Plaintiff v Defendant

1 The plaintiff in this proceeding is the President of the Parents' Association ('PSPA') of the Peninsula School, located in Mount Eliza on the Mornington Peninsula. The defendant is the Principal of the Peninsula School. The plaintiff sues for damages for defamation arising from a letter sent by the defendant to parents of children attending the Peninsula School dated 20 May 2015, from which various defamatory imputations are said to arise.

2 The defendant applied for orders for further discovery pursuant to rule 29.08 and/or 29.11 of the Supreme Court (General Civil Procedure) Rules 2015, or alternatively, s 55 of the Civil Procedure Act 2010 and for inspection of documents said to be privileged. In particular, the defendant sought provision of:

(a) Discovery of 'back ups' of the plaintiff's text messages, variously between himself and other persons including, but not limited to, Wayne Murray, Peter Holland, Simon Hewitson and Reagan Barry, identified in paragraph 2 of Schedule 2 of the plaintiff's affidavit of documents dated 14 June 2016; and

(b) Inspection of documents over which client legal privilege was claimed by Schedule 1, Part 2 of the plaintiff's affidavit of documents dated 14 June 2016.[1]

3 For the reasons set out below I will make the following orders:

(a) By 4 November 2016, the defendant [, at his own expense, shall make available to the plaintiff - (alternatively) shall on demand indemnify the plaintiff for the cost of] a license for a single use of the 'Wondershare Dr. Fone' software, or an equivalent software, and shall provide the plaintiff with appropriate instructions as to its use for downloading to a computer based file in a readable format such backed up text messages as may be revealed by the software to be stored in the plaintiff's iCloud account.

(b) By 18 November 2016, the plaintiff shall take the necessary steps using the said software to search for and obtain from his Apple iCloud account any available backup of the text messages referred to in paragraph 2 of Schedule 2 of his affidavit of documents sworn on 14 June 2016.

(c) By 18 November 2016, the plaintiff shall file and serve a further affidavit of discovery, either:

(i) Particularising the discoverable text messages obtained as a result of the search undertaken in accordance with this order; or

(ii) If no discoverable documents are recovered, stating fully his attempts to comply with this order.

(d) By 4 November 2016, the plaintiff shall produce to the defendant for his inspection the documents numbered 3, 4, 6, 8, 9, 10, 11, 12, 13, 14, 15, and 18 that are referred to in Schedule 1, Part 2 of the plaintiff's affidavit of documents sworn 14 June 2016.

Issues with discovery of the plaintiff's text messages

4 The plaintiff's affidavit of documents dated 14 June 2016 stated that discoverable text messages had been, but were no longer, in his possession, custody or power.[2] The relevant period is between February and the end of April 2015. During that period, the plaintiff's smartphone had been replaced on two occasions and he lost all existing text messages that may have been relevant in this proceeding from those phones and was not able to retrieve them or recall their content. I pause to note that the disposal of the phones used in the relevant period prevents forensic reconstruction of the drives of those phones to recover deleted messages.

5 Specifically, on or around 25 February 2015, the plaintiff's iPhone 6 Plus sustained water damage and was replaced with a new iPhone 6 Plus. In or around April 2015 the plaintiff dropped his iPhone resulting in significant screen damage and he again replaced the damaged device with a new iPhone 6 Plus (which remains his current phone).

6 The plaintiff configured his phone settings such that all text messages are automatically deleted after 30 days. As an orthodontist with whom the plaintiff's patients communicate on dental issues by text message, the plaintiff is, and was, concerned for his patients' privacy. The plaintiff does not back up his mobile phone to iTunes on a personal computer. These settings were used on his previous phones.

7 On 9 August 2016, the plaintiff searched his Apple iCloud account and found no text messages stored there or backed up and accessible to him.

8 The defendant accepted that such backups are not accessible by the plaintiff simply by logging into his Apple iCloud account from a computer as he deposed to having already done. The defendant nevertheless complained that the plaintiff had failed to properly search for backups of text messages or to disclose whether a backup of the text messages during the relevant period remained in his possession, custody or power. Based upon advice from IT consultants (presented as hearsay but not contested on the application), the defendant asserted that the plaintiff has the power to access text message backups from the two phones damaged and replaced in February and April 2015. Access can be achieved by searching his Apple iCloud account using particular software that will make visible to the user the stored text message backups.

9 The defendant also sought that the plaintiff search for deleted messages that he asserted may still exist on the plaintiff's current phone, on the basis of advice that a smartphone device may reveal deleted items that are no longer visible to the user but nevertheless remain on the phone in a different location which is not accessed by the text message application. The defendant contended that such deleted items may have been backed up to the plaintiff's iCloud account from the damaged phones prior to their replacement and restored (perhaps sequentially from one phone to the next) to his current phone when it was acquired.

10 The plaintiff submitted that he had already provided adequate discovery and that he was not required to search for and attempt to retrieve using special software (of which he was unaware and reasonably so), when discharging his discovery obligations, deleted or otherwise lost text messages created on phones that were no longer physically in his possession. It was not reasonable to contend that it was within his power to obtain such backups. The plaintiff contended that rules 29.08 and 29.11 were inapplicable as this was not a case where the alleged insufficiency of discovery arises from the affidavit itself, the pleadings, or another document that disclosed an admission of the existence of an undiscovered document.

