Secure Logic Pty Limited v Paul William Noble

Judgment

1. This is the Court's second judgment in these proceedings. The Court's first judgment dealt with an issue of alleged waiver of client legal privilege claimed by the first and second defendants over three groups of documents: Secure Logic Pty Limited v Paul William Noble [2019] NSWSC 991. This judgment should be read with the Court's first judgment, where the relevant background to the issues in contest is to be found. Events, persons and matters are referred to in the same way in both judgments.
2. This judgment also relates to an alleged waiver of client legal privilege. The background to the issue may be shortly stated. Before the hearing of the proceedings commenced, the plaintiffs waived privilege over a communication dated 29 March 2016, between the plaintiffs' solicitor at McCabes Lawyers, Mr Humphries, and the principal of the plaintiffs, Mr Santosh Deveraj. In this email Mr Humphries suggested a form of words that Mr Devaraj could use to write to Mr Paul Noble about obtaining a copy of a trust deed Mr Noble had asked Mr Devaraj to witness. The 29 March 2016 email (with the suggested text of the email to Mr Noble in italics) was as follows: "Santosh I suggest an email from you to Paul along these lines: Hi Paul, Just a reminder to send me a copy of your family trust deed you asked me to witness your signature on today. You only showed me the signing page and as discussed I'd like to have a copy of the whole document I was witnessing for my records. I understand it's a trust deed so it's sensitive and I will of course keep it confidential. A scanned copy will be fine. Thanks, Santosh Hope that helps. Steve"
3. Mr Deveraj was cross-examined on this document on 6 August 2019. In the course of cross-examination, at one point he said he had forwarded emails to Mr Humphries in order for Mr Humphries to have "some background" to advise in relation to what became the communication of 29 March 2016. But Mr Deveraj denied receiving any advice from his solicitors about Mr Noble's employment contract prior to 29 March 2016. The following short passage is the cross-examination on this subject: "DEBUSE: Q. By 29 March 2016 you clearly understood that Mr Noble was pressuring you to issue or transfer shares to him in Secure Logic company? A. That's correct. Q. As a result the question of whether or not he would be entitled to shares under his employment contract was a matter of concern to you? A. No. It was not a concern to me. Q. Mr Noble asked you to witness his family trust deed and you were concerned that that may help establish some fact in relation to his claim for shares in Secure Logic? A. No. Q. You spoke to Mr Humphries because of that concern? A. No, that's not correct. Q. Mr Humphries could only have known that this issue related to Paul's employment contract if you had told him? A. That's correct. Q. You were concerned that by witnessing a trust deed that may have some effect on Paul's employment contract? A. That's not correct. HIS HONOUR: Q. Why was Mr Humphries writing to you, as you understood it, under the heading "Paul's Employment Contract", to suggest sending this email to Paul? A. What would have happened is I was ‑ actually when he came to my office, he pulled the last page off something in front of me, which I believe it was a trust deed. I actually didn't read any of those. He said, "Can you please witness this?". Like, "What is this? What am I witnessing?"."It's just a family trust I'm establishing". I said, "Why do you want me to? Or there's people there?", or, you know, Paul, we work together, so why would I witness it, so I didn't want to say no. Because it was a witness, I signed, and I got ‑ because I did not actually read anything because he didn't have the whole date in front of me, I called Mr Humphry and said, like, this is what's happened and he said, "Send me some background", and I forwarded him probably the email that I would have sent him which was in relation to some of this conversation that we were having before, and that's the ‑ that's in reference to that, the subject probably would have come up there. It had nothing to do with worrying about the contracts and whatnot, but Mr Humphry could not ‑ did not understand what it's all related to. He wanted some background. Q. So Paul's employment contract is just picking up a prior email chain because it's convenient for Mr Humphries to use it? A. He's probably replied to one of those I would have sent him in reference to ‑ because he was a bit surprised as well, why would somebody come and ask for a witness signature, and then following his advice, I wrote that email and wanted to make sure whatever I witnessed, I have a record of that. DEBUSE: Q. Prior to this email you were already in discussions, you say, with your solicitors about Paul's employment contract? A. No, I was not. Q. You just said that you had given him some background and that would have included emails and would have included facts about Paul's employment contract. A. Sorry, you asked me prior to this. I'm saying not prior to this. During that situation I had to give him enough context for him to advise me of. Q. When you say you had to give him enough context for him to advise you, are you talking about an email or a telephone conversation? A. I called him first and then he said, "Send me some emails to understand the background of who this person is and what is happening for him to give me a particular advice on the situation". DEBUSE: I call for those emails."