Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd

Supreme Court of NSW|2008-10-13|Before: Barrett J, Mr J

Background 1 The plaintiffs seek to tender a document that may conveniently be called "the Hiroyuki Narui Statement". There was an extensive inquiry on the voir dire into the question whether client legal privilege in the document has been lost. 2 The Hiroyuki Narui Statement is referred to briefly in my ruling of 27 June 2008 ([2008] NSWSC 657). It is a document embodying a statement of Hiroyuki Narui prepared by Hickey Lawyers ("Hickeys"), the then solicitors for the present defendant ("NGC"), in anticipation of Hiroyuki Narui's giving evidence in proceedings in this court between NGC and one Harrison. Those proceedings bear no relationship to the present proceedings. The substance of the Harrison proceedings is unimportant. The proceedings were commenced before these present proceedings and came to trial in October 2005. They were afterwards settled and Hiroyuki Narui did not give evidence. 3 The plaintiffs wish to tender the Hiroyuki Narui Statement because, in their view, it contains an admission admissible against NGC. Hiroyuki Narui was, at all material times, a senior executive of Narui Norin, the parent company of NGC. He was also a director of NGC itself from September 2000 to September 2003. 4 It is contended by NGC (and not disputed by the plaintiffs) that the Hiroyuki Narui Statement, having been prepared in the litigation context I have described, embodies confidential communication of the kind referred to in s 119 of the Evidence Act 1995 and is a confidential document within that section, with references there to "the client" being understood as references to NGC. The privilege is thus the privilege of NGC. 5 Objection to the tender of the Hiroyuki Narui Statement is taken by NGC. In obedience to s 119, therefore, that evidence is not to be adduced and the document must be rejected - unless some other provision of the Evidence Act displaces that barrier. The question with which I am now concerned is whether the privilege created by s 119 has been lost. 6 It is contended by the plaintiffs that the operation of s 119 is displaced by s 122. That section is concerned with consent. It is desirable that the section be set out in full: " Loss of client legal privilege: consent and related matters (1) This Division does not prevent the adducing of evidence given with the consent of the client or party concerned.

(2) Subject to subsection (5), this Division does not prevent the adducing of evidence if a client or party has knowingly and voluntarily disclosed to another person the substance of the evidence and the disclosure was not made: (a) in the course of making a confidential communication or preparing a confidential document; or (b) as a result of duress or deception; or (c) under compulsion of law; or (d) if the client or party is a body established by, or a person holding office under, an Australian law--to the Minister, or the Minister of the State or Territory, administering the law, or the part of the law, under which the body is established or the office is held.

(3) Subsection (2) does not apply to a disclosure by a person who was, at the time, an employee or agent of a client or party or of a lawyer unless the employee or agent was authorised to make the disclosure.

(4) Subject to subsection (5), this Division does not prevent the adducing of evidence if the substance of the evidence has been disclosed with the express or implied consent of the client or party to another person other than: (a) a lawyer acting for the client or party; or (b) if the client or party is a body established by, or a person holding an office under, an Australian law--the Minister, or the Minister of the State or Territory, administering the law, or the part of the law, under which the body is established or the office is held.

(5) Subsections (2) and (4) do not apply to: (a) 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; (b) a disclosure to a person with whom the client or party had, at the time of the disclosure, a common interest relating to a proceeding or an anticipated or pending proceeding in an Australian court or a foreign court.

