Willett & Ors v Belconnen Soccer Club [2007] ACTSC 41 (29 June 2007)

Last Updated: 28 July 2008

GREGORY WILLETT & ORS v BELCONNEN SOCCER CLUB LIMITED

[2007] ACTSC 41 (29 June 2007)

PRACTICE AND PROCEDURE - discovery of documents - client legal privilege - waiver - whether disclosure of document inadvertent - whether obvious mistake

Court Procedures Rules 2006 (ACT), r 601, r 606, r 609

Evidence Act 1995 (Cth), s 117, s 122

Sovereign Motor Inns Pty Ltd v Bevillesta Pty Ltd [2000] NSWSC 521

Meltend Pty Ltd v Restoration Clinics of Australia Pty Ltd (1997) 145 ALR 391

Guiness Peat Properties Ltd v Fitzroy Robinson Partnership [1987] 1 WLR 1027

Australian Securities and Investments Commission v Rich [2004] NSWSC 934

Citicorp Australia Ltd v Cirillo (unreported, Supreme Court of South Australia, Duggan J, 6 July 2000)

LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd [2000] NSWSC 1066

ACTEW Corporation Ltd v Mihaljevic [2007] ACTSC 39

No. SC 488 of 2005

Judge: Master Harper

Supreme Court of the ACT

Date: 29 June 2007

IN THE SUPREME COURT OF THE )

) No. SC 488 of 2005

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: GREGORY JOHN WILLETT

First Plaintiff

GREG WILLETT & ASSOCIATES PTY LIMITED

Second Plaintiff

AND: BELCONNEN SOCCER CLUB

Defendant

ORDER

Judge: Master Harper

Date: 29 June 2007

Place: Canberra

THE COURT:

1. Orders that the affidavits of Edward David Webster sworn 15 September 2006 and 21 March 2007 and of Deborah Joy Mackenzie sworn 16 February 2007 and of Mark Ferdinand Treffers sworn 7 and 21 March 2007 may be used in determining the application.

2. Declares that any legal professional privilege attaching to the email from Jeff Turner to Basil Pietrukowski dated 13 July 2004 has been waived.

1. This is an application by the plaintiffs for a declaration that the defendant has waived legal professional privilege in an email.

2. The plaintiffs' claim is for damages for breach of contract, breach of statutory duty and defamation following the termination of the employment or engagement of the first plaintiff as general manager of the defendant club.

3. In March 2006 the Registrar directed by consent that the parties file and serve affidavits verifying lists of documents. On 9 May 2006, Edward David Webster, then acting president of the club, swore an affidavit verifying a list of documents prepared by the plaintiffs' solicitors, Minter Ellison. The list itemised nine folders of documents, identifying specific documents within each folder. These included folder B item 17, described as copy email from Jeff Turner to Basil Pietrukowski dated 13 July 2004. The list also contained a category of documents in respect of which legal professional privilege was claimed: this was limited to the files of the two firms of solicitors who had acted for the defendant in the course of the litigation, first Bradley Allen and later Minter Ellison. The contents of the solicitors' files were not itemised.

4. Mr Mark Treffers is the partner at Minter Ellison with carriage of the action on behalf of the defendant. His evidence is that the list of documents was prepared by Ms Sita Jones and Mr John Macpherson. Ms Jones was admitted as a solicitor in June 2006. At the time the list of documents was prepared she was a graduate in law and was close to completing her practical legal training. Mr Macpherson was a paralegal employed by Minter Ellison. The critical portion of Mr Treffers' affidavit, sworn on 7 March 2007, is as follows:

5. In preparing the list of documents Ms Jones and Mr Macpherson reviewed a large number of documents from the defendant which they considered for inclusion in the document. This included a large box of miscellaneous documents as well as an additional four folders of documents.

6. Ms Jones, shortly before the date of swearing the affidavit, presented to me for my approval a draft of the affidavit of documents which was sworn by the Club's Acting President, Mr Edward Webster, on 9 May 2006. In approving the draft I did not examine each of the documents discovered separately but I did review the affidavit and examine some of the documents.

