FEDERAL COURT OF AUSTRALIA

Domino’s Pizza Enterprises Limited v Precision Tracking Pty Ltd (No 3)

[2017] FCA 1063

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s amended interlocutory application dated 24 August 2017 be dismissed.

2.    The applicant and the second cross-respondent/cross-claimant must destroy and/or delete forthwith all electronic and physical copies of the material described in paragraph 5 below and cause to be destroyed and/or deleted all electronic and physical copies of that material which it has caused to be disseminated to any other person or entity.

3.    The applicant and the second cross-respondent/cross-claimant and their officers, employees and agents are restrained from relying on or using any of the information described in paragraph 5 below.

4.    The applicant pay the costs of the first respondent, as agreed or assessed, in relation to the amended interlocutory application dated 24 August 2017 and the interlocutory application dated 3 August 2017.

the court declares that:

5.    Legal professional privilege attaches to both the redacted entries and the equivalent entries in the attachment to the first respondent’s letter to the applicant dated 24 July 2017 in respect of parts of the notebooks of Mr Nathan Parrott and Dr Alexander Green.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

GRIFFITHS J:

1    This interlocutory skirmish has arisen in the context of proceedings which are before Robertson J. In brief, in the substantive proceedings the parties are in dispute concerning intellectual property rights which attach to a GPS tracking system. In July 2006 the applicant (Domino’s) released a feature of its online store to allow customers to track the status of their food and beverage order. The feature was subsequently incorporated into a smart-phone ordering application. Domino’s and the first respondent (Precision) entered into an agreement concerning the use of the GPS tracking system. In November 2014, Precision filed an application to patent the GPS tracker. The patent was certified by the Commissioner of Patents. In separate proceedings, Domino’s has applied to the Commissioner of Patents for a declaration that it is an eligible person in relation to Precision’s patent. Commercial dealings between the parties terminated in October 2014.

2    The interlocutory dispute relates in part to certain documents which were produced to Domino’s by Precision in the course of discovery. Precision now claims that the documents are privileged and that their disclosure was inadvertent. Precision seeks an order which would have the effect of protecting its claimed privilege. Domino’s seeks orders which, if granted, would permit it to rely upon the disputed documents. Domino’s relies on an amended interlocutory application dated 24 August 2017.

3    In its amended interlocutory application, Domino’s also challenges Precision’s claims of legal professional privilege in respect of various documents identified in Part 2 of the List of Documents. All the documents are described as being excerpts from Dr Alexander Green’s notebook (or logbook) and which are said to record legal advice provided to Precision. The documents are referred to as “Withheld Logbook Pages” in paragraphs 3A and 3B of Domino’s amended interlocutory application. Precision opposes Domino’s relying upon these particular paragraphs because of the late timing of these amendments and the consequential prejudice to Precision.

4    Precision relied on an interlocutory application dated 3 August 2017 and which was filed on 17 August 2017. In effect, Precision seeks orders to the effect that the relevant documents produced by Precision in discovery are privileged and that appropriate orders be made against Domino’s and the second cross-respondent/cross-claimant, Navman Wireless Australia Pty Ltd (Navman), concerning their ability to use the documents in the substantive proceedings.

Summary of relevant facts

5    Precision relied on affidavits sworn by its instructing solicitor, Ms Odette Gourley (1 August 2017), as well as affidavits by Mr Nathan Parrott (3 August 2017) and Dr Alexander Green (4 August 2017). Mr Parrott and Dr Green are directors of Precision. Domino’s relied on two affidavits by its instructing solicitor, Mr Liam Prescott (31 July 2017 and 30 August 2017).

6    On 7 February 2017, the Court ordered by consent that Precision give standard discovery by 27 March 2017. This was three days after the date for the filing and service of affidavit evidence, including expert evidence, which was the subject of orders made by the Court on 22 November 2016. On 31 March 2017, the time for filing non-expert evidence was extended to 21 April 2017 and the date for discovery was extended to 21 April 2017. On 24 April 2017, Precision gave standard discovery and provided electronic copies of the documents in Part 1 of its List of Documents. Part 1 totalled some 53 pages, with each page containing approximately 60 separate individual documents. It may be inferred that the discovery process was complex, extensive and time consuming. That must particularly have been the case in respect of the notebooks which are at the heart of this dispute. The notebooks are handwritten and it may be inferred that the task of reviewing them for the purposes of discovery was particularly demanding. I accept Ms Gourley’s evidence that the task of providing discovery and preparing Precision’s affidavit evidence in chief proved to be “a very large task”. Precision’s discovery resulted in the production of 16 lever arch files of records as well as email records. Ms Gourley gave evidence that two solicitors in her team worked overnight from Thursday, 20 April to Friday, 21 April to complete the necessary tasks.

