Head Quarters (WA) Pty Ltd (Trustee) v Mubarakai

[2016] FCA 1254

FEDERAL COURT OF AUSTRALIA

Head Quarters (WA) Pty Ltd (Trustee) v Mubarakai [2016] FCA 1254

File number(s):	QUD 179 of 2016
Judge(s):	JAGOT  J
Date of judgment:	18 October 2016
Catchwords:	EVIDENCE – legal professional privilege – annexure to affidavit mistakenly included communications between solicitor and client – affidavit tendered – inadvertent disclosure - obvious from strike through that email not intended to be part of affidavit – no waiver of legal professional privilege
Cases cited:	Expense Reduction Analysts Group Pty Limited v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46; (2013) 250 CLR 303
Date of hearing:	18 October 2016
Registry:	Queensland
Division:	General Division
National Practice Area:	Commercial and Corporations
Sub-area:	Commercial Contracts, Banking, Finance and Insurance
Category:	Catchwords
Number of paragraphs:	5
Counsel for the Applicant:	Mr C Crawford
Solicitor for the Applicant:	Rouse Lawyers
Counsel for the Respondents:	Mr B Grubb with Mr G Metaxas
Solicitor for the Respondents:	Metaxas & Hager

ORDERS

QUD 179 of 2016

BETWEEN:

HEAD QUARTERS (WA) PTY LTD AS TRUSTEE FOR THE THREE FLIGHTS UP UNIT TRUST

Applicant

AND:

JERESTINE SHAHYAZ MUBARAKAI

First Respondent

VICTORIA VENTURES PTY LTD AS TRUSTEE FOR THE VICTORIA VENTURES UNIT TRUST

Second Respondent

JUDGE:	JAGOT  J
DATE OF ORDER:	18 OCTOBER 2016

THE COURT ORDERS THAT:

1.The email from the applicant to his solicitor be removed from evidence on the basis that legal professional privilege over that document has not been waived.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

JAGOT J:

1. The principle expressed in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46; (2013) 250 CLR 303 (2013) 250 CLR 303 (Expense Reduction) is not confined to the context of discovery.  The principle is that if a reasonable person would have realised that the disclosure of a document was inadvertent and by error then legal professional privilege is not waived and the Court should ordinarily permit the correction of the mistaken disclosure.

2. In the present case, it is clear from the affidavit of the applicant’s solicitor, Robert Montes, sworn 18 October 2016, that the email from Mr Mali to Mr Montes was never intended to be included in the affidavit.  Moreover, it would have been obvious to a reasonable person that this was so because the version of the affidavit that has been filed and served, and admitted into evidence, has strike-through markings on the email in question which Mr Montes explains he put on the document in order to indicate to his administrative staff that, when the document was photocopied the email in question should be blanked out, as occurred with a subsequent annexure to the affidavit (annexure DP27).

3. The fact that the email has been struck through clearly indicates that it was never intended to form part of the affidavit and thus was never intended to form part of the evidence that was admitted yesterday.  True it is that it is still possible to read the email by reason of the fact that there are mere lines through it, but Mr Montes could equally have made his intention clear by blacking out the whole of the email.  It is by accident alone that the email is able to be read.  What is of real importance, however, is that I consider that the strike through would indicate to any reasonable solicitor that it was never intended that the email form part of the affidavit at all. 

4. Further, given the strike through, it cannot be said that the contents of the email have in fact been adduced into evidence.  Rather, what has been put into evidence is a page which has one email which is not struck through and another email, from the client to the solicitor, which is struck through.  The inference I would draw from the striking through, even without Mr Montes’ evidence, is that the email does not form part of the evidence which was adduced yesterday. 

5. Consistent with the principle in Expense Reduction, in circumstances where there is a clear error and a reasonable solicitor would have recognised that it was not intended that there be any disclosure of the email in question, I consider that the email does not form part of the evidence adduced and, even if it did, it should be permitted to be withdrawn from evidence.  There has been no waiver of legal professional privilege over that email and I will treat that email as not forming part of the affidavit in question.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.

Associate:

Dated:        21 October 2016