7. I have no recollection of considering folder B document 17 (copy email from Jeff Turner to Basil Pietrukowski dated 13 July 2004) in part A of the list of documents sworn on 9 May 2006 when I reviewed the list of documents prior to the affidavit being sworn. I did not inspect any of the documents prior to the inspection of the documents by the plaintiffs' solicitors on 31 May 2006, nor was I present during that inspection.

8. Equally, when signing my letter of 19 June 2006 forwarding copies of the documents from the list of documents to the plaintiffs' solicitors on or after that date as requested by them, I did not examine any of those documents.

9. Although the plaintiffs' solicitors referred to the email in their letter of 7 July 2006 it was not until 18 July 2006, after I had received the plaintiffs' solicitors' letter of 18 July 2006 by facsimile that day, that I examined the email and formed the appreciation that the email contained material over which the defendant was entitled to claim privilege. After further consideration and enquiry I responded to the plaintiffs' lawyers on 15 August 2006 asserting privilege.

5. Following service of the affidavit of documents, Mr Ben Marshall of Williams Love and Nicol, the solicitors for the plaintiffs, made an appointment to inspect the defendant's documents. Mr Marshall attended the offices of Minter Ellison on 31 May 2006 and conducted his inspection. He tagged various documents and requested that he be provided with copies.

6. On 2 June 2006 Minter Ellison (Mr Treffers) wrote to Williams Love and Nicol (attention Mr Marshall) enclosing an account for the cost of photocopying the requested documents. Following payment of the account, Minter Ellison (Mr Treffers) wrote to Williams Love and Nicol enclosing copies of the documents in question. These included the email which is the subject of the present application.

7. On 7 July 2006, Williams Love and Nicol (Mr Marshall) wrote to Minter Ellison (attention Mr Treffers) asking, inter alia, for copies or other records of the advice referred to in the email. Mr Treffers replied that the document or documents requested had been discovered in part B of the defendant's affidavit as to documents, that is the portion describing documents in respect of which privilege was claimed. Mr Marshall wrote back, asserting that any privilege had been lost as a result of the disclosure of the email. He wrote again a month later (15 August 2006) repeating the request and drawing attention to r 609 of the Court Procedures Rules 2006. Rule 609 is not strictly applicable: it is stated to apply where a party claims in a list of documents that a particular document is privileged from production, and another party challenges the claim by letter. The party making the claim is required to file and serve an affidavit justifying the claim for privilege by someone who knows the facts giving rise to the claim. This letter appears to have crossed with a letter of the same date from Minter Ellison, signed by Mr Treffers, which included the following:

We refer to your request . . . for copies or records of advice referred to in the email from Jeff Turner to Basil Pietrukowski dated 13 July 2004 . . . . We wish to claim partial privilege over the email . . . in relation to the extract and request that you return any copies of that email in your possession that refers to legal advice obtained by the defendant from their solicitors.

8. Mr Marshall replied, again asserting that privilege had been waived, including privilege in any written advice by the earlier solicitor, Mr Michael Long of Bradley Allen. After further correspondence on each side seeking to justify the positions of the parties in relation to the email, Mr Treffers wrote on 8 September 2006 saying that he had been unable to locate any advice in written form, or any file notes of the advice referred to in the email. On 8 September 2006 Mr Webster swore a further affidavit verifying a list of documents. He included in the open portion of the list an item, `Copy extract of email from Jeff Turner to Basil Pietrukowski dated 13 July 2004', and in the privileged portion of the list, an item `Copy email from Jeff Turner to Basil Pietrukowski dated 13 July 2004 (part privilege claimed)'.

9. On 15 September 2006 Mr Webster swore another affidavit, presumably in an endeavour to comply with r 609, in which he said that the email had been inadvertently contained in part A to his original affidavit as to documents. The defendant now claimed privilege over the parts of the email which contained legal advice.

