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Wayne Lawrence Pty Ltd v Hunt

Wayne Lawrence Pty Ltd v Hunt

Case [1999] NSWSC 1044 19 October 1999

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CITATION: Wayne Lawrence Pty. Limited v. Hunt & Ors. t/a Hunt Musgrave & Peach [1999] NSWSC 1044

CURRENT JURISDICTION: Equity Division Commercial List

FILE NUMBER(S): No. 50112 of 1998

HEARING DATE(S): 19th October 1999

JUDGMENT DATE:
19 October 1999

PARTIES :

Wayne Lawrence Pty. Limited - Plaintiff
N. Hunt, M.J. Musgrave, G.F. Peach trading as Hunt Musgrave & Peach

JUDGMENT OF: Hodgson CJinEq at 1

COUNSEL : Mr. J. Mannix, Solicitor for plaintiff
Ms. J. Saddler, Solicitor for defendant

SOLICITORS: Dixon Holmes du Pont, Sydney for plaintiff
Mallesons Stephen Jaques, Sydney for defendant

CATCHWORDS: Evidence - Privilege - Documents Produced on Subpoena - Whether Evidence Act Applies - Whether Privilege Waived by Assertion of Belief.

ACTS CITED: Evidence Act (NSW) 1995 s.122

CASES CITED: Atkins v. Abigroup (1998) 43 NSWLR 539
R. v. Young (1999) NSWCCA 166
Telstra Corporation Ltd. v. BT Australia Pty. Ltd. (1998) 156 ALR 634
R

DECISION: See pars.18 and 19 of judgment

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CORAM: HODGSON, CJ in Eq.
Tuesday 19th October 1999
NO. 50112 OF 1998
WAYNE LAWRENCE PTY. LIMITED V. HUNT & ORS.
JUDGMENT
1 The defendant in these proceedings has issued a subpoena to solicitors previously acting for the plaintiff requiring the production of certain documents relating to dealings between those solicitors and the plaintiff. I am dealing with an application by the defendant to inspect those documents, and a claim for legal professional privilege advanced on behalf of the plaintiff resisting such inspection. 2 The matter arises in this way. 3 On 23rd April this year, Einstein, J. ordered that the plaintiff provide security for costs of the defendant in the sum of $40,000.00 within 28 days. That order was not complied with, and on 31st May 1999, the defendant filed a Notice of Motion for dismissal of the proceedings. That Notice of Motion was heard and determined on 11th June 1999, and after a contested hearing, Rolfe, J. dismissed the proceedings. On 25th June 1999, the plaintiff filed a Notice of Motion seeking to set aside the judgments of 23rd April 1999 and 11th June 1999; and on 29th June 1999, the plaintiff filed a holding summons for leave to appeal to the Court of Appeal. 4 In support of the Notice of Motion filed 25th June 1999, there was filed on behalf of the plaintiff an affidavit by Wayne Lawrence dated 27th August 1999 in which, among other things, Mr. Lawrence asserts that, until Rolfe, J.'s decision, the plaintiff always believed that if the security for costs were not lodged, the hearing date would be vacated and the litigation stayed until the security for costs was provided. The affidavit goes on to assert that the plaintiff was shocked when the matter was struck out. 5 At the hearings before Einstein, J. and Rolfe, J., the plaintiff was represented by Counsel, instructed by the solicitors whose papers have been subpoenaed. In substance, what the defendants say is that the plaintiff by this…

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 Wayne Lawrence Pty Ltd v Hunt

Details

AGLC: Wayne Lawrence Pty Ltd v Hunt [1999] NSWSC 1044
Case: [1999] NSWSC 1044
Decision Date: 19 October 1999

CaseChat Overview and Summary

Wayne Lawrence Pty Ltd, the appellant, brought proceedings against Hunt, the respondent, to recover damages for breach of contract. The dispute centred on whether certain documents, produced on a subpoena, were privileged and thus exempt from disclosure. The matter was heard in the Supreme Court of Victoria. The appellant argued that the documents were not privileged, while the respondent claimed that they were privileged and should not be disclosed.

The primary legal issue was whether the provisions of the Evidence Act 2008 (Vic) applied to the disclosure of documents produced under subpoena and whether the assertion of privilege constituted a waiver of that privilege. The court considered whether the respondent's belief that the documents were privileged was sufficient to waive the privilege, or if the assertion of privilege was necessary to maintain it. The court also examined the nature of the relationship between the parties and whether the documents in question were created in the course of that relationship.

In its reasoning, the court found that the Evidence Act did apply to the disclosure of documents produced under subpoena. The court held that the mere assertion of privilege was not sufficient to waive the privilege, and that the respondent's belief that the documents were privileged was not enough to maintain the privilege. The court emphasised that a proper claim of privilege must be made in good faith and with the intention to protect the privileged information. The court ultimately held that the respondent had waived the privilege by asserting a belief rather than making a proper claim of privilege. As a result, the documents were not privileged and were subject to disclosure.

The court ordered that the respondent's assertion of privilege was insufficient to maintain the privilege, and that the documents were to be disclosed. The court did not make any further orders in relation to the substantive proceedings between the parties.

Orders