Duncan v The Honourable David Andrew Ipp AO QC [2013] NSWSC 247

Supreme Court New South Wales

Medium Neutral Citation: Duncan v The Honourable David Andrew Ipp AO QC [2013] NSWSC 247 Hearing dates: 14/03/2013 Decision date: 14 March 2013 Jurisdiction: Common Law Before: Garling J Decision: (1) The Notice to Produce dated 12 March 2013 and addressed to the second defendant, the Independent Commission Against Corruption, be set aside. (2) Order that the plaintiff pay the second defendant's costs of and occasioned by the application. Catchwords: PRACTICE AND PROCEDURE - Notice to Produce - Notice of Motion to set aside a Notice to Produce on relevance grounds. CLIENT LEGAL PRIVILEGE - Is there an implied waiver of privilege by reference to the privileged document in, publicly available, preceding correspondence. Cases Cited: National Employers Mutual General Insurance Association Limited v Waind & Hill (1978) 1 NSWLR 372 Category: Procedural and other rulings Parties: Travers William Duncan (P) The Honourable David Andrew Ipp AO QC (D1) Independent Commission Against Corruption (D2) Representation: Counsel: Mr Ng (P) Submitting Appearance (D1) Mr Free (D2 - ICAC) Solicitors: Yeldham Price O'Brien Lusk (P) NSW Crown Solicitor (D1 & 2) File Number(s): 2013/68363

EX TEMPORE JUDGMENT ON MOTION 1On 12 March 2013, the solicitors for the plaintiff, Travers William Duncan, served a Notice to Produce for a single identified document on the second defendant, the Independent Commission Against Corruption. The notice to produce required production of the document before this Court this morning. 2The document was described in the Notice to Produce in this way: "A copy of the letter from Roy Waldron (solicitor for the Commission) to Bret Walker SC dated 20 December 2012 together with all attachments. Such letter being the letter referred to in the letter from Mr Waldron to Mr Walker SC dated 5 February 2013 titled 'Re Operation Jasper'." 3By a notice of motion filed in court on 14 March 2013, the Commission moved the Court to set aside the Notice to Produce. The bases enunciated by the Commission in support of its motion are first, that the letter was of no relevance to the issues in the proceedings or to any fact in issue and, secondly, that it was subject to client legal privilege which had not been waived.