Waugh Asset Management v Merrill Lynch

Waugh Asset Management, a plaintiff, sought access to documents produced on subpoena by Merrill Lynch, a third party. The dispute was heard in the Supreme Court of New South Wales. The plaintiffs sought access to the documents on the basis that they were necessary to understand the state of mind of a party from whom another document had been produced. The central legal issues the court had to decide were whether the question of access to these documents was determined under the Evidence Act 1995, the Uniform Civil Procedure Rules rule 1.9, or the common law, and whether client legal privilege had been waived.

The court held that the question of access to the documents was governed by the Evidence Act, not the common law or UCPR rule 1.9. The court found that the plaintiffs had not established that the documents in question were the underlying documents that informed the state of mind of the party from whom another document had been produced. Furthermore, the court found that there had been no waiver of client legal privilege. The plaintiffs' application for access to the documents was dismissed.

The final orders of the court were that the plaintiffs' application for access to the documents produced on subpoena by Merrill Lynch was dismissed. The court found that the documents were not the underlying documents that informed the state of mind of the party from whom another document had been produced, and that there had been no waiver of client legal privilege. The plaintiffs were ordered to pay Merrill Lynch's costs of the application.