Thomas v State of New South Wales [2006] NSWSC 380

New South Wales Supreme Court

CITATION : Thomas v State of New South Wales [2006] NSWSC 380

HEARING DATE(S) : 19 April 2006 JURISDICTION : Civil

JUDGMENT OF : McClellan CJatCL

EX TEMPORE JUDGMENT DATE : 04/19/2006

DECISION : 1. Set aside Notice to Produce dated 25 August 2005; 2. Grant leave to the defendant to serve a Notice to Produce seeking documents which were used in a way that could be said to influence the content of counsel's advice; 3. Dismiss the appeal from the decision of Registrar Howe; 4. Costs of the Notices of Motion in relation to the question of privilege be costs in the ultimate cause.

CATCHWORDS : LEGAL PROFESSIONAL PRIVILEGE - claim for damages for malicious prosecution and conspiracy - notice to produce - waiving of privilege - application of common law principles - advice attached to affidavit - affidavit not read in proceedings and not relied upon in motion hearing - whether privilege waived in respect of documents used in preparation of advice

Crimes Act 1900 (NSW) LEGISLATION CITED : Felons (Civil Proceeding) Act 1981 District Court Act 1973 Evidence Act

Attorney-General for the Northern Territory v Maurice & Ors (1986) 161 CLR 475 CASES CITED : Australian Security and Investments Commission v Southcorp Ltd (2003) 46 ACSR 438 Goldberg v Ng (1995) 185 CLR 83 Mann v Carnell (1999) 201 CLR 1

PARTIES : Bruce Malcolm Thomas (Pltf) State of New South Wales (Def)

FILE NUMBER(S) : SC 12020/05

COUNSEL : T Molomby SC (Pltf) J L Glissan QC (Def)

SOLICITORS : Legal Aid Commission of NSW (Pltf) Crown Solicitors Office (Def)