The High Court has ruled that documents exchanged between bankrupt Jerry Ryan and his trustee remain privileged and do not have to be disclosed to Barry English in ongoing proceedings over $8 million.
Mr Justice Twomey delivered the judgment on 18 October 2022 in a preliminary application concerning a notice to produce issued by Mr English on 17 June 2022. The court considered three groups of documents. It did not decide the underlying claim to recover the money or whether the settlement deed was validly rescinded with retrospective effect.
The trustee, Nicholas Stewart Wood, is seeking to recover the $8 million from Mr English for the benefit of Mr Ryan’s creditors. The claim follows earlier proceedings in which Mr Ryan and other plaintiffs unsuccessfully sought to recover the money. In those proceedings, the High Court held that a trust said to benefit Mr Ryan’s children was a sham. The trustee says the money is Mr Ryan’s property and forms part of his bankruptcy estate.
Mr English argued that Mr Ryan had waived legal advice or litigation privilege by sharing documents with the trustee. The trustee said the two had a common interest in the earlier proceedings, so sharing the documents did not waive privilege.
The first group comprised emails exchanged on 13 and 14 June 2019. The judge found that a common interest still existed when they were shared. Although the trustee’s later notice said the settlement deed had been rescinded with effect from 10 May 2019, the notice communicating rescission was sent on 10 September 2019. The court held that the common interest ended when rescission was communicated, not retrospectively on 10 May.
The second group was a 30 May 2019 counsel’s opinion obtained by Mr Ryan. The court found it remained privileged because it was shared while the common interest existed and there was no evidence that Mr Ryan intended to waive privilege.
The final group consisted of correspondence from June 2019 to September 2020. The judge found the identified emails and letters were protected by litigation or without-prejudice privilege. The court also rejected Mr English’s argument that an interrogatory answer required disclosure of one email marked “without prejudice”.
The court concluded that all the documents covered by the application were privileged and did not have to be produced. It directed the parties to try to agree outstanding matters and provide any draft order to the Registrar. The case was provisionally listed for mention one week after judgment, if needed.