11 Further, the plaintiff submitted that the court ought not exercise its discretion under s 55 of the Civil Procedure Act to expand the plaintiff's discovery obligation in the manner sought. The defendant had not done enough to establish on the evidence that there was additional relevant material in his possession, custody or power such as would warrant an exercise of that discretion.

12 From three affidavits affirmed by the defendant's solicitor on the basis of advice received from either his law firm's information technology department or an external forensic IT consultant, Mr Graeme Edwards, the defendant explained that, in summary, Apple provides a facility through iCloud for backup of iPhones and equivalent devices that allows the user to restore data if their device is lost, damaged or stolen. The information typically backed up includes contact information, call history, text messages and ring tones. Back up for iPhones is most commonly achieved in two ways, via iTunes software on a desktop computer or via internet access to the iCloud remote server. The plaintiff's evidence was that he never used the iTunes back up option so only the iCloud option is considered relevant.

13 A user requires an 'Apple ID' to use an iPhone. An Apple ID allows a user to 'sign in' (electronically verify the user's credentials) to an iCloud account that includes free storage space (to a limit) accessed by predetermined settings in the device, permitting automatic back up of information stored on a user's device. The iCloud terms and conditions of use in Australia (last revised 16 September 2015 at the time of writing) relevantly provide:[3]

The Service creates automatic backups for iOS devices periodically, when the device is screen locked, connected to a power source, and connected to the Internet via a Wi-Fi network. iCloud will store your last three backups; however, if a device has not backed up to iCloud for a period of one hundred and eighty (180) days, Apple reserves the right to delete the backups associated with that device. Backup is limited to device settings, device characteristics, photos and videos, documents, messages (iMessage, SMS, and MMS), ringtones, app data (including Health app data), location settings (such as location-based reminders that you have set up), and Home screen and app organization. Content purchased from the iTunes Store, App Store, or iBookstore is not backed up, but may be eligible for download from those services, subject to account requirements, availability, and the applicable terms and conditions. Media synced from your computer is not backed up. If you enable iCloud Photo Library, your Photo Library will be backed up separately from the automatic iCloud backup. Your iCloud email, contacts, calendars, bookmarks, and documents are stored in, and can be accessed via iCloud on your devices and computers. Apple shall use reasonable skill and due care in providing the Service, but, TO THE GREATEST EXTENT PERMISSIBLE BY APPLICABLE LAW, APPLE DOES NOT GUARANTEE OR WARRANT THAT ANY CONTENT YOU MAY STORE OR ACCESS THROUGH THE SERVICE WILL NOT BE SUBJECT TO INADVERTENT DAMAGE, CORRUPTION, LOSS, OR REMOVAL IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT, AND APPLE SHALL NOT BE RESPONSIBLE SHOULD SUCH DAMAGE, CORRUPTION, LOSS, OR REMOVAL OCCUR. It is your responsibility to maintain appropriate alternate backup of your information and data.

When iCloud Backup is enabled, your device will not back up to iTunes automatically during a sync, but you may choose to manually initiate a backup to iTunes.

14 Once activated on the device, a backup application can automatically back up data, including text messages, to the user's iCloud account storage. The iCloud backup:

(a) Synchronises with other devices linked to the user's Apple ID such as iPads and laptop devices such that the various devices hold the same data;

(b) Backs up message data comprising iMessages,[4] text messages (Short Message Service, known as 'SMS') and multimedia messages (known as 'MMS'); and

(c) Backs up other data, including app data, photos and videos.

15 When a user acquires a new Apple device, the iCloud account backup enables the user's data to be loaded onto the new device by restoring the last backup. The service permits seamless transfer of data from a lost, stolen or damaged device to a replacement device. The Apple website contains a fact sheet on how these backup records can be accessed.[5] The plaintiff deposed, however, that text messages from the relevant time had not been downloaded onto his current phone at the time he acquired it in or about April 2015 because he did not restore backed up data to the replacement device. Thus, recovery of text messages from the relevant time from the iCloud account depends on whether it is possible to recover a backup of the data, remotely stored by Apple, that was on either of his previous two phones that were replaced in February and April 2015. That process may be affected by the amount of available storage available to the Apple iCloud account user, other uses of that storage space, and the use of the phone in the intervening period, and whether Apple has exercised rights available to it under its terms and conditions of use.

16 Text messages cannot be retrieved from the iCloud account simply by logging into the online account with a user's Apple ID.[6] A further step is required. iCloud backups from previous iPhones can be 'extracted' by entering the relevant Apple ID and password through particular software, for example, 'Wondershare Dr.Fone'.

17 The website of the Wondershare Dr. Fone software states that messages, including messages that have been lost from a previous iPhone,[7] can be obtained by restoring an iCloud backup from an iCloud account onto a computer, using the relevant Apple ID and password.[8] This is done by:

(a) Downloading Wondershare Dr. Fone's recovery program to a computer from their website. The cost for a single user license for the iOS Data Backup and Restore module is AU$29.95.

(b) Opening the program and selecting 'Recover from iCloud Backup files'.

(c) Entering the user's iCloud account information (Apple ID) and password to log in via the program.

(d) Clicking the 'messages' option (it is not necessary to download any other information stored on the iCloud account).

(e) Clicking the 'scan' option. The messages can then be viewed on the computer in the program. It is also possible to download the messages to the computer or to select the 'recover to your device' option.

