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

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.
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.
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”.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Norman v Wall (No. 4)

Details

AGLC: Norman v Wall (No. 4) [2020] NSWSC 999
Case: [2020] NSWSC 999
Decision Date: 27 July 2020

CaseChat Overview and Summary

Norman v Wall (No. 4) is a case in which the parties dispute the handling of confidential information inadvertently disclosed through email communication. The case was heard in the Supreme Court of Victoria. The dispute centres on the inadvertent disclosure by a solicitor, who annexed confidential material to an affidavit. The plaintiff alleges that the confidential material has been disseminated to parties with an interest in the litigation.

The primary legal issue before the court was whether the inadvertent disclosure of confidential information by the annexure of material to an affidavit warranted the grant of an injunction to prevent further dissemination of the material. The court also considered whether the plaintiffs should be required to deliver up hard copies of the email communication. The court had to weigh the need to protect confidential information against the practicalities of ensuring that the material was not further disclosed.

The court held that the inadvertent disclosure of confidential information through the annexure of material to an affidavit did not warrant the grant of an injunction to prevent further dissemination of the material. The court found that the plaintiffs had provided a Harman undertaking, promising not to disclose the material further. The court also noted that the plaintiffs had taken steps to ensure that the material was not disseminated further. The court ordered the plaintiffs to deliver up hard copies of the email communication. The court found that this was necessary to ensure that the material was not further disclosed.

Orders