(6) This Division does not prevent the adducing of evidence of a document that a witness has used to try to revive the witness's memory about a fact or opinion or has used as mentioned in section 32 (attempts to revive memory in court) or 33 (evidence given by police officers)." The plaintiffs' basic contention 7 The plaintiffs (Tim Barr Pty Ltd and Mr Barr) say that provisions of s 122 operated on no less than nine separate occasions to defeat NGC's privilege in the Hiroyuki Narui Statement. 8 In some instances, consideration of the particular occasion and the question whether a defeating provision of s 122 operated will involve examination of factual issues. In others, the facts are uncontroversial. 9 It will be appropriate to outline the several occasions of alleged waiver, remembering, however, that each may have relevance to one or more of the others. While separate examination of each is required, it may be that some wider conclusion may be drawn from looking at all (or several) together. Some points of construction 10 Before proceeding to an assessment of the parties' submissions in relation to the particular facts, it is necessary to consider competing arguments on certain matters of construction. The first concerns the meaning of the word "disclosed" in ss 122(2) and 122(4). 11 NGC contends that "disclosed" can only refer to the revelation of something that was not previously known to the person to whom it is revealed. NGC quotes the observation of Latham CJ in Foster v Federal Commissioner of Taxation [1951] HCA 77; (1951) 82 CLR 606 at 614-615: "In my opinion it is not possible, according to the ordinary use of language, to 'disclose' to a person a fact of which he is, to the knowledge of the person making a statement as to the fact, already aware. There is a difference between 'disclosing' a fact and stating a fact. Disclosure consists in the statement of a fact by way of disclosure so as to reveal or make apparent that which (so far as the 'discloser' knows) was previously unknown to the person to whom the statement was made." 12 This statement was made in a tax case. NGC also relies on similar statements in other cases not involving provisions of the Evidence Act indicating that one cannot "disclose" to a person something that the person already knows. In the Evidence Act context, NGC refers to an observation of Campbell J in Green v AMP Life Ltd [2005] NSWSC 95, a case concerning s 118. His Honour said at [18]: "The notion of 'disclosure' involves something becoming revealed which was previously hidden, or known which was not previously known." 13 Such an approach to the Evidence Act provisions is also indicated by observations of Santow J in Kang v Kwan [2001] NSWSC 698 at [34]. 14 In Ex parte Cannar; Re Eubanks [2003] NSWSC 802, however, Bell J said at [80]: "I am persuaded that I should not take Kang v Kwan as authority for the proposition that once confidential communications or confidential documents lose the quality of confidentiality for any reason that client legal privilege may not be asserted in them. I accept Mr Darke's submission that the terms of s 117 are against such a construction. Section 122(2) and (4) contemplates that disclosure of the substance of a confidential communication or confidential document does not of itself abrogate the privilege." 15 Her Honour went on to say (at [82]): "As I have already noted Div 1 Pt 3 of the Evidence Act contemplates disclosure of the contents of confidential documents and confidential communications without loss of client legal privilege. Thus, s 122(2) provides that client legal privilege is not lost in a case where the knowing and voluntary disclosure of the substance of the evidence falls within one or more of sub-paragraphs (a) to (d). Thus, knowing and voluntary disclosure of the contents of a confidential document brought about by deception does not result in loss of the privilege." 16 This part of the judgment followed rejection of a submission that "disclose", in the context, means "to uncover"; "to remove a cover from and expose to view". The point made is that the privilege the Act creates may continue even though a communication (or the substance of it) has already been "disclosed" (her Honour was dealing with a document which, at the time of the alleged "disclosure", was in the public domain). 17 The plaintiffs contend for a meaning of "disclose" wider than that taken by NGC. They say that if there is a protected communication of privileged material to a particular person followed by an unprotected communication of the material to the same person, the second communication is capable of being within the "disclosed" concept since, if it were otherwise, the privilege left intact despite the first communication would be rendered absolute and permanent. Putting this a slightly different way, if the first communication is one that does not cause privilege to be lost, it cannot be the case that any later communication to the same person can never entail "disclosing" of a s 122(2) or 122(4) kind that will cause the privilege to be lost. 18 The point the plaintiffs seek to make may be illustrated by an example. Let it be assumed that the person to whom privilege in the content of a document belongs has knowingly and voluntarily disclosed to another person the substance of the content but has done so under compulsion of law. By virtue of s 122(2)(c), the privilege is not lost, despite that disclosure. If, at a later time, the person enjoying the privilege voluntarily and deliberately hands the document itself to that other person in circumstances not protected by the Act, it cannot be said that, because there is then no "disclosure" of the document's content, the privilege is ongoing. If that were the correct construction, privilege would be maintainable against the other person indefinitely and despite clear acts, on subsequent occasions, destructive of it. 19 I am of the opinion that the construction for which the plaintiffs contend does not accommodate the ordinarily accepted meaning of "disclose". I accept that it is not possible to "disclose" to a particular person something already known to or possessed by that person. NGC submits, and I agree, that adoption of this construction does not lead to the anomalous results to which the plaintiffs point. In particular, the argument outlined by reference to the example in paragraph [18] above is not sound. If there is, at some point after the initial and protected "disclosure", conduct on the part of the privilege holder inconsistent with the continued maintenance of the privilege (in the example quoted, actual, knowing and deliberate giving of the document to the person to whom the earlier disclosure was made, without any attempt to preserve privilege), the situation will be one in which consent under s 122(1) will readily be inferred; and it will be that section, not any provision concerned specifically with "disclosure", that causes the privilege no longer to be maintainable. 20 In summary, therefore, I accept the position put by NGC in relation to the particular question. Sections 122(2) and 122(4) cannot operate in a case where the content of a privileged document is communicated to a person who is already in possession of that content. This is because that communication is not one that reveals or makes known that content. It therefore does "disclose" the content. But that that is not to say that the particular communication may not carry with it or be followed by a form of consent on the part of the person enjoying privilege that is destructive of the privilege apart altogether from the operation of ss 122(2) and 122(4). 21 This leads on to the second matter in contention. It concerns a question of timing: whether the only facts, matters and circumstances relevant to a question whether disclosure or communication of privileged material is with the consent of the person entitled to privilege are those occurring or arising before or contemporaneously with the disclosure. 22 NGC contends that only prior or contemporaneous events are relevant. The plaintiffs say that consent can be given (or inferred from conduct) subsequent to the disclosure. 23 Section 122(2) does not raise any question whether "disclosure" is made with "consent". It is concerned only with the question whether disclosure is "knowingly and voluntarily" made. Section 122(4), by contrast, speaks of the relevant matter being "disclosed with the express or implied consent of" a relevant person. The question posed is therefore directly relevant to s 122(4) only. 24 As a matter of construction, the question must be answered in the way favoured by NGC. "Disclosure", in the sense to which I have referred, can be made "with" a person's consent (express or implied) only if the "disclosure" takes place in a factual context which includes either an express giving of consent or elements from which consent may be inferred. The preposition "with" indicates that the consent must in some way accompany or attach to the disclosure. If, at the time of disclosure, the person concerned clearly and actively denies consent but that person later does things inconsistent with the continuation of privilege, the case is not, in my view, one of disclosure "with" some form of subsequently created consent. Rather, it is a case in which the later events of themselves, judged at the time they occur, may destroy the privilege. 25 Implicit in what I have just said are two propositions: first, that subsequent consent under s 122(1) may destroy privilege that has continued to attach because of earlier events which, having regard to s 122(2) or s 122(4), did not displace it; and second, that such consent may be express or implied, with the circumstances in which implied consent may arise including those where the common law principles discussed in Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 would cause privilege to be waived. I rely, in these respects on the decision of the Court of Appeal in Chen v City Convenience Leasing Pty Ltd [2005] NSWCA 297. Gzell J (with whom Bryson JA and Windeyer J agreed) there said at [29] to [33]: "[29] At common law, a client who would otherwise be entitled to the benefit of legal professional privilege, might waive that privilege and that waiver might be express or implied ( Mann v Carnell (1999) 201 CLR 1 at [28]-[29]). If the Evidence Act 1995, s 122(1) was meant to embrace or to restrict this principle, its expression is elliptical in the extreme.

[30] In Adelaide Steamship at 370-371, the Court saw no reason for construing consent in s 122(1) of the Evidence Act 1995 as referring only to express consent notwithstanding the contrast with s 122(4) where reference is made to express or implied consent. In Telstra Corporation Ltd v BT Australasia Pty Ltd (1998) 85 FCR 152, a majority of a Full Court of the Federal Court cited this observation and also concluded that the reference to consent in the Evidence Act 1995, s 122(1) included the implied consent of an imputed waiver of privilege. Their Honours said at 164: 'But, unless "consent" has a meaning more extensive than actual, voluntary consent, it is difficult to see what s 122(1) adds to the opening words of s 118. And it may be observed that if s 122(1) of the Act is construed as being concerned only with intended or voluntary consent, Div 1 of Pt 3.10 of the Act will have effected a dramatic change to the pre-existing common law with respect to legal professional privilege.'

[31] In my view, that interpretation must be correct. Section 9(1) of the Evidence Act 1995 provides that the Act does not affect the operation of a principle or rule of common law or equity in relation to evidence in a proceeding to which the Act applies, except so far as the Act provides otherwise expressly or by necessary intendment. It would take more than the reference to implied consent in s 122(4) to exclude, by necessary intendment, implied consent from the reference to consent in s 122(1).

[32] In my view, the majority in Telstra were correct in concluding, at 168, that the Evidence Act 1995, s 122(1) is to be construed as reaching to cases in which the client or party concerned is deemed to have consented to the disclosure of otherwise privileged material in terms of the common law rule.

