(iii) the letter of 19 March 2001 was certainly not in terms, a proper claim for privilege in that no identification has been made of particular documents in respect of which privilege is claimed. Indeed the "claim" is merely that "privilege may apply" [emphasis added], with further reference to the fact that the former clients were out of the jurisdiction, though again with the self-evident fact, apparent from the court file, that the Second and Third Defendants had filed a sworn Defence.
13 It is idle to speculate whether one or other of these considerations, none of them, or some other consideration actuated the Registrar. The simple fact is that an order was made permitting access to all parties and all parties took advantage of that access.
14 It might be contended that the situation is therefore analogous to the inadvertent disclosure by parties' legal adviser of privileged documents to the other side. While it is true that here that disclosure was not by the First Defendant, it was in a real sense by the former legal adviser to the Second and Third Defendants with an inadequate request that the court determine what was privileged and somehow protect the privilege. The analogy is therefore imperfect but not inapt.
15 The principles applicable to such inadvertent disclosure are usefully summarised in "Cross on Evidence" (Butterworths, 1996) by J D Heydon at [25020] together with the relevant authorities, in particular Hooker Corporation Ltd v Darling Harbour Authority (1987) 9 NSWLR 538 at 544 per Rogers J. The analogy is particularly apposite in this respect. Where such an inadvertent disclosure occurs, while a Court may in its discretion give injunctive relief restraining the other party from using the documents so obtained inadvertently, this is where this arises prior to their use in actual court proceedings by being there adduced. Such relief will not ordinarily as a matter of discretion be allowed once they have been so used in Court, though that should not be stated as an invariable outcome.
16 Here, the materials in PX6, albeit inadvertently, were used not merely through the process of prior inspection. They were subsequently used in Court in actual submissions by the Plaintiff, accompanied by a detailed chronology drawing attention to the particular relevant parts of those materials.
17 Expressing the matter in terms of the Evidence Act, it cannot be doubted that s118 is no longer capable of operation as the relevant communications have ceased to be confidential. While that does not leave the Court bereft of the power to intervene and prevent the use of such materials in a proper case, that can only be on the basis that the interests of justice require this. In balancing the prejudice to the Woowins and the Plaintiff, I am satisfied that no injunction would be appropriate were one sought - and of course the Woowins are not here to seek it and no one seeks it on their behalf. They are of course aware of these proceedings even if they are not aware of the present stage reached. They have chosen to place themselves, if such they are, out of contact. Nor can I assume that they are necessarily totally out of contact more especially as the First Defendant is associated with the Second and Third as is clear from the matters dealt with in my second judgment. While I do not consider that amounts to consent, for the purposes of s122(1) of the Evidence Act, it is a discretionary matter I may take into account. This is in considering now to treat this evidence as inadmissible, though previously admitted, or otherwise restrain its use.
18 Similarly, if I am to consider the interests of justice as between the First Defendant and the Plaintiff, since the First Defendant is in no sense claiming the privilege for himself, nor indeed could he, the interests of justice clearly favour the Plaintiff. Nor do I consider that so doing is unfairly prejudicial to a party to these proceedings, namely the First Defendant, for purposes of s135 of the Evidence Act.
19 There is a further matter which is decisive even were I wrong in my earlier conclusions. Under s133 of the Evidence Act and in a context where I am considering all claims for privilege in the one set of proceedings in relation here to the Woowins, I may inspect the documents for the purpose of determining the question of the application of the privilege in the present case. Even were it the case that the documents comprised in PX6 and PX7 were the subject of an outstanding claim for privilege and have not lost their confidentiality, I am satisfied by my inspection that s125 of the Act does not prevent the adducing of that evidence. The reasons for that conclusion are dealt with in the second judgment.
20 I would reach that conclusion were I even to take the more artificial course of looking only at those documents as are comprised in PX6 and PX7 in answering the question whether those documents should enjoy the protection of s118, and whether s125 applied. However, I consider it artificial in circumstances where I am dealing with all questions of privilege together, to disregard the remaining documents produced as pertain to any claim for privilege by or on behalf of the Woowins, in order to determine whether there are reasonable grounds in terms of s125.