Metcalfe P.W. v NZI Securities (Australia) Ltd & Ors [1995] FCA 224

NOT FOR DISTRIBUTION FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY) NG 397 of 1992 GENERAL DIVISION ) BETWEEN: PETER WILLIAM METCALFE Applicant AND: NZI SECURITIES (AUSTRALIA) LIMITED and OTHERS Respondent CORAM: SACKVILLE J. PLACE: SYDNEY DATE: THURSDAY, 6 APRIL 1995 HIS HONOUR: Mr Coles QC, on behalf of the respondent, has tendered a letter of 25 March 1992 written to Mr Poignand by Blessington Judd, Solicitors. That letter provides advice in relation to instructions received from Mr Poignand to review the relevant documentation and to provide preliminary views on the effect that the appointment of the receiver to Ripoll Pty Limited would have upon the Dee Why Gardens Retirement Village. The instructions also sought advice as to whether any action was necessary in view of that appointment. There is little doubt that this letter was privileged at the time it was written, in that it communicated legal advice to Mr Poignand from his then solicitors, Blessington Judd. Mr Moss, a solicitor with the firm of Blessington Judd, has been cross-examined by Mr Coles by reference to this letter. That cross-examination did not traverse the text of the letter, although Mr Moss was invited to change his recollection on some matters in the light of the letter, which was placed in front of him. At that time Mr Coles indicated that he intended to tender the letter. He has now done so. Mr Coles addresses the question of privilege by tendering an affidavit of Mr Hawke, a director of a company known as W.L. Hawke Holdings Pty Limited. That company was a defendant and cross-claimant in proceedings No. 50095 of 1991 in the Supreme Court of New South Wales Commercial Division. The affidavit was filed in those proceedings. In that affidavit Mr Hawke annexes the letter of 25 May 1992, which Mr Coles has now tendered. Mr Hamilton QC, for the applicant, objects to the tender of the affidavit, except to the extent that it shows that an affidavit was filed by Mr Hawke in the proceedings and that the letter was annexed thereto. I think Mr Hamilton is correct when he says that the affidavit cannot be relied upon for the purposes of proving the source of the letter as far as Mr Hawke was concerned. The statement in the affidavit concerning the source of the letter is hearsay. However, in my view, the letter can be used to draw the following conclusions or inferences: first, that Mr Hawke did file an affidavit in the proceedings to which the letter of 25 March 1992 was annexed; secondly that, since the affidavit was filed in the ordinary course, the other parties to the proceedings (including NZI Capital Corporation Ltd and Mr Poignand) received copies of the affidavit and of the letter; thirdly, in the absence of countervailing evidence, that Mr Hawke obtained the letter by lawful means; and, fourthly, that Mr Poignand (who is one of the represented parties to the present proceedings) has not sought to retrieve the copies of the letter. On the basis of those conclusions, even though there is no evidence that the affidavit was read in the Commercial Division proceedings, it seems to me that the evidence justifies the inference that a copy was made available by Mr Poignand to another person or persons and found its way lawfully into the hands of Mr Hawke who then proceeded to distribute it in the manner I have described. In those circumstances, I do not think it would be fair for the claim of privilege to be upheld in order to defeat the tender in these proceedings. The letter has been used, apparently without objection by Mr Poignand, for the purposes of the Commercial Division litigation. I think that any question of unfairness that might arise by reason of the fact that Mr Coles did not tender the letter at the time of Mr Moss' cross-examination (and I do not say that the tender is necessarily unfair) can be dealt with by following the course foreshadowed by Mr Hamilton. This involves him asking further questions of Mr Moss in the applicant's case in reply. I note that Mr Coles has not put any argument to suggest that that course should not be followed. The end result is that I admit into evidence the letter of 25 March 1992, previously MFI 11. That letter will now be exhibit 11. I certify that this and the preceding 3 pages are a true copy of the Reasons for Judgment of the Honourable Justice Sackville. Associate: Dated: 10 April, 1995 Heard: 6 April, 1995 Place: Sydney Decision: 10 April, 1995 Appearances: Mr J. Hamilton QC and Mr N. Francey, instructed by Blessington Judd, Solicitors, appeared for the applicant. Mr B. Coles QC with Mr D. Robinson and Mr M. Ashhurst, instructed by Holmes & Bevan, Solicitors, appeared for the respondents.