7    Both Mr Parrott and Dr Green gave evidence that they used the notebooks to refresh their respective memories before preparing affidavits in the substantive proceedings. On 24 July 2017, Domino’s solicitors wrote to Precision’s solicitors concerning certain entries in notebooks kept by Mr Parrott and Dr Green which had been disclosed in discovery. Precision had had access to the notebooks from December 2016. The disputed entries were included in the fourth notebook of Mr Parrott (concerning the period 1 October 2014 to 10 May 2015) and Dr Green’s notebook which related to the period from 2012 to 2015. Upon receipt of the letter dated 24 July 2017 from Domino’s solicitors, Ms Gourley realised for the first time that the relevant extracts should not have been produced for inspection because she believed that they attracted legal professional privilege. Ms Gourley immediately emailed Domino’s solicitors and stated that the material was privileged and the failure to redact it was her firm’s inadvertent omission, for which she apologised. Domino’s responded with a solicitor’s letter dated 25 July 2017 and rejected Ms Gourley’s position that the disclosure was inadvertent. They demanded production of documents referred to in their earlier letter and threatened to apply to the Court if this did not occur. Ms Gourley wrote again on 26 July 2017 and repeated her earlier position.

8    Domino’s solicitors do not accept that the material was privileged. They disputed that there had been an inadvertent waiver. Moreover, they say that relief should be denied to Precision in the exercise of discretion.

9    Ms Gourley explained in her affidavit the circumstances surrounding the disclosure of the contested material. In brief, she accepted responsibility for the disclosure but said that it had occurred inadvertently and in the context of pressing time constraints and the magnitude of the discovery process. Both Mr Parrott and Dr Green gave evidence that, in providing their notebooks to Precision’s solicitors, they did not intend to waive privilege in the material. Ultimately, this evidence was not challenged by Domino’s. In particular, during the course of the hearing, Mr Cordiner QC, who appeared together with Ms F St John for Domino’s, accepted that the disclosure was inadvertent.

Summary of relevant principles

10    It is convenient to repeat the summary of the relevant legal principles concerning both the subsistence of a claim for privilege and implied waiver which were set out in College of Law Limited v Australian National University [2013] FCA 492 at [23] and [24]:

23    The parties were generally agreed on the relevant principles to apply in determining both the subsistence of a claim for privilege and implied waiver. Reference was made to various authorities, including Mann v Carnell (1999) 201 CLR 1 (Carnell); Bennett v Chief Executive Officer, Australian Customs Service (2004) 140 FCR 101; AWB Limited v Cole (No 5) (2006) 155 FCR 30 (Cole); Osland v Secretary, Department of Justice (2008) 234 CLR 275 (Osland); British American Tobacco Australia Ltd v Secretary, Department of Health and Ageing (2011) 195 FCR 123 (BATA) and Cooper v Hobbs [2013] NSWCA 70. Drawing on those authorities, the relevant principles concerning the subsistence of privilege may be summarised as follows:

(a)    privilege attaches to communications between legal adviser and client for the dominant purpose of giving or obtaining legal advice, where the communications are confidential and the legal advisor is acting in his or her professional capacity;

(b)    the party claiming privilege bears the onus of establishing the facts necessary to establish the claim. The onus might be discharged by evidence as to the circumstances and context in which the communications occurred or the documents were brought into existence, or by evidence as to the purposes of the person who made the communication, or authored the document, or procured its creation, but might also be discharged by reference to the nature of the documents supported by argument or submissions;

(c)    the existence of privilege is not established merely by using verbal formula, or by asserting that privilege applies to particular communications, or that communications are undertaken for the purpose of obtaining or giving “legal advice”;

(d)    …;

(e)    although the concept of legal advice is reasonably broad, it does not extend to advice that is purely commercial or of a public relations character;

(f)    subject to meeting the dominant purpose test, privilege extends to notes, memoranda or other documents made by officers or employees of the client that relate to information sought by the client's legal adviser to enable him or her to advise; and

(g)    the Court has power to examine a document over which privilege is claimed and, where there is a disputed claim, the High Court has said that the Court should not be hesitant to exercise such a power (see Grant v Downs (1976) 135 CLR 674 at 689). The essential purpose of such an inspection is to determine whether, on its face, the nature and contents of the document support the claim for privilege.

