Supreme Court New South Wales Medium Neutral Citation: Phung v Phung [2017] NSWSC 1486 Hearing dates: 27 October 2017 Date of orders: 27 October 2017 Decision date: 27 October 2017 Jurisdiction: Equity Before: Darke J Decision: Access to documents refused. Catchwords: EVIDENCE – client legal privilege – disclosure of substance of certain legal advice – redacted file notes produced – extent of waiver – whether other party should have access to redacted parts of file notes Legislation Cited: Evidence Act 1995 (NSW), ss 118, 119, 121, 126 Category: Procedural and other rulings Parties: Cam Ving Phung (Plaintiff) Cam Tai Phung (Defendant) Representation: Counsel: Ms M Gaven (Plaintiff) Mr J Heazlewood (Defendant) Solicitors: Ma and Company (Plaintiff) Lincoln Legal Pty Ltd (Defendant) File Number(s): 2017/161958 Publication restriction: None Judgment 1. The plaintiff seeks access to certain file notes which were produced to the Court by the defendant in answer to a Notice to Produce dated 2 October 2017. A claim of "legal professional privilege" was made by the defendant in respect of the documents, which were placed in a sealed envelope. 2. The Notice to Produce sought documents as follows: All and any documents containing the advice referred to in paragraph 27 and paragraph 43 subparagraph 22b of the Affidavit of Cam Tai Phung dated 29 September 2017, including any written advice and/or file notes of any oral advice provided. 1. The defendant had deposed, in his affidavit of 29 September 2017, as follows: 27. I have now been advised by my lawyers that the amount of $90,000 represents the amount paid to me for a life estate by the Plaintiff for a life tenancy over the Swete Street Property. … 43. … 22b As advised by my legal representative, the payment of $90,000 is a licence fee to create a life estate for the Plaintiff to remain in the Swete St Property. 1. The defendant's solicitor, Ms Sharon Mo, swore an affidavit on 25 October 2017 in support of the claim for privilege. I am satisfied, based upon the contents of that affidavit, that each of the file notes produced contain confidential communications, and are themselves confidential documents, that fall within either or both of ss 118 and 119 of the Evidence Act 1995 (NSW). 2. I do not accept that any of the communications recorded in the file notes, or the file notes themselves, are not privileged because they affect a right of a person, within the meaning of s 121(3) of the Evidence Act. Neither the communications nor the file notes have a direct effect upon any person's rights; at most they amount to evidence of the creation of rights at an earlier time. 3. Ms Mo, believing that the defendant had probably waived privilege as a result of what was contained in his affidavit, sent redacted versions of the file notes to the plaintiff's solicitors on 12 October 2017. The plaintiff contends that this constituted a further waiver of privilege. 4. I accept that the two parts of the affidavit referred to above effected a waiver of privilege in respect of the advice referred to therein. I further accept that, to the extent that the unredacted parts of the file notes contain material that goes beyond that particular subject matter, there has been a further waiver of privilege. However, I do not accept that there has been any waiver beyond that. The defendant, by the redacting, has not further disclosed the contents of the documents or the communications recorded in them. 5. The plaintiff submitted that what has been disclosed is "void of the necessary context". It was also submitted that where a document deals with one subject matter there cannot be a waiver as to only part, with privilege asserted to apply to the remainder. 6. It was accepted by both parties that it was open to the Court to inspect the unredacted file notes in order to determine whether privilege continues to exist in relation to the redacted parts of the documents. I decided that this would be the best course to take in the circumstances. 7. Having conducted that inspection, I am satisfied that privilege does continue to exist in relation to the redacted parts of the file notes. Those parts do not in my view record the advice that is referred to in the two parts of the defendant's affidavit referred to in the Notice to Produce. Moreover, it is not the case that any of the file notes deal with one subject matter only. I should add that I do not think that disclosure of any of the redacted parts is reasonably necessary in order to obtain a proper understanding of any of the unredacted parts (see s 126 of the Evidence Act). 8. For the above reasons, the plaintiff's application for access to the unredacted file notes produced in answer to the Notice to Produce is refused. The Court will further order that those documents may be returned to the defendant. The plaintiff will be ordered to pay the defendant's costs of the application for access. ********** 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: 30 October 2017