18 Once the process described above is complete, the messages can be restored and viewed on an iPhone (or iPad) by connecting the device to a computer with a USB cable, or viewed on the computer using the program.

19 The defendant also sought further discovery of deleted messages that may still be found on the plaintiff's current phone. His solicitor deposed, on the advice of Mr Edwards, that messages that have been deleted by the user remain in an iPhone's residual hard drive storage and can ordinarily be accessed, even if they appear to have been deleted when looking at the phone. Once deleted, the messages will no longer appear in the messaging application, because deleting the message assigns a different file location, unless a specific override is applied to the device. However, messages would have been deleted from, and only accessible from, the replaced devices no longer in the plaintiff's possession, not from his current phone.

20 The defendant submitted that such messages could be accessed if the original iPhone was backed up to the iCloud, since messages since deleted can potentially be restored when an iCloud backup is loaded onto an iPhone. The defendant asserted that deleted text messages may be recovered:

(a) by a forensic examination of the original iPhone called an 'extraction' using software called 'Cellabraite', which is routinely used by forensic accountants to access deleted text messages;

(b) from the current iPhone using Wondershare Dr. Fone or an equivalent program; or

(c) from the iCloud backup using Wondershare Dr. Fone or an equivalent program.

21 The crux of the defendant's application was that the defendant took issue with the adequacy of the plaintiff's searches of backup locations for data from his iPhone but the defendant cannot definitively say that any relevant documents that ought to have been discovered actually exist.

22 The obligation to provide discovery is found in s 54 of the Civil Procedure Act and Order 29 of the Supreme Court Rules, which requires that a party make 'reasonable searches' for relevant documents in that party's possession, custody or power.[9] It is accepted that the backups are not within the plaintiff's immediate possession or custody, but are said to fall within the concept of 'power', being an enforceable right to inspect a document or to obtain possession or control of a document from the person who ordinarily has possession or control of it.[10]

23 In Psalidis v Norwich Union Lift Australia Ltd,[11] Cavanough J considered the issue of when documents will be within a party's 'power'. His Honour adopted Lord Diplock's oft-cited formulation from Lonrho Ltd v Shell Petroleum Co Ltd,[12] in which his Lordship characterised the concept of 'power' as:

[A] presently enforceable legal right to obtain from whoever actually holds the document inspection of it without the need to obtain the consent of anyone else.

Provided that the right is presently enforceable, the fact that for physical reasons it may not be possible for the person entitled to it to obtain immediate inspection would not prevent the document from being within power but in the absence of a presently enforceable right there is, in my view, nothing in [the relevant order] to compel a party to a cause or matter to take steps that will enable him to acquire one in the future.

24 Psalidis concerned an application for discovery of medical records of the plaintiff that were held by various medical practitioners on the basis that the plaintiff had power to obtain such documents under the Health Records Act 2001. The legislative framework provided for numerous restrictions and limitations upon the plaintiff's right of access,[13] which were relevant in two aspects:

First, they establish a range of exceptions by reference to which an organisation may legitimately refuse access to medical records. Second, they set up a special, exclusive, highly attenuated dispute resolution mechanism outside which the rights created by the Act are not enforceable at all.

Accordingly, a document in the hands of a third person, in this case Apple, will not be within the power of a party if the party can only obtain the document if a third party consents, or agrees to refrain from exercising its control so as to prevent inspection.[14]

25 In Victoria, the obligation to make reasonable inquiries and searches is regulated by the Rules. In particular, r 29.01.1(5) sets out factors that may be taken into account when making a reasonable search:

(a) the nature and complexity of the proceeding;

(c) the ease and cost of retrieving a document;

(d) the significance of any document to be found; and

26 The defendant can compel discovery of the further documents that he seeks pursuant to r 29.08 - governing the provision of a further affidavit for particular discovery - or r 29.11, being the rule for enforcement of the discovery obligation applicable when, among other things, a party has failed to make discovery in accordance with the Rules. The plaintiff acted reasonably. He searched his iCloud account online where stored text messages are neither apparent nor represented by Apple to consumers to be available. He has sworn affidavits about the method of his searches and the results achieved.

27 It was unreasonable to expect the plaintiff, in the first instance, to research whether such messages were in fact backed up to his iCloud account and accessible by a special procedure and if he discovered an access path, to obtain a copy of Wondershare Dr. Fone software or an equivalent product to conduct such further searches. The plaintiff's conduct is not properly characterised as a failure to make a proper search in discharge of his obligations. Further, a r 29.08 order, requiring the plaintiff to produce a further affidavit is not appropriate in the present circumstances. All that is identifiable at this stage is the possibility that further relevant documents may exist and may be identified if particular searches are undertaken. The remedy that the defendant seeks is that the plaintiff be required to undertake those further particular searches.

28 That said, I am satisfied that the text messages may well be relevant in the manner suggested by the defendant to the issues in the proceeding, there is unlikely to be a large volume of such communications, and whatever now exists can be readily retrieved at a modest cost which the defendant offers to bear.

29 Requiring a discovering party to search with specialist software of which that party is unaware to establish the existence of text message backups on his iCloud account is properly characterised as an application to expand that party's obligation to provide discovery. Pursuant to s 55 of the Civil Procedure Act, a party's discovery obligation can be so expanded. Section 55 of the Civil Procedure Act 2010 gives the court the power to make any order in relation to discovery that it considers necessary or appropriate, including by expanding a party's obligation to provide discovery. The court may make any order or direction modifying or regulating discovery of documents in any other way that the court sees fit.

