Loretta Craig & Ors v Anthony Johnson & Ors [2018] NSWSC 1539

Supreme Court New South Wales

Medium Neutral Citation: Loretta Craig & Ors v Anthony Johnson & Ors [2018] NSWSC 1539 Hearing dates: 1 June 2018 Date of orders: 30 October 2018 Decision date: 30 October 2018 Jurisdiction: Common Law Before: Lonergan J Decision: (1) The plaintiffs' notice of motion filed on 15 May 2018 is dismissed.

(2) The plaintiffs are to pay the defendants' costs of the notice of motion. Catchwords: CIVIL PROCEDURE – client legal privilege – waiver Legislation Cited: Civil Liability Act 2002 (NSW) s 5O Evidence Act 1995 (NSW) s 118, 119, 122, 126 Uniform Civil Procedure Rules 2005 (NSW) r 1.9(4) Cases Cited: Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; [2013] HCA 46 Grant v Downs (1976) 135 CLR 674; [1976] HCA 63 Category: Procedural and other rulings Parties: Lorretta Kistmah Craig & 4 Ors (Plaintiffs) Anthony Francis Johnson & 60 Ors (Defendants) Representation: Counsel: I Archibald (Plaintiffs) B Ness, solicitor (Defendants)

Solicitors: Charles Filgate Giles & Associates (Plaintiffs) Moray & Agnew (Defendants) File Number(s): 2016/328254

Judgment 1. These are professional negligence proceedings seeking damages for negligence from the defendants, partners in Johnson Winter & Slattery. It is alleged that firm represented the plaintiffs in a commercial dispute in the Equity Division of this Court ("the Equity Proceedings") heard in 2013 and gave negligent advice in relation to an offer of settlement made to them in those proceedings. The offer was not accepted and the plaintiffs lost their case. 2. These proceedings were commenced by the filing of a statement of claim on 3 November 2016. The defendants deny liability and plead s 5O of the Civil Liability Act 2002 (NSW) in their defence. 3. On 26 February 2018, the plaintiffs' solicitor Fil Giles spoke to the solicitor who had acted for the defendants in the Equity Proceedings. On 27 February 2018, he commenced drafting an affidavit with a view to having that solicitor, Fiona Inverarity, sign it. The affidavit deposed to, amongst other things, his understanding of what she told him in that conversation to have been some of her recollections regarding the offer her clients had made in the Equity Proceedings in September 2013. 4. It appears Mr Giles made no file note at the time of this discussion. The only record of this conversation was a billing note, which for "Billing Description" included three lines covering a number of activities completed by Mr Giles on 26 February 2018, including, "t/o Fiona – will do affi … dft aaffi fr Fiona to sign re share, Ian to settle…". 5. On 1 March 2018, an email was sent by Mr Giles to Ms Inverarity attaching the draft affidavit, asking that she review the document and "add the additional dates and information required" stating, "If you are happy, we ask that you kindly sign the affidavit and have it witnessed…" 6. The draft affidavit included, amongst other things, a lengthy paragraph purporting to specify her "understanding" of the plaintiffs' claim in the Equity Proceedings and her "instructions" at the time of her clients' offer in September 2013. 7. Ms Inverarity did not reply. 8. A further email was sent by Mr Giles at 8.32am on 20 March 2018 in which he says, "When we spoke several weeks ago, you were very supportive of signing a draft affidavit confirming the value of the Silverbrook offer. Specifically, we were hoping you could address whether the 3% offer was of the whole, or was limited to 3% of the Silverbrook share. Last week we had a discussion where you indicated that you were no longer prepared to assist us with clarifying this matter. As you no doubt appreciate, this is very disappointing. We would be most appreciative if you would kindly reconsider your position…" 1. Eight minutes later, at 8:40 am, an email was sent by Ms Inverarity to Mr Giles stating as follows: "I was not supportive. I was prepared to discuss it with you. I am always keen to help a fellow solicitor. I have not looked at the exact terms of the letter, nor have I since we spoke. I assume the letter speaks for itself. I do not want to be involved in anything to do with Ms Craig." 1. Mr Giles then issued a Subpoena to Produce to Ms Inverarity's firm in April 2018 seeking production of the following: 1. File notes made by you on or about 6 September 2013 to record the instructions pursuant to which you (practising as "In Legal" solicitors) sent a letter ("Offer Letter") to Johnson Winter Slattery solicitors dated 6 September 2013 making an offer to settle proceedings numbered 2010/333159 in the Supreme Court of New South Wales ("Proceedings"). 2. The email or emails to which the Offer Letter was attached. 3. File notes made by you recording any telephone conversations which you had with Mr Andreas Piesiewicz Solicitor employed by Johnson Winter Slattery or any other person at Johnson winter Slattery in relation to the subject matter of the Offer Letter and any response thereto. 4. Any letter, email, or other documents which you received from Johnson Winter Slattery referring or referring to the Offer Letter or its content. 5. Any documents which you have which define the value or quantum of the offer made in the Offer Letter. 1. Ms Inverarity produced documents to the Court, some of which were placed into a separate envelope marked "Privileged". 2. On 18 May 2018, Ms Inverarity sent a letter to Mr Giles, as well as to the solicitor acting for the defendants in these proceedings, stating the following: "Dear Mr Filgate, I have not been able to contact my former clients regarding privilege. I cannot just waive it as I cannot get instructions. I was going to let the Court decide the privilege issue. However, as I have previously advised you, as you are seeking costs against me I will have to retain counsel to appear. As you can see from the size of the envelope and the notes I made on the subpoena, there are only a few documents. Five, in fact…" 1. The rest of the email dealt with the potential need to engage counsel if an order for costs was to be pursued against her, although later correspondence indicates that order was not to be pressed.