Kelly v Australia and New Zealand Banking Group Ltd [2012] NSWSC 1487

Supreme Court New South Wales

Medium Neutral Citation: Kelly v Australia and New Zealand Banking Group Ltd [2012] NSWSC 1487 Hearing dates: On the papers Decision date: 04 November 2012 Before: Garling J Decision: Formal orders to be made on 5/12/12 Catchwords: PRACTICE AND PROCEDURE - expert granted access to plaintiff's computer to compile report - plaintiff claims client legal privilege and confidentiality over documents expert had access to - plaintiff a quantity surveyor - defendant provides funding for property projects - commercially confidential and sensitive information - documents to be amended as specified Legislation Cited: Evidence Act 1995 Category: Procedural and other rulings Parties: David Kelly (P) Australia and New Zealand Banking Group Ltd (D) Representation: J Button (P) A Vetrova (D) Longmores Lawyers & Property Conveyancers (P) Gadens (D) File Number(s): 2011/201022

Judgment 1In the course of ensuring that the principal proceedings are properly prepared for a hearing, a dispute has arisen between the parties about whether documents which are stored on the computer system presently operated by the plaintiff are privileged by reason of client legal privilege or else are confidential. 2In order to determine this dispute, it is necessary to have regard to some background and contextual features.

BACKGROUND AND CONTEXT 3Proceedings are on foot between Mr Kelly, and the Australia and New Zealand Banking Group Ltd ("ANZ"). Mr Kelly claims damages for breach of contract and misleading and deceptive conduct. ANZ claims a monetary judgment with respect to monies advanced by way of a loan and possession of mortgaged property. It is sufficient to note these principal proceedings are contested on every issue. 4One central piece of evidence which is relevant in that dispute, and to the credibility of Mr Kelly, is an electronic file in PDF format which presently exists on Mr Kelly's computer system. 5Mr Kelly contends that the document was originally created and sent to ANZ in April 2005. It is an important piece of evidence that apparently corroborates his account of events. ANZ has served two expert reports by Mr Ajoy Ghosh dated 4 September 2012 and 7 September 2012 respectively, in which he expresses his view, putting it briefly, that the electronic PDF file relied upon by Mr Kelly could not have come into existence until some time after 2007. 6Mr Ghosh describes a method that he says may have been used to cloak the document with metadata making it appear that the document has been created earlier. In short, he says, the document is a tricked up forgery. 7In order to compile his report, Mr Ghosh was granted access pursuant to orders made by Justice McCallum on 16 August 2012 to the computer system of Mr Kelly. The system to which Mr Ghosh was granted access was that currently in operation in Mr Kelly's business. 8Mr Kelly is a qualified and experienced quantity surveyor who operates a business in which a number of people are employed. It is obvious that in the world of property development, costs of current or future building and development projects are highly commercially confidential and often very sensitive information. 9Competing tenderers are generally diligent to ensure that the integers of their tender price are not revealed, particularly to their competitors. Whilst ANZ is not a builder or developer of property projects, it is in the business of providing funding for such projects. Part of the material with which it is supplied from time to time is the anticipated costs of completed building and development projects by applicants for finance. It has its own panel of accredited quantity surveyors who provide advice to it about construction and other like costs. 10It is obvious that there is a risk that confidential information in the hands of Mr Kelly and his business, which relates to his clients and the projects which he has been working on, may be relevant to projects which ANZ is being asked to fund or else to participate in. It is equally possible that the fact that the existence of work being done on projects is itself a fact which may be of relevance to ANZ. 11Thus, in the context of these proceedings, and having regard to the nature of commercial enterprises involving Mr Kelly and the nature of ANZ's business, the Court needs to be diligent to ensure that any orders which it may make are sufficient to ensure so far as the interest of justice permit that confidentiality is properly recognised and preserved.