[33] This approach has been adopted in a number of single judge decisions. In Wayne Lawrence Pty Ltd v Hunt [1999] NSWSC 1044, Hodgson CJ in Eq at [12] accepted that the decision of the majority in Telstra correctly interpreted and applied the Evidence Act 1995, s 122(1). In Garratt's Ltd v Thanga Thangathurai [2002] NSWSC 39, Bergin J concluded at [51] that consent for the purpose of the sub-section included conduct amounting to imputed or implied waiver. Those terms appear to be used interchangeably in the authorities. In Fort Dodge Australia Pty Ltd v Nature Vet Pty Ltd [2002] FCA 501 at [10], Hely J, while acknowledging that the issue before him in ancillary process was one of waiver of privilege at common law rather than by reference to s 122(1), observed that there was little difference between the issue as to whether a party had given its implied consent to the disclosure of the substance of evidence over which privilege was claimed as that term was used in the provision, or whether a party's conduct amounted to an imputed waiver at common law. His Honour cited Bergin J's judgment in Thanga . In BP Australia Pty Ltd v Nyran Pty Ltd [2002] FCA 1302, Nicholson J at [8] concluded that he must apply the common law of imputed waiver, but followed Telstra in saying that s 122(1) was to be understood in terms of the common law on that topic. Campbell J came to the same conclusion in United Rural Enterprises v Lopmand [2002] NSWSC 1142 at [12]. The decisions are discussed without dissent by Allsop J in DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499 at [102]-[111]. McDougall J came to the same conclusion in Singapore Airlines v Sydney Airports Corporation [2004] NSWSC 380 at [52], [56]. And see my judgment in Wyadra Pty Ltd v Mailler (No 2) [2005] NSWSC 88 at [6]." 26 Returning to s 122(2) and s 122(4), it is necessary to emphasise another point. The relevant "disclosure" is, in the one case, disclosure by the person to whom the privilege belongs and, in the other, disclosure with the express or implied consent of that person. The person is referred to in s 122(2) as "a client or party" and in s 122(4) as "the client or party". The reference is, in each case, clearly a reference to "the client or party concerned" mentioned in s 122(1). The "client" is someone to whom privilege under s 118 or s 119 belongs. The "party" is an unrepresented party in whom privilege subsists pursuant to s 120. It follows that, in the present case (one of "client"), any "disclosure" will be capable of leading to a finding of loss of privilege only if it is disclosure by the client (s 122(2)) or disclosure with the express or implied consent of the client (s 122(4)).

27 In the present case, as noted at paragraph [4] above, NGC is the "client" in terms of s 119. The first occasion of alleged waiver 28 On 19 December 2002, Hickeys, who were then the solicitors for NGC, sent a copy of the Hiroyuki Narui Statement to Leda Developments Pty Ltd under cover of a letter addressed to Mr van Rij of that company. Leda and NGC were at that time in negotiations with a view to possible acquisition of the Kings Forest property by Leda from NGC or, as an alternative, some form of joint venture with respect to the property. Leda had undertaken a due diligence investigation. A deed dated 10 July 2002 between NGC and Leda governed the due diligence. By that deed, it was acknowledged that NGC would provide certain information to Leda for the purpose of Leda entering into either a contract to purchase the property or a joint venture relationship in relation to the property; and Leda promised to keep the disclosed information confidential and not to use it otherwise than for that purpose. The second occasion of alleged waiver 29 The second defendant (Mr Barr) had become the subject of criminal charges in 2002. The police, in conducting their investigation, came into possession of the Hiroyuki Narui Statement. It was obtained by the police from Leda in the course of executing a search warrant at Leda's premises on 15 May 2003. 30 Hickeys became aware of this late in 2003. On 12 January 2004, Hickeys, acting for NGC, wrote to Detective Senior Constable Hutchinson of Murwillumbah police as follows: "We understand that you hold copies of certain statements of Hiroyuki Narui dated 19 December 2002 obtained under Warrant executed at our client's premises. We note these documents are the subject of legal professional privilege in favour of our client. We kindly request you return these statements and any copies of them held by you to us. We look forward to hearing from you in relation to the above." 31 Detective Senior Constable Hutchinson replied as follows on 13 January 2004: "I confirm that the NSW Police Service do hold statements made by Mr Hiroyuki Narui dated 19.12.02 which were seized under search warrant. These statements will form part of a Police brief of evidence and are unable to be returned at this time. Should you wish to discuss this matter further please contact me on the above number. Thank you." 32 Hickeys did not thereafter pursue the matter with the police for more than a year. The third occasion of alleged waiver 33 In September 2003, Hiroyuki Narui was interviewed by the police at the premises of Hickeys. The interview formed part of the police investigation of conduct of Mr Barr. Present, in addition to Hiroyuki Narui and police officers, were Mr Monaghan, a partner of Hickeys (then still NGC's solicitors), and certain persons apparently connected with Narui Norin, the parent company of NGC, who were not officers of or otherwise connected with NGC. The plaintiffs say that the Hiroyuki Narui Statement was discussed at that meeting. NGC disagrees. The third occasion of alleged waiver occurred at the meeting. The fourth occasion of alleged waiver 34 On 12 January 2004, the police brief of evidence in the criminal proceedings against Mr Barr was served on Mr Barr, by means of delivery to his solicitors, Corrs. The brief included the Hiroyuki Narui Statement. This gave rise to the fourth occasion of alleged waiver. The fifth occasion of alleged waiver 35 The fifth occasion of alleged waiver occurred in the wake of the fourth and consisted, in essence, of failure by NGC and Hickeys to press home demands that Corrs surrender the copy of the statement contained in the police brief of evidence. Shortly after 12 January 2004, Hickeys, on behalf of NGC, wrote two letters. They are dated 21 January 2004. The first was to Detective Senior Constable Hutchinson, as follows: "Dear Sir RE: NARUI GOLD COAST PTY LTD We refer to your email dated 20 January 2004 and our facsimile dated 12 January 2003 concerning the statements of Hiroyuki Narui obtained under Warrant executed at our client's premises. As detailed in our letter dated 12 January 2004 the above statements are the subject of legal professional privilege in favour of our client. Accordingly, our client requires that you retrieve the statements from Mr Barr (and any and all copies of those statements produced by Mr Barr) and deliver them to us along with any copies of the statements held by you. We reserve our client's rights in relation to any loss suffered by them as a result of this disclosure. Yours faithfully" 36 The second letter was to Corrs, Mr Barr's solicitors: "Dear Sir RE: NARUI GOLD COAST PTY LTD We understand the NSW Police Service delivered a partial brief of evidence to your client on 12 January 2004 in relation to the criminal charges brought against your client. We also understand that brief included certain statements of Hiroyuki Narui (three in all) obtained under Warrant executed by the Police at our client's premises. These documents are the subject of legal professional privilege in favour of our client on the basis that they are confidential documents prepared for the purpose of our client being provided with professional legal services in relation to the proceedings involving our respective clients. We require that your client immediately return to us the statements delivered to him and any copies of those statements made. We also require your clients' undertaking that they will not attempt to rely upon these documents in any way. Yours faithfully" 37 On 28 January 2004, Corrs replied as follows: "Dear Sirs TIM BARR AND NARUI GOLD COAST PTY LIMITED We refer to your facsimile of 21 January 2004 in relation to the brief of evidence served on our client in the criminal proceedings commenced against him. We note your concern with respect to the documents identified in your facsimile over which your client now makes a claim for legal professional privilege. We note your advice that those documents were obtained from your client by issue of a search warrant. We have considered the matter, and do not believe that our client presently has any obligation to return the relevant documents (or the copies of them) to you. We make the observation that it was open to your client, at the time of execution of the search warrant, to challenge the seizing of the relevant documents by the police, on the basis that the documents seized were privileged. Apparently your client did not do so, and has not taken any steps to do so since that time. We assume that this was because you formed the view, correctly, that privilege over the documents in question had been waived by virtue of the fact that you sent them to Leda Developments Pty Ltd under cover of your letter of 19 December 2002. The prosecutor in our client's criminal proceedings was obliged, under the Criminal Procedure Act 1986, to serve its brief of evidence upon our client, and to include in that brief of evidence any relevant material it had obtained - such as the documents in respect of which you now complain. It has properly done so, and our client has properly received them. Subject to any other order, under s 123 of the Evidence Act 1995 our client is also entitled, in his criminal proceedings, to adduce the document as evidence, notwithstanding your client's claim for privilege. In so far as you are concerned about use of the documents, and the information contained in them, for purposes other than the criminal proceedings, we advise you that our client intends to comply with his legal obligations in that regard. Yours faithfully" The sixth occasion of alleged waiver 38 The sixth occasion of alleged waiver occurred in the context of attempts by NGC to have the Local Court set aside subpoenas issued in the criminal proceedings against Mr Barr, being subpoenas directed to NGC. Submissions served on Hickeys (NGC's solicitors) by fax on or about 3 May 2004 by Corrs, on behalf of Mr Barr, extracted part of the Hiroyuki Narui Statement. A copy of the statement was included in the annexures to the served submissions which were apparently physically delivered rather than being sent by fax. The submissions and annexures came into the possession of senior and junior counsel briefed by Hickeys on behalf of NGC. The 3 May 2004 faxed submissions (but, it seems, not the annexures) were also sent by Corrs to Stacks Lawyers (who acted for an unrelated entity having an interest in the criminal proceedings) and to the Crown Solicitor (acting for the police). The fax addressed by Corrs to Hickeys showed that it was being copied to Stacks and the Crown Solicitor. The seventh occasion of alleged waiver 39 The seventh occasion of alleged waiver, according to the plaintiffs, entailed "a deliberate decision not to claim privilege over the Hiroyuki Narui Statement in July 2004". The decision was made in relation to documents that had been produced by the police in answer to a subpoena in the Local Court criminal proceedings against Mr Barr. The eighth occasion of alleged waiver 40 The eighth occasion of alleged waiver occurred in the context of an application by Mr Barr under s 91 of the Criminal Procedure Act 1986 for directions of the Local Court allowing tender of written statements on the committal proceedings to be supplemented by oral evidence of the makers of the statements.

