CMA Corporation Ltd v Rowe

Case [2010] FCA 1042

FEDERAL COURT OF AUSTRALIA

CMA Corporation Ltd v Rowe [2010] FCA 1042

Citation: CMA Corporation Ltd v Rowe [2010] FCA 1042
Parties: CMA CORPORATION LIMITED, CMA RECYCLING PTY LTD and CMA RECYCLING (VIC) PTY LTD v DOUGLAS TREVOR ROWE, SOUTHERNRO PTY LTD, JASON ZORZUT, TROY ROWE, GARY COSTELOW, MALCOLM MCLEAN and DARYL WHITE
File number: NSD 1102 of 2010
Judge: BUCHANAN J
Date of judgment: 23 September 2010
Catchwords: EVIDENCE – privilege – inadvertent disclosure of privileged material – timely attempt to retrieve material inadvertently disclosed – no waiver of privilege
Legislation: Evidence Act 1995 (Cth) ss 122(2), 122(3)
Cases cited: Boensch v Pascoe [2007] FCA 532
Director of Public Prosecutions (Commonwealth) v Kane (1997) 140 FLR 468
Goldberg v Ng (1994) 33 NSWLR 639
Kabwand Pty Ltd v National Australia Bank Ltd (1987) 16 FCR 85
Mann v Carnell (1999) 201 CLR 1
Meltend Pty Ltd v Restoration Clinics of Australia Pty Ltd (1997) 75 FCR 511
Unsworth v Tristar Steering and Suspension Australia Ltd [2007] FCA 1081
Date of hearing: 22 September 2010
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 32
Counsel for the Applicants: Mr R. Cobden SC with Mr C. Colquhoun
Solicitor for the Applicants: Minter Ellison
Counsel for the Respondents: Mr A. I. Tonking SC
Solicitor for the Respondents: Madgwicks Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1102 of 2010
BETWEEN:

CMA CORPORATION LIMITED
First Applicant

CMA RECYCLING PTY LTD
Second Applicant

CMA RECYCLING (VIC) PTY LTD
Third Applicant
AND:

DOUGLAS TREVOR ROWE
First Respondent

SOUTHERNRO PTY LTD
Second Respondent

JASON ZORZUT
Third Respondent

TROY ROWE
Fourth Respondent

GARY COSTELOW
Fifth Respondent

MALCOLM MCLEAN
Sixth Respondent

DARYL WHITE
Seventh Respondent

JUDGE:

BUCHANAN J

DATE OF ORDER:

23 SEPTEMBER 2010

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The document set out on the first and second page of the Annexure marked “TR 7” to the affidavit of Troy Rowe sworn 3 September 2010 and filed herein, and comprising the material after the words “Thank you” and before the words “From: Laura Simmons-Strempel…” is the subject of client privilege and that such privilege has not be waived by the Fourth Respondent.

2.        Costs are reserved.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1102 of 2010
BETWEEN:

CMA CORPORATION LIMITED
First Applicant

CMA RECYCLING PTY LTD
Second Applicant

CMA RECYCLING (VIC) PTY LTD
Third Applicant
AND:

DOUGLAS TREVOR ROWE
First Respondent

SOUTHERNRO PTY LTD
Second Respondent

JASON ZORZUT
Third Respondent

TROY ROWE
Fourth Respondent

GARY COSTELOW
Fifth Respondent

MALCOLM MCLEAN
Sixth Respondent

DARYL WHITE
Seventh Respondent

JUDGE:

BUCHANAN J

DATE:

23 SEPTEMBER 2010

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. These proceedings are in the docket of Flick J.  They are listed for a final hearing on liability commencing…

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AGLC
CMA Corporation Ltd v Rowe [2010] FCA 1042
Case
[2010] FCA 1042
Decision Date

CaseChat Overview and Summary

The matter of CMA Corporation Ltd v Rowe was heard in the Supreme Court of Victoria. The case revolved around the admissibility of certain evidence in the context of a legal dispute. Specifically, the issue was whether a party could claim client legal privilege over an email sent by one individual to another within the same company. The plaintiffs argued that the email should be considered privileged, while the defendants contended that the privilege had been waived.

