Smits v Della Marta & Ors [2011] NSWSC 1299

Supreme Court New South Wales

Medium Neutral Citation: Smits v Della Marta & Ors [2011] NSWSC 1299 Hearing dates: 22/09/2011 & 25/10/2011 Decision date: 25 October 2011 Jurisdiction: Equity Division Before: Brereton J Decision: Plaintiff and defendants to serve supplementary lists of documents in relation to categories of discovery. Catchwords: PRACTICE AND PROCEDURE - Client-legal privilege - plaintiff asserts privilege in relation to email correspondence with solicitors relating to property transaction - such correspondence confidential communications or documents for dominant purpose of providing legal advice - defendants contend privilege cannot subsist because relevant to fact in issue in proceedings - relevance not a basis for holding privilege to be waived - further communication between solicitor and third party - privilege resides in third party - third party asserts privilege - third party not joined to motion and court cannot override his claim for privilege. PRACTICE AND PROCEDURE - Discovery - obligations of parties under (NSW) Uniform Civil Procedure Rules, 2005, r 21.3 to identify documents claimed to be privileged - defendants' identify four boxes as privileged - defendants' contend that by giving discovery they may jeopardise a particular client's privilege where client has not consented - startling contention that third party's privilege would be waived merely by solicitors inspecting documents with a view to ascertaining privileged status - defendants' seek declaration that inspection will not result in waiver of privilege - no basis for making such a declaration. PRACTICE AND PROCEDURE - Discovery - defendants' seek order for further discovery - defendants' contend plaintiff's discovery inadequate - plaintiff solicitor adopts cavalier approach to discovery obligations - defendants required to sufficiently identify documents or class of documents in respect of which further discovery sought - defendants' required to establish reasonable grounds for believing documents in plaintiff's possession - order refused. Legislation Cited: (NSW) Evidence Act, 1995, s 117, s 118, s 122, s 125 (NSW) Legal Profession Act, 2004, s 243 (NSW) Uniform Civil Procedure Rules, 2005, r 21.3 Cases Cited: Australian Rugby Union Ltd v Hospitality Group Pty Ltd 165 ALR 253 Beecham Group Limited v Bristol-Myers [1979] VR 273 Goldberg and Another v Ng and Others (1995) 185 CLR 83 Hall v Brunton & Others (1894) 10 WN 196 Mann v Carnell (1999) 201 CLR 1 Smith and Another v Goldring and Another (1887) 4 WN 13 Category: Procedural and other rulings Parties: Leonardus Geradus Smits (plaintiff) Simon Eugene Della Marta (first defendant) Christopher Mark Dawson (second defendant) Armando John Gardiman (third defendant) Terrence Louis Goldberg (fourth defendant) Thady Arnold Andrew Blundell (fifth defendant) Peter Richard Tyson (sixth defendant) Representation: Counsel: Ms T Gordon (plaintiff) Mr A.T.S. Dawson (defendants) Solicitors: Malcolm Johns & Company, Lawyers (plaintiff) Yeldham Price O'Brien Lusk (defendants) File Number(s): 2009/323470