41 In connection with and for the purposes of that application by Mr Barr to the Local Court, his lawyers prepared written submissions which I shall call "the s 91 submissions". Annexed to these submissions were various documents, including a copy of the Hiroyuki Narui Statement. The submissions also quoted verbatim extracts from the Hiroyuki Narui Statement.

42 At a later point, Mr Barr made a bail application to this court. When that application came to be heard by Hulme J, Mr Barr tendered the s 91 submissions, including the exhibits. A representative of the press approached the court through the appropriate channels and asked for a copy of the s 91 submissions. There being no objection by Mr Barr or by the prosecution, the journalist was, it appears, given a copy of the s 91 submissions, but without its several annexures, including the Hiroyuki Narui Statement. There thus apparently passed into the hands of the media representative a copy of the s 91 submissions which referred to and quoted from the Hiroyuki Narui Statement but did not have a copy of the statement attached. The ninth occasion of alleged waiver 43 The ninth occasion of alleged waiver occurred in the context of these present proceedings and has two aspects to it: first, when the police, in answer to a subpoena issued on the application of NGC, produced to this court documents that included a copy of the Hiroyuki Narui Statement; NGC did not object to the grant of access to the plaintiffs (that is, Tim Barr Pty Ltd and Mr Barr); and that access was granted; and, second, when NGC's lawyers, in or about April 2008, saw a copy of the Hiroyuki Narui Statement in the proposed tender bundle that had been assembled by Corrs (acting for the plaintiffs) and made no complaint or objection. The first occasion - assessment 44 I proceed to a consideration of the first occasion of alleged waiver.

