In the matter of Optimisation Australia Pty Ltd [2016] NSWSC 1581

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Optimisation Australia Pty Ltd [2016] NSWSC 1581 Hearing dates: Wednesday, 9 March 2016 Date of orders: 09 March 2016 Decision date: 09 March 2016 Jurisdiction: Equity - Corporations List Before: Brereton J Decision: Documents admitted Catchwords: EVIDENCE – privilege – client legal privilege – whether defendants were the clients entitled to claim privilege – where chain of emails sent from company computer with official company signature used – where action which advice sought could only be taken by company, not individuals – held, defendants were the clients

EVIDENCE – privilege – client legal privilege – whether privilege had been lost – whether secondary evidence can be given by tender of emails – common law position would admit evidence regardless of any waiver – (NSW) Evidence Act 1995, s 118 and s 119 overturns common law position so that secondary evidence is not admissible – whether defendants have waived privilege under Evidence Act, s 122(2) – held, privilege was waived by delay Legislation Cited: (CTH) Corporations Act 2001, s 232 (NSW) Evidence Act 1995, s 117, s 118, s 119 Cases Cited: Armstrong Strategic Management and Marketing Pty Ltd v Expense Reduction Analysts Group Pty Ltd [2012] NSWCA 439, (2012) 295 ALR 348 Australian Securities and Investments Commission v Lindberg (2009) 25 VR 398 Bell v David Jones Ltd (1948) 49 SR(NSW) 223 Calcraft v Guest [1898] 1 QB 759 Edman v Ross (1922) 22 SR(NSW) 351 Goddard v Nationwide Building Society [1987] 1 QB 760 Hodgson v Amcor Limited [2011] VSC 269, (2011) 32 VR 568 Lloyd v Mostyn (1842) 10 M&W 478; (1842) 152 ER 558 Lord Ashburton v Pape [1913] 2 Ch 469 Nolan v Nolan [2013] QSC 140 Norman v O'Mahony [2006] FCA 1169 Shepherd v Fox Williams LLP [2014] EWHC 1224 Spedley Securities Ltd v Bank of New Zealand (1991) 26 NSWLR 711 Category: Procedural and other rulings Parties: Brian Raymond Kearney (first plaintiff) Optimisation Australia Pty Ltd (first defendant) Gary Williams (second defendant) Susan Elizabeth Williams (third defendant) Representation: Counsel: A Fernon (plaintiff) M P Cleary (defendants)