Ventouris Enterprises Pty Ltd v Dib Group Pty Ltd & Anor (No.1)

[2009] NSWSC 1320

CITATION:	Ventouris Enterprises Pty Ltd v Dib Group Pty Ltd & Anor (No.1) [2009] NSWSC 1320
HEARING DATE(S):	28 October 2009
JURISDICTION:	Equity
JUDGMENT OF:	Slattery J at 1
EX TEMPORE JUDGMENT DATE:	28 October 2009
DECISION:	Defendant required to make available emails to the plaintiff to the extent provided for in this judgment.
CATCHWORDS:	EVIDENCE - facts excluded from proof - on grounds of privilege - call for emails under s 36 Evidence Act - emails produced but client privilege claimed - waiver of privilege - emails made available
LEGISLATION CITED:	Evidence Act 1995 (NSW) s 36
CATEGORY:	Procedural and other rulings
CASES CITED:	Standard Chartered Bank of Australia Ltd v Antico (1993) 36 NSWLR 87
PARTIES:	Plaintiff: Ventouris Enterprises Pty Ltd First Defendant: Dib Group Pty Ltd Second Defendant: George Dib
FILE NUMBER(S):	SC 3753/06
COUNSEL:	Plaintiff: Mr S A Benson Defendants: Mr D Cook
SOLICITORS:	Plaintiff: Butlers Law Group Defendants: Macree Law

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

SLATTERY J

WEDNESDAY 28 OCTOBER 2009

3753/06 VENTOURIS ENTERPRISES PTY LTD v DIB GROUP PTY LTD & GEORGE DIB (NO. 1)

JUDGMENT [Claim for Legal Professional Privilege]

1 HIS HONOUR: The defendant has called for production of documents under s 36 Evidence Act 1995 from the defendant. The call is for communications between the defendants' solicitors and the defendant and a proposed witness Mr John Dib. The call relates to correspondence notifying him about the forthcoming hearing of these proceedings.

2 That call has now been answered. Legal professional privilege has been claimed for the three e-mails that have been produced. The defendant seeks the exercise of the Court’s discretion to allow the cross-examination of Mr Dib by video link. The defendant has sought by oral evidence given through Mr Macree, to confirm that there were warnings given to Mr Dib about the forthcoming hearing of these proceedings and that genuine efforts were made for him to attend Court. This evidence adduced by the plaintiff would usually be a privileged communication between Mr Macree and Mr John Dib.

3 Aspects of three e-mails produced in answer to the call go to the very issue of the notice given to Mr John Dib of the hearing. The defendant cannot rely upon that oral evidence of Mr Macree which has been adduced, without fairly providing the opportunity to the plaintiff to test it. The evidence adduced from Mr Macree is relevant to the exercise of my discretion on this application. The defendant has, by adducing Mr Macree’s evidence about his communications with Mr Dib, which evidence was clearly relevant and material to the application, and was an assertion about the content of a confidential communication by a party’s legal adviser, waived privilege in respect of communications solely upon that issue: Standard Chartered Bank of Australia Ltd v Antico (1993) 36 NSWLR 87 at 94-5.

4 I have scrutinised the e-mails with a view to isolating the parts of the communications that relate to that issue. Those parts only amount to a few sentences. Therefore, I will read them into this judgment so that they are immediately available to both parties. Mr Benson can take a note of them now. I hold that the defendant is required to produce them and they are to be made available to the plaintiff to the extent provided for in this judgment on the call under s 36 Evidence Act.

5 The first is an e-mail from Mr Basil Macree sent on Wednesday 23 September 2009 at 2.13 pm to Mr John Dib, copied to Mr George Dib and to Mr Ross Morrison and Mr Gary Tom. It is headed subject "Kevmark and Coolabah Tree" and commences "Dear John" and the last two sentences which are relevant to this case read as follows. The second last sentence is: “Please let me know by return what is happening.” The last sentence is: “Ventouris starts 26 October 2009" and the email concludes: “Regards Basil Macree".

6 The second e-mail is from Basil Macree sent 25 September 2009 at 11.04 am to John Dib. The subject is Coolongalook". The email reads:

“Dear John, the Court hearing of Coolabah Tree, Kevmarl and Dib Group starts Friday next, 2 October. I think it important that you be here for the hearing even though it is unlikely your evidence will be needed. Your presence will be good for the morale of the Dib Group team and to be able to make any important decisions should it be necessary” “I look forward to seeing you. Kind regards, Basil".

7 There is another e-mail of an earlier date which is irrelevant to the issues between the parties on this application.

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