Steven Issa v Michael Issa & Anastazija Balaz [2018] NSWSC 1387

Supreme Court New South Wales

Medium Neutral Citation: Steven Issa v Michael Issa & Anastazija Balaz [2018] NSWSC 1387 Hearing dates: 24 July 2018 Date of orders: 23 August 2018 Decision date: 22 August 2018 Jurisdiction: Equity Before: Rein J Decision: See [25]-[28], [32] Catchwords: CIVIL PROCEDURE – Discovery – Objection to inspection – Legal professional privilege – Joint privilege – Implied waiver – Where proceedings commenced in respect of an agreement resolving proceedings commenced in 2006 ("the Agreement") – Where Second Defendant claims that the partners of the law firm responsible for drafting the Agreement breached their duty towards her – Whether Second Defendant has waived her claim of privilege over documents held by her former solicitor; HELD: Claims advanced found to be inconsistent with the claim of privilege over documents held by her former solicitor, but that privilege was a joint privilege (of both defendants) and was not implicitly waived by the First Defendant.

CIVIL PROCEDURE – Discovery – Objection to inspection – Legal professional privilege – Specific documents – Whether documents over which privilege has been claimed are privileged – Where documents are file notes of conversations between solicitors for the Defendants on the one hand, and the solicitor for the Plaintiff in earlier proceedings or a third person on the other; HELD: Such documents are not the subject of legal professional privilege. Legislation Cited: Civil Procedure Act 2005 (NSW) Evidence Act 1995 (NSW) Cases Cited: Benecke v National Australia Bank (1993) 35 NSWLR 110 Commissioner of Taxation v Rio Tinto Limited (2006) 151 FCR 341; [2006] FCAFC 86 DSE (Holdings) Pty Limited v Intertan Inc (2003) 127 FCR 499; [2003] FCA 384 Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49; [1999] HCA 67 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; [2013] HCA 46 Farrow Mortgage Services Pty Ltd (in liq) v Webb and Ors (1996) 39 NSWLR 601 Hancock v Rinehart (Privilege) [2016] NSWSC 12 Hastie Group Ltd (in liq) v Moore (2016) 339 ALR 635; [2016] NSWCA 305 Lillicrap and Another v Nalder & Son (A Firm) [1993] 1 WLR 94; [1993] 1 All ER 724 Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66 Paragon Finance Plc. (Formerly National Homeloans Corporation Plc.) and Others v Freshfields (a firm) [1999] 1 WLR 1183 Sugden v Sugden (2007) 70 NSWLR 301; [2007] NSWCA 312 Texts Cited: The Law of Privilege (Bankim Thanki QC (ed), 3rd ed, Oxford University Press, 2018) Category: Procedural and other rulings Parties: Steven Issa (Plaintiff) Michael Issa (First Defendant/ Respondent on the Motion) Anastazija Balaz (Second Defendant/ Respondent on the Motion) Anthony Gavan, Bruce Leslie Gotterson, Suzanne Therese Hallas, John Malbon Ralston, Owen Benjamin Ratner, Neil Kenneth Simmons, Christopher Wade Sinclair, Christopher Mark Sydes (Cross Defendants/ Applicants on the Motion) Thompson Eslick Solicitors (Interested Party) Representation: Counsel: Mr R. Garland (Plaintiff) Mr B. Coles QC with Mr P. Silver (First Defendant/ Respondent on the Motion) Mr E. Hyde (Second Defendant/ Respondent on the Motion) Mr J. Emmett (Cross Defendants/ Applicants on the Motion)