Cui v Salas-Photiadis

Catchwords: EVIDENCE — Privileges — Client legal privilege — Legal advice — No issue of principle
EVIDENCE — Privileges — Client legal privilege — Litigation — No issue of principle
EVIDENCE — Privileges — Client legal privilege — Loss of — Implied waiver — ‘associated material’ waiver — Application of inconsistency test — General principles to be applied

Legislation Cited: Evidence Act 1995 (NSW)

Cases Cited: Attorney-General (NT) v Maurice (1986) 161 CLR 475; [1986] HCA 80
AWB Ltd v Cole (No 5) (2006) 155 FCR 30; [2006] FCA 1234
Bradford v Devlot 17 Pty Ltd [2020] VSC 792
Carey v Korda (2012) 45 WAR 181; [2012] WASCA 228
Commonwealth Oil Refineries Ltd v Hollins [1956] VLR 169
General Accident Assurance Fire and Life Assurance Corp Ltd v Tanter [1984] 1 All ER 3547
Liu v Fairfax Media Publications Pty Ltd [2012] NSWSC 1352
Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66
Re Global Medical Imaging Management Ltd (in liq) [2001] NSWSC 476
Rickard Constructions Pty Ltd v Rickard Hails Moretti Pty Ltd [2006] NSWSC 234
Rinehart v Rinehart [2016] NSWCA 58
State Bank of New South Wales v Jackson [2007] NSWCA 279

Texts Cited: J D Heydon, Cross on Evidence (13th Ed, LexisNexis, 2021)

Category: Procedural rulings

Parties: Yi Cui (Plaintiff/Respondent on the Motion)
Nicholas John Salas-Photiadis (Defendant/Applicant on the Motion)

Representation: Counsel:
A Gandar (Plaintiff/Respondent on the Motion)
M Fernandes (Defendant/Applicant on the Motion)
Solicitors:
Gilchrist Connell (Plaintiff/Respondent on the Motion)
Fortis Law (Defendant/Applicant on the Motion)

File Number(s): 2024/335003

Publication restriction: Nil

JUDGMENT

1. By his notice of motion filed on 13 November 2025 the first defendant (applicant) challenges the plaintiff’s claim for privilege over 42 documents described in the schedule comprising annexure C to the affidavit of the plaintiff’s solicitor, Mr Alexander Haslam, sworn on 13 November 2025 (Annexure C).

2. The evidence in support of the claim for privilege is Mr Haslam’s affidavit of 13 November 2015. Mr Haslam is a principal of Gilchrist Connell (GC) and the solicitor on the record for the plaintiff in these proceedings. The plaintiff was previously represented by Blackstone Waterhouse Lawyers (BWL) in relation to this dispute, but that firm ceased to act for him on around 6 September 2024 when they were replaced by GC.

3. The background to the applicant’s motion is as follows.

4. On 12 April 2024, the plaintiff exchanged contracts with the second defendant (vendor) for the purchase of a property at Blakehurst, Sydney. C & L Solicitors Pty Ltd (C&L) were engaged by the plaintiff to act for him on the purchase. After the execution of the contract but before completion, the first defendant (and applicant to the motion) lodged a caveat claiming an equitable interest in the property under an unregistered mortgage to secure a loan made by him to the vendor. Settlement occurred on 28 June 2024 and the balance of the purchase price was paid to the vendor, using funds provided in part by the plaintiff and in part by an advance made by the incoming mortgagee, Westpac. On settlement, the vendor’s mortgagee was paid out and the balance of the purchase price was paid to the vendor. The applicant’s caveat has prevented registration of the transfer in favour of the plaintiff and the new mortgage in favour of Westpac.

5. On 15 July 2024, BWL wrote to Lawcover Insurance Pty Ltd (Lawcover) foreshadowing a claim by the plaintiff against C&L in negligence (15 July letter). It states that the plaintiff had instructed BWL to lodge a caveat noting his interest as purchaser of the property and then setting out the nature of a claim which the plaintiff could bring against the vendor and attaching a draft summons for such a claim. The letter then continued:

… our client is not minded to prosecute the Summons in circumstances where it is open to it to proceed against the insured in negligence. Instead, we write to you as the opportunity to potentially mitigate loss may be further compromised if immediate steps are not taken to quarantine proceeds and/or property in the hands of the Vendor.

