Supreme Court New South Wales Medium Neutral Citation: Twigg v Pitcher Partners Holdings Pty Ltd (No 2) [2022] NSWSC 1714 Hearing dates: 12 and 13 December 2022 Decision date: 13 December 2022 Jurisdiction: Equity - Commercial List Before: Ball J Decision: (1) The plaintiffs not be given access subpoena packets S-4, S-5 and S-6 produced in answer to three subpoenas addressed to Miranda Bordignon – SBA Law without the consent of the fourth and fifth defendants; (2) The plaintiffs pay the fourth and fifth defendants' costs of the application for access. Catchwords: EVIDENCE — Privileges — Legal professional privilege — Waiver — Whether the fourth and fifth defendants asserting privilege waived privilege by permitting the first to third defendants to inspect the documents — Whether privilege was waived by "inadvertently" copying the plaintiffs into the email attaching the documents Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; [2013] HCA 46 Category: Procedural rulings Parties: Diane Twigg (First Plaintiff) Twigg Plant Hire Pty Ltd atf The Twigg Family Trust (Second Plaintiff) Ipswich Landfill Pty Ltd atf the Ipswich Landfill Trust (Third Plaintiff) Brooklyn Landfill & Waste Management Pty Ltd atf the Brooklyn Landfill Trust (Fourth Plaintiff) Pitcher Partners Holdings Pty Ltd (First Defendant) Pitcher Partners Investment Services Pty Ltd (Second Defendant) Pitcher Partners Advisors Proprietary Limited (Third Defendant) Maxwell James Twigg (Fourth Defendant) Twigg Co Pty Ltd (Fifth Defendant) Representation: Counsel: DK Smith (Plaintiffs) PM Knowles SC (Fourth and Fifth Defendants) Solicitors: Roberts and Partners Lawyers (Plaintiffs) O'Loughlin Westhoff (Fourth and Fifth Defendants) File Number(s): 2022/150914 Publication restriction: None EX TEMPORE JUDGMENT 1. These proceedings are the second set of proceedings arising out of the sale by the corporate plaintiffs of the business carried on by them and the distribution of the proceeds of sale largely to Mr Max Twigg (Max) and entities associated with him. 2. Pitcher Partners had acted, for a number of years, for the corporate plaintiffs and members of the Twigg family. The Pitcher Partners' partner principally responsible for doing that work was Mr Adrian Fitzpatrick. 3. The first group of proceedings were commenced in July of 2018 and March 2019. They resulted in a judgment in favour of the plaintiffs against Max. Mr Fitzpatrick gave evidence for Max in those proceedings. 4. On 25 May 2022, the plaintiffs commenced these proceedings against certain Pitcher Partners entities (Pitcher Partners), and Max and Twigg Co Pty Ltd, a company controlled by Max (together, the Twigg defendants). 5. By Notice of Motion filed on 15 July 2022, Pitcher Partners seek an order permanently staying the proceedings on the basis that they are an abuse. That motion is currently part-heard before Stevenson J. 6. On 14 November 2022, the plaintiffs caused a subpoena to be issued to Mr Fitzpatrick requiring him to produce various documents relevant to the motion. Among the documents produced were packets S-4, S-5, and S-6. Those packets contain 103 documents. A list of those documents was provided to the plaintiffs and Pitcher Partners. At the time Mr Fitzpatrick's solicitors indicated that the Twigg defendants may be entitled to assert a claim for privilege over those documents. 7. The question of privilege was raised at the beginning of the second day of the hearing before Stevenson J. The transcript for that day relevantly records: HIS HONOUR: Yes. Any preliminaries? ELLIOTT: Yes, your Honour, there are two. And they will both be brief. The first, can I enter your Honour a set of orders that concerns a production issue. Mr Fitzpatrick has been subpoenaed to produce documents for the purpose of this application. He has produced documents but put a certain number of them in what's described as a "confidential envelope". And he has given us a list of them. Many of them, from the description, do appear to be probably privileged on the face of it, because of the identity of the HIS HONOUR: Right. ELLIOTT: But there are a couple that don't seem to be. And we have been proposing over the course of the last few days, a regime under which Max Twigg's lawyers and Pitcher Partners' lawyers would have first access. HIS HONOUR: That's what this — ELLIOTT: That's what this proposal is. HIS HONOUR: — proposal is. ELLIOTT: We have not received any response from Pitcher Partners. Max's lawyers concede to these orders. And if they could be made today, it would enable this issue to be flushed out. 1. Following some further discussion, his Honour made the following orders by consent: 1. The Court orders the Defendants to: (a) Have immediate access to Subpoena Packets S-4, S-5 and S-6; and (b) Notify the parties of any claim(s) for privilege by way of a particularised list which includes information regarding the documents(s) over which privilege is asserted including the subject matter of each document, the asserted privilege holder, the form of the communication and the identity and role of each person between whom the document or communication is made by 5pm on 2 December 2022. 1. On 8 December 2022, the solicitors for the Twigg defendants served an affidavit claiming privilege over 80 of the documents. Sixty remain in dispute. The resolution of that dispute was referred to me. 2. On 9 December 2022, the solicitors for the Twigg defendants sent an email to my Associate which was copied to the other parties attaching copies of the documents in respect of which the claim for privilege was made. That email was sent at 3.00 PM. At 6.35 PM, a further email was sent to my Associate explaining that due to inadvertence the court book containing the privileged documents was provided to the plaintiffs. 3. The matter was heard before me on 12 December 2022. At that time I gave the Twigg defendants leave to file additional evidence in support of their claim for privilege and stood the matter over to today. 4. The plaintiffs contend that the Twigg defendants were not entitled to assert a claim of privilege over any of the documents for three reasons. First, they contended that the affidavit filed in support of the privilege claim is inadequate. Second, they submitted that the Twigg defendants had waived any claim for privilege by permitting Pitcher Partners to inspect the documents. Third, they submitted that the Twigg defendants had waived privilege by sending a copy of the documents to all the addressees included in the email to my Associate sent at 3.00 PM on 9 December 2022. 