45 NGC accepts that the conduct of Hickeys, in sending the Hiroyuki Narui Statement to Leda, amounted to a disclosure of the document and its content by NGC to Leda. NGC also accepts that the disclosure was knowing and voluntary within the meaning of s 122(2). That being so, s 122(2) does not prevent the use of the statement in evidence unless the disclosure was made in any of the circumstances specified in paragraphs (a) to (d) of s 122(2) (or 122(5) operates to displace the operation of s 122(2)). 46 NGC relies, in this respect, on s 122(2)(a) and the proposition that the relevant disclosure, knowing and voluntary though it was, occurred "in the course of making a confidential communication". The expression "confidential communication" takes its meaning from s 117(1): " confidential communication means a communication made in such circumstances that, when it was made: (a) the person who made it, or (b) the person to whom it was made, was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law." 47 At the time of the disclosure on 19 December 2002, there was in force the confidentiality deed made on 10 July 2002 between NGC and Leda. The deed related to the parties' intention to seek to negotiate "a contract to acquire the property detailed in item 1 and/or enter into a joint venture relationship with parties for the acquisition and development of the property detailed in item 1" (these words appear in item 2 of the deed's schedule under a heading "purpose of disclosure"; the property in item 1 is the Kings Forest property owned by NGC). The deed made provision for Leda (called "Recipient Party") to have access to "Confidential Information of the Disclosing Party" (NGC) for the purpose stated in item 1. By clause 3, Leda, as "Recipient Party", agreed, "[i]n consideration of the Disclosing Party allowing the Recipient Party to have access to the Confidential Information", that it would "keep and well ensure that its employees keep confidential the Confidential Information unless and until the parties agree that the Confidential Information is in the public domain other than by breach of this Agreement". Clause 4 imposed specific non-disclosure obligations on Leda with respect to the "Confidential Information". The obligations were contractual obligations. 48 The term "Confidential Information" was defined by the deed as follows: " 'Confidential Information' means all information disclosed by the Disclosing Party to the Recipient Party, including all reports, plans, correspondence, trade secrets, ideas, know how, concepts or any information whether in writing or otherwise relating in any way to the matter or matters described in item 1 of the Schedule and all other information relating to the Disclosing Party or any of its parent companies, subsidiaries or its directors, affairs or businesses, which are not in the public domain and includes any such information in the Disclosing Party's power, possession or control concerning or belonging to any other person." 49 The letter of 19 December 2002 with which Hickeys sent the Hiroyuki Narui Statement (and other documents) to Mr Van Rij of Leda was prepared and signed by Mr Hodgson, a solicitor employed by Hickeys. The letter stated no reason for sending the documents. After commenting that certain annexures were not being sent, the latter concluded: "We look forward to hearing from you." 50 Mr Hodgson deposed that he sent the letter and documents in accordance with an oral direction given to him by Mr Brinsmead, a partner of Hickeys. According to Mr Hodgson, Mr Brinsmead said to him on 19 December 2002: "You need to send Leda a copy of the three Hiroyuki Narui statements and the three Shigeo Narui statements … Leda is entitled to them as part of the due diligence process. We cannot hide them from Leda." 51 This suggests that a due diligence on the part of Leda was in progress on 19 December 2002. The deed of 10 July 2002 was, clearly enough, intended to facilitate such a process. The plaintiffs maintain that the due diligence (and, accordingly, the regime provided for in the deed) had come to an end before 19 December 2002. 52 The plaintiffs point, in this connection, to the two letters of 16 September 2002 sent by Hickeys to Leda, one on behalf of NGC and the other on behalf of "the Narui family". The letter set out, in one case, the "fundamental terms" on which the client "will agree to enter into contractual arrangements" and, in the other, "the terms of what we understand is an intended agreement between you [ie, Leda] and this family". Leda, by endorsement on each letter also dated 16 September 2002, indicated agreement to the terms contained in the letter. 53 It is the contention of the plaintiff that, although formal contracts were not entered into until August 2003, the events of 16 September 2002 effectively marked the end of the due diligence process and therefore of the regime of contractual confidentiality created by the deed of 10 July 2002. 54 Some support for that view is derived from one of the letters of 16 September 2002. The first of the letters says: "You [ie, Leda] agree that you will acquire all of the shares in Narui Gold Coast Pty Ltd on the basis that you have conducted full and appropriate due diligence of all of the assets and liabilities of Narui Gold Coast Pty Ltd." 55 The plaintiffs suggest that Leda, by indicating acceptance of the content of this letter, gave an immediate and operative acknowledgment that it had, as of 16 September 2002, completed a due diligence examination. An alternative construction is that Leda was indicating by its acknowledgment that the ultimate acquisition - which at 16 September 2002 lay in the future - would be on the basis that a "full and appropriate due diligence" had occurred as at the point of the ultimate acquisition. 56 This second construction is, my mind, supported by three matters. The first is the statement in the 16 September 2002 letter that warranties by the seller of the NGC shares would be limited to the vendor's unencumbered title to the shares sold and the vendor's capacity to sell those shares. This followed an acknowledgment and agreement by Leda that it would acquire NGC "subject to" a number of specific matters concerning litigation and disputes, plus "All other assets, liabilities or issues concerning Narui Gold Coast Pty Ltd whatsoever." 57 It is reasonable to think that, because of the basis of sale thus indicated by the vendor, it was expected and intended that Leda would continue with investigations. 58 The second matter is that the letter of 16 September 2002 left open the clear possibility that there would ultimately be no sale. There are references in it to "any Contract of Sale" and "any agreement for the sale and purchase of the shares". The owners or holders of the shares were not parties to the letter: Hickeys represented merely that it acted for NGC, the putative target company. NGC and Leda were still, at that point, dealing with a potential transaction and it is reasonable to think that Leda would be continuing with the established due diligence investigation. 59 Third, due diligence in fact continued after 16 September 2002. Notes of 17 September 2002 identify three matters - "Harrison: Revenue", "Barr: Lease" and "House: Lease" - against a notation "Hickey Lawyers/Einfeld to do a full review" and "Vetted by John Meggitt and/or another". Mr Meggitt was Leda's in-house lawyer and it seems clear enough that ongoing inquiry by him in relation to the particular matters (at least) was envisaged. 60 It seems to me sufficiently clear that the purpose, on the part of Leda, of considering whether to enter into a "contract" or "joint venture relationship" as envisaged by the definition of "Specific Purpose" did not become accomplished or exhausted when, on 16 September 2002, Leda indicated agreement to the terms contained in the two letters from Hickeys. Pursuit of that purpose by Leda remained a live matter until Leda became party to the formal contracts of August 2008. 61 The statement attributed by Mr Hodgson to Mr Brinsmead (see paragraph [50] above) was, in my view, an accurate statement, indicating that giving of the Hiroyuki Narui Statement to Leda occurred under the umbrella of the confidentiality deed of 10 July 2002. 62 That deed was the source of an express obligation on the part of Leda of the kind referred to in the definition of "confidential communication" in s 117(1) of the Evidence Act. 63 It follows that NGC's reliance on s 122(2)(a) is well placed and that that provision causes the effect that s 122(2) would otherwise have in light of NGC's knowing and voluntary disclosure to be denied, with the result that the barrier created by s 119 exists. The second occasion - assessment 64 It is acknowledged on both sides that documents in which client legal privilege subsists are immune from seizure upon execution of a search warrant and that a court may order the return of the privileged material. 65 The plaintiffs say that, as a result of the seizure of the Hiroyuki Narui Statement by the police in execution of the search warrant at Leda's premises, actual confidentiality in the Hiroyuki Narui Statement was lost and that the quality essential to the maintenance of privilege was accordingly also lost. Furthermore, the plaintiffs say, the sole step taken by NGC to assert a claim for privilege was not pressed and, in the face of the police refusal to deliver up the document, Hickeys merely let the matter drop. This, it is said, was inconsistent with any real intention of NGC to maintain the privilege. 66 The police obtained full knowledge of the content of the Hiroyuki Narui Statement as a result of the execution of the search warrant. NGC points out that there is no evidence that it had any knowledge of the seizure at the time it occurred. It should be inferred, in my view, that it did not. NGC also points out that there was no action by NGC itself, in or about the seizure, that was inconsistent with the maintenance of privilege and, therefore, no basis on which consent to disclosure could be implied. 67 I am satisfied that "disclosure" of the content of the Hiroyuki Narui Statement to the police occurred by reason of the seizure. But the disclosure was not a disclosure by NGC (s 122(2)); nor was it "with the express or implied consent" of NGC (s 122(4)). The disclosure therefore did not destroy the privilege belonging to NGC. 68 I am also satisfied that inaction of NGC for some eight months following the seizure cannot be construed as ex post facto "consent" of NGC relevant to s 122(4) or some other form of waiver: see paragraph [24] above. The third occasion - assessment 69 There is a factual question here as to the part the Hiroyuki Narui Statement played in the interview of Hiroyuki Narui by the police. 70 Handwritten notes made by Mr Monaghan of Hickeys at the interview begin by listing the persons present. They continue: "No recording. 3 statements. Investigation about false TSC documents."

"TSC" must stand for "Tweed Shire Council", since the police investigation concerned possible forgery by Mr Barr of documents purporting to emanate from the Tweed Shire Council.

