Land and Environment Court of New South Wales CITATION : Hutchins Pastoral Company Pty Ltd v Minister Administering the Water Management Act 2000 & Anor (No 2) [2010] NSWLEC 241 APPLICANT Hutchins Pastoral Company Pty Ltd FIRST RESPONDENT PARTIES : Minister Administering the Water Management Act 2000 SECOND RESPONDENT SOLICITOR FILE NUMBER(S) : 41292 of 2006 CORAM: Pain J KEY ISSUES: PRACTICE AND PROCEDURE :- confirmation of earlier decision in relation to whether subpoena should be set aside because requires production of privileged documents LEGISLATION CITED: Evidence Act 1995 s 124 CASES CITED: Hutchins Pastoral Company v Minister Administering the Water Management Act 2000 [2010] NSWLEC 30 TEXTS CITED: J D Heydon, Cross on Evidence, Eighth Australian Edition (2010) LexisNexis Butterworths S Odgers, Uniform Evidence Law, Ninth Edition (2010) Lawbook Co DATES OF HEARING: 1 November 2010 EX TEMPORE JUDGMENT DATE : 1 November 2010 APPLICANT Mr O'Donnell SOLICITOR Kell Moore Solicitors FIRST RESPONDENT Mr T Faulkner LEGAL REPRESENTATIVES: SOLICITOR Blackstone Waterhouse Lawyers SECOND RESPONDENT Mr M Elliott SOLICITOR Lee & Lyons Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES PAIN J 1 November 2010 41292 of 2006 Hutchins Pastoral Company Pty Ltd v The Minister Administering the Water Management Act 2000 (No 2) EX TEMPORE JUDGMENT 1 Her Honour: In substantive multiple party proceedings before the Court three parties have discontinued (the Hutchins Applicants) and are now seeking by Notice of Motion to recover costs from their former solicitor and barrister. The issue arises of whether the Applicants on the Notice of Motion can rely on oral communications with a party for whom the former solicitor continues to act, the solicitor being sued, and one of the Applicants' directors over which a claim for legal professional privilege can arise. 2 In an earlier judgment in this Notice of Motion Hutchins Pastoral Company v Minister Administering the Water Management Act 2000 [2010] NSWLEC 30 (Hutchins No 1) I held that s 124 of the Evidence Act 1995 did not apply to waive legal professional privilege to documents common to all clients where privilege is claimed over these on behalf of the other parties in the ongoing substantive proceedings. At [5] I held that these proceedings did not fall within the description in s 124 of the Evidence Act that in civil proceedings in connection with which two or more parties have jointly retained a lawyer in relation to the same matter, one party is not prevented from adducing evidence of communications with the lawyer or the contents of confidential documents, that is privileged communications under the Evidence Act. The same argument now arises in relation to oral communications between another party in the ongoing substantive proceedings, the solicitor being sued and the Applicants on the motion. 3 The main reason for revising my earlier judgment according to the Applicants on the Notice of Motion is that that interpretation results in inconvenience and absurdity and gives rise to injustice in this case where former clients in multiple party litigation are suing their former legal advisers. It is clear from the commentary on s 124 in S Odgers, Uniform Evidence Law, Ninth Edition (2010) Lawbook Co at p 636-637 and in J D Heydon, Cross on Evidence, Eighth Australian Edition (2010) LexisNexis Butterworths at p 920-921 that this is not the circumstance which s124 addresses. Both commentaries focus on the circumstance where former joint parties fall out and engage in litigation which requires adducing evidence from their former lawyer whom they jointly instructed. In other words, the section has not been considered as applying in the context of some former clients in multiple party litigation suing their former legal advisers for costs where other parties continue with the substantive proceedings represented by those legal advisers. The Applicants on the motion argue the outcome is unfair in that the solicitor being sued can rely on the privilege claimed by another party for whom the solicitor still acts to hamper the Applicants' claim. 4 While that is potentially true, as submitted by counsel for the solicitor being sued, another injustice potentially results if a former client of a solicitor can rely on s 124 to waive legal professional privilege for any third party clients still involved in the substantive litigation resulting in otherwise privileged communications being released to the world including the Respondent in the substantive proceedings. That result is also likely to lead to injustice, as here the evidence for which privilege can otherwise be claimed continues to be relevant to the ongoing substantive proceedings in which third parties are engaged. This confirms my earlier finding that the Applicants on the Notice of Motion cannot rely on s 124 in relation to the oral communications the subject of argument unless there is waiver of privilege by the third party. 5 There is no reason to change my mind on the issue I considered in my earlier judgment for the reason articulated in [5] of that judgment. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.