Supreme Court New South Wales Medium Neutral Citation: QVB Pharmacy Pty Ltd v Le (No 2) [2022] NSWSC 1768 Hearing dates: 5 October 2022 Date of orders: 5 October 2022 Decision date: 05 October 2022 Jurisdiction: Common Law Before: Cavanagh J Decision: The tender on behalf of the first defendant of an email dated 12 November 2021 to the first defendant from the first defendant's solicitor is rejected. Catchwords: EVIDENCE — documentary evidence — tender of documents — email between first defendant and solicitor — no relevance to any issue between the parties — request to tender rejected Category: Procedural rulings Parties: QVB Pharmacy Pty Ltd (First Plaintiff) Peter Galettis (Second Plaintiff) David LE (Defendant) Representation: Counsel: S J Philips (Plaintiffs) Solicitors: Matthews Dalton Lawyers (Plaintiffs) Defendant (Self-Represented) File Number(s): 2020/143930 Publication restriction: None REVISED EX TEMPORE Judgment 1. On the second day of the hearing in this matter, the defendant, Mr Le, who is appearing in person and without legal representation, sought to tender an email from his solicitor, Keith Bagley, to him of 12 November 2021. He sought to tender this email during submissions and after the plaintiffs had completed their submissions. Mr Le explained that it had only occurred to him that such a letter may be relevant when he listened to exchanges between Mr Philips, counsel for the plaintiffs, and me, during Mr Philips' submissions. 2. The point I had raised with Mr Philips related to the plaintiffs' reliance on a valuation of the goodwill of the business undertaken in 2019 and whether that was the appropriate date for the valuation. The email that Mr Le seeks to rely on is a privileged communication but Mr Le expressly waived any privilege. The email is plainly advice from Mr Bagley to Mr Le about a phone call that Mr Bagley had just had with the solicitor for the second defendant (the second defendant has settled the proceedings with the plaintiffs). 3. There is reference to the second defendant's solicitor suggesting that the second defendant had obtained an expert report which had concluded, amongst other things, that the plaintiffs' valuation was a bit high but had nothing to do with the financial information provided, and that the Williams' valuation, being the second valuation obtained by the plaintiffs, could not convey any deficit in the financial information provided. 4. As I understand it, the reason Mr Le wishes to rely on this letter is to prove in some way that there may be another valuation report out there somewhere and that I should not be accepting the content of these valuation reports relied upon by the plaintiffs, having regard to what Mr Bagley says. It may be, as set out in the email, that Mr Bagley did advise Mr Le of the matters contained in his email. It may be that the second defendant did obtain some other valuation report, and it may be that the solicitor for the second defendant, and indeed Mr Le's solicitor, formed a view that the evidence relied upon by the plaintiffs either would not be accepted or would not be admitted. 5. However, the opinion of either Mr Bagley or the second defendant's solicitor is not relevant to the determination of any issue in this case. It is their opinion and whether it be right or wrong is not relevant to my determination. I determine the case on the evidence presented before me, and the opinion of a solicitor as to what should be decided or the strength of any evidence can have no probative value. 6. In the circumstances, as the email on which Mr Le seeks to rely cannot be relevant to any issue between the parties, I reject its tender. ********** Amendments 20 December 2022 - Case Name 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: 20 December 2022