10. The present application was filed on 19 February 2007, and is supported by another affidavit sworn by Mr Webster on 21 March 2007. By then Mr Webster was president of the club. He is a retired Superintendent of police. He has no legal qualifications. He swore that he did not receive a copy of the email in July 2004 and was unaware of its existence at that time. He was not involved in retrieving any of the club's documents listed in the list attached to his affidavit of 9 May 2006. On that date, he attended the offices of Minter Ellison to swear the affidavit. He flicked through the documents but did not look at them in detail. As he looked through the documents he noted the sender, receiver and subject matter, to satisfy himself that the documents related to the dispute, but did not read the contents of the documents. This exercise took a few minutes before he swore the affidavit. By the time he swore his affidavit on 21 March 2007, he had no recollection of seeing the email in contention at the time he swore the first affidavit of documents. He was given no specific advice to the effect that the email might be privileged, and was unaware that by serving the sworn affidavit the club might be waiving privilege in the email.

11. The sender and receiver of the email, Mr Turner and Mr Pietrukowski, were directors of the club in 2004. Mr Turner was a public servant and sent the email from his office computer. The copy of the email which was produced to the solicitors for the plaintiffs was one which had been printed by Mr Pietrukowski. It contents were as follows:

Subject: GM's Contract

Bas

I have not sent this to Rob as yet as I wanted to run this past you first of all.

My thoughts:

I have read through the counter-offer. This information contained is, in my opinion, superfluous to the issue at hand and does not support nor substantiate his claims.

The bottom line for us now is what we do with the counter-offer. If we:

§ Agree to it, then, as his preference is to have employee status, we need to reinstate ALL accrued leave as, (according to advice received from Michael Long), the previous unsigned contract was a sham and he was a contractor in name only as 80% of his salary was coming from the one source. Michael cited an English case where the Courts deemed that you needed to `look at the truth of the matter'. According to the advice, as I read it, then Greg is entitled to this accrued leave if we [the Board] agree that he was actually an employee or;

§ Reject the counter-offer, if this is the decision, we will, as per the advice received, require the payment of accrued leave as he was actually an employee of BSC, not a contractor.

Either way, I believe that it will need to be put to the full Board (whenever

that will be with our current absentees) as it will be (in my opinion) a very close and sensitive decision. We will need to convey to the GM the current situation (and the timeliness of a decision) with the Board. This would then trigger another concern re his salary and whether we withhold further pays. I really hope that I have not made this too complex, but it is as I see it.

Your thoughts?

Jeff Turner

12. Mr Treffers and Mr Webster were cross-examined on their affidavits. There was no other evidence on behalf of the defendant. Counsel for the plaintiff invited me to draw an inference, from the absence of any affidavit by Ms Jones, that her evidence would not have assisted the defendant's case on the application. There was no explanation for her absence as a witness, and I note that she witnessed the affidavit sworn by Mr Webster on 21 March 2007. She was clearly available. Similarly, there was no evidence from Mr Macpherson. He is no longer employed by Minter Ellison, but there was otherwise no explanation for his absence. It would have been helpful to have evidence from Ms Jones and Mr Macpherson as to how each of them understood and performed the task of preparation of the list of documents. I think I must accede to counsel's submission, and draw the inference that their evidence would not have assisted the defendant. This is probably not of much significance in relation to Mr Macpherson, but I see Ms Jones' role as critical. She was the first point of contact between Minter Ellison and the directors of the club, including Mr Webster. It is apparent that Mr Treffers effectively delegated the task of preparation of the list of documents to Ms Jones, and that he relied on her skill and expertise in determining, in relation to each of the documents provided by the club to Minter Ellison, whether the document was relevant and whether it was privileged. Mr Treffers did not undertake this task himself, although he settled the affidavit and the accompanying list. As I have said, privilege was claimed in the list of documents only for the contents of the Bradley Allen file and the Minter Ellison file. Privilege was not claimed in respect of any internal club documents.