Should you wish to enter into an agreement whereby you agreed to:

1. cover our clients reasonable costs of the Potential Proceedings; and

2. indemnify our client against any adverse cost exposure which might arise as a consequence of the Potential Proceedings,

then we will seek instructions to attempt to further mitigate any loss and damage potentially suffered by our client.

We note that the matter is time sensitive …

Our office, including our client’s counsel, are available to discuss this matter should you wish to with a view to mitigating against ongoing loss and damage. Please contact the writer to make such arrangements if you are amenable to that course.

6. The applicant became aware of this letter because a copy of it was sent by BWL to Westpac on 23 July 2024 under cover of a letter headed ‘common interest privilege’ for the purpose of keeping it informed as to steps taken by the plaintiff to engage with Lawcover in the matter. Westpac subsequently included a copy of the letter in an affidavit filed by it in these proceedings.

7. On 22 August 2025, the applicant served a notice to produce on the plaintiff seeking correspondence between the plaintiff and Lawcover in relation to the claim made by the plaintiff against C&L and any documents in his possession relating to that claim.

8. On 29 October 2025, the plaintiff produced documents to the court in response to the notice to produce. The documents were produced in three packets, labelled as NTP N-3, NTP N-4 and NTP N-5. There is no dispute regarding access to packet N-3. The plaintiff maintains a claim for privilege over the documents in N-4 and N-5 (documents in issue).

9. In his affidavit and Annexure C, Mr Haslam divides the documents in issue into two categories. The first comprises documents said to be confidential communications between BWL and Lawcover, or solicitors acting on behalf of Lawcover, in relation to a claim by the plaintiff against C&L (category 1). The privilege claim in respect of these documents is made under s 119 of the Evidence Act 1995 (NSW) and alternatively, in the case of some of them, objection to production and access is made under sections 131 and 131A of the Evidence Act.

10. The second category comprises five emails from BWL to the plaintiff said to be confidential communications between the plaintiff and his former solicitors, BWL, created for the dominant purpose of the plaintiff obtaining legal advice, and which the plaintiff may wish not to disclose to GC (category 2). The privilege claim in respect of these documents is made under s 118 and s 119 of the Evidence Act.

11. Items 1-37 in Annexure C deal with the documents in category 1 and items 38-42 in Annexure C deal with the documents in category 2.

12. Rather confusingly, Mr Haslam states in his affidavit that he cannot identify whether the documents in categories 1 and 2 are in packet N-4 or N-5, and that while the confidential exhibit ABH-1 to his affidavit (which is MFI-1) contains the documents in category 1, he has not seen the documents in category 2. This explains why Annexure C describes each of the documents in category 2 as simply an ‘email from Blackstone Waterhouse to the Plaintiff’ with its date.

13. It was not in dispute at the hearing that in so far as the challenge to category 1 is concerned, I can inspect those documents for the purpose of determining the claim for privilege under s 133 and s 183 of the Evidence Act. However, the applicant opposed my inspecting the category 2 documents on the basis that there is no evidence to support the claim for privilege.

Category 1

14. In the case of category 1, the privilege is claimed in reliance on s 119 or alternatively, in the case of some documents, s 131 of the Evidence Act.

15. Section 119 provides:

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:

(a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made; or

(b) the contents of a confidential document (whether delivered or not) that was prepared;

for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.

16. In order for litigation privilege under s 119 to apply, it is necessary for the plaintiff to establish, relevantly, that there is (a) a confidential communication between a lawyer acting for the client and third party or a confidential document, (b) that was made or prepared, as the case may be, for the dominant purpose of the client being provided with professional legal services relating to proceedings, or anticipated proceedings, in which the client is or may be a party.

17. A communication or document will be ‘confidential’ if either the person who made or prepared it or the person to or for whom it was made or prepared was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law (s 117).

18. In Rickard Constructions Pty Ltd v Rickard Hails Moretti Pty Ltd [2006] NSWSC 234 at [33] Bergin J (as her Honour then was) said that:

… matters relevant in assessing whether a confidential obligation is implied in relationships or circumstances outside that of solicitor/client include the nature of the relationship in question and the circumstances, including conduct and/or conversations, surrounding the communications or documents in question. It is also permissible to have regard to the nature of the documents in question and the purpose and context of their communication: see Bulk Materials (Coal Handling) Services Pty Ltd v Coal and Allied Operations Pty Ltd (1998) 13 NSWLR 689 at 695E.