55 Court orders for discovery

(1) A court may make any order or give any directions in relation to discovery that it considers necessary or appropriate.

(2) Without limiting subsection (1), a court may make any order or give any directions -

...

(f) expanding a party's obligation to provide discovery;

...

(k) modifying or regulating discovery of documents in any other way the court thinks fit.

The court may also order a party to pay another party in advance an amount specified for some or all of the estimated costs of the discovery process.[15]

31 The Civil Procedure Act informs the exercise of the discretion to order discovery under s 55. The court must interpret and exercise its powers to give effect to the overarching purpose.[16] In furthering that purpose, the court shall have regard to the objects set out in s 9(1) and, to that end, may have regard to the matters set out in s 9(2).

32 I am satisfied that any iCloud backup of text messages during the relevant period and with the nominated persons or concerning the subject matter identified by the pleadings constitute documents that the plaintiff should discover. The just determination of the case dictates that it be decided on all evidence that is relevant and admissible. The defendant pleads a defence of qualified privilege and asserts that the plaintiff had been engaged in a 'campaign' against him. The defendant believes that the plaintiff communicated with other people as part of the campaign via text message and I am satisfied that the text messages may be relevant to and probative of those issues. On the other hand, the plaintiff will not be subjected to unreasonable cost or inconvenience.

33 A backup is a document capable of being discovered. In NT Power Generation v Power & Water Authority[17] a question of reasonableness arose about discovery of backup tapes. The court held that the expense and effort of acquiring backup tapes was part of the obligation to provide discovery, but it is unclear whether the process involved an additional step, as this case does - identifying the need for and acquiring additional specialist software. The broad power found in s 55 of the Civil Procedure Act encompasses such an additional step in appropriate circumstances.

34 The backup is within the 'power' of the plaintiff in the relevant sense. All that the plaintiff requires to access the backup data is his iCloud user ID and password and the software, which readily can be made available to him. He does not require further permission or assistance from Apple in order to gain access.[18] In Psalidis, the plaintiff did not have an actual and immediate ability to inspect medical documents and further steps were involved; a requirement to request the documents from an independent third party, a possible need to pursue review of any refusal to provide the records, and permitted delays and exceptions to the plaintiff's right of access. [19] In contrast, in the present circumstances the plaintiff, if he follows the steps set out above, will be afforded direct and immediate access to the backup data that presently exists in his iCloud account.

35 Whether or not relevant text messages will be recovered by this process remains unclear. It was not in issue between the parties that the plaintiff's current phone did not presently contain relevant text messages (I will come to the question of deleted messages on the current phone below) which may have been backed up. Uncertainty as to what backup messages are now stored on the iCloud account from the relevant period, which ended 18 months ago, is evident. The prospect that there are such backup messages remaining in the iCloud account is diminished by several matters.

36 First, the plaintiff has been using his current iPhone for approximately 18 months. Secondly, the plaintiff has described his habit of deleting all messages monthly to maintain his patient's confidentiality. Thirdly, there is uncertainty about the timing of iCloud backups. Automatic iCloud backups occur periodically when the device is screen-locked, connected to a power source and connected to the Internet via a WiFi network. The terms of use state that the last three backups will be stored in the iCloud but space is limited and backup will be subject to other use of the available storage. There is no evidence that the plaintiff has any more than the minimum storage provided free of charge by Apple or about what other data is backed up to the iCloud. The plaintiff's counsel suggested that the last three backups ought be viewed as a minimum guarantee, and that potentially much more material was stored. This assertion is not supported by evidence and I am not persuaded that it is appropriate to draw that inference.

37 Be that as it may, it is clear that the content of the iCloud backup can readily be identified with minimum inconvenience and expense. The alternative is to require the plaintiff to seek production from Apple Inc. in the USA by subpoena. There is no guarantee that a subpoena would produce the documents in a timely manner. This information is stored in manner that is, apparently, easily and cost-effectively accessed by the plaintiff himself. It is far cheaper and more convenient for the defendant, given the relative ease and costs involved, to obtain at his expense and provide the Wondershare Dr.Fone software to the plaintiff. I do not consider that the plaintiff would be significantly inconvenienced if required to access the backup on his iCloud account himself, retrieve any text messages that become visible through the software, and assess whether any of it is discoverable or privileged from inspection.

38 Whatever falls into the plaintiff's possession or power by this procedure will not require any additional intervention or permission from Apple. In Palmdale Insurance Ltd (in liquidation) v Grollo & Co Pty Ltd a party was ordered to discover documents lodged with a public authority (the Tax Office) where there was a real likelihood that access to the documents would be given on request.[20] Relevantly to the present circumstances, Marks J described the order made as 'somewhat unusual in nature but [one which would] increase the chance of just and speedy determination of the matters in issue'.[21] This decision pre-dates s 55 of the Civil Procedure Act.