13. The email in contention was not obviously on its face a privileged document as would have been, for example, an advice from counsel or a letter from a firm of solicitors. There was nothing about the description of the email in the affidavit of documents which would have alerted Mr Treffers, or anyone else, to the possibility that it might contain privileged material. It would have been necessary to read the email thoroughly to ascertain this. I am satisfied that either this was not done, or that the fact that it contained privileged matter was not appreciated by the Minter Ellison employee who read it, whether Mr Macpherson or Ms Jones. I am satisfied that Mr Treffers did not read the email in the course of settling the affidavit: had he done so, he would undoubtedly have identified the privileged material.

14. I should make reference to one other aspect of the evidence. On 8 September 2006 Minter Ellison wrote to Williams Love and Nicol, in a letter signed by Mr Treffers which identified Ms Jones as the contact person and Mr Treffers as the responsible partner, and gave the Minter Ellison reference as SKJ:MFT 26 - 5044149. The evidence does not enable me to make a finding as to whether the letter was prepared by Ms Jones or Mr Treffers, though I suspect the former: as it was signed by Mr Treffers, I must see him as responsible for its contents. The letter included the following paragraph:

In relation to the email from Jeff Turner to Basil Pietrukowski dated 13 July 2004, we restate the assertion made in our letter of 22 August 2006 that disclosure of the full email was inadvertent and accidental. Although the defendant's first affidavit of documents was ten pages long, a huge volume of documents were reviewed for relevance for inclusion in the affidavit. It was always intended that only part of the email was to be disclosed for inspection and that the extracts of the email referring to legal advice were to be blacked out. Disclosure of a full copy of the email for inspection was inadvertent and accidental. We continue to seek partial privilege over the email and request that you return any copies of that email in your possession. (my emphasis)

15. In his affidavit of 7 March 2007, Mr Treffers deposed that in reviewing the file for the purpose of the affidavit, his attention was drawn to the third sentence in the quoted paragraph. He says that the letter, including that sentence, was drafted by `my assisting solicitor' (this can only have been a reference to Ms Jones) for his approval and signature. At the time he signed the letter he had no reason to doubt the accuracy of the statement. He had spoken on the day he swore his affidavit with the assisting solicitor. Her position was that it had been her intention as a general matter to claim privilege in relation to any document containing or referring to legal advice. Mr Treffers went on:

Upon review of this sentence it is conceded that it may be interpreted as suggesting that the email had been considered at the time of preparation of the list of documents and before disclosure of the email. That was not the case.

16. On the same day that he swore the affidavit Mr Treffers wrote to Williams Love and Nicol saying:

We attach by way of service a copy of the writer's affidavits, sworn today. You will note from paragraphs 13 to 17 that with the writer having reviewed the relevant events, we can no longer be satisfied that the statements in the third sentence of the third paragraph of our letter to you of 8 September last properly reflect what we intended to convey to you. That portion of the letter is hence withdrawn and no longer relied upon.

17. This was disingenuous. The withdrawn sentence is not unclear in meaning or ambiguous, except in the sense that, being expressed in the passive voice, it does not identify the person or persons who `always intended' to black out part of the email and to disclose only the balance of it. It seems to me calculated to convey that the intention had been present prior to inspection, but had been accidentally and inadvertently not carried through. This was clearly not the case. Mr Webster had formed no such intention, and nor had Mr Treffers. Ms Jones conceded to Mr Treffers on 7 March 2007 that she had not had any such intention in relation to the specific email. If Mr Macpherson had any such intention, I would have expected evidence of it, and in the absence of any such evidence, I infer that he did not. The sentence made a factual representation to the solicitors for the plaintiff at a time when Minter Ellison were motivated to salvage, if possible, the privilege which the plaintiffs' solicitors asserted had been lost. The representation was withdrawn only after the plaintiffs' solicitors brought the present application. When Mr Treffers became aware that the sentence in the letter was untrue he should have said so, rather than seeking to justify it as capable of being interpreted in some way inconsistent with its plain meaning.