5. At the hearing on 12 December 2022, I accepted that the initial affidavit in support of the privilege claim was inadequate, because it did not give a sufficient description of the nature of the documents to enable a view to be formed about whether the privilege was properly claimed. However, in the circumstances of this case, it seemed to me appropriate to give the Twigg defendants an opportunity to cure that defect. 6. The Twigg defendants had provided an affidavit which attached a schedule that gave a description of the document. As Mr Elliott SC for the plaintiffs properly conceded in the hearing before Stevenson J, it appeared likely from their description that many of the documents were privileged. Had I not given the Twigg defendants an opportunity to provide a supplementary affidavit I would have examined the documents myself in accordance with s 133 of the Evidence Act 1995 (NSW). The course I chose to adopt appeared to me to be the most efficient. 7. On the evening of 12 December 2022, the Twigg defendants served and provided to my Associate a supplementary affidavit setting out more information in relation to their claim for privilege. In the light of that affidavit, the plaintiffs only continued to take objection to the claim in relation to documents 1 to 8, 39, 40, and 53 to 60 on that list. 8. As a consequence, this morning, I inspected those documents. Having inspected those documents, I am satisfied that the privilege claim is properly made. 9. In my opinion, it is clear that the disclosure of the documents at the time they were sent to my Associate was inadvertent and, consequently, no waiver occurred as a consequence of it. 10. The plaintiffs submitted that the Court should not conclude that the disclosure was inadvertent without an affidavit explaining what had happened. I do not accept that submission. The solicitors for the Twigg defendants properly sent copies of the correspondence to my Associate to the other parties. It is reasonable to infer from the circumstances that they overlooked the fact that the email that was copied to the other parties included the attachments. No further evidence was required, and in my opinion no waiver occurred (see generally Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; [2013] HCA 46). 11. Nor in my opinion did a waiver occur as a consequence of the disclosure of the documents to Pitcher Partners. 12. Section 122 of the Evidence Act 1995 (NSW) relevantly provides: (1) .... (2) Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120. (3) Without limiting subsection (2), a client or party is taken to have so acted if— (a) the client or party knowingly and voluntarily disclosed the substance of the evidence to another person, or (b) the substance of the evidence has been disclosed with the express or implied consent of the client or party. (4) The reference in subsection (3) (a) to a knowing and voluntary disclosure does not include a reference to a disclosure by a person who was, at the time of the disclosure, an employee or agent of the client or party, or of a lawyer of the client or party, unless the employee or agent was authorised by the client, party or lawyer to make the disclosure. (5) A client or party is not taken to have acted in a manner inconsistent with the client or party objecting to the adducing of the evidence merely because— (a) the substance of the evidence has been disclosed— (i) in the course of making a confidential communication or preparing a confidential document, or (ii) as a result of duress or deception, or (iii) under compulsion of law, or (iv) … 1. In the present case, the disclosure occurred in accordance with orders made by the Court for access to subpoenaed documents. In my opinion, that was disclosure under compulsion of law. It is true that the Twigg defendants consented to those orders being made, but that does not alter the fact that the disclosure occurred as a consequence of the orders. 2. Moreover, the orders must be understood in context. The documents were produced as a consequence of the subpoena issued by the Court. It was apparent that the Twigg defendants may have had a claim for privilege because Mr Fitzpatrick gave evidence on their behalf in the earlier proceedings. It was also possible that Pitcher Partners may have had a claim for privilege over some of the documents. It would therefore be necessary to design an access regime to permit both sets of parties to consider whether they should make a claim for privilege. 3. It is apparent from what Mr Elliott said to the Court on 2 December 2022 that that access regime had been the subject of negotiation between the parties, which resulted in the consent orders. That could not be described as a knowing and voluntary disclosure made by the Twigg defendants. It was a disclosure necessitated by the particular circumstances of the case. 4. It is also worth observing in this context that, if the plaintiffs are right, the orders that were made by the Court for the purpose of enabling the Twigg defendants to assert a claim for privilege were a farce. The purpose of the orders was to permit the defendants to assert a claim for privilege before access was granted to the plaintiffs. However, if the plaintiffs are right, as soon as the orders were complied with, the privilege was lost. In my opinion, that cannot be correct. 5. For those reasons, in my opinion, the Twigg defendants are entitled to maintain the claim for privilege over all the documents that remain in dispute. 6. Accordingly, the orders of the Court are: 1. The plaintiffs not be given access subpoena packets S-4, S-5 and S-6 produced in answer to three subpoenas addressed to Miranda Bordignon – SBA Law without the consent of the fourth and fifth defendants; 2. The plaintiffs pay the fourth and fifth defendants' costs of the application for access. ********** Amendments 14 December 2022 - Typographical error in third sentence of para 21 - Twigg plaintiffs changed to Twigg defendants DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 December 2022