New Cap Reinsurance Corporation Ltd (In Liq) & 1 Or v Renaissance Reinsurance Ltd [2007] NSWSC 258

New South Wales Supreme Court

CITATION : New Cap Reinsurance Corporation Ltd (In Liq) & 1 Or v Renaissance Reinsurance Ltd [2007] NSWSC 258

HEARING DATE(S) : 09/11/06

JUDGMENT DATE : 26 March 2007

JURISDICTION : Equity Division Corporations List

JUDGMENT OF : White J

DECISION : 1. Order that paragraphs 2-4 of the interlocutory process filed on 9 June 2006 be dismissed; 2. order that the defendant pay the plaintiffs' costs of paragraphs 2-4 of the interlocutory process.; If either party contends that a different order should be made, they should notify my associate and the opposite party in writing within 21 days enclosing written submissions on that question, and I will list the matter at a convenient time. ; 3. Order that if no such application is made within 21 days, the costs of the defendant's application in paragraph 1 of the interlocutory process filed on 9 June 2006 be costs in the proceedings.

CATCHWORDS : PROCEDURE – Discovery and inspection of documents – Grounds for resisting production – Client legal privilege – Whether draft expert report, letters of instruction from clients' solicitors to expert witness, and notes prepared for preparation of final report are privileged – Waiver of privilege – Whether privilege waived by service of final expert report – Whether draft reports, letters of instruction and notes influenced content of final report so that use or service of final report inconsistent with maintaining privilege in those materials – Waiver of privilege by voluntary disclosure – Held: draft expert report and preliminary letters of instruction from clients' solicitors to expert witness, privileged because created for dominant purpose of plaintiff being provided with legal services – Privilege not waived. - PROCEDURE – Discovery and inspection of documents – Grounds for resisting production – Exclusion of evidence of settlement negotiations – Communication of extract of document made in the course of settlement negotiations – Held that defendant not entitled to inspect balance of document. - Considered: Evidence Act 1995 (Cth), ss 117, 119, 122, 126, 131(1) - PROCEDURE – Discovery and inspection of documents – Grounds for resisting production – Relevance – Documents created during later period reflecting historical financial position of company – Oppression – Where process of giving discovery of certain class of documents would be onerous – Discovery not necessary – Utility of discovery outweighed by burden – Discovery not ordered.