Case: Carnell v Mann (1998) 89 FCR 247
Outcome: applied
Full Court of this Court in Carnell v Mann (1998) 89 FCR 247 at 254 held that pursuant to ss 118 and 119 , originals and copies are equally protected subject to the privilege being lost for one of the reasons set out in the succeeding sections of the Act. The second e-mail was merely an electronic means of delivering a copy of the first e-mail to Mr Anderson. Alternative means could have been employed by EP. A photocopy of the first e-mail could have been sent by mail or hand delivered or sent by facsimile transmission. Each method is to the same effect: a copy of the original privileged communication would have been delivered to Mr Anderson. The language of s 118(a) is directed to prohibiting evidence being adduced that would result in disclosure of a confidential communication made between a client and a lawyer. To allow, for example, cross-examination of Mr Drummond, by senior counsel for Euroz, utilising the second e-mail, would inevitably result in evidence being adduced which would result in the disclosure, in whole or part, of the privileged communication in the first e-mail. This reflects the position at common law as noted by the Full Court in Carnell v Mann at 254 when their Honours observed: In principle, whether copies of original documents are privileged at common law should be determined by asking what was the purpose underlying the creation of those original documents , and not what was the purpose underlying the creation of the copies see Carlton Cranes Ltd v Consolidated Hotels Ltd [1988] 2 NZLR 555 at 557 per Tompkins J. ... The better view, we think, is that, at common law, the mere act of copying a privileged document does not lead to loss of privilege in the copy simply because it was not created for a privileged purpose. In an era where so many documents are routinely copied, it would be peculiar to think that the existence of legal professional privilege in any given copy might depend upon the purpose underlying the making of that specific copy. (Emphasis added) It cannot be said that there was an express obligation. However, the circumstances, in my opinion, give rise to an implied obligation upon Mr Anderson, viewed objectively, not to disclose the contents of the first e-mail contained in the second e-mail. It may be seen that such an obligation need not be one which "arises under law" by virtue of s 117(1). As the Court said in Carnell v Mann at 259 the Parliament must have had in mind relationships broader than those of (for example) solicitor/client when it enacted the definitions of "confidential communication", and "confidential document" in s 117(1). The very content of the first e-mail which was copied in the second e-mail disclosed on its face, so far as Mr Drummond, objectively, might have considered, that it related to legal proceedings, actual or anticipated involving EP, Mr Bruce Drummond as one of its directors and inferentially Mr Graham Anderson as a potential witness or at least someone who might be in a position to assist in various ways with that litigation. Again, self-evidently, the first e-mail was addressed to at least one person at Slater &amp; Gordon, a well-known Australian legal firm. It included information concerning the private financial affairs of EP. Furthermore, the second e-mail in the section directed to Mr Anderson shows the subject as "FW: Addition to witness statement". Accordingly, it was being sent and must be taken to have been received in the context of, at least, anticipated litigation. In my opinion, it is inconceivable that EP and Mr Anderson would have considered the communication of the second e-mail to be other than on a strictly confidential basis. Furthermore, I am satisfied that the relationship between EP and Mr Anderson was of a confidential nature. In addition to the other matters which I have mentioned such is the case generally as between a client and the client's accountant. I do not mention these matters with a view to attributing any particular purpose but rather to characterise the confidential nature of the communication. This is not to say that the purpose of the communication may not be relevant to the question whether it was a confidential communication but merely that it is neither necessary to nor determinative of the resolution of the question.