Marshall v Prescott [2013] NSWCA 152

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Marshall v Prescott [2013] NSWCA 152 Hearing dates: 12 April 2013 Decision date: 06 June 2013 Before: McColl JA (at [1]); Barrett JA (at [2]); Ward JA (at [94]) Decision: 1. Grant leave to appeal in respect of Orders 1 and 2 made in the Common Law Division on 29 August 2012. 2. Direct that a notice of appeal in terms of the notice of appeal contained in the White Book be filed within fourteen days. 3. Appeal allowed in part. 4. Vary Order 1 made in the Common Law Division on 29 August 2012 by omitting "documents 13, 14, 15, 17 and 20" and substituting "documents 13, 14, 15 and 17". 5. Direct that the parties do, within fourteen days, exchange and file written submissions on the costs orders that should be made in relation to the application for leave to appeal and the appeal. 6. Reserve for the future consideration of the Court all questions of costs of the application for leave to appeal and the appeal. 7. Order pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 that, until the expiration of the period of 35 days commencing upon the making of these orders (and thereafter for such further period, if any, as the Court may, within that period of 35 days, by order specify), the schedule included immediately after [93] of the judgment of the Court be omitted from every copy of the judgment published or furnished to any person (other than GIO Workers Compensation (NSW) Pty Ltd and its legal advisers) or recorded on CaseLaw NSW. 8. Grant to GIO Workers Compensation (NSW) Pty Ltd liberty to apply on seven days notice for an order specifying a further period for the purposes of Order 7. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: PROCEDURE - costs - leave to appeal sought in respect of costs orders made on an issue-by-issue basis - applicant seeks to challenge the judge's conclusions on certain of the issues but not the ultimate decision - whether an appeal court should canvass intermediate conclusions merely for the sake of an appeal on costs - leave refused - PROCEDURE - subpoena to non-party - legal professional privilege at common law - common interest privilege - person maintaining claim by subrogation to proceeds of pending litigation - communication to that person of confidential legal advice given to the party in whose shoes the person seeks to stand - whether common interest of the litigant and the person claiming by subrogation exists so as to preclude a finding of waiver of privilege - PROCEDURE - subpoena to non-party - legal professional privilege at common law - where the non-party claiming by subrogation has agreed to fund proceedings brought by the litigant - whether the litigation funding agreement is protected by legal professional privilege Legislation Cited: Civil Procedure Act 2005, s 98(1) Court Suppression and Non-publication Orders Act 2010 Evidence Act 1995, ss 117 to 126, 131A High Court Rules 2004 (Cth), r 40.02.1 Supreme Court Act 1970, s 101(2)(c) Workers Compensation Act 1987, ss 3(1A), 151Z(1)(b) Cases Cited: Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52 Baltic Shipping Company v Dillon [1991] 22 NSWLR 1 Bulk Materials (Coal Handling) Services Pty Ltd v Coal & Allied Operations Pty Ltd (1988) 13 NSWLR 689 Buttes Gas & Oil Co v Hammer (No 3) [1981] QB 223 Cook v Pasminco Pty Ltd (No 2) (2000) 107 FCR 44; [2000] FCA 1819 CSR Ltd v Eddy [2008] NSWCA 83; (2008) 70 NSWLR 725 Esso Australia Resources v Commissioner of Taxation [1999] HCA 67; 201 CLR 49 Hansfield Developments v Irish Asphalt Ltd [2009] IEHC 420 Green v CGU Insurance Ltd [2008] NSWSC 390 House v The King [1936] HCA 40; (1936) 55 CLR 499 Farrow Mortgage Services Pty Ltd v Webb (1996) 39 NSWLR 601 Mann v Carnell [1999] HCA 66; 201 CLR 1 Marshall v Prescott (No 2) [2012] NSWSC 619 Marshall v Prescott (No 4) [2012] NSWSC 992 Matthews v SPI Electricity Pty Ltd [2013] VSC 285 Nauru Phosphate Royalties Trust v Allen Allen & Hemsley (22 March 1996, 13 Tolley's "Professional Negligence" 64) Network Ten Ltd v Capital Television Holdings Ltd (1995) 36 NSWLR 275 Priceline Pty Ltd v JHY Nominees Pty Ltd [2010] VSC 61 Re Global Medical Imaging Management Ltd [2001] NSWSC 476 Re Minister for Immigration and Ethnic Affairs; Ex Parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622 Rickard Constructions Pty Limited v Rickard Hailes Moretti Pty Ltd [2006] NSWSC 234 Singtel Optus Pty Ltd v Weston [2011] NSWSC 1083; (2011) 81 NSWLR 526 Spotless Group Ltd v Premier Building and Consulting Group Pty Ltd [2006] VSCA 201; (2006) 16 VR 1 The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; 213 CLR 543 TransGrid v Members Lloyds' Syndicate 3210 [2011] NSWSC 301 Category: Principal judgment Parties: Margaret Lesley Marshall - First Appellant Kim Neil Marshall - Second Appellant Michael Prescott - First Respondent GIO General Limited - Second Respondent GIO Workers Compensation (NSW) Limited - Third Respondent The Partners TurksLegal - Fourth Respondent Representation: C J Bevan/E W Young - Appellants D J Russell SC - 2, 3, 4 Respondents Turner Freeman Lawyers - Appellants TurksLegal - Second, Third and Fourth Respondents File Number(s): 2012/287040 Decision under appeal Date of Decision: 2012-08-29 00:00:00 Before: Bellew J File Number(s): 2009/297404