Banksia Mortgages Limited v Croker and Ors [2010] NSWSC 535

New South Wales Supreme Court

CITATION : Banksia Mortgages Limited v Croker and Ors [2010] NSWSC 535

HEARING DATE(S) : 17 May 2010

JUDGMENT DATE : 27 May 2010

JUDGMENT OF : Schmidt J

DECISION : 1. The e-mails between Alan Curnow and Daniel James Fitzgerald on 10 November 2005 that are annexure J to the affidavit of Alan Samuel Chick sworn 13 April 2010 were and remain privileged, other than the final two sentences in Mr Fitzgerald's email. 2. The defendants produce the documents that are referred to in the Notice to Produce dated 23 October 2009 a copy of which is annexed to the motion and marked with the letter A.

CATCHWORDS : PROCEDURE - legal professional privilege - advice given by in-house solicitor - both legal advice, commercial advice and comment - independence of solicitor - legal advice privileged, commercial advice and comment not privileged - communication between defendants and solicitor used as basis for affidavit sworn by solicitor to defend plaintiff's claim for summary judgment - waiver in defendants' communication thereby established

LEGISLATION CITED : Evidence Act 1995 Uniform Civil Procedure Rules 2005

CATEGORY : Procedural and other rulings

ASIC v Rich [2004] NSWSC 923 Federal Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86; (2006) 151 FCR 341 Divall v Mifsud [2005] NSWCA 447 Esso Australia Resources Ltd v Commissioner of Taxation (Cth) [1999] HCA 67; (1999) 201 CLR 49 Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 CASES CITED : Rich v Harrington [2007] FCA 1987; (2007) 245 ALR 106 Seven Network Limited v News Ltd [2005] FCA 142 Sovereign v Bevillesta [2000] NSWSC 521 Sydney Airports Corp Ltd v Singapore Airlines Ltd [2005] NSWCA 47 Telstra Corporation Limited v Minister for Communications, Information Technology and the Arts (No 2) [2007] FCA 1445 Three Rivers District Council v Governor and Company of the Bank of England [2004] UKHL 48