Truck Centre (WA) Pty Ltd v Blythe
[2016] WADC 20
•18 FEBRUARY 2016
TRUCK CENTRE (WA) PTY LTD -v- BLYTHE [2016] WADC 20
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WADC 20 | |
| Case No: | CIV:765/2014 | ON THE PAPERS | |
| Coram: | DEPUTY REGISTRAR KUBACZ | 18/02/16 | |
| PERTH | |||
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application allowed | ||
| PDF Version |
| Parties: | TRUCK CENTRE (WA) PTY LTD JOHN BLYTHE |
Catchwords: | Practice and procedure Implied waiver of privilege No new principles Turns on its own facts |
Legislation: | Nil |
Case References: | Craine v Colonial Mutual Fire Insurance Co Ltd [1920] HCA 64 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46 Goldberg v Ng (1995) 185 CLR 83 Mann v Carnell (1999) 201 CLR 1 Osland v Secretary to the Department of Justice [2008] HCA 37 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
JOHN BLYTHE
Defendant
Catchwords:
Practice and procedure - Implied waiver of privilege - No new principles - Turns on its own facts
Legislation:
Nil
Result:
Application allowed
Representation:
Counsel:
Plaintiff : Mr S Steenhof
Defendant : Ms A R Chacko
Solicitors:
Plaintiff : Steenhof Brothers Barristers & Solicitors
Defendant : WHL Legal Pty Ltd
Case(s) referred to in judgment(s):
Craine v Colonial Mutual Fire Insurance Co Ltd [1920] HCA 64
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46
Goldberg v Ng (1995) 185 CLR 83
Mann v Carnell (1999) 201 CLR 1
Osland v Secretary to the Department of Justice [2008] HCA 37
1 DEPUTY REGISTRAR KUBACZ: On 13 January 2016, WHL Legal Pty Ltd (WHL Legal) filed an application to remove itself from the record as acting on behalf of the defendant. The application was supported by an affidavit of Anna Rebecca Chacko dated 13 January 2016 (the Affidavit).
2 The application was heard on 15 January 2016, whereupon WHL Legal was successful in its application and I made orders removing them as the defendant's legal representatives.
3 During the hearing, Ms Chacko made an oral application that the Affidavit be sealed as it contained an annexure, part of which was annexed in error and contained a letter dated 14 August 2015 addressed to the defendant, which was subject to legal professional privilege (the Letter).
4 Given that the chamber summons and affidavit containing the Letter was filed and served on the plaintiff's solicitors, I found that, unless Ms Chacko could convince me otherwise, there was an implied waiver of legal professional privilege as the Letter had been provided as evidence and provided to the plaintiff. I therefore refused to allow the affidavit to be sealed.
5 On 20 January 2016, WHL Legal wrote to the court requesting that my decision be varied to allow the Letter to be uplifted from the Affidavit to leave only a retainer agreement attached to it on the record. That request was supported by a further affidavit of Anna Rebecca Chacko dated 20 January 2016. In the 20 January 2016 affidavit, Ms Chacko attested that:
1. the Letter was annexed in error and only came to her attention after the Affidavit was filed and served (par 4);
2. it was her intention to only disclose and annex a retainer agreement annexed to the Letter and not the Letter itself (par 5);
3. she informed the plaintiff's solicitors of the error prior to the hearing of the chamber summons on 15 January 2016 (par 6);
4. she telephoned the plaintiff's solicitors on 18 January 2016 and confirm the error (par 7); and
5. the error was an honest mistake and there was no intention to waive privilege over the letter (par 10).
6 Given that at the hearing I had invited Ms Chacko to convince me otherwise and in order to give the plaintiff a chance to respond to the request to uplift the Letter, I asked the parties to provide short written submissions in relation to the issue.
7 The plaintiff's solicitors have advised that it is not providing the court with any submissions and has confirmed that it will abide with the decision of the court. The plaintiff's solicitors have confirmed that it has copies of the Letter but that copies have not been provided to their client.
8 WHL Legal filed its submissions on 9 February 2015. I have had a chance to consider the submissions and provide written reasons herein.
9 There is a substantial amount of case law on implied waiver of privilege and I do not propose to summarise all the case law on the issue as to do so would result in a very lengthy judgment.
10 I have therefore relied on the leading cases and the ones which are the most relevant to the circumstances before me.
11 By its strict definition a waiver of privilege is an intentional act done with knowledge whereby a party abandons a right by acting in a manner inconsistent with that right: Craine v Colonial Mutual Fire Insurance Co Ltd [1920] HCA 64.
12 The waiver may be express or implied. In the case of an implied waiver, a waiver may be imputed by the law arising from the acts of omissions of the person entitled to the privilege; Goldberg v Ng (1995) 185 CLR 83 [96], [98], with the consequence that a privilege is lost, even though the consequence was not intended by the party losing the privilege. The courts will impute an intention where the actions of a party are plainly inconsistent with the maintenance of the confidentiality which the privilege is intended to protect: Mann v Carnell (1999) 201 CLR 1 [13].
13 When considering whether there is an implied waiver, the court must determine whether the conduct of the party entitled to the privilege is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect and is to be made in the context and circumstances of the case and in the light of any considerations of fairness arising from that context or those circumstances; Osland v Secretary to the Department of Justice [2008] HCA 37 [45], [49].
14 In the case before me, it is clear from the evidence of Anna Rebecca Chacko dated 20 January 2016, which I have already mentioned above, and from WHL Legal's submissions filed on 9 February 2015 that there was no actual intention to waive privilege of the Letter and that it was disclosed in error.
15 As soon as the error was discovered, attempts were made to rectify the mistake and advise the plaintiff's solicitors of the mistake.
16 I therefore find that there is no inconsistency in WHL Legal's conduct or actions to suggest that it intended to do anything but maintain the confidentiality of the Letter and that the Letter was annexed to the Affidavit by genuine mistake.
17 In circumstances not dissimilar to these the High Court found in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46 that:
45. … where a privileged document is inadvertently disclosed, the court should ordinarily permit the correction of that mistake and order the return of the document …
…
49. The courts will normally only permit an error to be corrected if a party acts promptly. If the party to whom the documents have been disclosed has been placed in a position, as a result of the disclosure, where it would be unfair to order the return of the privileged document, relief may be refused …
18 The difference between that case and this is that the High Court was dealing with documents inadvertently disclosed during the process of discovery. That being said the principles remain the same.
19 Given my finding that there was a genuine mistake in the Letter being annexed to the Affidavit, that WHL Legal acted promptly to correct the error and given that there are no submissions in opposition from the plaintiff's solicitors, there is no unfairness to the plaintiff for me to order the uplifting and return of the Letter to WHL Legal.
20 On the basis of the above findings, I make the following orders:
1. That WHL Legal may uplift the affidavit of Anna Rebecca Chacko dated 13 January 2015 and remove the covering letter of Annexure 'ACH1' so that the annexure only contains the retainer agreement from WHL Legal.
2. The plaintiff's solicitors:
a. remove the covering letter from Annexure 'ACH1' from the affidavit of Anna Rebecca Chacko dated 13 January 2015 and destroy the said letter;
b. destroy any further copies of the letter that it may have in its possession; and
c. advise WHL Legal when all copies have been destroyed.
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