Ventouris Enterprises Pty Ltd v Dib Group Pty Ltd & Anor (No.1) [2009] NSWSC 1320

New South Wales Supreme Court

CITATION : Ventouris Enterprises Pty Ltd v Dib Group Pty Ltd & Anor (No.1) [2009] NSWSC 1320

HEARING DATE(S) : 28 October 2009 JURISDICTION : Equity

JUDGMENT OF : Slattery J at 1

EX TEMPORE JUDGMENT DATE : 28 October 2009

DECISION : Defendant required to make available emails to the plaintiff to the extent provided for in this judgment.

CATCHWORDS : EVIDENCE - facts excluded from proof - on grounds of privilege - call for emails under s 36 Evidence Act - emails produced but client privilege claimed - waiver of privilege - emails made available

LEGISLATION CITED : Evidence Act 1995 (NSW) s 36

CATEGORY : Procedural and other rulings

CASES CITED : Standard Chartered Bank of Australia Ltd v Antico (1993) 36 NSWLR 87

Plaintiff: Ventouris Enterprises Pty Ltd PARTIES : First Defendant: Dib Group Pty Ltd Second Defendant: George Dib

FILE NUMBER(S) : SC 3753/06

COUNSEL : Plaintiff: Mr S A Benson Defendants: Mr D Cook

SOLICITORS : Plaintiff: Butlers Law Group Defendants: Macree Law

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

SLATTERY J

WEDNESDAY 28 OCTOBER 2009

3753/06 VENTOURIS ENTERPRISES PTY LTD v DIB GROUP PTY LTD & GEORGE DIB (NO. 1) JUDGMENT [Claim for Legal Professional Privilege] 1 HIS HONOUR: The defendant has called for production of documents under s 36 Evidence Act 1995 from the defendant. The call is for communications between the defendants' solicitors and the defendant and a proposed witness Mr John Dib. The call relates to correspondence notifying him about the forthcoming hearing of these proceedings. 2 That call has now been answered. Legal professional privilege has been claimed for the three e-mails that have been produced. The defendant seeks the exercise of the Court's discretion to allow the cross-examination of Mr Dib by video link. The defendant has sought by oral evidence given through Mr Macree, to confirm that there were warnings given to Mr Dib about the forthcoming hearing of these proceedings and that genuine efforts were made for him to attend Court. This evidence adduced by the plaintiff would usually be a privileged communication between Mr Macree and Mr John Dib. 3 Aspects of three e-mails produced in answer to the call go to the very issue of the notice given to Mr John Dib of the hearing. The defendant cannot rely upon that oral evidence of Mr Macree which has been adduced, without fairly providing the opportunity to the plaintiff to test it. The evidence adduced from Mr Macree is relevant to the exercise of my discretion on this application. The defendant has, by adducing Mr Macree's evidence about his communications with Mr Dib, which evidence was clearly relevant and material to the application, and was an assertion about the content of a confidential communication by a party's legal adviser, waived privilege in respect of communications solely upon that issue: Standard Chartered Bank of Australia Ltd v Antico (1993) 36 NSWLR 87 at 94-5.