Eric Preston Pty Ltd v Euroz Securities Limited [2009] FCA 240

Eric Preston Pty Ltd v Euroz Securities Limited [2009] FCA 240

The second e-mail was only an electronic means of delivering a copy of the first e-mail, which Euroz accepted was privileged. Section 118, not s 119, applied because adducing the second e-mail would disclose the confidential client-lawyer communication in the first e-mail. Privilege was not lost because the forwarding to Mr Anderson occurred in circumstances giving rise to an implied obligation of confidentiality, including the legal-proceedings context, the subject line referring to a witness statement, the involvement of Slater & Gordon, the private financial information, and the confidential accountant-client relationship. Production by Mr Anderson under subpoena did not waive EP's...

Jurisdiction
Australia
Judgment Date
17 March 2009
Procedural Posture
Application Concerning Claim of Legal Professional Privilege Over an E Mail Produced on Subpoena / Urgent Interlocutory Privilege Issue Referred to Gilmour J Before Trial
Outcome
The applicant's claim of legal professional privilege was upheld; the privileged communication in the first e-mail was not waived or otherwise lost by disclosure to the accountant in the second e-mail, and the second e-mail was also protected by privilege.
Legal Topics
['client Legal Privilege' 'confidential Communications' 'waiver of Privilege' 'subpoena Production' 'copies of Privileged Communications']
['evidence' 'legal Professional Privilege'] ['client Legal Privilege' 'confidential Communications' 'waiver of Privilege' 'subpoena Production' 'copies of Privileged Communications']

Case Brief

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Procedural Posture

Application Concerning Claim of Legal Professional Privilege Over an E Mail Produced on Subpoena / Urgent Interlocutory Privilege Issue Referred to Gilmour J Before Trial

Legal Issues

  1. 1 ['Whether a copy of a privileged e-mail from a client to solicitors, forwarded by the client to its accountant, was protected by legal professional privilege under the Evidence Act 1995 (Cth).' 'Whether s 119 of the Evidence Act 1995 (Cth), rather than s 118, governed the privilege claim over the second e-mail.' 'Whether the forwarding of the privileged communication to the accountant was a confidential communication for the purposes of s 122(5)(a)(i).' 'Whether privilege was waived or otherwise lost by disclosure to the accountant or by production of the second e-mail in answer to a subpoena.']

Ratio Decidendi

The second e-mail was only an electronic means of delivering a copy of the first e-mail, which Euroz accepted was privileged. Section 118, not s 119, applied because adducing the second e-mail would disclose the confidential client-lawyer communication in the first e-mail. Privilege was not lost because the forwarding to Mr Anderson occurred in circumstances giving rise to an implied obligation of confidentiality, including the legal-proceedings context, the subject line referring to a witness statement, the involvement of Slater & Gordon, the private financial information, and the confidential accountant-client relationship. Production by Mr Anderson under subpoena did not waive EP's...

Court Disposition

The applicant's claim of legal professional privilege was upheld; the privileged communication in the first e-mail was not waived or otherwise lost by disclosure to the accountant in the second e-mail, and the second e-mail was also protected by privilege.

Orders

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