› Whether litigation funder under implied obligation not to disclose communications with plaintiff's lawyers
› Evidence Act 1995 (NSW), ss 117, 118, 119
Evidence
› Privilege
› Legal professional privilege
› Waiver
› Common interest privilege
› Whether secured creditor funding litigation under Deed of Company Arrangement had common interest with plaintiff
› Whether disclosure to funder waived privilege
› Evidence Act 1995 (NSW), ss 122(2), 122(4), 122(5)(b)
Evidence
› Privilege
› Legal professional privilege
› Litigation privilege
› Dominant purpose
› Whether communications with funder for dominant purpose of client being provided with professional legal services
› Evidence Act 1995 (NSW), s 119
Quick Take
1A litigation funder who is a secured creditor under a Deed of Company Arrangement, with a collaborative and supportive relationship involving discretion to source continued funding, may be under an implied obligation of confidentiality sufficient to satisfy the definition of 'confidential communication' in s 117 of the Evidence Act 1995 (NSW), even absent an express confidentiality agreement or a solicitor-client relationship with the funded party's lawyers.
2A secured creditor funding litigation under a DOCA who has an interest in the most advantageous conduct of the proceedings — including recoupment of funding, priority over other creditors, and participation in any recovery — shares a 'common interest relating to a proceeding' with the plaintiff within s 122(5)(b), so that disclosure of privileged material to the funder does not waive privilege under s 122(2) or s 122(4).
3Communications providing privileged material to a funder to ensure continued funding of litigation are for the dominant purpose of the client 'being provided with professional legal services' within s 119, as they are inextricably linked to the client's capacity to receive those services, rather than merely anterior to that purpose.
Case Details
Citation[2006] NSWSC 234
CourtNSWSC
JurisdictionNew South Wales
Unlock so much more with Barrister AI
The full text is available to signed-in members, including the 31 later cases that cite this judgment.
2 of the 31 citing cases carry a classified treatment. How each court treated it is available to signed-in members.