39 The defendant submitted that his IT experts could be given access to the plaintiff's iPhone and iCloud account on the provision of undertakings as to strict non-disclosure and confidentiality by the person(s) performing the search exercise. I will not order that the plaintiff hand over his Apple ID and password to the defendant's IT consultants in the present circumstances. The evidence suggests that there will be many irrelevant and potentially confidential messages related to the plaintiff's dental practice. In Sony Music v University of Tasmania,[22] Tamberlain J noted an important consideration being the interest of third parties, other than those persons who may be the subject of proceedings, 'concerning non-disclosure of what may be privileged or sensitive matters some of which in no way concern the contemplated litigation between the parties'.[23]

40 As s 55(4) permits, I will order that the defendant purchase and make available to the plaintiff a licensed copy of the Wondershare Dr.Fone or equivalent software with appropriate instructions for its use or indemnify the plaintiff in respect of that expense. Following that search a further affidavit can be provided by the plaintiff confirming the search process undertaken and the discoverable documents, if any, which were found.

41 Returning to the issue of searches for deleted relevant messages on the plaintiff's current phone, I do not consider the extraction of deleted messages from the internal hard drive of the plaintiff's current phone to be an issue of accessing a backup as part of an obligation to undertake reasonable searches in the same sense as the material stored on the iCloud discussed above. If the defendant wished to forensically examine the plaintiff's current phone an application to inspect the physical asset could have been made. In any case, the defendant's evidence did not explain in sufficient detail how the Wondershare Dr. Fone software could be used to extract deleted messages from either the iCloud or the plaintiff's current phone. The reconstruction of a deleted disk is a forensic task requiring specialist expertise and is not part of the obligation to make reasonable searches.

42 In any event, I am not persuaded that there is any possibility that relevant messages were backed up to the plaintiff's iCloud account before deletion from his original phones and remained in that storage identifiable as text messages capable of being restored to his current device. The evidence does not show that there were any relevant messages deleted from his current device after being restored to that device from an iCloud backup of data that originated from an earlier device. This aspect of the application was speculative and is refused.

Assessment of the claim of client legal privilege

43 Schedule 1, Part 2 of the plaintiff's affidavit of documents identifies 22 documents individually listed, (and separate from the general 'file of papers and briefs' held by the plaintiff's solicitor which is also claimed to be privileged from discovery) that are characterised by the plaintiff in the body of his affidavit as follows:

The documents enumerated in Part 2 of Schedule 1 are privileged, and I object to producing them. The documents are privileged on the ground that they are confidential communications between me and my advisors in their professional capacity. These documents were brought into existence for the dominant purpose of the preparation of my case in this proceeding and/or obtaining legal advice.

44 The documents may be categorised into three groups:

(a) Document no. 1, being an email sent by the plaintiff to other members of the PSPA board;

(b) Documents no. 2, 5, 7, 17, 19, 20, and 21, being communications between the plaintiff and his solicitor, Mr Nicholas Pullen. Also included in this category for convenience is document no. 22 being a note prepared by the plaintiff to Mr Pullen regarding a meeting with the defendant on 25 January 2015; and

(c) Documents no. 3, 4, 6, 8, 9, 10, 11, 12, 13, 14, 15, 16 and 18, being email communications from the plaintiff to Mr Pullen and copied or also sent to other members of the PSPA committee and/or one or both of Mr Reagan Barry and Mr Peter Holland.

45 In summary, the plaintiff submitted that, with limited exceptions, the documents were all confidential communications between the plaintiff and his solicitor (Mr Pullen) for the dominant purpose of giving or obtaining legal advice, with some communications copied to other persons with a common interest. The documents copied to other persons were emails that disclosed the substance and nature of legal advice that had been provided to the plaintiff or the basis for it. There had been no waiver of privilege in these instances because the recipients had a common interest with the plaintiff.

46 The plaintiff's claim of litigation and/or advice privilege over the 22 listed documents required further elaboration, and the plaintiff relied on affidavits sworn by Mr Pullen which provided further information regarding his retainer by the plaintiff, and the common interest between the plaintiff and those others referred to in the plaintiff's submissions.

47 Mr Pullen is a partner of the firm HWL Ebsworth Lawyers and has the conduct of this proceeding on the plaintiff's behalf. However, the majority of the communications predate the publication on which the plaintiff sues. Mr Reagan Barry introduced the plaintiff to Mr Pullen in late 2014 and by March 2015, the plaintiff had retained Mr Pullen to provide legal advice generally regarding issues that the plaintiff was dealing with on behalf of the Peninsula School Parent's Association between it and the Peninsula School. Those issues included:

(b) Removal of funds by the Peninsula School for a peace heritage garden; and

(c) The responsibilities of the plaintiff and the committee under the PSPA constitution.

48 Mr Pullen stated that all of the 22 documents were confidential communications to himself, whether with or without other recipients, for the purpose of obtaining legal advice. Mr Pullen, informed by the plaintiff, believed that the other recipients of these communications had a common interest with the plaintiff as follows:

(a) Tammy Jones, Natasha Lyons, Melissa Jacobs, Jenny DiBlasi, Lisa Denton and Jacqueline Hanks were all members of the PSPA at the relevant time. Jacqueline Hanks was also the secretary of the PSPA and is the plaintiff's wife;

(b) Reagan Barry is a former student of the Peninsula School and the former president of The Old Peninsula School Association (TOPSA). The Plaintiff had been communicating with Mr Barry in his capacity as a former president of TOPSA regarding the wording of a new constitution for the PSPA, as Mr Barry had previously been involved with changes to TOPSA's constitution. Mr Barry had also been involved in the establishment of new bank account for the TOPSA at the Bendigo Bank.

(c) Peter Holland was, as at April 1015, an adjunct professor in management at Monash University and the plaintiff was seeking advice from him in respect of issues between the Peninsula School and the PSPA.

