NRMA Ltd & Ors v Morgan & Ors (No 2) [1999] NSWSC 694

New South Wales Supreme Court CITATION : NRMA Ltd & Ors v Morgan & Ors (No 2) [1999] NSWSC 694 CURRENT JURISDICTION : Commercial Division FILE NUMBER(S) : 50257/95 HEARING DATE(S) : 25 June 1999 JUDGMENT DATE : 25 June 1999

PARTIES : NRMA Ltd & Ors Morgan & Ors JUDGMENT OF : Giles J

COUNSEL : Second Defendant - G K Burton Third Defendant - A J Meagher SC SOLICITORS : Second Defendant - Ebsworth & Ebsworth Third Defendant - Corrs Chambers Westgarth CATCHWORDS : CLIENT LEGAL PRIVILEGE - loss by disclosure of substance of communication - Evidence Act s 122(2) - not lost by saying instructed counsel to advise - lost by saying what counsel advised. Ampolex v Perpetual Trustee Company (Canberra) Ltd (1996) 40 NSWLR 12; Ampolex v Perpetual Trustee Company (Canberra) Ltd (1966) 137 ALR 28; CASES CITED : Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 153 ALR 393; Adelaide Steamship Company Ltd v Spalvins (1998) 152 ALR 418; Southern Cross Airlines Holdings Ltd (in liquidation) v Arthur Andersen & Co (1988) 28 ACSR 455. DECISION : Access to documents referred to in para 1 given; access given to documents referred to in para 2 to the extent indicated, excluding masked portions.

THE SUPREME COURT OF NEW SOUTH WALES COMMERCIAL DIVISION

50257/95

GILES J

Friday 25 June 1999

NRMA LTD & ORS v JOHN KERIN MORGAN (t/as ALLEN ALLEN & HEMSLEY) & ORS

JUDGMENT

1 GILES JA: I published reasons in these proceedings on 13 May 1999. For present purposes little knowledge of the proceedings is necessary, but in what follows I assume familiarity with those reasons. I also use the acronyms and abbreviations used in the reasons. 2 The proceedings included cross-claims by each of AAH, AT and Mr Heydon against the others of them for indemnity or contribution. The cross-claims were pursuant to s 5 of the LR Act or, as they said, "in equity". By notice of motion filed on 20 May 1999 AT sought leave to file a further cross-claim against Mr Heydon. In the proposed further cross-claim it alleged, first, that Mr Heydon owed to it a duty of care similar to that owed to the NRMA, that he was in breach of that duty of care, and that its damages for the breach of duty of care were the amount for which it was liable to the NRMA; and secondly, that Mr Heydon had been involved in contravention of s 42 of the FT Act and had breached s 996 of he Law and that AT had thereby suffered loss, being its costs and the amount for which it was liable to the NRMA. The hearing of the notice of motion, together with other notices of motion and questions outstanding in the proceedings, is to take place on 23 July 1999. 3 Accompanying the notice of motion was an affidavit of Mr Peter Kennedy sworn 20 May 1999. The affidavit adverted to the decision of the High Court in Astley v Austrust Ltd (1999) 8 HCA 6 given on 4 March 1999, after I had reserved my decision in these proceedings, and to the opportunity given to the parties to lodge supplementary written submissions on the decision of the High Court. In para 6 of the affidavit Mr Kennedy then said - "Until such submissions were called for, it was not considered necessary to examine directly the liability of the Third Defendant, to the Second Defendants independently of the claim for indemnity or contribution made in the Third Cross-Claim. Once the immediate consequences of the decision in Astley v Austrust Ltd became apparent, I instructed Counsel to advise on this liability. Counsel have advised that the Third Cross-Claim may not, in certain circumstances, permit the Second Defendants to claim contribution from the Third Defendant and for more abundant caution the Second Defendants should seek the leave of the Court to file a further Cross-Claim."