71 Mr Monaghan's notes do not refer at any subsequent point to the "3 statements". 72 Also in evidence is a draft record of interview (in the form of typewritten questions and answers) emailed by Detective Senior Constable Hutchinson to Mr Monaghan on 11 September 2003. The record makes it clear that Hiroyuki Narui and his colleagues cut the interview short at 12.47pm because "other commitments" made this necessary. Detective Senior Constable Hutchinson therefore sent to Mr Monaghan with the statement (or record of interview), which Hiroyuki Narui was asked to sign, a second document. This was headed: "Further questions submitted by Detective Senior Constable Hutchinson for Hiroyuki Narui forwarded via email to Mr David Monaghan (Hickey Lawyers) 11.9.03." 73 That document contains the following: "Q.91. Do you agree that you have made statements on the 19th of December, 2002. These statements are titled: · Statement of Hiroyuki Narui Harrison Proceedings. · Statement of Hiroyuki Narui Barr Lease Proceedings. · Statement of Hiroyuki Narui Barr Project House Proceedings. When you made these statements were they true and correct to the best of your knowledge? A. Q.92. Would you wish to rely on those statements to give evidence in this matter? A." 74 It is clear from this that the police still had in their possession the statement with which I am at present concerned (the Hiroyuki Narui Statement). It is the first of the three mentioned. 75 But it is equally clear, in my view, that the questions the police officer intended asking Hiroyuki Narui about the three statements ("Q. 91" and "Q. 92") had not been reached by the time the interview ended at 12.47pm. 76 There is, as I have said, a reference to "3 statements" at the start of Mr Monaghan's notes. The reference appears in the first page. The questions and answers appearing in the police record of interview begin on the third page of Mr Monaghan's notes. The first of the questions in the police documents is recorded - in almost the same terms - at the top of Mr Monaghan's third page. The answer is likewise recorded. I infer from this that the first part of the meeting, as recorded by Mr Monaghan, was concerned with practical matters of organisation and process of a preliminary kind. That is also borne out by what Mr Monaghan actually wrote.

77 Mr Monaghan gave evidence on the voir dire but could not recall anything beyond the matters appearing from the contemporary documents. 78 The very distinct likelihood is (and I find) that, while there was reference early in the interview to three statements - logically, the three existing statements of Hiroyuki Narui - nothing was said at the interview about the content of any of those statements or the substance of that content. 79 I am therefore of the opinion that events at the interview did not entail communication of the content or substance of the Hiroyuki Narui Statement or the other two statements. Nor did they convey or imply any agreement of NGC to use of the statements in any way. The fourth occasion - assessment 80 Delivery of the Hiroyuki Narui Statement by the police to Corrs did not cause NGC to lose its privilege in the statement. There was no communication (ie, disclosure) by NGC or anyone on its behalf (s 122(2)). Such disclosure as there was to Corrs and their client (Mr Barr) was not made with the consent of NGC (s 122(4)). There was no act by or on behalf of NGC, in connection with the disclosure by the police to Corrs, inconsistent with the maintenance of the privilege. The fifth occasion - assessment 81 The position here is really the same as that in relation to the second occasion. Hickeys took steps to assert and protect the privilege. And those steps were taken promptly. The letters to the police and Corrs dated 21 January 2004 made it clear that there was no form of consent by NAC to use of the statement in a way destructive of NGC's privilege in it. The sixth occasion - assessment 82 To the extent that there may have been any "disclosure" to NGC's own lawyers otherwise within s 122(4), s 122(4)(a) operates to negate the effect of the disclosure. 83 The real question here concerns communication to Stacks and to the Crown Solicitor. NGC accepts that there was, in each case, "disclosure" to those persons of the content of the submissions. The parties are at odds on the question whether the submissions contained the "substance" of the content of the Hiroyuki Narui Statement. If it did not, the disclosure was not within s 122(2) or s 122(4). 84 There is, however, another reason why neither of these sections applies. In short, there was no disclosure by NGC as contemplated by s 122(2) and there was no disclosure with the express or implied consent of NGC as contemplated by s 122(4). The disclosure was made by Corrs, who were acting for Mr Barr. In addition, Hickeys (acting for NGC) cannot have become aware of the disclosure by Corrs to Stacks and the Crown Solicitor until that disclosure was complete: by the time Hickeys received and read the fax, it had already been transmitted to Stacks and the Crown Solicitor. 85 The circumstances are not such that NGC, through Hickeys, knew in advance that Corrs intended to fax the submissions to Stacks and the Crown Solicitor. NGC had no advance opportunity to object or to seek to restrain the proposed or threatened actions of Corrs. Had that been the case, failure to act might well have been indicative of consent. In the events that happened, the only course that could have been available to NGC was objection or action after the event of the disclosure that occurred without its knowledge. The seventh occasion - assessment 86 The NGC submits that the events of July 2004 did not concern the Hiroyuki Narui Statement and are irrelevant to the present inquiry. 87 The events followed production of documents by the police on subpoena in the criminal proceedings against Mr Barr. In summary, NGC, after consultation with and among its legal advisers, made a conscious decision not to seek first access to the documents produced by the police. 88 It might therefore well be said that NGC consented to such disclosures of the subpoenaed documents as thereafter occurred as and when access was granted to them by the Local Court. 89 But I am not satisfied that the Hiroyuki Narui Statement was among the documents produced. The documents required by the subpoena had been the subject of a "narrowed call" which, as Hickeys said in a letter of 21 July 2004 to Mr Dubler of counsel, "potentially raises privileged material, that being category 1(e), statements and the like of Shigeo Narui". An email from Mr Einfeld QC to Mr Hodgson of Hickeys dated 23 July 2004 canvassed, in relation to the documents produced by the police, questions of privilege over "one or more versions of a statement obtained from Shigeo Narui". 90 A file note made by Mr Hodgson on 26 July 2004 of a telephone conversation he had with Mr Dubler contains the following passage: "Robert [Mr Dubler] agreed that the agreed scope of docs to be produced by the police did not extent to H Narui statements only S Narui statements (this was our only area for potential concern)." 91 It is true that there were, in the conversations at the relevant time, references to the maintenance of privilege in the Hiroyuki Narui Statement and other statements of Hiroyuki Narui. But it is clear (and I find) that the course of action taken - and not taken - at that point in relation to the documents produced on subpoena by the police did not involve the Hiroyuki Narui Statement. That course was concerned only with statements of Shigeo Narui. 92 It follows that the course to which I have referred is irrelevant when it comes to considering whether any part of s 122 caused privilege in the Hiroyuki Narui Statement to be lost. The eighth occasion - assessment 93 Such disclosures of the content or substance of the Hiroyuki Narui Statement as were made in this context were made by persons other than NGC. Section 122(2) therefore did not operate. 94 Furthermore, the relevant events did not involve NGC and there is no reason to think that NGC was (or should have been) aware that those events were about to happen, were happening or had happened. 95 The s 91 submissions were prepared by Mr Barr's lawyers and communicated by them to the Local Court. Mr Barr's application to the court for bail was prepared by his lawyers and communicated by them to this court. To the extent that accessing by the journalist of the s 91 submissions (without annexures) in this court's file may have caused the substance of the Hiroyuki Narui Statement to be disclosed to the journalist, that disclosure was not a disclosure by NGC (s 122(2); nor was it made with any form of consent, actual or implied, on NGC's part. The ninth occasion - assessment (Part 1) 96 In response to the subpoena issued in these proceedings on the application of NGC, the police brief in the Barr criminal proceedings was produced by the police to this court in December 2004. Hickeys were still NGC's solicitors. Mr Tassell of Verekers took the steps that were taken on behalf of NGC to obtain the issue of the subpoena. That Sydney firm was then acting as city agents of Hickeys (Verekers themselves later became the solicitors on the record). Mr Tassell took his instructions from Mr Hodgson of Hickeys. 97 When the question of access to the documents produced by the police to this court arose, NGC knew, through its solicitors, that the Hiroyuki Narui Statement was among the documents called for by the subpoena NGC had caused to be issued. Mr Hodgson knew in 2002 that the police had the statement, having obtained it from Leda under the search warrant. Mr Hodgson knew in January 2004 that the police brief contained the statement (see the letters at paragraphs [35] to [37] above). Mr Hodgson must therefore have known that due and diligent response by the police to NGC's subpoena would cause the Hiroyuki Narui Statement to be produced to the court. 98 The matter of access to the documents produced on subpoena by the police was governed by rule 37.9 of the Supreme Court Rules 1970 as then in force. It is pertinent to quote subrules (3), (4), (6 ) and (7) of rule 37.9: "(3) Subject to this rule, no person may inspect a document or thing produced unless the Court has granted leave and the inspection is in accordance with that leave.

