Topine v Canterbury Bankstown Bulldogs Rugby League Club Limited [2024] NSWSC 1462

Supreme Court New South Wales

Medium Neutral Citation: Topine v Canterbury Bankstown Bulldogs Rugby League Club Limited [2024] NSWSC 1462 Hearing dates: 11 October 2024 Date of orders: 21 November 2024 Decision date: 21 November 2024 Jurisdiction: Common Law Before: Davies J Decision: The parties are to bring in short minutes to reflect this judgment. Catchwords: CIVIL PROCEDURE – subpoenas – application to set aside – subpoena issued to the plaintiff's solicitor – plaintiff applied to set aside subpoena – where subpoena, in part, sought communication between the solicitor and the plaintiff's father and agents – where the solicitor did not know the plaintiff or his family prior to his retainer – the solicitor only communicated with the plaintiff's agents about the plaintiff for the purpose of purpose of providing legal advice and services – client legal privilege applied – subpoena set aside in respect of paragraph 2(a)-(d) CIVIL PROCEDURE – subpoenas – objection to production of documents or things – client legal privilege – where the subpoena issued to the plaintiff's solicitor sought, in part, communication with three health care professionals who treated the plaintiff – health care professionals also subpoenaed –plaintiff sought to claim client legal privilege – whether client legal privilege was waived by the service of reports produced by the health professionals – client legal privilege waived in respect of communications related to the reports CIVIL PROCEDURE – subpoenas – whether correspondence between the solicitor and the health care professionals subsequent to the preparation of the reports would be subject to client legal privilege and/or protected confidence under s 126B of the Evidence Act – where plaintiff submitted that determination of privilege should be conducted analogously to public interest immunity claim – where defendant submitted that the appropriate course was that of NRMA v Whitlam – wholly different situation to Whitlam – releasing documents to other side's lawyers would undermine the purpose of s 126B – plaintiff's approach accepted – further hearing necessary for judge to inspect documents prepared by the health care professionals over which privilege is claimed Legislation Cited: Evidence Act 1995 (NSW) ss 122, 126, 126A, 126B, 126C Cases Cited: Balzan Group Pty Ltd v IPM Group Pty Ltd [2014] NSWSC 1480 Hancock v Rinehart (Privilege) [2016] NSWSC 12 Herrick v Knowles [2014] NSWSC 1223 In the matter of Wetherill Park Holdings Pty Ltd [2020] NSWSC 982 ML Ubase Holdings Co Ltd v Trigem Computer Inc (2007) 69 NSWLR 577; [2007] NSWSC 859 Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66 National Roads and Motorists' Association v Whitlam [2007] NSWCA 81; (2007) 25 ACLC 688 Woolner v South Western Sydney Local Health District [2023] NSWSC 748 Xinfeng Australia International Investment Pty Ltd v GR Capital Group Pty Ltd [2020] NSWSC 620 Texts Cited: Nil Category: Procedural rulings Parties: Jackson Topine (Plaintiff) Canterbury Bankstown Bulldogs Rugby League Club Limited (First Defendant) Travis Touma (Second Defendant) Representation: Counsel: P Lange & D A Ward (Plaintiff) V Bulut (Defendants)