19. It is necessary that the dominant purpose which led to the making of the communication was the purpose of the client ‘being provided with’ professional legal services which, as her Honour noted at [59], is of broader import than ‘providing’ professional legal services to the client. A purpose will be ‘dominant’ where it is the ruling, prevailing or most influential purpose: State Bank of New South Wales v Jackson [2007] NSWCA 279 at [74].

20. Section 131, subject to various exceptions, prohibits the adducing of evidence in the proceeding of a communication that is made between persons in dispute, or between one or more persons in dispute and a third party, in connection with an attempt to negotiate a settlement of the dispute, or a document that has been prepared in connection with an attempt to negotiate a settlement of a dispute. The privilege is available even where the litigation is not yet commenced and extends to a dispute which would become the subject of litigation if it were not resolved, and is not confined to persons in dispute in the litigation in which the issue arises: Liu v Fairfax Media Publications Pty Ltd [2012] NSWSC 1352 at [81]-[87].

21. Document 1 is a letter from BWL to Lawcover dated 23 July 2024 which was a follow-up to the 15 July letter. It is not, expressly or impliedly, made confidential. Accordingly s 119 (being the only provision relied on) does not apply.

22. Document 2 is another follow-up letter from BWL to Lawcover dated 12 August 2024 which is expressed to be subject to ‘common interest privilege’. It is not a communication made for the dominant purpose of the plaintiff being provided with professional legal services relating to the proceedings. Accordingly s 119 (being the only provision relied on) does not apply.

23. Document 3 is a letter from Mills Oakley to BWL dated 12 August 2024 which states that Mills Oakley have been appointed to act on behalf of C&L. It is not expressed to be confidential, nor can it be said to be made for the dominant purpose of the plaintiff being provided with professional legal services. Accordingly s 119 (being the only provision relied on) does not apply.

24. Document 4 is a letter from BWL to Mills Oakley dated 22 August 2024 expressed to be subject to ‘common interest privilege’. It appears from this letter that Mills Oakley are now acting for Lawcover (although they were shortly afterwards replaced by GC). I infer from the statement that the letter was subject to common interest privilege that it was intended to be kept confidential, and I am satisfied from its terms that it was made for the dominant purpose of the plaintiff being provided with professional legal services relating to the proceedings foreshadowed in the 15 July letter. Accordingly s 119 applies to it. Documents 5 and 6 are of the same nature and also fall within s 119.

25. Documents 7 to 36 are a series of emails between BWL and GC which is now acting for Lawcover leading up to the execution of a deed dated 6 September 2024, a copy of which is document 37. Document 37 is a described in Annexure C as an ‘exchanged deed’ expressly agreed to be confidential (cl 14.1) and prepared the dominant purpose of resolving the ‘Dispute’ and litigating the ‘Common Interest’. ‘Dispute’ is defined as ‘a dispute between the plaintiff and C&L/Lawcover’ and ‘Common Interest’ is defined as the ‘common interest of [the plaintiff] and Lawcover in mitigating any loss that may arise to [the plaintiff] from the caveat lodged over the Property by the First Defendant’.

26. Document 37 is a deed between Lawcover, C&L and the plaintiff which sets out the terms of an indemnity provided to the plaintiff for the costs of the conduct of these proceedings, the appointment of GC to act for the plaintiff in the proceedings funded by Lawcover and deals with the manner in which the proceedings will be conducted. I accept that it is a confidential document by cl 14.1. I also accept that it was prepared for the dominant purpose of the plaintiff being provided with professional legal services relating to what was then an anticipated proceeding, being the current proceedings (which were commenced shortly afterwards on 10 September 2024). It therefore falls within s 119. This conclusion is consistent with Re Global Medical Imaging Management Ltd (in liq) [2001] NSWSC 476 at [7]-[9]; Rickard Constructions at [43].

27. In my view documents 7 to 36 which are emails leading up to the execution of the deed and relate to its negotiation, all constitute confidential communications made for the dominant purpose of the plaintiff been provided with professional legal services relating to the current proceedings under the deed. They therefore fall within s 119.