The court was tasked with determining whether the privilege attached to the email and, if so, whether it had been waived. The key legal issue was the interpretation and application of Section 122 of the Evidence Act 1995 (Cth). This section provides exceptions to the general rule that privileged communications cannot be disclosed without the consent of the client. The court had to assess whether the conduct of the party claiming privilege was inconsistent with maintaining the privilege over the email in question.

In delivering the judgment, the court found that the privilege had not been waived. The reasoning was that the party who swore the affidavit in which the email was referenced did not knowingly and voluntarily disclose the email or consent to its disclosure. The court also noted that the party had not taken any further steps to disclose the email to another person, which would have been necessary to waive the privilege. The court concluded that there was no evidence to suggest that the party understood the implications of including the email in the affidavit at the time it was sworn.

The court’s decision upheld the claim of privilege over the email, thereby barring its admission as evidence in the proceedings. As a result, the defendants' reliance on the email was rendered inadmissible, which could have significant implications for their case.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The present issue is to be resolved by reference to the provisions of the Evidence Act 1995 (Cth) (“the Evidence Act”) rather than by reference to common law principles, although to the extent that any relevant distinction remains it has no significance for the present case having regard to amendments made to the Evidence Act in 2008 to which I will refer. The relevant paragraph of Mr Troy Rowe’s affidavit has not yet been read in the proceedings. The respondents are not required to read it and may elect not to rely upon exhibit TR7. However, Mr Cobden has made clear his present intention to rely upon Mr Douglas Rowe’s email in the proceedings and, if necessary, tender it in evidence. Accordingly the provisions of the Evidence Act will apply if that position is reached. Section 122(2) and (3) of the Evidence Act provide as follows:(2)Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120.(3)Without limiting subsection (2), a client or party is taken to have so acted if:(a)the client or party knowingly and voluntarily disclosed the substance of the evidence to another person; or(b)the substance of the evidence has been disclosed with the express or implied consent of the client or party.(Emphasis added) Consideration of the operation and effect of s 122 of the Evidence Act must commence with recognition of the fact that s 122 operates as an exception to the general rules set by ss 118 and 119 – namely, that evidence must not be adduced over objection where that would result in disclosure of material protected by client legal privilege. For that protection to be lost, in accordance with s 122(2), it is necessary to show, as earlier emphasised, that “the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence”. The relevant party here is Mr Troy Rowe. Mr Cobden made it clear that he did not rely on either limb of s 122(3) of the Evidence Act. He did not argue that Mr Troy Rowe knowingly or voluntarily disclosed Mr Douglas Rowe’s email or that it was disclosed with his express or implied consent. However, he pointed out that the matters referred to in s 122(3) operate without limitation to s 122(2). He contended that Mr Troy Rowe had “acted in a way that is inconsistent with” a claim for privilege with respect to Mr Douglas Rowe’s email. The inconsistent conduct upon which he relied was that Mr Troy Rowe swore his affidavit in circumstances where exhibit TR7 was shown to him at the time of swearing. That circumstance, which I accept, does not take the matter far enough. A further step was required before any privilege was waived. The further step was the disclosure of the material to another person. Although it may be accepted that Mr Troy Rowe understood, when he swore his affidavit, that he was doing so for the purpose of it being provided to the Court, and to the applicants, that does not exclude the possibility that he acted upon a misunderstanding. I have already indicated that I do not propose to give any weight to the fact that an offer was made that he could give evidence to that effect. In fact he has not done so. Nevertheless, I think the conclusion may safely be drawn from the matters to which I have already referred that there is no reason to think that he was particularly conscious that Mr Douglas Rowe’s email was included in the material he was shown or that privilege in it would be waived when the affidavit was served. No attempt was made to explore that possibility with Ms Simmons-Strempel.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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