49 The defendant submitted that the plaintiff waived privilege in any communications copied to Mr Barry and Mr Holland. They were not members of the PSPA committee. The true nature of the relationship between the plaintiff, Mr Barry and Mr Holland emerged from other materials already discovered by the defendant including text message extracts. The defendant submitted that the proper inference from those materials was that the common purpose of the collaboration between the plaintiff, Mr Barry and Mr Holland was the 'campaign' to discredit the defendant as principal of the Peninsula School and not for any privileged purpose.

50 The defendant submitted that Judd J in Krok v Szaintop Homes Pty Ltd (No 1)[24] identified the standard required to establish client legal privilege in these terms:

Ordinarily, a party amenable to a discovery obligation, from whom disclosure is sought, must establish a claim to client legal privilege if that party is to be relieved from a disclosure obligation on that basis. Evidence is required. Mere assertions and conclusions are not sufficient. The evidentiary foundation may, of course, be augmented by inspection, although inspection alone can rarely, if ever, establish a claim.

...

The evidence advanced in support of a claim for client legal privilege attaching to a document must at least establish the purpose for which the document was made, identify the maker and the party for whom the document was prepared, and establish the elements of confidentiality.

The plaintiff's affidavits in support of his claim for privilege did not meet this standard.

51 The defendant also submitted, or at least suggested, that the relationship between Mr Pullen and the plaintiff might be other than a client/lawyer relationship capable of supporting legal advice privilege. The defendant submitted that merely because one party is a lawyer may not suffice to establish the relevant privilege where communications are not for the professional purpose of providing advice.[25]

52 The principles regarding client legal privilege are well established,[26] and are now found in Part 3.10, Division 1, of the Evidence Act 2008. Section 118 provides that 'Advice privilege' attaches to confidential communications passing between lawyer and client made for the dominant purpose of seeking or being furnished with legal advice by that lawyer. Section 119 provides that 'Litigation privilege' attaches to confidential communications for the dominant purpose of use in existing or reasonably contemplated litigation. Those sections provide as follows:

118 Legal advice

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of -

(a) a confidential communication made between the client and a lawyer; or

(b) a confidential communication made between 2 or more lawyers acting for the client; or

(c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person -

for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.

119 Litigation

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of -

(a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made; or

(b) the contents of a confidential document (whether delivered or not) that was prepared -

for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.

53 The relevant time for assessing whether the conditions antecedent to a valid claim of privilege are satisfied is the time when the relevant communication was made.[27] Privilege can only properly belong to the client,[28] or those with a common interest in the litigation or matter for which advice is being given.[29]

54 The dominant purpose test invites an examination of the purpose for which a document was created and an inquiry as to whether there are any other purposes. It is a question of fact.[30] The ambit of communications passing between solicitor and client covered by this privilege is not to be construed too narrowly; it extends to all communications relating to the normal business of the solicitor. It may extend to all of the peripheral aspects of a particular matter for which legal advice is being given, even though some might not in isolation be concerned with the communication of strictly legal advice.[31]

55 Loss of privilege may occur where the party entitled to it has acted in a way that is inconsistent with the confidence preserved by it, such as, for example, disclosing confidential communications to a third party.[32] In such circumstances, common interest may defeat an assertion that legal professional privilege has been waived.[33] When assessing the question of whether there is such an inconsistency regard may be had to the rationale of the privilege, which Mason and Brennan JJ described in Attorney-General (NT) v Maurice as facilitating the administration of justice through the 'fostering of trust and candour in the relationship between lawyer and client'.[34] Considerations of fairness may be relevant but will not be determinative.[35]

56 Section 122 relevantly states:

122 Loss of client legal privilege - consent and related matters

...

(2) Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120.

(3) Without limiting subsection (2), a client or party is taken to have so acted if -

(a) the client or party knowingly and voluntarily disclosed the substance of the evidence to another person; or

(b) the substance of the evidence has been disclosed with the express or implied consent of the client or party.

(4) The reference in subsection (3)(a) to a knowing and voluntary disclosure does not include a reference to a disclosure by a person who was, at the time of the disclosure, an employee or agent of the client or party or of a lawyer of the client or party unless the employee or agent was authorised by the client, party or lawyer to make the disclosure.

(5) A client or party is not taken to have acted in a manner inconsistent with the client or party objecting to the adducing of the evidence merely because -

(a) the substance of the evidence has been disclosed -

(i) in the course of making a confidential communication or preparing a confidential document; or

(ii) as a result of duress or deception; or

(iii) under compulsion of law; or

(iv) if the client or party is a body established by, or a person holding an office under, an Australian law - to the Minister, or the Minister of the Commonwealth, the State or Territory, administering the law, or part of the law, under which the body is established or the office is held; or

(b) of a disclosure by a client to another person if the disclosure concerns a matter in relation to which the same lawyer is providing, or is to provide, professional legal services to both the client and the other person; or

(c) of a disclosure to a person with whom the client or party had, at the time of the disclosure, a common interest relating to the proceeding or an anticipated or pending proceeding in an Australian court or a foreign court.