28. The applicant contended that the privilege under s 119 had been waived by virtue of the disclosure of the 15 July letter. No authority was cited for the proposition. There is no reason in principle why waiver of privilege on the 15 July letter will necessarily lead to waiver of privilege on subsequent otherwise privileged communications, and there is authority that it does not: see eg. Commonwealth Oil Refineries Ltd v Hollins [1956] VLR 169 at 174; General Accident Assurance Fire and Life Assurance Corp Ltd v Tanter [1984] 1 All ER 35 at 47; Cross on Evidence (13th Ed, LexisNexis, 2021), [25015]. In Attorney-General (NT) v Maurice (1986) 161 CLR 475; [1986] HCA 80, Gibbs CJ qualified Tanter by saying that it is not the case that ‘there is no waiver of associated material until that [original] material is adduced in evidence’, but rather the question is ‘whether the disclosure or use of material that has been made renders it unfair to uphold the privilege in the associated material… although the question whether the material that has been disclosed has been used in evidence is relevant, it is not decisive’ (at 482-483).

29. It may be accepted that disclosure of one document can constitute implied waiver of the privilege applying to other documents. The test for whether implied waiver has arisen is resolved by reference to the inconsistency, where necessary informed by considerations of fairness, between the conduct of the client and maintenance of the confidentiality over the otherwise privileged communication or document: s 122(2) of the Evidence Act; Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66 at [29]; AWB Ltd v Cole (No 5) (2006) 155 FCR 30; [2006] FCA 1234 at [130], cited in Carey v Korda (2012) 45 WAR 181; [2012] WASCA 228 at [72]; Bradford v Devlot 17 Pty Ltd [2020] VSC 792 at [69]).

30. Here the relevant conduct of the client is the disclosure of the 15 July letter to Westpac on 23 July 2024. In my view there is no inconsistency (or to the extent relevant, any unfairness) between that disclosure and the maintenance of the confidentiality of the later communications and documents otherwise privileged under s 119, and hence it did not constitute a waiver of the privilege under s 119 applying to them.

31. In light of these conclusions, it is not necessary to consider the potential application of ‘without prejudice’ privilege under s 131 of the Evidence Act.

Category 2

32. In the case of category 2, the privilege is claimed in reliance on s 118 or alternatively s 119 of the Evidence Act.

33. Section 118 applies, relevantly, to a confidential communication made between a lawyer and his or her client for the dominant purpose of the lawyer providing legal advice to the client.

34. Each of these emails was written by the previous solicitor for the plaintiff. It is clear from Mr Haslam’s affidavit that he has not seen those emails and he does not purport to give any admissible evidence about their content. While it may be accepted that they are confidential communications between a solicitor and his client there is no evidence to establish that they were made for the dominant purpose of providing legal advice to the client or for the dominant purpose of the client being provided with professional legal services relating to proceedings or anticipated proceedings in which the client is or may be a party. It cannot be inferred simply from the date of the emails as to what their purpose was, let alone their dominant purpose. Accordingly, neither s 118 or s 119 applies.

35. Having regard to the state of the plaintiff’s evidence, this is not a case where it would be appropriate for the court to exercise its discretion to examine the documents in order to determine the privilege claim: Rinehart v Rinehart [2016] NSWCA 58 at [29]-[32]. In particular, there is no explanation for why the plaintiff did not obtain a short affidavit from the partner at BWL who wrote the emails explaining the circumstances in which and the purpose for which the emails were sent. In circumstances where Mr Haslam had not seen the emails, that was necessary to make it appropriate for the court to review the emails to determine the claim for privilege.

Conclusion

36. For the above reasons, the plaintiff has failed to establish that documents 1-3 and 38-42 are privileged communications of the kind referred to in s 118 or s 119 of the Evidence Act, being the provisions relied on. The balance of the documents are privileged communications or documents of the kind referred to in s 119.

37. In my view, the appropriate order as to costs is that each party’s costs of the motion will be costs in the cause.

38. At the request of the plaintiff a short stay will be granted to permit the plaintiff to consider whether to seek leave to appeal.

39. For these reasons the Court makes the following orders:

40. Order that the first defendant have access to the documents produced in response to the Notice to Produce dated 22 August 2025 in packets N-4 and N-5, which correspond to Documents 1-3 and 38-42 in Annexure C to the affidavit of Alexander Haslam sworn on 13 November 2025.

41. The costs of the Notice of Motion filed on 13 November 2025 will be costs in the cause.

42. Orders 1 and 2 are stayed until 12pm Wednesday, 26 November 2025 for the plaintiff to consider seeking leave to appeal.

43. If a summons seeking leave to appeal is filed by 12pm Wednesday, 26 November 2025, or such further period as the Court or Court of Appeal may order, the stay is to be continued until any such summons is disposed of or until the Court or the Court of Appeal otherwise orders.

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