AKINS and ORS v ABIGROUP LTD [1998] NSWCA 8

[1998] 43 NSWLR 539

AKINS v ABIGROUP LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, PRIESTLEY JA and ROLFE AJA 7 and 14 April 1998, 1 June 1998

[1998] NSWCA 8

Evidence — client legal privilege — statements served — before trial in compliance with orders of Commercial Division — whether served "under compulsion of law" — Evidence Act 1995 (NSW), s122(2)(c) — Supreme Court Act 1970, s76A; Practice Notes 39 and 89

Practice and Procedure — principles governing access to statements served before trial — whether such principles displace client legal privilege — Supreme Court Act 1970, s76A; Practice Note 97 — Supreme Court Rules 1970, Pt65 r7

In 1990 the respondent brought action against the directors/shareholders of Hughes Bros, for, amongst other claims, breach of warranties in a Share Sale Agreement. These proceedings were ultimately settled on 18 July 1994. However, prior to settlement, witness statements were exchanged between the parties ("the disclosed statements") in accordance with the directions of the Court and Practice Note 39 (now superseded by Practice Note 89). These statements were never admitted into evidence.

In 1991 the respondent instituted separate proceedings in the Commercial Division against the appellants who are the partners of the firm of chartered accountants Deloitte Haskins and Sells. The respondent gave discovery by filing a List of Documents. The List included reference to the disclosed statements, although subject to a claim of legal professional privilege.

The appellants applied by Notice of Motion for orders that the respondent make these statements available for inspection. Bainton J rejected the application on the basis that the filing and serving of the disclosed statements pursuant to directions of the Court did not waive the privilege attaching to those statements at common law. His Honour held that the Evidence Act 1995 (NSW) ("the Act") did not abrogate or modify the principles developed at common law in respect of maintaining the confidentiality of communication between solicitor and client, save in relation to the adducing of evidence.