Norman v Wall (No. 4)

[2020] NSWSC 999

Supreme Court

New South Wales

Medium Neutral Citation:

Norman v Wall (No. 4) [2020] NSWSC 999

Hearing dates:

27 July 2020

Date of orders:

27 July 2020

Decision date:

27 July 2020

Jurisdiction:

Common Law

Before:

Lonergan J

Decision:

(1) With respect to the email from Wrothwell Wall to Zoe Cunich dated 4 November 2019, inadvertently disclosed at annexure “D” of the Affidavit of Zoe Anne Cunich dated 7 February 2020 the first plaintiff and second plaintiff must:

(a) deliver up all hard copies of the email in their possession, custody or power to the solicitors for the defendant;

(b) delete all electronic copies of the email; and

(c) provide written confirmation of compliance with this order to the solicitors for the defendant;

Within 7 days

(2) The first plaintiff is to pay the defendant’s costs of the notice of motion filed 4 March 2020.

Catchwords:

CIVIL PROCEDURE — accidental disclosure of confidential information by email communication — disclosure by the annexure of material to the affidavit of solicitor — plaintiff asserts that the confidential material has been distributed to interested parties — Harman undertaking — plaintiffs provided undertaking not to disclose the material further — injunction previously granted — delivery up of hard copies of the email communication

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Harman v Secretary of State for the Home Department [1983] 1 AC 280

Category:

Procedural and other rulings

Parties:

Gillian Linda Norman (First Plaintiff)
Ron Berry (Second Plaintiff)
Wrothwell Wall (Defendant)

Representation:

Counsel:
J Raftery (Defendant)

Solicitors:
G Norman (Self-Represented)
R Berry (Self-Represented)
Gilchrist Connell Lawyers (Defendant)

File Number(s):

2019/196798

Publication restriction:

Nil

REVISED EX-TEMPORE Judgment

1. By notice of motion filed on 4 March 2020, the defendant seeks an order in respect of a confidential communication between the defendant and his solicitor Ms Cunich, an email dated 4 November 2019, that was accidently disclosed to the plaintiffs in February 2020.

2. In the affidavit in support of the application sworn 4 March 2020 seeking orders for the delivering up of all copies of the confidential communication accidentally disclosed, Ms Cunich states that the email was attached to her affidavit of 7 February 2020 filed and served in the proceedings. What was proposed to be included in that affidavit was simply a redacted part of that email, confirming that her firm had received a copy of the statement of claim from the defendant, Mr Wall.

3. Paragraph 11 of Ms Cunich’s 7 February 2020 affidavit states:

“On 4 November 2019, I received an email from the defendant attaching to it a document which, he stated in the email, had been served on him by the plaintiffs, and purported to be an amended statement of claim. Annexed hereto and marked with the letter “D” is a copy of that email and document”.

4. There is no doubt at all in my mind, given the content of the affidavit and the email in question, that the email communication was intended to be confidential between Mr Wall and his solicitors. It provides, in effect, an element of confidential instructions about the case raised in the statement of claim that Mr Wall had attached.

5. I accept Ms Cunich’s assertion that the content of that email, including those confidential instructions, was mistakenly disclosed by attaching it to her 7 February 2020 affidavit.

6. In determining this application, I am required to consider whether an early notification was made as to the accidental disclosure of that confidential material.

7. I am satisfied from the emails attached to Ms Cunich’s affidavit of 4 March 2020 that on Monday February 10, that is the next working day after 7 February 2020, Ms Cunich emailed the plaintiffs directly, copying in another solicitor at her firm whom I understand to be a senior solicitor, stating that the annexure, being the confidential email, included privileged information that was inadvertently provided and not redacted. She noted that she did not have authority to waive the privilege over the content of that email and that she would not be reading that affidavit of 7 February 2020 and will be re-swearing an affidavit and serving that without the confidential material. She requested that the plaintiffs destroy any copies of the email and to confirm that they were destroyed.

8. In response, Ms Norman “apologised” but stated that “it’s too late to destroy copies because I have already emailed it to multiple interested parties who may take their own action”.

9. Another email sent the same day by Ms Cunich to the plaintiffs drew attention to the obligations under the case of Harman v Secretary of State for the Home Department [1983] 1 AC 280, which she stated prohibits litigants in proceedings from using documents and information produced but not read in proceedings for any collateral or ulterior purpose unrelated to those proceedings, and stating that in the circumstances, the plaintiffs have no right to circulate and are precluded from circulating, the affidavit or its annexures to any third party. The email also noted that a breach of the Harman undertaking is a breach of an order of the Court and a very serious issue, and despite any assertion that there is a “public interest” in forwarding that communication to others, that is not a defence to any breach of the Harman undertaking.

