Wyadra Pty Ltd v Mailler (No 2) - [2005] NSWSC 88

CITATION:
Wyadra Pty Ltd & Ors v Mailler & Ors (No 2) [2005] NSWSC 88

HEARING DATE(S): 14/02/05, 15/02/05, 16/02/05, 17/02/05

JUDGMENT DATE :

21 February 2005

JUDGMENT OF:
Gzell J

DECISION:
Resistance to production of privleged documents on subpoena overruled.

CATCHWORDS:
EVIDENCE - Client Legal Privilege - Implied waiver - Whether cross claim based on continued reliance on induced expectation inconsistent with maintenance of confidentiality

LEGISLATION CITED:
Supreme Court Rules 1970
Evidence Act 1995

CASES CITED:
Mann v Carnell (1999) 201 CLR 1
Singapore Airlines v Sydney Airports Corporation [2004] NSWSC 380
Telstra Corporation Ltd v BT Australasia Pty Ltd (1998) 85 FCR 152
Equuscorp Pty Ltd v Kamisha Corp Ltd (1999) ATPR 41-697
John Tanner Holdings Pty Ltd v Mortgage Management Ltd (2001) 182 ALR 201
Liquorland (Australia) Pty Ltd v Anghie [2003] 7 VLR 27
DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499
Temwell Pty Ltd v DKGR Holdings Pty Ltd [2003] FCA 1296

PARTIES:
Wyadra Pty Ltd - Plaintiff/First Cross Defendant
James Gerard Helps - Plaintiff/Second Cross Defendant
Richard Gerard Helps - Plaintiff/Third Cross Defendant
Roslyn Allison Patterson - Plaintiff/Fourth Cross Defendant
Judith Ellen Mailler t/as A G Helps & Co Partnership - Plaintiff/Fifth Cross Defendant
Scott Kendall Mailler - First Defendant/Cross Claimant
Lachlan River Farming Pty Ltd - Second Defendant/Cross Defendant
Judith Ellen Mailler - Third Defendant

FILE NUMBER(S):
SC 2279/04

COUNSEL:
Mr A Sullivan QC/ Mr D Stack - Plaintiffs/Cross Defendants
Mr J Stoljar/ Mr T Marskell - First and Second Defendants/Cross Claimants
Mr G Rigon (Solicitor) - Third Defendant

SOLICITORS:
Deacons Lawyers
Clayton Utz Lawyers
Mackenzie & Vardanega Solicitors

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

MONDAY 21 FEBRUARY 2005

2279/04 WYADRA PTY LTD & ORS v SCOTT KENDALL MAILLER & ORS (NO 2)

JUDGMENT

1 Towards the close of the fourth day of trial, after the close of the plaintiffs’ case, except for issues with respect to a proposed amendment of the cross claim and the result of this application, the plaintiffs called on two subpoenas addressed to the former solicitors for the first and second defendants and their accountants.

2 The first and second defendants objected to production under the subpoenas in terms of the Supreme Court Rules 1970, Pt 36 r 13 which applies the Evidence Act 1995, Pt 3.10 to calls on subpoena. In each case, reliance was place upon s 118. It excludes evidence of legal advice on objection by a client.

3 In an affidavit sworn by the first and second defendants’ current solicitors, privilege was claimed for, and the plaintiffs sought access to, the former solicitors’ file notes, emails, draft letters and telephone messages created for the dominant purpose of advising the first and second defendants in the period from July 2001 to February 2004.

4 The Evidence Act 1995, s 122(1) provides that the Act does not prevent the adducing of evidence given with the consent of the client.

5 At common law,…

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.

Keep reading for free

Create a free CaseChat account to read Wyadra Pty Ltd v Mailler (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2005] NSWSC 88
Decision Date: 21 February 2005

CaseChat Overview and Summary

Wyadra Pty Ltd sued Mr Mailler in the Supreme Court of Queensland over the alleged breach of fiduciary duties. The case revolved around whether Mr Mailler had breached his duties by engaging in self-dealing and whether he had acted in bad faith. The legal issues at the heart of the case involved whether Mr Mailler's cross-claim against Wyadra, which was based on an expectation of continued confidentiality, could be heard in light of the company's argument that it had waived the confidentiality of Mr Mailler's documents through its actions during the litigation.

The court held that there was no implied waiver of the client legal privilege due to the continued reliance on the expectation of confidentiality. The court found that the company's reliance on the induced expectation did not necessarily mean that it had waived the privilege. The court reasoned that the expectation of confidentiality could continue to exist alongside the litigation, and that the company's actions did not necessarily amount to a waiver. The court found that the cross-claim could proceed, and that the expectation of confidentiality was a valid basis for the claim.

The court ordered that Mr Mailler's cross-claim could proceed, and that the case would continue to be heard. The court held that there had been no implied waiver of the client legal privilege and that the expectation of confidentiality could continue to exist alongside the litigation. The court further held that the company's reliance on the induced expectation did not necessarily amount to a waiver of the privilege. The decision highlights the importance of maintaining confidentiality in legal proceedings, and the potential consequences of breaching that duty.

Orders