Applications for leave to appeal decisions of primary judge dismissing defendant’s applications to: strike out proceeding; add counterclaim; and exclude documents from court book
Whether judge erred in finding documents: relevant to issues in dispute; not confidential; and not subject to legal professional privilege
Quick Take
1Inclusion of a document in a court book does not render it admissible in evidence; a ruling about court book contents will not ordinarily reach the threshold of substantial injustice required for leave to appeal an interlocutory order on practice and procedure.
2Correspondence between a party's solicitors and a regulatory body such as ASIC, including submissions and procedural communications, does not attract legal professional privilege under s 118 of the Evidence Act 2008, and boilerplate confidentiality notices in standard-form emails are insufficient to establish confidentiality under s 117.
3An application to add a counterclaim made over four years after commencement of proceedings and four months before a fixed trial date, without adequate explanation for the delay, may properly be refused having regard to the overarching purpose of the Civil Procedure Act 2010 and the principles in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175.