(4) Unless the Court otherwise orders, the Registrar may permit the parties to inspect at the office of the Registrar any document or thing produced unless the addressee, a party or any person having sufficient interest objects to the inspection under this rule. …

(6) If a party or person having a sufficient interest objects to a document or thing being inspected by a party to the proceeding, the objector may notify the Registrar in writing of the objection and of the grounds of the objection. (7) On receiving notice of an objection under this rule, the Registrar: (a) must not permit any, or any further, inspection of the document or thing the subject of the objection, and (b) must refer the objection to the Court for hearing and determination. 99 The position was thus such that the documents produced by the police would not be made available either to NGC or to the plaintiffs in these proceedings (that is, Mr Barr and Tim Barr Pty Ltd) except in accordance with leave granted by the court. An application for leave by one party might be opposed by another. In the events that happened, access was granted to both parties, there being no attempt by NGC to prevent access by either Mr Barr or Tim Barr Pty Ltd. 100 Mr Hodgson accepted in evidence that he, on behalf of NGC, did not take (or instruct Mr Tassell to take) any step to prevent the plaintiffs (Tim Barr Pty Ltd and Mr Barr) obtaining access to the documents produced by the police on subpoena; also that he was content to let Corrs, the solicitors for those parties, think that no claim for privilege was going to be made by NGC in respect of any part of those documents. I quote from the transcript of Mr Hodgson's cross-examination on the voir dire: "Q. It is the case, and I can take you to Mr Tassell's affidavit if you like, that on 31 December 2005, general access was granted to the documents without objection - 31 January, I am sorry, 2005? A. I accept that.

Q. Now, you were in communication with Mr Tassell about this subpoena, were you not, in January 2005? A. Again I don't recall but I assume that's likely.

Q. And you knew that he had granted general access or at least agreed to general access being granted? A. I don't recall whether or not I knew that but that's - again I assume - that is likely.

Q. And you did nothing at all to protect the privilege which you insist exists in the statement of Hiroyuki Narui in the Harrison proceedings? A. I am not aware that we did anything, no." 101 And later: "Q. When it came to the production of the same statement by the New South Wales Police to this Court you consented to Mr McCann's client [ie, the plaintiffs, Tim Barr Pty Ltd and Mr Barr] having access to the documents produced? A. I accept that's what happened, as you told me, I don't recall it but yes, I accept that's what occurred.

Q. You did not raise the question of privilege in respect of any of the documents produced? A. Not to my knowledge.

Q. And you let Corrs and Mr Barr's advisors think that no claim of privilege was going to be made in respect of any document or, to put it another way-- A. Yes.

Q. You let them think there was no privileged document produced by the police in response to the subpoena? A. Yes, I accept that there was no claim for privilege made in relation to those documents produced.