10. A request was again made by Ms Cunich for destruction of any copies of the affidavit and any of the documents attached to it and for evidence of that step to be provided but, as I understand the position communicated by Ms Norman again in an email on 20 February 2020 at 4:45pm, Ms Norman took the view there was no obligation upon her to act in accordance with the Harman undertaking, stating that the recipients of the document in question “do not agree to destroy the email”.

11. It is obvious from the submissions provided by Ms Norman (as part of the proposed further amended statement of claim, paragraphs 89-95), that the plaintiffs take the view, or at least Ms Norman does, that this confidential communication between Mr Wall and his solicitors is somehow “suppressed material evidence upon a topic where there was a positive obligation to make a disclosure to the Court”.

12. Unfortunately that perception is quite mistaken. Any confidential communication between a lawyer and his or her client is protected by legal professional privilege, unless that privilege is expressly waived or waived by the circumstances in which that confidential communication is disclosed.

13. The evidence before me makes it crystal clear that the confidential communication in issue was disclosed accidentally and therefore there is a proper basis upon which to make the orders sought in the notice of motion.

14. I note that on 21 February 2020, Ms Norman and Mr Berry undertook to the Court not to disclose that material any further. Given the position explained on 21 February 2020 and the orders I made seeking a formal notice of motion and affidavit in support be filed so that I could determine whether or not I should make the orders sought that were requested orally and with some urgency on 21 February 2020, I take it that Ms Norman and Mr Berry have honoured that undertaking not to further distribute the material. I have no evidence before me to the contrary.

15. I am of the view that the injunction preventing disclosure should remain in place, given the contents of the emails I referred to and the importance of continuing to respect the protection of the legal professional privilege over that confidential communication.

16. Accordingly I make the orders sought in the notice of motion as follows:

1. With respect to the email from Wrothwell Wall to Zoe Cunich dated 4 November 2019 inadvertently disclosed at annexure D to the affidavit of Zoe Cunich dated 7 February 2020, the first plaintiff and the second plaintiff must:

1. deliver up all hard copies of the email in their possession, custody or power to the solicitors for the defendant;

2. delete all electronic copies of the email; and

3. provide written confirmation of compliance with this order to the solicitors for the defendant;

4. Within seven days.

Costs

17. In respect of costs, Ms Norman submits that she has been left impecunious by the subject matter of these proceedings and an associated series of events involving other persons in addition to the defendant Mr Wall, and as a result she requests that no costs order be made in respect of this notice of motion.

18. Mr Raftery, on behalf of the defendant, says that costs should follow the event, (r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW)) that is the defendant’s success on the notice of motion, given the orders I have made.

19. In the email correspondence between Ms Cunich and the plaintiffs, explanation of the principle in the Harman case and the obligations associated with it and the assertion by affidavit that the confidential communication was accidentally disclosed, is clearly set out.

20. It seems that Ms Norman at least, (and perhaps Mr Berry), took the view that this assertion was not right and would not accept what Ms Cunich said. In those circumstances, the defendant was obliged to go to the costs of preparing a notice of motion and supporting affidavit.

21. The appropriate costs order is that the first plaintiff, Ms Norman, pay the defendant’s costs of the notice of motion filed on 4 March 2020.

22. I will not make a costs order in respect of Mr Berry, who was not present in the virtual Court room when this motion was dealt with, and does not appear to have been directly involved in any correspondence with the defendant on that issue.

23. I note, however, the orders I made must be complied with by him and I will ensure these orders are provided by email to him today as well as to Ms Norman.

Orders

1. With respect to the email from Wrothwell Wall to Zoe Cunich dated 4 November 2019, inadvertently disclosed at annexure “D” of the Affidavit of Zoe Anne Cunich dated 7 February 2020 the first plaintiff and second plaintiff must:

1. deliver up all hard copies of the email in their possession, custody or power to the solicitors for the defendant;

2. delete all electronic copies of the email; and

3. provide written confirmation of compliance with this order to the solicitors for the defendant;

4. Within 7 days.

2. The first plaintiff is to pay the defendant’s costs of the notice of motion filed 4 March 2020.

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Decision last updated: 03 August 2020