Lakatoi v Walker [1999] NSWSC 156 (11 March 1999)

[1999] NSWSC 156

Client Legal Privilege

“Confidential Communication” and “Confidential Document”.

Waiver.

Whether Evidence Act or common law principles applicable.

DECISION:

Claim for client legal privilege in relation to communications by solicitors not only to the clients, but also to third parties who were members of the Due Diligence Committee in respect of the public flotation of the client company in respect of which flotation the communications were made.

(a) Held that client legal privilege applied to copies of documents furnished for the sole purpose of obtaining legal advice, notwithstanding that the originals were not privileged: Commissioner of Australian Federal Police & Anor v Propend Finance Pty Limited [1997] HCA 3; (1997) 188 CLR 501 applied.

(b) Consideration of draft documents: Dalleagles Pty Limited v Australian Securities Commission (1991) 6 ACSR 498 applied where the drafts were amended or corrected or bore notations following Mostyn v West Mostyn Coal and Iron Co Ltd (1876) 34 LT 531.

Held that recommunicated drafts subject to privilege.

(c) Held the applicable law at an interlocutory stage is the Evidence Act. Akins & Ors v Abigroup Limited (1998) 43 NSWLR 539 and Sevic v Roarty [1998] NSWSC 462; (1998) 44 NSWLR 287 followed.

Carnell v Mann (1998) 159 ALR 647 not followed.

(d) Held no waiver because in the circumstances the communications and documents were “confidential” and, accordingly, s.122(2)(a) did not lead to a waiver. Question of confidentiality dependent on the particular circumstances.