18. Rule 601 of the Court Procedures Rules 2006 provides that a document is privileged from production if evidence of it could not be adduced over objection because of the Evidence Act. Under r 606 the Court has power to order a party to disclose discoverable documents; to make an order for disclosure, or non-disclosure, by a party of any discoverable document in the party's possession; and to make any other order about disclosure or non-disclosure of documents that the Court considers appropriate. The Court may inspect a document to decide whether it ought to be disclosed. Rule 606(6) provides that an affidavit must not be used for an application for an order under the rule unless the Court otherwise orders. The present application has been one where, in my view, it was necessary for affidavit evidence to be adduced, and I propose to make a formal order that the affidavits which were read on the hearing of the application may be used in determining the application.

19. Loss of client legal privilege is governed by s 122 of the Evidence Act. The section effectively provides that the privilege is lost if a client or party has knowingly and voluntarily disclosed the substance of the evidence to another person. "Client" is defined in s 117 to include an agent of the client; this has been held to include a lawyer acting with the authority of the client: Sovereign Motor Inns Pty Ltd v Bevillesta Pty Ltd [2000] NSWSC 521 at [24] per Austin J. I am satisfied that Minter Ellison had general authority from the plaintiff to prepare the list of documents and to decide whether or not to claim privilege in respect of each document required to be listed. The firm was in a position to make a disclosure for the purpose of s 122, and to waive privilege if the disclosure was knowing and voluntary.

20. Whether or not a disclosure is knowing and voluntary depends on the facts of the case. In Sovereign v Bevillesta the dispute related to a letter of advice from the plaintiff's solicitor to the managing director of the plaintiff company written some time before the commencement of proceedings. In the course of discovery, a verified list of documents was prepared on behalf of the plaintiff. Part 1 of the list specified numerous individual documents. Part 2 described by category about 370 documents claimed to be privileged. These documents were not individually specified. The first category included correspondence between the plaintiff and its solicitors. The alleged disclosure did not occur in the list of documents itself, but on production for inspection. The solicitor for the defendant attended at the office of the plaintiff's solicitor to inspect the discovered documents, and was given access to various boxes and binders. The documents were not individually numbered, and the solicitor found it difficult to identify the listed documents. The inspection nevertheless took place and the solicitor tagged various documents for copying, including the letter of advice. The tagged documents were photocopied in the office of the plaintiff's solicitor and copies were provided to the defendant's solicitor, including the letter of advice. There was no covering letter listing the documents supplied, nor was there any further claim to privilege. The copying was found to have been done as a purely administrative task by an employee of the plaintiff's solicitor, and not to have been reviewed by the solicitor before release. The plaintiff's solicitor subsequently said that the letter of advice had been left inadvertently in one of the ring binders produced for inspection. If he had known it was there, he would have removed it. The subsequent copying and release of the letter was simply a continuation of the initial inadvertent mistake.

21. Austin J came to the conclusion that there had been an intention to claim privilege by and on behalf of the plaintiff in respect of the document at all relevant times, and that the intention had not been effectuated due to simple inadvertence. In his Honour's view the defendant's solicitor, when reading the letter, must have realised that it was a letter of a privileged kind and therefore that it had been made available for inspection by mistake. In those circumstances the plaintiff's solicitor had not knowingly and voluntarily disclosed the letter to the defendant. Privilege had not been lost and the letter was inadmissible.

22. Goldberg J was required to resolve a comparable dispute in Meltend Pty Ltd v Restoration Clinics of Australia Pty Ltd (1997) 145 ALR 391. The document in issue was a letter from a firm of accountants to the respondent. The solicitors for the respondent listed the letter in the first (non-privileged) section of the list of documents, describing it simply by date, sender and receiver. The list was verified, filed and served. A solicitor employed by the applicant's solicitors attended the office of the respondent's solicitors to inspect the documents. She was left to herself in a conference room with several boxes of documents, and spent the better part of a day inspecting them. As she proceeded, she dictated notes. She inspected the letter in question, and dictated a note summarising its contents and commenting on its significance for the purposes of the case. After returning to her own office, she wrote to the respondent's solicitors asking for copies of certain of the documents, including the letter in question. Most of the documents were provided, but the respondent's solicitors declined to provide the letter, saying:

Document 8.017, a copy of which has been requested by you, is privileged. A copy was included in our client's list of documents and the documents which you inspected by mistake. Our clients now claim privilege over this document, which was produced for the sole purpose of these proceedings and to facilitate the provision of legal advice.

