Seketa v Gadens Lawyers

The case of Seketa v Gadens Lawyers involved a dispute between the plaintiff, Seketa, and the defendant, Gadens Lawyers. The primary issue was whether the defendant had waived the client legal privilege in respect of certain documents, specifically the C&L Documents, under sections 122(2) and 131A of the Evidence Act 2008 (Vic). The plaintiff argued that the defendant had waived the privilege by denying falsely and maliciously defaming the plaintiff. The court was tasked with determining whether the defendant's denials and reliance on the particulars amounted to a waiver of privilege, and if maintaining the privilege was inconsistent with the defendant's actions.

The court examined the principles of waiver of client legal privilege under the Evidence Act. It noted that the common law approach, as outlined in Mann v Carnell, continued to apply, where inconsistency between the client's conduct and the maintenance of confidentiality could lead to a waiver of privilege. The court considered whether the defendant's conduct, including its particularised denials, constituted an inconsistency that would necessitate a waiver of privilege. The decision in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited provided guidance that the focus should be on the conduct and position of the person claiming privilege, to see if they have effectively 'approbbed' the information to prevent them from'reprobating' it.

Ultimately, the court found that the defendant had not waived the privilege in the C&L Documents. The court held that the defendant's particularised denials did not amount to an inconsistency that would trigger a waiver of privilege. The court emphasised that for a waiver to occur, there must be something more than mere inconsistency, and the defendant's actions did not meet this threshold. Therefore, the plaintiff's application for the court to order the disclosure of the C&L Documents was dismissed.

The court ordered that the plaintiff's application by summons, filed on 26 March 2021, be dismissed. The court further noted that unless there was any good reason to the contrary, the plaintiff should pay the defendant's costs of the summons. The court would provide the plaintiff an opportunity to address any concerns regarding the usual order for costs before making the final order.