New South Wales Supreme Court CITATION : Lowe v Lang [2000] NSWSC 302 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 1082/96 HEARING DATE(S) : 23 March 2000 JUDGMENT DATE : 23 March 2000 Michael Campbell Lowe (P) PARTIES : Barry Arthur Lang (D1) Erolgreen Pty Ltd (D2) JUDGMENT OF : Hamilton J COUNSEL : P T Taylor (P) P J Deakin QC and P R Stockley (D1 & 2) SOLICITORS : Baldock Stacy & Niven (P) Kenny Spring (D1 & 2) CATCHWORDS : EVIDENCE [72] - Facts excluded from proof - On grounds of privilege - Professional confidence - Legal profession - General principles - Confidential documents which are private and irrelevant - No privilege. DECISION : Documents not privileged. IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION HAMILTON J THURSDAY, 23 MARCH 2000 1082/96 MICHAEL CAMPBELL LOWE v BARRY A LANG & 1 ORS JUDGMENT - On application for access to documents in Court as on subpoena (see page 510) HIS HONOUR: 1 The defendants have applied for access to documents marked for identification 6. I have, at the request of both parties, examined all the documents that remain in MFI 6 for the purpose of determining whether the defendants ought be allowed to have access to them. The documents are from the file of Mr Brad Stuart, the plaintiff's former solicitor, who is not, however, acting for him in the litigation, his solicitors on the record being Baldock Stacy & Niven. They are held by the Court as on subpoena. Objection to access is taken in two categories. There are documents which have been tagged with red, where the opposition to access is on the basis of legal professional privilege, either advice privilege or litigation privilege. The balance of the documents are tagged with yellow and the objection stated in that case was that they were private and irrelevant. 2 I do not think that privacy as such is very material in the circumstances and that the real objection in respect of the yellow tagged documents is that they are documents which, although not privileged, are so totally irrelevant to the litigation that they ought properly be beyond the reach of subpoena and, albeit brought into Court as on subpoena, access to them should not be given. However, upon examination of the yellow tagged documents, I do not think they are so remote from the litigation that they fall into this category and the objection to access to documents on the basis of their bearing a yellow tag is therefore overruled. The yellow tagged documents should, therefore, be made available for inspection, unless they also bear a red tag and an objection to access is upheld on the ground of legal professional privilege. 3 So far as the latter is concerned, I have examined the red tagged documents, and in most cases it appears to me at this stage that they are privileged documents, and access ought not be granted. One exception is the originals and copies of two computer entries from Mr Stuart's WIP ledger. I do not believe that these documents attract any form of legal professional privilege. The red tags will be removed from them and access will be granted to those documents. There is one additional red tagged document which, in my view, is not privileged, but is merely a communication with Mr Stuart about his attendance as a witness. That is a letter from Baldock Stacy & Niven to Mr Stuart, dated 28 September 1999. The red tag has been removed from that document also. 4 The only document as to which I have any doubt, is a memorandum of costs to Mr Lowe from Baldock Stacy & Niven, his present solicitors, which, however, has wound up in Mr Brad Stuart's file and been produced to the Court in it. In my view, those documents would attract litigation privilege only to the extent that they revealed communications with prospective witnesses and it may be that, to some extent, they do that. The whole of the documents would be privileged if they were communicated by Mr Lowe to Mr Stuart who, I am informed, continues to be Mr Lowe's solicitor for general purposes, although other solicitors have been instructed in the litigation. It may be that on that basis they attract advice privilege. There is some material in the file which suggests that they may indeed have been sent, not by Baldock Stacy & Niven to Mr Stuart, but by Mr Lowe to Mr Stuart, which may provide a basis for the document attracting advice privilege. I am not prepared to remove the red tag from that document at this time. 5 On the material at present available to me I am not prepared to rule that the documents to which red tags continue to be attached are not privileged, and that access ought be granted to them. If application for inspection is renewed at some later time, that will have to be on the basis of additional evidence as to how the documents came into Mr Stuart's possession. 6 As a result of what I have said in these reasons, access is granted to all the documents within MFI 6 that either bear a yellow tag or are now without tags. At this stage access is refused to all the red tagged documents, including MFI 9. The documents which I have ruled are privileged will be placed into yet another envelope, still bearing their red tags, and that envelope and its contents will be marked MFI 10. …oOo… Last Modified: 09/25/2000 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.