WESLEY WIDJAJA v NG WEI SAN @ OEI WEI SAN @ WILSON HASAN WIDJAJA & 4 Ors

Facts

Mr Wesley Widjaja is a beneficiary of his late grandfather's estate, entitled among other things to 40% of the residuary estate. His father, Mr Wilson, is the sole executor. In Originating Claim No 45 of 2024, Wesley claimed that two relatives, Mr Kelvin Lim and Mr Jethro Widjaja, who each held 50% of the shares in Jaya Asri Pte Ltd, held those shares on trust for the grandfather, and that Wilson wrongly left them out of the estate. On or around 8 April 2024, after the suit began, Kelvin and Jethro transferred the shares to Crawford Trust Company LLC, said to hold them on trust for Wilson. Wesley added claims that the transfer was a breach of trust which Wilson dishonestly assisted. The defendants deny the claims; Wilson relies on a settlement agreement, and Kelvin and Jethro say they merely followed Wilson's instructions.

In SUM 898, an assistant registrar ordered by consent that Wilson, Kelvin and Jethro produce their communications about the shares and the transfer from 4 October 2022 to 8 April 2024. Instead of producing them, each filed an affidavit asserting that the documents were protected by legal advice and/or litigation privilege. Their counsel later explained that solicitors had been copied into the correspondence. Wesley applied in SUM 2052 to compel production. At the hearing the respondents dropped legal advice privilege and relied only on litigation privilege, and abandoned a late request to file a further affidavit.

Issues

1. What a party must do to assert legal professional privilege over documents it has been ordered to produce.
2. Whether the respondents established that the communications were protected by litigation privilege.
3. Whether any privilege had been waived, and whether the court should inspect the documents itself.

Holding

The Assistant Registrar allowed SUM 2052 and ordered the respondents to produce the disputed documents within seven days, in compliance with the orders in SUM 898. Costs of $6,500 (all in) were fixed, payable by the respondents to Wesley.

Reasoning

The court held that the party asserting privilege bears the legal burden of showing, at least on a prima facie basis, that the conditions for privilege are met. A bare assertion on affidavit is not conclusive. Under the Rules of Court 2021, a party resisting production on that ground should say so in its response affidavit, name the head of privilege and set out the supporting facts, without revealing the privileged content. Only then will the court generally treat those facts as conclusive unless it is plain and obvious they are wrong. The respondents' affidavits contained only bare assertions. A request by a respondent to file a further affidavit would need truly exceptional circumstances, which were absent.

Taking the respondents' case at its highest, the court accepted that litigation was a reasonable prospect from the grandfather's death. But the dominant purpose test was not met. Communications about shares that were the subject of the suit were not, for that reason, made for the purpose of the suit. The respondents' own evidence was that Kelvin and Jethro knew of no dispute, and that Wilson's instructions were preparations for moving the shares into a fund. Copying solicitors in could not by itself create privilege, or a party could shield anything that way, and the stated purpose of ensuring the transfer complied with the law undermined the claim.

As there was no privilege, waiver did not arise, though the court said it would have been inclined to find implied waiver of some documents because the defence relied on Wilson's instructions. It declined to inspect the documents, as neither party asked and there were reasons to doubt that inspection is appropriate under the current rules.

From the judgment