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Re Optimisation Australia Pty Ltd

Re Optimisation Australia Pty Ltd

Case [2016] NSWSC 1581 9 March 2016

Admissibility of Evidence

Legal Privilege

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: In the matter of Optimisation Australia Pty Ltd [2016] NSWSC 1581
Hearing dates: Wednesday, 9 March 2016
Date of orders: 09 March 2016
Decision date: 09 March 2016
Jurisdiction: Equity - Corporations List
Before: Brereton J
Decision:
Documents admitted

Catchwords:
EVIDENCE – privilege – client legal privilege – whether defendants were the clients entitled to claim privilege – where chain of emails sent from company computer with official company signature used – where action which advice sought could only be taken by company, not individuals – held, defendants were the clients
EVIDENCE – privilege – client legal privilege – whether privilege had been lost – whether secondary evidence can be given by tender of emails – common law position would admit evidence regardless of any waiver – (NSW) Evidence Act 1995, s 118 and s 119 overturns common law position so that secondary evidence is not admissible – whether defendants have waived privilege under Evidence Act, s 122(2) – held, privilege was waived by delay
Legislation Cited: (CTH) Corporations Act 2001, s 232
(NSW) Evidence Act 1995, s 117, s 118, s 119
Cases Cited: Armstrong Strategic Management and Marketing Pty Ltd v Expense Reduction Analysts Group Pty Ltd [2012] NSWCA 439, (2012) 295 ALR 348
Australian Securities and Investments Commission v Lindberg (2009) 25 VR 398
Bell v David Jones Ltd (1948) 49 SR(NSW) 223
Calcraft v Guest [1898] 1 QB 759
Edman v Ross (1922) 22 SR(NSW) 351
Goddard v Nationwide Building Society [1987] 1 QB 760
Hodgson v Amcor Limited [2011] VSC 269, (2011) 32 VR 568
Lloyd v Mostyn (1842) 10 M&W 478; (1842) 152 ER 558
Lord Ashburton v Pape [1913] 2 Ch 469
Nolan v Nolan [2013] QSC 140
Norman v O'Mahony [2006] FCA 1169
Shepherd v Fox Williams LLP [2014] EWHC 1224
Spedley Securities Ltd v Bank of New Zealand (1991) 26 NSWLR 711
Category: Procedural and other rulings
Parties: Brian Raymond Kearney (first plaintiff)
Optimisation Australia Pty Ltd (first defendant)
Gary Williams (second defendant)
Susan Elizabeth Williams (third defendant)
Representation:
Counsel:
A Fernon (plaintiff)
M P Cleary (defendants)
Solicitors:
O’Neill McDonald Lawyers (plaintiffs)
Curwoods Lawyers (defendants)

File Number(s): 2013/153589

Judgment (EX TEMPORE)

HIS HONOUR: The plaintiff tenders a chain of emails between the second defendant Mr Gary Williams and one John Alex D, and a further chain of emails between Mr Williams and one Michael Mazzone. The defendants object on the basis of client legal privilege under (NSW) Evidence Act 1995, ss 118 and 119. This judgment is concerned with that tender and objection.

Background

The first defendant company Optimisation Australia Pty Ltd is held, in substance, as to 35% by the plaintiff Brian Kearney, as to 33% by his brother-in-law the second defendant Gary Williams, and as to 32% by his sister the third defendant Susan Williams. Prior to April 2013, all three were employed by the company, and had been so employed since its inception in 2006. Although the remuneration…

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 Re Optimisation Australia Pty Ltd

Details

AGLC: In the matter of Optimisation Australia Pty Ltd [2016] NSWSC 1581
Case: [2016] NSWSC 1581
Decision Date: 09 March 2016

CaseChat Overview and Summary

The matter before the court was an application by Optimisation Australia Pty Ltd (the company) to exclude certain emails from being admitted as evidence in a proceeding against it. The opposing parties (the defendants) sought to rely on the emails to establish their case. The court had to determine whether the defendants were the clients entitled to claim privilege over the emails and whether the privilege had been waived by the company. The dispute was heard in the Supreme Court of New South Wales.

The primary legal issue was whether the defendants, who were the directors of the company, were the clients entitled to claim privilege over the emails. The court considered whether the chain of emails sent from the company's computer with the official company signature indicated that the company was the client seeking legal advice. The court held that the advice sought in the emails could only be taken by the company, not by the individual directors, and therefore, the defendants were the clients entitled to claim privilege.

The second issue was whether the privilege had been lost by the company. The court noted that under the common law, secondary evidence, such as emails, could be given by tendering the emails themselves. However, the court found that the provisions of the Evidence Act 1995 (NSW) overturned the common law position, and secondary evidence was not admissible. The court further held that the privilege had been waived by the company's delay in objecting to the admissibility of the emails.

In conclusion, the court found that the defendants were the clients entitled to claim privilege over the emails, but the privilege had been waived by the company's delay in objecting to the admissibility of the emails. The court allowed the application to exclude the emails as evidence.

Orders