Sharjade Pty Ltd v Darwinia Estate Pty Ltd [2008] NSWSC 569

New South Wales Supreme Court

CITATION : Sharjade Pty Ltd v Darwinia Estate Pty Ltd [2008] NSWSC 569

HEARING DATE(S) : 18 April 2008; 9 May 2008; 30 May 2008

JUDGMENT DATE : 11 June 2008

JURISDICTION : Equity Division - Commercial List

JUDGMENT OF : Bergin J

DECISION : Plaintiff entitled to use documents at trial

CATCHWORDS : [PRIVILEGE] - [WAIVER] - Documents produced in answer to Notice to Produce - agreement that access to documents limited to legal representatives - further agreement that access no longer restricted - whether privilege waived - whether plaintiff entitled to use documents at trial

CASES CITED : Hooker Corporation Ltd v Darling Harbour Authority (1987) 9 NSWLR 538

Sharjade Pty Ltd (Plainitff) PARTIES : Darwinia Estate Pty Ltd (First Defendant) The Commonwealth of Australia (second defendant)

FILE NUMBER(S) : SC 50024 of 2006

M Akbarian (director) (Plaintiff) (18 April 2008 and 30 May 2008) COUNSEL : J Sheller (Plaintiff) (9 May 2008) M Speakman SC/D Moujalli (Second Defendant)

SOLICITORS : Gadens (First Defendant) Blake Dawson (Second Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST

BERGIN J

11 JUNE 2008

50024/06 SHARJADE PTY LIMITED v DARWINIA ESTATE PTY LIMITED (NOW KNOWN AS RAAF (LANDINGS) EX-SERVICEMEN CHARITABLE FUND PTY LIMITED) & ANOR JUDGMENT 1 The plaintiff, Sharjade Pty Limited seeks damages against Darwinia Estate Pty Limited (now known as RAAF (Landings) Ex-Servicemen Charitable Fund Pty Limited) (Darwinia) for alleged breaches of a contract pursuant to which Darwinia would acquire and the plaintiff would develop, land owned by the second defendant, the Commonwealth of Australia (the Commonwealth) at the rear of Lady Davidson Hospital at Bobbin Head Road, North Turramurra, New South Wales. There are various claims against the defendants including a claim against the Commonwealth that it knowingly induced Darwinia's breach of contract with the plaintiff. 2 The trial is listed for hearing for two weeks commencing on 7 July 2008. On 14 April 2008 the Commonwealth filed a Notice of Motion seeking to strike out certain paragraphs of the plaintiff's Amended Commercial List Statement and for dismissal of the plaintiff's claim against the Commonwealth. That Motion came before the Court on 18 April 2008 when Mr M Speakman appeared for the Commonwealth and a director of the plaintiff, Mr M Akbarian, appeared 'for' the plaintiff/respondent to the Motion. There was no objection to Mr Akbarian appearing. In support of its application the Commonwealth read the affidavits of Hayden Carlisle Fox sworn respectively on 3 December 2007 and 14 April 2008. An exhibit to the second affidavit, known as "HCF-2", was tendered. The Commonwealth sought to tender only a redacted version of HCF-2 and that was objected to by Mr Akbarian. At that stage the controversy focused upon claims for privilege over the documents in HCF-2 that had been masked. The documents in HCF 2 that were masked were documents that Mr Akbarian had attached to a letter to the solicitors for the Commonwealth (Blake Dawson) dated 26 March 2008. That letter was said to be a "substantive response" to Blake Dawson's letter of 24 July 2007. 3 During the hearing on 18 April 2008 Mr Speakman advised the Court that his client was not sure how Mr Akbarian came into possession of the documents that had been attached to his letter of 26 March 2008. Mr Akbarian advised that the Commonwealth had provided the documents to him. Mr Speakman sought an adjournment of the Motion so that Mr Akbarian's claims could be investigated. 4 The matter was next before the Court on 9 May 2008 when Mr JC Sheller of counsel appeared for the plaintiff. Ms SA Immens, solicitor, appeared for Darwinia and Mr Speakman SC, leading Mr Moujalli, of counsel, appeared for the Commonwealth. On this occasion the Commonwealth read further affidavits of Hayden Carlisle Fox sworn 29 April 2008, 1 May 2008 and 8 May 2008. Mr Fox sought to give evidence of what had actually occurred in relation to the provision of documents to the plaintiff although he was not directly involved with the matter at that time. He sought to give evidence on information and belief from Mr Michael Murray, solicitor, who was employed by the Australian Government Solicitor and had the carriage of the matter at the relevant time. That evidence was rejected and Mr Murray, was contacted and attended Court at short notice and gave evidence. 5 The plaintiff served a Notice to Produce on the Commonwealth dated 21 April 2006 which required documents to be produced by 28 April 2006. Mr Murray assessed the documents as to whether they were within the timeframe and relevant terms of the Notice to Produce. He recalled that there were a large number of documents which had to be produced in a short timeframe. His evidence included the following (tr 13): I would have gone through the documents with a view to making that initial assessment as to time and relevance but also with a view to identifying documents to extract from that bundle that were the subject of privilege. So that didn't necessarily mean that I would have read every single document. 6 Mr Murray's recollection was that there was no formal calling on the Notice to Produce and recalled that it may have been the subject of a suggestion made by the Court to produce the documents informally. On 21 April 2006 the Court noted the following: It is noted that the parties will engage in some preliminary inspection on a confidential basis limited to legal representatives for the purpose of deciding whether the Notice of Motion and the call on the Notice to Produce is to proceed on 28 April 2006. The matter was then stood over to 28 April 2006 in the Motions List. 7 On 26 April 2006, Mr Murray wrote to the plaintiff's solicitors in the following terms: 1. We refer to the directions of the Court on 21 April and to the notice to produce of that date. The Commonwealth is extracting its files in response to the notice. However, the notice calls for documents up to June 2002, well beyond the period we anticipated from the orders sought in the notice of motion (which in effect ended at May 2000) and for which certain files have been retrieved. We in fact query the relevance of the documents requested to the extent of two years beyond the time when the alleged possible claim against the Commonwealth arose, in so far as we can understand that claim from your limited evidence. 2. In any event, the purpose of this letter is to alert you to the fact that there are now additional files which the Commonwealth has located and which are being sent to me. The Commonwealth will not be in a position to respond within the timetable. I will advise before Friday by when we are in a position to do so. 8 On 27 April 2006, Mr Murray wrote again to the plaintiff's solicitors in terms that included the following: 2. As we discussed by phone, we have available the Commonwealth's documents in response to the notice to produce. The logistics are that if we were to have these copied and delivered to you, there would be some further delay, apart from issues of cost. We suggest that we make available to you the originals of these files, on the terms of confidentiality of the Court's order of 21 April 2006. You may inspect these at our offices, or, on appropriate undertakings as to security and return, at your offices of counsel's chambers. If copies are required, you may arrange that. 3. Please advise.