In the recent related matter of JM v Trustees of the Marist Brothers [2024] NSWSC 1446, the plaintiff, JM (a pseudonym), brought proceedings against the defendant, the Trustees of the Marist Brothers
In 2009 the plaintiff brought proceedings against the defendant for damages arising from sexual abuse he says that he suffered at the hands of a nominated Marist Brother when he was a student at a school in Sydney’s south-west. In 2011, some months after a mediation, the plaintiff settled that claim and accepted what he says was a compromised sum by way of damages. The parties entered a deed of settlement reflecting the agreement they had reached.
The plaintiff commenced new proceedings on 21 January 2023. Pursuant to Pt 1C of the Civil Liability Act 2002 (NSW), which was introduced following the Royal Commission into Institutional Responses to Child Sexual Abuse, he seeks to set aside the deed of settlement. The notice of motion seeking the order to set aside the deed is to be heard next week on Thursday 21 November 2024. The present skirmish, which involves whether to grant access to documents produced under subpoena to the defendant, needs to be resolved before then and for that reason this judgment will be brief and possibly a little incoherent. The matter is before me in the duty list and was brought by notice of motion filed by the defendant.
The defendant filed a subpoena on 19 April this year seeking production of “the complete legal file in respect of the plaintiff”. The schedule went on to provide a non-exhaustive list of documents, all of which relate to the litigation commenced in 2009 and the settlement agreement and deed in 2011.
The plaintiff says that the file contains information that is privileged and, reading between the lines, is the subject of litigation privilege under s 119 of the Evidence Act 1995 (NSW) and/or privilege over legal advice under s 118 of that Act. There is no doubt that is, on its face, correct and that the file would be caught by those provisions. However, the defendant asserts that the plaintiff has, to use the language of the common law, “waived privilege”. More specifically it says there has been an issue waiver.
At [10] the New South Wales Supreme Court provided as follows:
There is no suggestion that the defendant lacks a legitimate forensic purpose in seeking the documents, nor on my understanding of the issues could there be. In view of the application made by the plaintiff to set aside the deed, there is clearly such a legitimate forensic purpose. Some of the plaintiff’s submissions may have blurred the lines a little between the issue of forensic purpose and the real issue before the Court today which is whether there is an inconsistency between the plaintiff’s conduct and the maintenance of his claim of legal privilege. In any event, as I have said, there was no application to set aside the subpoena based on a lack of legitimate forensic purpose.
At [38] the New South Wales Supreme Court provides as follows:
I am satisfied that the privilege over the legal file has been lost pursuant to the provisions in ss 122 and 131A of the Evidence Act.
Ultimately, on 12 November 2024, the New South Wales Supreme Court ordered as follows:
- Access to the file produced on subpoena be granted to the defendant and its lawyers.
- First access be granted to the plaintiff with the expectation that the defendant’s counsel and solicitor be provided access by 4pm Thursday, 14 November 2024.
- By agreement, the costs of and incidental to the motion will be the costs in the cause.
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