WENTWORTH v De Montfort (on application to set aside pars 7 and 9 of notice to produce)

In *Wentworth v De Montfort (on application to set aside pars 7 and 9 of notice to produce)* [1989] NSWCA 226, the New South Wales Court of Appeal considered an application by the plaintiff, Wentworth, to set aside paragraphs 7 and 9 of a notice to produce issued by the defendant, De Montfort.

The central legal issues before the Court of Appeal were whether paragraphs 7 and 9 of the notice to produce sought documents that were privileged from production and, if so, whether the privilege had been waived. Specifically, the court had to determine if the documents sought were protected by legal professional privilege and if the plaintiff's actions in disclosing certain related documents constituted a waiver of that privilege over the remaining documents.

The Court of Appeal, applying established principles of legal professional privilege, found that the documents sought in paragraphs 7 and 9 were indeed privileged. However, it also held that the plaintiff had waived privilege over these documents by disclosing other documents that were so intimately connected with the privileged documents that it would be unfair to allow the plaintiff to maintain privilege over the latter while relying on the former. The court reasoned that the disclosure of the related documents had put the plaintiff's state of mind and the advice received in issue, thereby necessitating the production of the remaining privileged documents to ensure a fair trial.

Consequently, the Court of Appeal dismissed the plaintiff's application to set aside paragraphs 7 and 9 of the notice to produce.