New South Wales Supreme Court CITATION : Du Bray v McIlwraith [2009] NSWSC 812 HEARING DATE(S) : 13/08/09 JUDGMENT DATE : 13 August 2009 JURISDICTION : Equity Division JUDGMENT OF : Barrett J EX TEMPORE JUDGMENT DATE : 13 August 2009 DECISION : Subpoena set aside. CATCHWORDS : EVIDENCE - client legal privilege - whether privilege in brief to counsel lost - where substance of counsel's advice disclosed - whether access to brief "reasonably necessary" to understanding of advice LEGISLATION CITED : Evidence Act 1995, s 126 CATEGORY : Procedural and other rulings PARTIES : Lee Francis Du Bray - Plaintiff Sarah McIlwraith - Defendant FILE NUMBER(S) : SC 1492/09 COUNSEL : Mr P J Livingstone - Plaintiff Dr A S Bell SC/Mr N J Beaumont/Mr D L Healey - Defendant SOLICITORS : Watson & Watson - Plaintiff Barkus Doolan Kelly - Defendant IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION BARRETT J WEDNESDAY 13 AUGUST 2009 1492/09 LEE FRANCIS DU BRAY v SARAH McILWRAITH JUDGMENT 1 I am dealing with the defendant's application for an order setting aside a subpoena issued at the instigation of the plaintiff. 2 The subpoena is directed to the defendant's solicitors and requires the production by them of a brief delivered to senior counsel and accompanying documents. 3 The evidence makes it clear that Mr Richardson SC was briefed by the defendant's solicitors to advise, that he gave some oral advice on 20 March 2009, that no advice was provided in writing and that the brief was returned. 4 There can be no doubt that client legal privilege attaches to the brief, as indeed it attaches to the advice given by counsel, unless of course in either case the privilege has been lost. 5 It is the contention of the plaintiff that the privilege in the brief has been lost because in proceedings in New Zealand the defendant has sworn and filed an affidavit in which she refers to the fact that Mr Richardson SC was retained through her Australian solicitors and goes on to say: "Mr Richardson did counsel me to apply for a stay of those proceedings once proceedings are lodged in New Zealand on the basis that our property relationships rights and interests are more appropriately considered under the Property (Relationships) Act l976, and not the Property (Relationships) Act l984 (NSW)." 6 It is said that there is here a disclosure of the substance of the advice given by counsel to whom the brief in question was delivered so that privilege in the communication of the advice has been lost. 7 Let it be assumed (I do not have to decide) that privilege in the advice ceased to subsist because of the circumstance I have just mentioned. It does not follow automatically that privilege in the brief has also been lost. 8 It is said by the plaintiff, however, that that consequence follows under s 126 of the Evidence Act 1995. That section deals with a situation where there has already been a loss of privilege under an earlier section in respect of some communication or document. Section 126 causes privilege likewise to be lost in respect of another communication or document reasonably necessary to enable a proper understanding of the communication or document in respect of which the privilege has been lost. 9 It cannot be said that it is necessary to know the content of the brief in order to have a proper understanding of the advice or recommendation of counsel referred to in the affidavit sworn and filed in the New Zealand proceeding. The recommendation is a simple one. An understanding of it can be fully obtained simply by reading what is said in the New Zealand affidavit. 10 The reasons behind the recommendation are another thing. Some light may be cast on them by the brief, but that is not what s 126 is concerned with. It is about an understanding of the communication in respect of which privilege has been lost, that is, in this case, on the assumption I have made, an understanding of the perfectly understandable recommendation that there should be an application for a stay of the New South Wales proceedings, once proceedings are lodged in New Zealand. 11 The brief remains subject to privilege and the subpoena is set aside. 12 The plaintiff will pay the defendant's costs of the motion concerning the subpoena. ********** 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.