In the matter of Healthvue Pty Limited [2015] NSWSC 2059

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Healthvue Pty Limited [2015] NSWSC 2059 Hearing dates: 7 May 2015 Date of orders: 07 May 2015 Decision date: 07 May 2015 Jurisdiction: Equity - Corporations List Before: Brereton J Decision: Access to documents produced upon subpoena granted. Catchwords: EVIDENCE – privilege – waiver – legal professional privilege – whether privilege waived – where notice given to defendant of application for access to privileged documents – where defendant fails to appear to oppose application. Category: Procedural and other rulings Parties: Calvary Health Care Sydney Limited ACN 105 757 453 (plaintiff) Healthvue Pty Ltd ACN 149 138 036 (defendant) Representation: Counsel: Mr S Klotz (solicitor) (plaintiff) Mr Kanovavu (defendant)

Solicitors: Norton Rose Fulbright Australia (plaintiff) Kemp Strang (defendant) File Number(s): 2015/58777

Judgment (ex tempore) 1. HIS HONOUR: For reasons I gave on 4 May 2015, I dismissed the subpoena recipient Benjamin & Khoury's application to set aside the subpoena to produce of 10 April 2015 and adjourned the subpoena to today, to enable production to take place. The Court is informed that documents have now been produced in the registry in response to the subpoena, and the plaintiff seeks access to those documents. 2. Because the documents are, or at least contain, documents which would prima facie be the subject of legal professional privilege of the defendant, being communications between the defendant and their former solicitors, I directed that the plaintiff notify the defendant of those orders and of the listing of the matter today. 3. The affidavit of Stephen Howard Klotz of 6 May 2015 proves that in compliance with that direction a letter was sent by email to the defendant at the address provided on the notice of removal of solicitor filed on its behalf on 27 April 2015, and also sent by courier on 5 May 2015 to the defendant at its registered office, which sets out comprehensively what has transpired, the orders that have been made and, in paragraph 3.2 particularly, refers to the possibility that the defendant might want to claim privilege. 4. The evidence served on behalf of the defendant in the proceedings appears to put in issue and make relevant the communications that took place between the defendant and its solicitors on the earlier s 459G application, and prima facie would seem to found a good argument that privilege in respect of those communications had thereby been waived. 5. On that basis, and given that the defendant has been given notice of the present application, including the relevant ground on which access might be opposed, but has not appeared to oppose the application for access, the Court orders that the parties have access to the documents produced by Benjamin & Khoury Pty Limited in answer to the subpoena of 10 April 2015.