23. An employed solicitor in the office of the respondent's solicitors gave affidavit evidence as to how the mistake had been made. He said that the list of documents had initially been compiled by a paralegal. It had been prepared under the solicitor's supervision. He had considered each document described, and settled the list of documents. In particular, he considered whether each document was relevant and whether it was privileged. He said:

In my opinion, the document . . . is privileged. It should not have been discovered. The document probably falls within the heads of privilege claimed in Schedule 2 to the respondent's list of documents . . . . At the time I settled the content of the respondent's list of documents I did not appreciate that document 8.017 was a privileged document. Documents . . . were subsequently inspected . . . . The solicitors for the applicants requested copies of documents . . . . During the course of compiling copied documents in response to that request, I realised that a claim for privilege ought probably to have been made in respect of document 8.017 . . . Including the document . . . was a mistake.

24. Goldberg J accepted that the document had come into existence for the purpose of the proceedings and had been privileged. However, the facts did not compel an inference that the applicant's solicitors must have known or realised that the letter had been included in the open part of the list by mistake. The document on its face was not patently privileged, as, for example, an advice from counsel might be. It emanated from a non-legal source and was directed to a non-legal person. Its contents would not necessarily have made the solicitor conducting the inspection realise that a claim for privilege would arise. His Honour did not accept that the inspecting solicitor had sought to take advantage of an obvious error or mistake. His Honour concluded from the affidavit evidence that the solicitor who had prepared the list of documents had turned his attention to the issue of whether or not the letter was relevant and whether or not it was privileged. The solicitor had determined that it was relevant and that it was not privileged. His intention was accordingly to disclose the contents of the letter. The critical issue was whether an intention had been established on the part of the respondents to waive any privilege attaching to the letter. His Honour noted that privilege could be lost by inadvertence: Guiness Peat Properties Ltd v Fitzroy Robinson Partnership [1987] 1 WLR 1027 at 1045 per Slade LJ.

25. In Guiness Peat, Slade LJ had expressed the general proposition that a party to litigation who sees a particular document referred to in the other side's list, without privilege being claimed, and subsequently inspects the document, is entitled to assume that any privilege which might have been claimed has been waived. The general rule is that once the other party has inspected the document, it is too late for the party claiming privilege to correct its mistake. There are exceptions in the case of fraud and of obvious mistake.

26. Goldberg J in Meltend was satisfied that there had not been an obvious mistake, in the sense of a mistake obvious to the inspecting solicitor. His Honour concluded that there had been a waiver of privilege in relation to the letter. The solicitor who had prepared the list of documents had effectively changed his mind about privilege because he had initially failed to understand the nature of the document when he directed his mind to the issues of relevance and privilege.

27. His Honour went on to say that if he was wrong about express waiver, waiver should be imputed by operation of law. Once documents were disclosed to an opposite party as part of the formal process of discovery and inspection, in circumstances involving no criticism of that party, fairness required that that party be not disadvantaged in the use it could make of the documents. If parties were able to change their minds about the privilege attaching to a document after it had been inspected, the process of discovery had the potential to become unworkable. In the absence of obvious mistake apparent to an inspecting party, or fraud, the appropriate principle to apply was that once inspection had taken place, any privilege attaching to the document should be regarded as waived.

28. In Australian Securities and Investments Commission v Rich [2004] NSWSC 934, Austin J held that privilege had been waived by ASIC in a set of observations to counsel and an advice by counsel which had been produced in answer to a subpoena as part of a massive volume of documents. The documents had been inspected by the solicitors for the defendants and they had subsequently been provided by ASIC with copies. Austin J held that the disclosure in the circumstances had been knowing and voluntary for the purposes of s 122 of the Evidence Act.

