Rodney Mackay Sutherland v Hayley Rogic [2013] NSWSC 971

Supreme Court New South Wales

Medium Neutral Citation: Rodney Mackay Sutherland v Hayley Rogic [2013] NSWSC 971 Hearing dates: 18 July 2013 Decision date: 18 July 2013 Jurisdiction: Equity Division Before: Kunc J Decision: Access to documents granted Catchwords: EVIDENCE - Legal professional privilege - documents produced on subpoena - no issue of principle Category: Interlocutory applications Parties: Reliance Financial Services (NSW) Pty Ltd - First Defendant Hayley Rogic - Second Defendant Representation: Counsel: Mr M. Ashhurst SC (Reliance Financial Services (NSW) Pty Ltd - First Defendant) Solicitors: Ms Kennedy (Malouf Solicitors - not a party to the proceedings) File Number(s): 2012/218414 Publication restriction: No

EX TEMPORE Judgment 1HIS HONOUR: In these proceedings a subpoena was issued by the solicitors for the first defendant addressed to Malouf Solicitors to produce any of the following documents which they had in their possession, custody or control: 1. The original deed of financial agreement entered into by Mladen Malen Rogic and Hayley Rogic dated 27 February 2006. 2. All original documentation (and copies in the event you do not possess the original) which bears or seemingly bears the signature of Hayley Rogic and/or Mark Rogic. 2The subpoena was returnable before the Registrar this morning. Mr Malouf appeared on that occasion and produced documents in answer to the subpoena in an envelope marked "legal professional privilege". 3The matter was then referred to me this afternoon Mr Ashhurst of Senior Counsel appeared for the first defendant and Ms Kennedy, solicitor, appeared for Mr Malouf. 4Ms Kennedy informed me that the basis of the claim for legal professional privilege was precautionary. She explained that Mr Malouf had previously acted for Mr Rogic in relation to Family Law proceedings between him and Ms Rogic. While Mr Malouf did not currently hold any instructions from Mr Rogic in relation to a claim for legal professional privilege, Mr Malouf was concerned that the documents caught by the subpoena may be the subject of a claim for legal professional privilege by Mr Rogic. 5In those circumstances, Mr Malouf was producing the documents to the Court but, as I understood what Ms Kennedy put to me, was content for the Court to make up its own mind as to whether or not there was the possibility of a claim for legal professional privilege by Mr Rogic. 6In relation to the first of the documents, the deed of financial arrangement, Mr Ashhurst SC submits that as a document recording and giving effect to an agreement between Mr and Mrs Rogic (as they then were), the deed could not possibly be the subject of a claim by Mr Rogic for legal professional privilege. I have inspected the document and I accept Mr Ashhurst SC's submission in that regard. 7The second document appears to be a statement filed by Ms Rogic in the High Court of the United Kingdom in April 2005 in which she was the applicant and Mr Rogic was the respondent. It appears from the statement that it was made in support of applications by Ms Rogic under the relevant United Kingdom legislation in relation to the custody of the children of the marriage. 8Mr Ashhurst SC submits that, apart from anything else, it is not possible to see how a statement by Ms Rogic could be the subject of a legal professional privilege claim by Mr Rogic. That submission, with respect, must be correct. 9I have also reviewed the exhibits to that statement. None of those exhibits could, in my opinion, be properly the subject of a claim for legal professional privilege by Mr Rogic. 10The Court therefore grants access to the parties to the proceedings to the documents produced today by Malouf Solicitors. Leave is granted to the plaintiff to uplift those documents (which are originals) for them to be submitted to a hand writing expert who I have been informed has been retained for the purposes of preparing evidence in these proceedings. oOo 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. Decision last updated: 19 July 2013