Singtel Optus Pty Limited v Weston [2011] NSWSC 1083

White J:

25. In Waugh Asset Management v Merrill Lynch [2010] NSWSC 197 McDougall J held that s 131A also applied at the stage of production and did not apply at the second stage where inspection is sought of documents produced to the court, so that the relevant principles to be applied were those of the common law (at [9]-[12]). I followed his Honour’s decision in d’Apice v Gutkovich (No. 1) [2010] NSWSC 1336 at [10], as did Adams J in Alderman v Zurich [2011] NSWSC 754 at [12].

26. However, in TransGrid v Members Lloyd’s Syndicate 3210 [2011] NSWSC 301, Ball J, without deciding the question, raised doubts as to whether this was the better construction of s 131A (at [10]). On further consideration I consider that those doubts are well founded. Relevantly subs 131A(1) applies where a person is required by a ” disclosure requirement ” to ” produce ” a document. Prima facie , as McDougall J held, the section applies at the stage of production. However, the definition of ” disclosure requirement ” as meaning a process or an order that requires the ” disclosure ” of a document, including by way of production of a document on subpoena or a notice to produce, indicates that the draftsman intended the section to apply to the entire process by which the production of a document on subpoena or by notice to produce (or by the other means referred to in subs 131A(2)) would result in the disclosure of the document.

27. The doubt as to the scope of s 131A having been raised in TransGrid v Members of Lloyd’s Syndicate 3210 , I think that I am justified in not following the earlier line of decisions (including my own), all of which were delivered ex tempore. In my view, where the objection to inspection is taken by the person required to produce the document on subpoena or notice to produce, the Evidence Act , and not the common law, applies.

28. However, as Allsop P held in State of New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60 at [32] and as the terms of s 131A clearly provide, the section only applies where the person objecting to disclosure on the ground of privilege is the same person who was required to produce the document. The section does not apply when a claim for privilege is made by persons other than the person required to produce the documents. In such cases the common law applies.

S. 131A Evidence Act (NSW)

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