Introduction
The Supreme Court judgment in the matter of Woolner v South Western Sydney Local Health District [2023] NSWSC 748 (“Woolner”) outlines the Court’s consideration of a subpoena to produce issued to a defendant’s law firm, calling for production of its communications with the client.
Key Points
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To establish a claim for privilege, it is not necessary to outline the relevant facts on which the existence of the claimed privilege depends if they are implicit in the call for production of documents.
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Communications with one's legal advisor are privileged from disclosure in any circumstances and the privilege extends to material prepared for the purpose of communications with the legal advisor.
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The Court will give effect to the overriding purpose of facilitating the just, quick and cheap resolution of real issues in proceedings.
Background
In a dispute between a Local Health District and plaintiff as to whether an Amended Defence pleading the limitation period should be allowed, the plaintiff issued a subpoena requiring production of “all correspondence, documents, advices, file notes, costing records, WIP ledgers, memoranda, documents or minutes of meetings held in relation to obtaining instructions, the preparation of and the filing of the Defence filed on 15 March 2022”.
The plaintiff purported that the documents called for were relevant to the issue of whether leave should be granted for the amendment to the Defence.
A motion was filed to set aside the subpoena, on the basis that the materials called for were subject to legal professional privilege and there was no legitimate forensic purpose to the subpoena.
Judgment of Acting Justice Monika Schmidt
Her Honour considered whether there was a legitimate forensic purpose for the documents and whether the documents called for attracted legal professional privilege.
The plaintiff submitted that the defendant’s claim for privilege had to be established with evidence outlining the relevant facts relating to the existence of privilege.
The plaintiff relied on the authorities of Lazenby v Zammit [1987] Tas R; Attorney-General for the Northern Territory v Kearney [1985] HCA 60; (1985) 158 CLR 500, 508; Holmes v Deputy Commissioner of Taxation (1987) 19 ATR 1278, 1286; and Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501, 513-4, most of which are authority for the proposition that the characteristics of each document in respect of which privilege is claimed should be identified.
Her Honour found the subpoena in its very terms established that the documents sought were all confidential and subject to privilege both under the common law and sections 118 and 119 of the Evidence Act 1995 (NSW),and referred to several authorities including the High Court’s decision in Grant v Downs (1976) 135 CLR 674; [1976] HCA 63. In Grant, it was found that “communications with one's legal adviser are privileged from disclosure and the privilege extends not only to communications actually made but to material prepared for the purpose of communication thereof to the legal advisor”.
Her Honour highlighted that the authorities relied on by the plaintiff were not concerned with communications between a lawyer and client, but documents of an entirely different character such as trust documents and documents seized under a search warrant.
Applying section 56 of the Civil Procedure Act 2005 (NSW), which requires the Court to facilitate the just, quick and cheap resolution of real issues in proceedings, her Honour held the issue did not require the unnecessary expense of production of a list identifying the documents of the basis for the claim for privilege.
Her Honour found that the facts on which a claim of privilege is made are implicit in the subpoena itself and the subpoena was set aside.
Conclusion
This decision provides relevant insight of how section 56 of the Civil Procedure Act 2005 (NSW) which requires the quick, just and cheap resolution of issues will be applied by a Court when determining whether a subpoena can be set aside where documents called for are subject to legal professional privilege.
In particular, it highlights that the Court will avoid onerous tasks such as particularising the documents over which a claim for privilege was made, where the documents themselves by their nature established that they were privileged. This authority is likely to apply to discovery and notices to produce, not only subpoenas.
Article written by Hicksons’ Partner, Emma Ellis, and Associate, Doris Phiri.