57 As the learned editor of Cross observed, the protection by common interest privilege of documents in the hands of a third party pre-supposes that that third party has a relationship with both the client and the matter in question that, in relation to the advice or other communications, brings that third party within that ambit of confidence which would prevail between the legal adviser and his immediate client.[36]

58 Common interest will not be established where, as between the holder of legally privileged documents and the third party, their individual interests are selfish and potentially adverse to each other.[37] It will not be established where, as in Spotless Group Ltd v Premier Building and Consulting Group Pty Ltd[38] the parties' interests in the litigation in question were substantially different, the shared interest was too indirect or where no relevant interest in the outcome of the litigation existed.[39]

59 I inspected individually against the privilege claimed each of the 22 items listed in Schedule 1, Part 2 of the plaintiff's affidavit of documents.

60 The incident the subject of this proceeding was the publication of the letter to parents of the Peninsula School on 20 May 2015. The first 18 documents listed pre-date the relevant publication and were not created for the dominant purpose of any litigation by the plaintiff. For those documents the plaintiff claimed advice privilege. For documents 19, 20, 21 and 22 both litigation and advice privilege were potentially relevant.

61 I am satisfied that the plaintiff retained Mr Pullen as his legal adviser from approximately March 2015, and that his communications with the plaintiff were professional communications in the relevant sense.

63 Document no. 1 is an email from the plaintiff to other members of the PSPA committee, forwarding a draft letter that it was proposed be sent to the defendant. It references 'advisor' and 'advice' which Mr Pullen has deposed refers to himself and legal advice that he gave to the plaintiff. This document is privileged. I am satisfied that the other members of the PSPA Board, copied on this email, share a common interest with the plaintiff for the purposes of receiving legal advice regarding the board's dealings with the PSPA.

64 Documents no. 2, 5, 7, 17, 19, 20 and 21 are emails from the plaintiff to Mr Pullen, his solicitor. Each of these communications is confidential between client and solicitor. I am satisfied that each was made for the dominant purpose of receiving legal advice from Mr Pullen, and is privileged.

65 Documents no. 3, 4, 6, 8, 9, 11, 12, 13, 14, 15 and 18 are emails from the plaintiff sent to or copied, in each case, to Mr Pullen and Mr Barry, and on occasion also to Mr Holland. Document no. 16 is an email from the plaintiff to Mr Barry, copied to Mr Pullen. For the following reasons, I am satisfied that privilege in respect of each of these documents has been lost.

66 Because these communications between client and solicitor were copied to other persons the question of whether the plaintiff acted inconsistently with the maintenance of client legal privilege arises. The test to determine whether there is inconsistent conduct resulting in the loss of privilege is an objective one.[40]

67 The essential question is whether the nature of their mutual interest in the context of the plaintiff and Mr Barry's relationship is such that the latter received the communications subject to a duty of confidence that the law will protect.[41] Mr Pullen deposed that the Plaintiff had been communicating with Mr Barry regarding the wording of a new constitution for the PSPA, and about the establishment of new bank accounts at the Bendigo Bank.

68 I am not satisfied, on the material provided by the plaintiff, that a sufficient relationship of common interest was in existence between himself and Mr Barry to maintain a claim of legal privilege for the following reasons. Mr Barry is not a member of the PSPA committee. He is a former student at the school and a former president of TOPSA which is involved with school alumni rather than current parents (it is not clear when he left this role). That the plaintiff and Mr Barry were in agreement in criticising aspects of the Principal's conduct of the Peninsula School is readily apparent. That is not enough in these circumstances to establish a common interest privilege over the advice received from Mr Pullen in the context of the PSPA dispute, the letter written to parents and the resultant litigation. The inconsistency between the conduct of the plaintiff in communicating with Mr Barry and his insistence on confidentiality for legal advice received results in loss of the privilege in these circumstances. Mr Barry would be unable to resist production of the communications on the basis of client legal privilege and the application of s 122(2) is not excepted by the application of s 122(5).

69 Because I have determined that privilege has been waived on the basis of communications with Mr Barry in each case I need express no final view on the nature of the common interest that may lie between the plaintiff and Mr Holland.[42]

70 Document 10 is an email from the Plaintiff to Mr Pullen and Mr Barry forwarding an email received by him from Wayne Murray and includes a long chain of forwarded emails with various recipients. The plaintiff has not provided any evidence of a common interest subsisting with Mr Murray. Further, by forwarding the lengthy email chain to Mr Barry he has, for the reasons already stated, lost any existing privilege. This document must be produced to the defendant for inspection.

71 Document 22 are undated notes prepared from an audio recording by the plaintiff following a meeting with the defendant and the Peninsula School's Business Manager on 25 February 2015. The plaintiff's affidavit of documents states that these were prepared by him 'to [Mr] Pullen', who deposes that the plaintiff forwarded the notes to him on or about 31 May 2016. There is no evidence that these notes were forwarded to any other person. I accept that this document has not lost its confidentiality and that the dominant purpose for the communication was to receive legal advice from Mr Pullen. Document 22 is privileged.

72 I will make the orders set out in paragraph three above and I will hear from the parties as to costs.

[1] Issues about a third category of documents, described as correspondence or documents from the plaintiff distributing or publishing a document described as 'Audio recording of meeting between Stuart Johnston, Paul Hanks and Kylie Maher' made on 25 February 2015 was resolved between the parties during the course of the application on the basis of a further affidavit from the plaintiff.

[2] The plaintiff later deposed on 20 July 2016 that the reference to Ms Holland as a recipient of text messages was made in error and that he had never sent her any relevant text messages.

