Hall v Hall [2023] NSWSC 1230

Supreme Court New South Wales

Medium Neutral Citation: Hall v Hall [2023] NSWSC 1230 Hearing dates: 11 October 2023 Date of orders: 11 October 2023 Decision date: 11 October 2023 Jurisdiction: Equity - Applications List Before: Kunc J Decision: Registrar's decision set aside Catchwords: CIVIL PROCEDURE — Notices to produce — Before hearing — Solicitor expressly states that she informed herself from her file for purposes of swearing affidavit — Whether whole file liable to production — Whether implied waiver of client legal privilege Legislation Cited: Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1996) 40 NSWLR 12 GR Capital Group Pty Ltd v Xinfeng Australia International Investment Pty Ltd [2020] NSWCA 266 Hastie Group Limited (in liq) v Moore (2016) 339 ALR 635; [2016] NSWCA 305 Category: Procedural rulings Parties: David Gareth Hall (Plaintiff) Kimber John Hall (Defendant) Representation: Counsel: R Francois/H Robinson (Plaintiff) J Brown/R Size (Defendant) Solicitors: Brown Wright Stein (Plaintiff) Turnbull Hill Lawyers (Defendant) File Number(s): 2022/143444 Publication restriction: Nil

EX TEMPORE JUDGMENT (REVISED)

Summary 1. This is a motion for review of a decision of a registrar which, in effect, upheld a notice to produce for inspection issued by the defendant to the plaintiff. The plaintiff (the applicant on the motion for review) was represented Ms R Francois of Counsel with Ms H Robinson of Counsel. Mr J Brown of Counsel appeared with Mr R Size of Counsel for the defendant. 2. The plaintiff and defendant are brothers. By his will, their late father, Marshall John Hall, established the MJ Hall Testamentary Trust (the Trust). The defendant is the trustee of the Trust. In these proceedings, the plaintiff seeks the removal of his brother as trustee, to be replaced by two independent trustees. The plaintiff's solicitor is Ms Snezana Vojvodic, a partner in Brown Wright Stein Lawyers. 3. The plaintiff's case in chief is sought to be established by reference to the defendant's conduct as trustee, which is said to be evidenced by correspondence between the parties and their respective solicitors. That is not an uncommon course in cases such as this. 4. On 17 May 2022, Ms Vojvodic swore an affidavit (the First Affidavit) attaching the correspondence to be relied upon by the plaintiff and which included: "2. This affidavit is based on my own knowledge of the facts and information available to me, from my review of the file in relation to this matter and information provided to me by the Plaintiff." 1. The defendant contends that for the purpose of "testing" Ms Vojvodic's evidence, paragraph 2 of the First Affidavit and the fact that the plaintiff seeks to prove his case through Ms Vojvodic's affidavit gives rise to an entitlement as a matter of procedural fairness to access to the file to which she refers (I shall refer to it as the File). It is also said that paragraph 2 impliedly waives client legal privilege over anything in the File which might otherwise be subject to that privilege. 2. The defendant sought to make good this alleged entitlement by issuing a notice to produce for the File and then a motion for compliance with that notice. After a contested hearing, the registrar ordered that the plaintiff should comply with the notice to produce. The plaintiff has sought a review of that decision. 3. For the reasons which follow, the Court will set aside the learned registrar's orders. However, consistent with the overriding purpose, the Court will order production of a more refined category of documents to which it is satisfied (and the plaintiff does not dispute) the defendant is entitled.