29. I should make reference to two other single-judge decisions of state Supreme Courts. In Citicorp Australia Ltd v Cirillo (unreported, Supreme Court of South Australia, 6 July 2000), Duggan J dismissed an appeal from a Master who had found that there had been no waiver of privilege, despite inspection having taken place, in a letter from two of the plaintiffs (receivers appointed under a debenture trust deed) to another plaintiff (the debenture creditor). The Master had found, and his Honour was satisfied, that the letter was privileged. The question was whether privilege had been waived. Privilege had been claimed in respect of the letter in two earlier affidavits of documents, but not in a third affidavit. The solicitor for the defendant was aware of the earlier claims to privilege. The Master held, and his Honour agreed, that in the circumstances privilege had not been waived. I consider that this can be distinguished from the present application because it must have been obvious to the inspecting solicitor that a mistake had been made.

30. In LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd [2000] NSWSC 1066, Hunter J decided that privilege had not been waived in material included in a CD-ROM. His Honour accepted that the material had been included inadvertently. The mistake had been picked up immediately after production of the CD-ROM to the other side, and before inspection.

31. It seems to me that, as I said in ACTEW Corporation Ltd v Mihaljevic [2007] ACTSC 39 at [29], this Court should adopt the principle stated by Slade LJ in Guiness Peat Properties, and quoted by Goldberg J in Meltend: where solicitors for a party have mistakenly included a document in respect of which privilege could properly have been claimed, the court will ordinarily permit the solicitors to amend the list of documents at any time before inspection; but once inspection has taken place, the general rule is that it is too late to correct the mistake: unless inspection has been procured by fraud, or the inspecting solicitor realises on inspection that the document has been produced only by reason of an obvious mistake.

32. It is not in issue that the portion of the email in contention was privileged before its disclosure. Both parties accept that part of a document may be privileged whilst the balance of it is not, and that in these circumstances the requirements of discovery can be met by providing a copy of the letter with the privileged portion removed or rendered illegible. The issue for me to determine is whether the inclusion of the email in the non-privileged portion of the list of documents, and its subsequent production and inspection, have given rise to a waiver of the privilege.

33. It is clear that no conscious decision was made by any person at the club or at Minter Ellison to waive privilege, or to disclose the contentious portion of the email in the knowledge that it was privileged. I am in no doubt that if Mr Treffers had read the email at the time he settled the affidavit and list of documents, he would have ensured that the privileged portion of the email was not included in the open part of the list. I cannot be satisfied that Ms Jones would have been likely to have come to the same immediate realisation as Mr Treffers, in the absence of any evidence from her. It is sufficient to say that the email was not one which was on its face obviously privileged. To detect the privileged material would have required a detailed reading of the email.

34. I am equally satisfied that the email would not have been seen immediately by the solicitor for the plaintiff as a patently privileged document. It would not have been obvious that it had been included in the list by mistake. It is in a different category to Goldberg J's example in Meltend of a patently privileged document such as an advice from counsel. This is not a case of a solicitor taking unfair advantage of an obvious mistake by another solicitor. A relevant factor is that what has been done cannot be undone: the solicitor for the plaintiffs is aware of the contents of the email. He cannot be expected to put it out of his mind, and in the circumstances it would be impractical and unreasonable to expect him to do so.

35. Accordingly I find that there has been a waiver by the defendant of the privilege in the entire email from Mr Turner to Mr Pietrukowski dated 13 July 2004. The plaintiffs are entitled to a declaration as sought. My provisional view is that costs should follow the event, but I shall hear the parties in case there are factors relevant to costs of which I am presently unaware.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Associate:

Date: 29 June 2007

Counsel for the plaintiff: Mr J Pappas

Solicitors for the plaintiff: Williams Love & Nicol

Counsel for the defendant: Mr R P Clynes

Solicitors for the defendant: Minter Ellison

Date of hearing: 10 May 2007

Date of judgment: 29 June 2007