CMA Corporation Ltd v Rowe [2010] FCA 1042

CMA Corporation Ltd v Rowe [2010] FCA 1042

Privilege was not waived because the service of Mr Douglas Rowe's email was inadvertent, resulted from mistake rather than any volition by Mr Troy Rowe, and was followed promptly by serious attempts to retrieve and replace the material. In those circumstances, neither the error nor Mr Troy Rowe's conduct was inconsistent with maintaining the privileged status of the email, and preservation of the privilege retained utility.

Jurisdiction
Australia
Judgment Date
23 September 2010
Procedural Posture
Evidence Client Legal Privilege / Interlocutory Issue Referred to Duty Judge Before Final Hearing on Liability
Outcome
The respondents made out a case for the order sought; the email was held to be privileged and privilege had not been waived.
Legal Topics
['client Legal Privilege' 'inadvertent Disclosure of Privileged Material' 'waiver of Privilege' 'affidavit Exhibits']
['evidence' 'civil Procedure'] ['client Legal Privilege' 'inadvertent Disclosure of Privileged Material' 'waiver of Privilege' 'affidavit Exhibits']

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Procedural Posture

Evidence Client Legal Privilege / Interlocutory Issue Referred to Duty Judge Before Final Hearing on Liability

Legal Issues

  1. 1 ["Whether client legal privilege in Mr Douglas Rowe's email was lost when the email was included in exhibit TR7 to Mr Troy Rowe's affidavit filed and served on 3 September 2010." 'Whether the inadvertent disclosure of privileged material amounted to conduct inconsistent with maintaining privilege under s 122(2) of the Evidence Act 1995 (Cth).']

Ratio Decidendi

Privilege was not waived because the service of Mr Douglas Rowe's email was inadvertent, resulted from mistake rather than any volition by Mr Troy Rowe, and was followed promptly by serious attempts to retrieve and replace the material. In those circumstances, neither the error nor Mr Troy Rowe's conduct was inconsistent with maintaining the privileged status of the email, and preservation of the privilege retained utility.

Court Disposition

The respondents made out a case for the order sought; the email was held to be privileged and privilege had not been waived.

Orders

  • ['The document set out on the first and second page of the Annexure marked "TR 7" to the affidavit of Troy Rowe sworn 3 September 2010 and filed herein, and comprising the material after the words "Thank you" and before the words "From: Laura Simmons-Strempel…" is the subject of client privilege and that such...