Secure Logic Pty Limited v Paul William Noble (No. 2) - [2019] NSWSC 1057

Supreme Court

New South Wales

Medium Neutral Citation: Secure Logic Pty Limited v Paul William Noble (No. 2) [2019] NSWSC 1057
Hearing dates: 29, 30, 31 July, 1, 2, 5 & 6, 7, 8, 9, 12, 13, 14 & 19 August 2019,
Date of orders: 19 August 2019
Decision date: 20 August 2019
Jurisdiction: Equity
Before: Slattery J
Decision:
Client privilege not waived over the pre-29 March 2016 emails.

Catchwords: PRIVILEGE– privileges – client legal privilege – waiver – before the hearing of the proceedings commenced, the plaintiffs waived privilege over a communication with their solicitor dated 29 March 2016 – the principal officer of the plaintiffs was cross-examined on this communication and said he had forwarded some emails to the plaintiffs’ solicitor, for the solicitor to advise about the communication of 29 March 2016 – but the plaintiffs’ principal officer denied receiving any advice from his solicitor prior to 29 March 2016 – cross-examiner called for any pre-29 March 2016 advice – documents were produced and client legal privilege was claimed over them – whether client legal privilege waived.
Legislation Cited: Evidence Act 1995, ss 118, 122, 126, 133
Cases Cited: Chen v City Convenience Leasing Pty Ltd [2005] NSWCA 297
Divall v Mifsud [2005] NSWCA 447
Esso Australia Resources Limited v Commissioner of Taxation (1999) 201 CLR 49
Grant v Downs (1976) 135 CLR 674; (1976) 11 ALR 577
Mann v Carnell (1999) 201 CLR 1
Secure Logic Pty Limited v Paul William Noble [2019] NSWSC 991
Singapore Airlines v Sydney Airports Corporation [2004] NSWSC 380
Sovereign Motor Inns Pty Ltd v Bevillesta Pty Ltd [2000] NSWSC 521
Category: Procedural and other rulings
Parties: First Plaintiff/Cross Defendant: Secure Logic Pty Limited (ACN 154 505 030)
Second Plaintiff/ Cross Defendant: Secure Logic Technologies Pty Ltd
Third Plaintiff/ Cross Defendant: Secure Logic Pte Ltd
Fourth Plaintiff/ Cross Defendant: Plush Hosting Pty Ltd
First Defendant/Cross Claimant: Paul William Noble
Second Defendant/Cross Claimant: Peach Tree Bay Pty Limited (ACN 132 097 647)
Third Defendant/Cross Claimant: John Russell Pankhurst
Representation:
Counsel:
Plaintiffs: M.R. Elliott SC; S. J. Hallahan
First & Second Defendants: B. DeBuse
Solicitors:
Plaintiffs: Andrew Lacey, McCabes Lawyers Pty Ltd
First & Second Defendants: John Mark Laxon, Laxon Lex Lawyers
Third Defendant: John Russell Pankhurst – in person

File Number(s): 2016/182584
Publication restriction: No

Judgment

This is the Court’s second judgment in these proceedings. The Court’s first judgment dealt with an issue of alleged waiver of client legal privilege claimed by the first and second defendants over three groups of documents: Secure Logic Pty Limited v Paul William Noble [2019] NSWSC 991. This judgment should be read with the Court’s first judgment, where the relevant background to the issues in contest is to be found. Events, persons and matters are referred to in the same way in both judgments.
This judgment also relates to an alleged waiver of client legal privilege. The background to the issue may be shortly stated. Before the hearing of the proceedings commenced, the plaintiffs…

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.

Keep reading for free

Create a free CaseChat account to read Secure Logic Pty Limited v Paul William Noble (No. 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] NSWSC 1057
Decision Date: 20 August 2019

CaseChat Overview and Summary

Secure Logic Pty Limited brought proceedings against Paul William Noble, and the central issue in dispute was whether the plaintiffs had waived their client legal privilege over certain communications with their solicitor. The matter was heard in the Federal Circuit Court of Australia. The plaintiffs had previously waived privilege over a communication with their solicitor dated 29 March 2016, which led to the plaintiffs' principal officer being cross-examined on this matter. The cross-examiner sought to establish that the plaintiffs had received advice from their solicitor prior to 29 March 2016, but the plaintiffs' principal officer denied this, leading to the production of documents which the plaintiffs claimed were protected by client legal privilege.

The court was required to determine whether the plaintiffs had waived their client legal privilege by virtue of the waiver of privilege over the 29 March 2016 communication, and whether the production of documents related to advice received prior to 29 March 2016 constituted a further waiver of privilege. The court had to consider the principles of client legal privilege, the implications of partial waiver, and the extent to which the plaintiffs' actions could be construed as an overall waiver of privilege.

In resolving the issue, the court noted that the waiver of privilege over the 29 March 2016 communication was specific and limited to that date. The court held that this specific waiver did not extend to other communications or documents unless expressly stated or implied by the plaintiffs' conduct. The court found that the plaintiffs had not waived privilege over the documents in question, as the production of these documents was not accompanied by an explicit or implicit waiver of privilege. The court emphasised that a party cannot selectively waive privilege and that any waiver must be clear and unequivocal.

The court's final orders confirmed that the plaintiffs had not waived privilege over the documents produced in response to the cross-examination, thereby preserving the protection of client legal privilege over those documents. The court's decision underscored the importance of clear and precise communication when waiving legal privileges to avoid unintended consequences.

Orders