Case: Meltend Pty Ltd v Restoration Clinics of Australia Pty Ltd (1997) 145 ALR 391
Outcome: referred to
Since the applicant based his submission that privilege had been waived upon the disclosure of an unedited copy of the memorandum, it is convenient to begin with subsections (2) and (4), which deal expressly with disclosure. It will be necessary subsequently to consider what, if any, application subsection (1) may have to the present case. Before turning to those operative provisions, however, I observe that the exceptions to the operation of those provisions provided in subsections (3) and (5) were not enlivened by the facts of this case. Subsection (3) relieves the effect of subsection (2) where the disclosure is made by an agent, unless the agent was authorised to make the disclosure. The disclosure in the present case was made by the respondents' solicitors, who are agents of the client. There was no suggestion that the disclosure was unauthorised, but in any event I am satisfied that the waiver of a client's privilege over documents lies within the ostensible authority of the client's solicitor and that ostensible authority is sufficient for the purposes of the proviso in subsection (3). That view is supported in the authorities: Meltend Pty Ltd v Restoration Clinics of Australia Pty Ltd (1997) 145 ALR 391 at 403 per Goldberg J; Sovereign Motor Inns Pty Ltd v Bevillesta [2000] NSWSC 521 (" Sovereign ") at [24] per Austin J. Therefore, subsection (3) does not operate in this case. Subsection (5), which deals with disclosures between persons with common legal representation or a common interest in a proceeding, is plainly inapplicable. 145 For the purposes of subsection (2), the applicant must establish that the client "knowingly and voluntarily disclosed to another person the substance of the evidence and the disclosure was not made [in one of the four specified circumstances]". None of the specified circumstances obtain. Moreover, it is clear that there was disclosure "to another person" (the applicant himself) of the entirety of the evidence, such that no question as to what amounts to "the substance of the evidence" arises. The point turned upon whether the disclosure was made "knowingly and voluntarily". The relationship between mistaken or inadvertent disclosure and voluntary disclosure cannot be expressed definitively. It has been held that disclosure by mistake is not, for that reason alone, involuntary, at least where the disclosure is made in the course of formal discovery: Meltend Pty Ltd v Restoration Clinics of Australia Pty Ltd (1997) 145 ALR 391 at 406 per Goldberg J. The relevant disclosure in the present case occurred when written submissions were served upon the applicant by the respondents. In fact, in the formal discovery process, that is, when the respondents' list of documents was filed, privilege was claimed over those parts of the memorandum dealing with the legal advice from the AGS. Even if some mistaken disclosures can nonetheless be made knowingly and voluntarily within the meaning of subsection (2), I was not satisfied that there was such a disclosure in this case. This is a case "where everything indicates an intention to claim privilege in respect of the document and what has gone wrong is attributable to sheer inadvertence or carelessness": Sovereign at [23] per Austin J; see also BT Australasia Pty Ltd v New South Wales (No 8) (1998) 154 ALR 202 at 208-209 per Sackville J. In Sovereign , Austin J placed weight upon the fact that the solicitor in receipt of the privileged letter mistakenly disclosed must have realised that it was privileged. That is equally true in the present case in light of the respondents' solicitors' letter to the applicant of 7 February 2007 which asserted the privilege. Moreover, the written submissions (to which the unedited copy of the memorandum was attached) referred to the memorandum as "document 49 in the List of Documents", in respect of which privilege was claimed, and claimed to the knowledge of the applicant. This fact militates against the view that the respondents intended to change their position in respect of the privilege and that it was voluntarily waived when the written submissions were served.