Email Maintains Legal Professional Privilege in NSW Supreme Court Case

The court held that an email forwarded for the purpose of collecting information for litigation remains privileged and cannot be inspected.

New South Wales Supreme Court

CITATION : [NAME] v [NAME] & Ors [2004] NSWSC 1301 HEARING DATE(S) : JUDGMENT DATE : 25 October 2004

JUDGMENT OF : Whealy J at 1 DECISION : I decline to permit inspection

CATCHWORDS : Legal professional privilege - Waiver: when it may occur [NAME] v [NAME] : [NAME] v [NAME] v [NAME](S) : SC 70222/03; 70032/03; 70223/03 [NAME] SC; [NAME] COUNSEL : [redacted] Mr I. [NAME] QC; [NAME] - [NAME] Mr R. [NAME] de Wiel QC; [NAME] - [NAME] SOLICITORS : [redacted] LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

WHEALY J

MONDAY 25 October 2004

70222/03 - [NAME] v [NAME] 70032/03 - [NAME] v [NAME] 70223/03 - [NAME] v [NAME] - On privilege, see p 5820 of transcript

1 HIS HONOUR: In view of the lengthy decision I gave earlier this morning on the topic of legal professional privilege and I shall refrain from dealing at length with this matter. There are references in the transcript at 4245 to 4246 to a document that obviously is the same document as that under present discussion. There has been much more debate about it at the present time however, and I am much better informed about that document and it s provenance than I was at that earlier time. 2 Nevertheless, the issue, it seems to me, remains the same, that is, to determine whether the email sent by [NAME] on or about the 1 July, forwarding, in effect, the e-mail from [NAME] presumably to [NAME] sent on the 29 June, is a communication in respect of which privilege may be claimed; and, secondly, whether, pursuant to the principles I identified in my judgment earlier this morning, there is scope for a finding that the privilege has been waived. 3 As is always the case in such a situation, the defence are at a disadvantage, they don't have the document, although I think it is fair to say from the ambit of the debate that they have a reasonable idea of its contents. I have the document in front of me however. I have read it and I suppose it will not come as a surprise to anyone if I say that the views I expressed back on the 30 August 2004 remain the view that I have about the document, that is I consider that it is a privileged communication. 4 I came to that conclusion because it seems to me that when one looks at its source – the solicitor for the DPP - and what it requires the recipient to do, that is, to contact another party and then presumably report back to the solicitor. It is clear that the e-mail is an instruction for the collection of information sought by the lawyers for the DPP for the purposes of conducting the litigation; and no doubt as well for the lawyers to advise the client about the particular matters. It does not in fact relate to consignment, although it could on one interpretation, encompass a situation that is similar to it, namely commission sales. 5 As far as the aspect, if I can describe it this way, "get a load of this" reference, which really enlivened the whole topic, wherein it was suggested that [NAME] has sent an e-mail which contained a rather contemptuous reference to a consignment defence, thus indicating that she was perhaps not taking the defence seriously and was biased about the topic. 6 May I say this: there is a light hearted but an insulting reference in fact in the e-mail but it is not related to that topic at all. In fact, it is a slightly derogatory remark about the solicitor for the DPP. That is the way I read those three sentences, but the remark has nothing to do with the e-mail sent by [NAME] and nothing to do with the task that [NAME] in turn obviously wanted performed by [NAME]. Moreover, the remark was apparently added by [NAME] and not by [NAME]. All she did was forward the original e-mail to which was added [NAME]'s remark. 7 In relation to waiver, I indicated in argument that there may be some circumstances in which the border has been crossed. One clear example of that I think is where for example, a document is sent to the tax office where work is required to be done which then results in that document being placed on an assessment file in the tax office. 8 But here what was asked to be done, what was expected to be done, and I anticipate perhaps what was done, if anything was done, all fell within the purview of a request that itself was a communication that was privileged. I think the on-forwarding of that request to the person who was intended to carry out the work to fulfil the request does not result in a loss of privilege. 9 I would hold that the communication in the e-mail is privileged and I am not satisfied that, merely by forwarding it in that way, that there can be any furtherance of the suggested conflict of interest between the roles performed by [NAME] on the one hand as a financial investigator and as an expert witness on the other. As I see it she was doing no more than sending on a document that for that matter it could have been sent on by anyone. It doesn't appear to have had any impact on her whatsoever. 10 For those reasons I decline to permit inspection. I am happy for the document to be marked for identification. I think I should return it to the source from which it came, that is to the solicitor who produced it.

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