Newman v Whittington [2022] NSWSC 160

Supreme Court New South Wales

Medium Neutral Citation: Newman v Whittington [2022] NSWSC 160 Hearing dates: On the papers Date of orders: 24 February 2022 Decision date: 24 February 2022 Jurisdiction: Common Law Before: Beech-Jones CJ at CL Decision: (1) The defendant/cross‑claimant's application for access to the document produced in answer to paragraph 4 of his notice to produce issued on 17 January 2022 be refused. (2) The defendant/cross‑claimant be granted access to the documents produced in answer to paragraphs 6, 11, 12, 13 and 14 of his notice to produce issued on 17 January 2022. (3) Each party's costs of the dispute about access to documents produced in response to the defendant's notice to produce dated 17 January 2022 be their costs in the cause. Catchwords: CLIENT LEGAL PRIVILEGE – defamation proceedings – waiver – no question of principle Legislation Cited: Evidence Act 1995 (NSW), ss 118, 122, 131A Cases Cited: DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499; [2003] FCA 384 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303; [2013] HCA 46 Category: Procedural rulings Parties: Jasmin Newman (Plaintiff) Adam Whittington (Defendant) Representation: Counsel: R Armitage (Plaintiff) T Smart (Defendant)

Solicitors: In person (Plaintiff) In person (Defendant) File Number(s): 2021/35572

Judgment 1. This judgment concerns a claim by the plaintiff, Jasmin Newman, to resist inspection of documents produced by her under a notice to produce issued by the defendant/cross claimant, Adam Whittington, on the basis that they are subject to client legal privilege. The substantive proceedings are being case managed by Sackar J. In order to not prejudice his Honour's ability to hear the substantive proceedings, the dispute about privilege was referred to me. I have inspected the documents in dispute. By agreement with the parties the matter was determined on the papers and with the benefit of short written submissions. 2. Both parties sue each other in defamation. The pleadings are in a state of flux as, when the proceedings were commenced and for a significant period thereafter, both parties were self-represented. They each obtained legal representation in November 2021. It suffices to state that the alleged defamatory publications all concern the topic of the forced "rescue" or removal of children involved in either family law disputes or circumstances where they are said to be exposed to harm. In his cross claim, or at least proposed cross claim, Mr Whittington alleges, inter alia, that he is a founder of a charity known as "Project Rescue Children" and is involved in a company known as "Child Abduction Recovery International". He alleges Ms Newman defamed him in a book she authored and published entitled "The Child Snatchers" and, in particular, in a chapter entitled "The Lebanon Debacle". In her statement(s) of claim, Ms Newman contends that she is a "Family Dispute Resolution Practitioner" and that Mr Whittington defamed her in a series of "blogs" and social media postings between December 2019 and October 2021. Amongst the many imputations she pleads that Mr Whittington published concerning her, are the imputations that she is a "fraud" and "has for years attacked any women protecting their kids from paedophiles". 3. On the day she filed her original statement of claim, namely 8 February 2021, Ms Newman also filed and served an affidavit. The affidavit includes a discussion about the events surrounding the publication of "The Child Snatchers" and the publications by Mr Whittington of which she complains. On 17 January 2022, Mr Whittington issued a notice to produce to Ms Newman seeking the production of various documents referred to in Ms Newman's affidavit. In the end, this dispute concerns access to six documents referred to in Ms Newman's affidavit which are sought by the notice to produce. Section 131A of the Evidence Act 1995 (NSW) operates to extend the operation of Division 1 of Part 3.10, which concerns client legal privilege, to various pre-trial disclosure requirements including notices to produce.