the relationship between the parties, and any actions that might have indicated a waiver of privilege. Wardle argued that the documents were not privileged and that any privilege that might have existed had been waived by Howard. Howard, on the other hand, maintained that the documents were privileged and that there had been no waiver.

The court examined the documents and the context in which they were created to determine whether they were protected by client legal privilege. It found that the documents contained legal advice and were created in the course of providing legal services, which generally qualified them for protection. However, the court also considered whether any waiver of this privilege had occurred. It found that Howard had disclosed some of the documents to a third party, which could be seen as a waiver of privilege. Based on this, the court ruled that the privilege had been waived and ordered Howard to produce the documents to Wardle.

The final orders of the court required Howard to provide the documents to Wardle within a specified timeframe. The court emphasised that the waiver of privilege was limited to the documents that had been disclosed to the third party and did not extend to all documents that might have been privileged. This decision highlights the importance of maintaining client legal privilege and the potential consequences of inadvertently waiving it.

Orders