Smith v Australian Executor Trustees Limited; Creighton v Australian Executor Trustees Limited (No 2) [2018] NSWSC 875

Supreme Court New South Wales

Medium Neutral Citation: Smith v Australian Executor Trustees Limited; Creighton v Australian Executor Trustees Limited (No 2) [2018] NSWSC 875 Hearing dates: 8 June 2018 Decision date: 14 June 2018 Jurisdiction: Equity Before: Ball J Decision: The notice of motion filed on 29 May 2018 be dismissed with costs. Catchwords: EVIDENCE – Privileges – Client legal privilege – Loss of privilege pursuant to s 122(2) of the Evidence Act 1995 (NSW) – Inconsistency of the client's conduct with the maintenance of the confidentiality – Whether a claim for privilege inconsistent with a pleading of reliance – Whether a forensic advantage attaching to disclosure of a privileged document is relevant to determining inconsistency Legislation Cited: Civil Liability Act 2002 (NSW) Corporations Act 2001 (Cth) Evidence Act 1995 (NSW) Cases Cited: Hancock v Rinehart [2013] NSWSC 1978 Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66 Wayne Lawrence Pty Ltd v Hunt [1999] NSWSC 1044 Category: Procedural and other rulings Parties: Willis Australia Limited (Applicant on Motion | Second Cross-Defendant to First Cross-Claim) Australian Executor Trustees Limited (First Respondent on Motion | First Defendant and First Cross-Claimant) IOOF Holdings Limited (Second Respondent | Second Cross-Claimant on First Cross-Claim) Representation: Counsel: MR Elliott SC with E Bathurst (Applicant on Motion | Second Cross-Defendant to First Cross-Claim) Dr RCA Higgins SC with S Lawrance (Respondents on Motion | First and Second Defendants and First & Second Cross-Claimants on First Cross-Claims)