Galati v Deans [2019] NSWSC 1548

Supreme Court New South Wales

Medium Neutral Citation: Galati v Deans [2019] NSWSC 1548 Hearing dates: 24 October 2019 Date of orders: 08 November 2019 Decision date: 08 November 2019 Jurisdiction: Equity Before: Ward CJ in Eq Decision: (1) Refuse the cross-claimants' application for general access in respect of documents produced on subpoena on 28 June 2019 by Norton Rose Fulbright. (2) Grant access to the cross-claimants to so much of the documents produced on subpoena as fall within the schedule of documents prepared by the tenth cross-defendant and put forward in its solicitors' letter dated 27 September 2019 (but reading the words "tending to prove" where appearing in the fourth column of that schedule as "tending to prove or disprove or tending to prove whether or not"), without prejudice to the cross-claimants' ability later to seek access to further documents if it is claimed that there has been an implied waiver having regard to these reasons. (3) Direct the tenth cross-defendant to provide to the Associate to Ward CJ in Eq, in a sealed envelope marked "Privileged", within seven days the "Project Magoo" document (item 105 in the schedule prepared by the cross-claimants) for a ruling on that document in due course. (4) Direct the parties to exchange brief written submissions as to costs within seven days with a view to dealing with the issue of the costs of the notice of motion filed 8 October 2019 being dealt with on the papers. Catchwords: CIVIL PROCEDURE — Subpoenas — application by defendants for access to documents produced on subpoena by tenth cross-defendant's former solicitors – legal professional privilege claimed – whether implied waiver of privilege – orders made for access to certain documents on basis that affidavits filed in the proceedings by tenth cross-defendant disclose communications giving rise to implied waiver Legislation Cited: Civil Procedure Act 2005 (NSW), s 56 Evidence Act 1995 (NSW), s 22 Uniform Civil Procedure Rules 2005 (NSW), r 33.2 Cases Cited: Adelaide Steamship Co Ltd v Spalvins (1998) 152 ALR 418 Attorney-General (NT) v Maurice (1986) 161 CLR 475; [1986] HCA 80 Bennett v Chief Executive Officer of the Australian Customs Service (2004) 140 FCR 101; [2004] FCAFC 237 Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341; [2006] FCAFC 86 Council of the New South Wales Bar Association v Archer (2008) 72 NSWLR 236; [2008] NSWCA 164 DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499; [2003] FCA 384 Expense Reduction Analysts Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; [2013] HCA 46 Galati v Deans [2018] NSWSC 1600 Gloucester Shire Council v Fitch Ratings, Inc (No 2) [2017] FCA 248 Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66 Nea Karteria Maritime Co Ltd v Atlantic & Great Lakes Steamship Corp (No 2) [1981] Comm LR 138 Ryde Developments Pty Ltd v The Property Investors Alliance Pty Ltd (No. 2) [2016] NSWSC 829 Traderight (NSW) Pty Ltd (ACN 108 880 968) v Bank of Queensland Limited (ACN 009 656 740) (No 14) and 13 related matters [2013] NSWSC 211 Category: Procedural and other rulings Parties: Robert Paton Deans (First Defendant/First Cross-Claimant) Fishbank Development Corporation Pty Limited (Second Defendant/Second Cross-Claimant) EJC Pyrmont Pty Ltd (Tenth Cross-Defendant) Representation: Counsel: P Barham (Applicants/Defendants/Cross-claimants) C Withers (Respondent/Tenth Cross-defendant)