[3] http://www.apple.com/legal/internet-services/icloud/en/terms.html (capitalisation in original).

[4] iMessages are used when the owner of an iPhone messages another person who is using an iPhone, the messages are sent over WiFi or through a data connection.

[5] https://support.apple.com/en-au/HT204215.

[6] The options available for a user simply upon logging in to their iCloud are limited to: Mail, Contacts, Calendar, Photos, iCloud drive, Notes, Reminders, Pages, Numbers, Keynote, Find Friends, Find iPhone and Settings.

[7] The defendant also referred to recovery of text messages using forensic extraction software such as 'Cellabrite' which is commonly used by forensic accountants. There was no evidence put as to the expense or process involved in using such software and I have limited my consideration to the use of the Wondershare Dr. Fore software. There was no application that the plaintiff's current phone be produced for forensic examination.

[8] https://drfone.wondershare.com/terms-conditions.html.

[10] B v B (Matrimonial Proceedings: Discovery) [1979] 1 All ER 801, 803; Re Huybrechts; Ex Parte Huybrechts v Knight [1991] FCA 441; (1991) 31 FCR 394.

[11] [2009] VSC 417, (2009) 29 VR 123.

[12] [1980] 1 WLR 627, 623. See also Roux v ABC [1992] VicRp 87; [1992] 2 VR 577, 589; Linfa Pty Ltd v Citibank Ltd [1995] VicRp 40; [1995] 1 VR 643, 646-647; Douglas-Hill v Parke Davis Pty Ltd (1990) 54 SASR 346; White v South Australia [2007] SASC 75; (2007) 96 SASR 581, 603 [92]; Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 2) [2006] FCA 1001; (2006) 155 FCR 1, 10-11 [53].

[13] [2009] VSC 417; (2009) 29 VR 123, 144 [81].

[14] Taylor v Santos Ltd (1998) 71 SASR 434, 438.

[15] S 55(4).

[16] S 8(1).

[17] [1999] FCA 1623. See T24-26 (12 August).

[18] See Lonrho Ltd v Shell Petroleum Co Ltd [1980] 1 WLR 627, 635; Roux v ABC [1992] VicRp 87; [1992] 2 VR 577, 589; Taylor v Santos Ltd (1998) 71 SASR 434, 438.

[19] [2009] VSC 417.

[20] [1987] VicRp 8; [1987] VR 113, 115.

[22] [2003] FCA 532; (2003) 129 FCR 472.

[24] [2011] VSC 16, [15]-[17].

[25] Minster v Priest [1930] AC 558, 580-1; Cook v Leonard [1954] VicLawRp 84; [1954] VLR 591; Tatum v Dunne [1900] ArgusLawRp 30; (1900) 6 ALR 58; Smith-Bird v Bower [1939] 2 All ER 406.

[26] See J D Heydon (ed), Cross on Evidence (Lexis Nexis, 9th ed, 2013), 824 [25210].

[27] Barnes v Commissioner of Taxation (Cth) [2007] FCAFC 88; (2007) 242 ALR 601, [5] (apart from exceptional cases where the purpose of a document changes after it is created but before it is communicated).

[28] Wilson v Rastall [1792] EngR 3089; (1792) 4 TR 753 (KB).

[29] Buttes Gas & Oil Co v Hammer (No 3) [1981] 1 QB 223; Bulk Materials (Coal Handling) Services Pty Ltd v Coal and Allied Operations Pty Ltd (1988) 13 NSWLR 689; Rank Film Distributors Ltd v ENT Ltd [1994] TASSC 166; (1994) 4 Tas R 281 at 294.

[30] Grant v Downs [1976] HCA 63; (1976) 135 CLR 674, 692; Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54, 66, 78.

[31] Nederlandse Reassurantie Groep Holding NV v Bacon & Woodrow [1995] 1 All ER 976; approved in Three Rivers District Council v Governor and Company of the Bank of England (No 6) [2004] UKHL 48; [2005] 1 AC 610, [111]; [2004] UKHL 48; [2005] 4 All ER 948.

[32] Evidence Act 2008, s 122(3), Cross on Evidence [25010]. Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1.

[33] Bulk Materials (Coal Handling) Services Pty Ltd v Coal & Allied Operations Pty Ltd (1988) 13 NSWLR 689, 669 (Giles J).

[34] [1986] HCA 80; (1986) 161 CLR 475, 487. See, also, Grant v Downs [1976] HCA 63; (1976) 135 CLR 674, 685 (Stephen, Mason and Murphy JJ).

[35] Spotless 12, [27]-[28] (Chernov J, Warren CJ agreeing).

[36] J D Heydon (ed), Cross on Evidence (Lexis Nexis, 9th ed, 2013), 847 [25265].

[37] Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1995) 37 NSWLR 405, 410 (Giles J).

[38] [2006] VSCA 201; (2006) 16 VR 1.

[40] Mann at 13, [29]. See Spotless Group 12, [27] (Chernov J, Warren CJ agreeing).

[41] J D Heydon (ed), Cross on Evidence (Lexis Nexis, 9th ed, 2013), 847-848, [25265]. Formica Ltd v Export Credits Guarantee Dept [1995] 1 Lloyd's Rep 692, 699.

[42] The evidence as to the relationship from which common interest privilege was said to arise was in any case scant. Mr Pullen deposed that he was providing the plaintiff with advice on 'various issues' arising between the Principal and PSPA.