Hendi v Commonwealth of Australia (No. 2) [2016] NSWSC 1442

Supreme Court New South Wales

Medium Neutral Citation: Hendi v Commonwealth of Australia (No. 2) [2016] NSWSC 1442 Hearing dates: 6 October 2016 Date of orders: 06 October 2016 Decision date: 06 October 2016 Jurisdiction: Common Law Before: Adamson J Decision: Make the following orders in proceedings 2014/68216 and 2014/68211:

(1) Declare that the report and notes produced on subpoena (the subpoenaed documents) filed on 26 November 2015, by Dr Phillips are the subject of legal professional privilege of the defendant.

(2) Order that the plaintiff retrieve forthwith, all copies of the subpoenaed documents, which he may have caused to be disseminated to any other person and/or entity.

(3) Order that the plaintiff provide forthwith to the Defendant, all copies of the subpoenaed documents produced by Dr Phillips.

(4) Order that the plaintiff not rely on or use any of the information obtained from the subpoenaed documents.

(5) Order the plaintiff to pay the defendant's costs of the motion. Catchwords: PRACTICE AND PROCEDURE – notice of motion seeking orders that documents produced on subpoena protected by client legal privilege – whether defendant waived privilege – consideration of s 122 of Evidence Act 1995 (NSW) – defendant's conduct not inconsistent with claim for privilege – omission to claim privilege obviously the result of inadvertent oversight – no loss of privilege Legislation Cited: Evidence Act 1995 (NSW), ss 117,118,119,122 Cases Cited: Unsworth v Tristar Steering and Suspension Australia Ltd [2007] FCA 1081 Category: Procedural and other rulings Parties: Asrin Hendi by her tutor Hamed Hendi (Plaintiff) Amir Hendi by his tutor Hamed Hendi (Plaintiff) Hamed Hendi (Respondent/Plaintiff) Nasrin Ghasemi (Respondent/Plaintiff) Commonwealth of Australia (Applicant/Defendant/ Cross-Claimant) Serco Australia Pty Limited (First Cross-Defendant) International Health and Medical Services Pty Limited (Second Cross-Defendant) Representation: Counsel: R Armitage (Respondents/Plaintiffs) PS Jones (Applicant/Defendant/Cross-Claimant) K Lieu (solicitor) (First Cross-Defendant)