Q. Which must have affected the view of the people acting for Mr Barr? A. I don't know.

Q. How could it be otherwise? A. Well, I don't know what more I can say about that, I don't know what their view was.

Q. You could have said the statement of Mr Narui is privileged, do not look at it? A. Yes.

Q. I want to put it in a sealed envelope? A. Yes.

Q. And you didn't? A. I understand, that's correct, yes." 102 In February 2005, the right of access to the police documents was exercised by Corrs. An affidavit of Mr Dalzell, a Corrs employed solicitor, makes it clear that Ms Vozzo, an employee of Corrs, carried out an inspection of the documents at that time. Ms Vozzo's task was to check that nothing had been produced by the police in answer to NGC's subpoena that was not already in the possession of Corrs. She confirmed that this was the case. The inspection she made took two days. 103 As the submissions made on behalf of the plaintiffs emphasise, there was, at that point, a "disclosure", in the s 122 sense, of the content of the Hiroyuki Narui Statement. It was a disclosure to Tim Barr Pty Ltd. For a considerable time beforehand, Mr Barr had been seised of the content of the statement. It had, for several years, played a part in the criminal proceedings against him. They were proceedings involving him alone. Tim Barr Pty Ltd was not party or privy to those proceedings. Possession by Corrs of documents connected with the criminal proceedings was possession on behalf of Mr Barr alone. There is nothing in the evidence to suggest that Tim Barr Pty Ltd, as a corporation, had become possessed of the content of the statement at any earlier point. 104 No basis is shown for imputing to Tim Barr Pty Ltd the knowledge that Mr Barr already had of the content of the Hiroyuki Narui Statement. A company does not automatically possess the knowledge of each or all of its directors; nor does a single-director company automatically possess the knowledge of its sole director. Imputation may be appropriate where the director possessing the knowledge can be seen to be under a duty to communicate it to the company: see, for example, Re David Payne & Co Ltd [1904] 2 Ch 608 at 611, Re Fenwick, Stobart & Co Ltd [1902] 1 Ch 507 at 511, Belmont Finance Corporation Ltd v Williams Furniture Ltd (No 2) [1980] 1 All ER 393 at 404. This is an aspect of the more general principle that where information is obtained by an agent within the ambit of his or her authority, the agent comes under a duty to communicate the information to the principal, with the result that it is taken to be imputed to the principal: Sargent v ASL Developments Ltd [1974] HCA 40; (1974) 131 CLR 634 at CLR 649. 105 The information Mr Barr already had about the Hiroyuki Narui Statement and its content came to him in connection with criminal proceedings instituted against him personally. The acquisition of that knowledge occurred in the course of his personal activities concerning his personal interests and welfare. Those activities had nothing to do with his functions as an officer of Tim Barr Pty Ltd. No duty on his part to communicate the information to Tim Barr Pty Ltd is discernible. It follows that his knowledge is not to be imputed to the company. 106 Tim Barr Pty Ltd was, however, a party to these proceedings. When Corrs, as solicitors for the plaintiffs in these proceedings, inspected the documents produced on subpoena by the police, they did so on behalf of and for the benefit of Tim Barr Pty Ltd, as well as Mr Barr. Their actions therefore caused the content of the Hiroyuki Narui Statement to come into the possession of Tim Barr Pty Ltd, their client and principal, to which that content had not previously been revealed. It is for this reason that I say that the content was, at that point, "disclosed" to Tim Barr Pty Ltd in the s 122 sense (see paragraphs [19] and [20] above). 107 The disclosure to Tim Barr Pty Ltd was not a disclosure by NGC. It was therefore not a disclosure of the kind with which s 122(2) is concerned. I am of the opinion, however, that it was a disclosure with the "actual or implied consent" of NGC as referred to in s 122(4). 108 The consent is to be inferred from the context in which the disclosure to Tim Barr Pty Ltd occurred. The privilege was that of NGC. Its solicitors had on several prior occasions made demands for the return of the Hiroyuki Narui Statement following its seizure by the police from Leda in May 2003. An unequivocal assertion that the statement was privileged was made in each letter of demand. NGC's solicitors knew, when addressing in December 2004 and January 2005 the question of access to the documents produced by the police in response to NGC's own subpoena, that the statement they had previously made efforts to protect would be among those documents. Mr Hodgson accepted as much in cross-examination. The statement had, to his knowledge, been in the possession of the police since May 2003. He knew (or must be taken to have known) that, under the rules of court, access would not be available to anyone unless granted by the court; that the Registrar had power to allow inspection by any party to the proceedings unless the person subpoenaed or another party to the proceedings or someone else with a "sufficient interest" objected; and that, in the event of such an objection, the question of access would be referred to the court for hearing and determination. NGC's solicitors therefore knew (or must be taken to have known) that, in order to remove the possibility that the Registrar would allow inspection by the plaintiffs (including Tim Barr Pty Ltd), it was necessary that NGC object. It follows that, in order to prevent access by the plaintiffs to the police brief lying in the exhibits office of the court, it was necessary that NGC take positive action. No such action was taken. The disclosure to Tim Barr Pty Ltd followed in the wake of inaction on the part of NGC and its solicitors. 109 It has not been suggested that NGC or its solicitors made some mistake in this regard. It is not suggested that there was an intention or desire to take steps to prevent access and that, through inadvertence or otherwise, the plan miscarried. Rather, the evidence shows that no steps were taken because there was simply no intention or desire to prevent access. In these circumstances, the only inference available is that NGC, occupying a position where it knew (or must be taken to have known) that it could act in a way that would very likely produce an order or direction of the court precluding the disclosure to Tim Barr Pty Ltd that in due course occurred, consciously refrained from acting in that way. The situation can only have been one of considered and calculated inaction. 110 The case must accordingly be seen as one in which that subsequent disclosure to Tim Barr Pty Ltd took place with the consent of NGC - if not actual consent, at least implied consent. The ninth occasion - assessment (Part 2) 111 If, contrary to the conclusion just expressed, privilege continued after Corrs, on behalf of Tim Barr Pty Ltd (and Mr Barr), inspected the documents produced on subpoena by the police in December 2004, it is necessary to consider whether the privilege was lost because of events that occurred in preparing the tender bundle for this case. 112 The proposed tender bundle was assembled by Corrs on behalf of the plaintiffs. They included the Hiroyuki Narui Statement in it. The proposed bundle, in that form, was sent by Corrs to Verekers who by then were the solicitors on the record for NGC. There was no objection on NGC's behalf on the grounds of privilege, although the tender bundle, as eventually agreed, did not contain the statement. 113 There was, at that point, no disclosure relevant to the operation of either s 122(2) or s 122(4). NGC had had knowledge of the statement's content ever since the statement was created. 114 It is unnecessary, therefore, to consider the implications of the failure of Verekers, on behalf of NGC, to raise an objection. Another Matter 115 The plaintiffs point out that, upon the voir dire, NGC read and relied on two affidavits each of which had as an annexure a letter of 23 July 2004 from Mr Monaghan of Hickeys to Mr Van Rij of Leda. The letter purports to repeat something said by Hiroyuki Narui in the Hiroyuki Narui Statement. It is said that use of the letter as an annexure in that way in NGC's case on the voir dire entails disclosure of the relevant thing said by Hiroyuki Narui destructive of NGC's privilege by operation of s 122(2) or s 122(4) (this assumes that the representation in the letter constituted the "substance" to which those sections refer). 116 I do not accept that this is so. At the time of the voir dire, all parties to the proceedings were in possession of the Hiroyuki Narui Statement, so that there was no disclosure to any of them in the relevant sense. The concept of "disclosure" to the court is not, I think, one that is meaningful under these provisions. Section 133 of the Evidence Act makes it clear that the court may inspect a document the subject of a privilege claim so that it might determine the claim. Some lesser form of intimation to the court of the content of the document for that same purpose cannot have been intended to be within the disclosure concepts in s 122. Ruling 117 In view of my findings and conclusions under the heading "The ninth occasion - assessment (Part 1)", my ruling is that s 119 of the Evidence Act does not operate to prevent the adducing of evidence by means of the tender of the Hiroyuki Narui Statement. **********

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION : Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2008] NSWSC 1070

Belmont Finance Corporation Ltd v Williams Furniture Ltd (No 2) [1980] 1 All ER 393 Chen v City Convenience Leasing Pty Ltd [2005] NSWCA 297 Ex parte Cannar; Re Eubanks [2003] NSWSC 802 Foster v Federal Commissioner of Taxation [1951] HCA 77; (1951) 82 CLR 606 Green v AMP Life Ltd [2005] NSWSC 95 CASES CITED : Kang v Kwan [2001] NSWSC 698 Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 Re David Payne & Co Ltd [1904] 2 Ch 608 Re Fenwick, Stobart & Co Ltd [1902] 1 Ch 507 Sargent v ASL Developments Ltd [1974] HCA 40; (1974) 131 CLR 634 Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2008] NSWSC 657

At a glance

Court

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Judgment (31 paragraphs)

Parties

Cases Cited (21)