24    These authorities also establish the following relevant principles concerning implied waiver of privilege (noting that it is common ground here that the common law principles apply at this stage of the proceedings and not Part 3.10 of the Evidence Act 1995 (Cth)):

(a)    privilege will be waived where the conduct of the person claiming it is inconsistent with the maintenance of the confidentiality in the relevant communication which the privilege is intended to protect;

(b)    the test for implied waiver is objective, thus where such inconsistency is found, privilege will be waived regardless of the subjective intention of the party claiming the privilege;

(c)    whether there is inconsistency is to be determined in the context and circumstances of the case and in the light of any considerations of fairness arising from that context and those circumstances;

(d)    the question of implied waivers raise matters of fact and degree;

(e)    disclosure of the gist, conclusion, substance or effect of a privileged communication does not necessarily effect a waiver of legal professional privilege in respect of the advice as a whole. Whether it does or not in a particular case depends on whether, in the circumstances of that case, the requisite inconsistency exists between the disclosure on the one hand and the maintenance of confidentiality on the other;

(f)    the context includes such matters as the nature of the matter in respect of which the advice was received, the evident purpose of the person making the disclosure, and the legal and practical consequences of limited, rather than complete, disclosure; and

(g)    where the party claiming privilege has disclosed or deployed the relevant information in order to achieve some forensic or other advantage for itself, or to disadvantage another person in a similar way, this may amount to conduct which is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. Accordingly, the purpose for which the partial disclosure was made is important.

11    The High Court has stated that the same approach applies to the question of waiver at common law as under s 122(2) of the Evidence Act 1995 (Cth) (Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46; 250 CLR 303 (Expense Reduction) at [32]). In that case, the High Court made the following relevant observations at [45] concerning disclosure in the context of discovery:

45.    Although discovery is an inherently intrusive process, it is not intended that it be allowed to affect a person's entitlement to maintain the confidentiality of documents where the law allows. It follows that where a privileged document is inadvertently disclosed, the court should ordinarily permit the correction of that mistake and order the return of the document, if the party receiving the documents refuses to do so.

12    Expense Reduction is relevant in other respects. First, for reasons which will become evident it is appropriate to note Kiefel J’s remarks during the course of Counsel’s argument at 307:

It does not seem so long ago that when a solicitor explained that a mistake had occurred in discovery the other side simply gave the documents back. That did not occur here, and it has taken up the resources of the Supreme Court and this Court.

13    To similar effect, at [50] the plurality noted that the need for the Courts to be concerned with the correction of error only arises if there is a dispute and that, in the case of inadvertent disclosure, “this should not often arise”.

14    The approach of the High Court in Expense Reduction to the inadvertent disclosure of privileged material in discovery is different from that in England. The plurality noted at [41] that the Courts in England continue to apply the principles stated in Guinness Peat Properties Ltd v Fitzroy Robinson Partnership [1987] 1 WLR 1027 (Guinness Peat) in relation to the inadvertent disclosure of privileged or confidential documents. In particular, the plurality emphasised in [42] that, whatever be the current position in England, New South Wales Courts “should actively engage in case management in order to achieve the purposes of the [Civil Procedure Act 2005 (NSW)]”. The plurality made the following observations at [56] and [57] which, while directed to the relevant New South Wales legislation, are equally applicable because of the similarly worded terms of ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth):

56.    The evident intention and the expectation of the CPA is that the court use these broad powers to facilitate the overriding purpose. Parties continue to have the right to bring, pursue and defend proceedings in the court, but the conduct of those proceedings is firmly in the hands of the court. It is the duty of the parties and their lawyers to assist the court in furthering the overriding purpose.

57    That purpose may require a more robust and proactive approach on the part of the courts. Unduly technical and costly disputes about non-essential issues are clearly to be avoided. However, the powers of the court are not at large and are not to be exercised according to a judge's individualistic idea of what is fair in a given circumstance. Rather, the dictates of justice referred to in s 58 require that in determining what directions or orders to make in the conduct of the proceedings, regard is to be had in the first place to how the overriding purpose of the CPA can be furthered, together with other relevant matters, including those referred to in s 58(2). The focus is upon facilitating a just, quick and cheap resolution of the real issues in the proceedings, although not at all costs. The terms of the CPA assume that its purpose, to a large extent, will coincide with the dictates of justice.

15    In circumstances where some of the material which has been disclosed relates to professional advice provided by Precision’s patent attorney, it is also relevant to note s 200 of the Patents Act 1990 (Cth), which relevantly provides:

…

(2)    A communication made for the dominant purpose of a registered patent attorney providing intellectual property advice to a client is privileged in the same way, and to the same extent, as a communication made for the dominant purpose of a legal practitioner providing legal advice to a client.

(2A)    A record or document made for the dominant purpose of a registered patent attorney providing intellectual property advice to a client is privileged in the same way, and to the same extent, as a record or document made for the dominant purpose of a legal practitioner providing legal advice to a client.

Resolution

16    It is convenient to deal first with the documents which Precision says were inadvertently disclosed and for which it claims legal professional privilege.

(a) Documents the subject of Precision’s claim of inadvertent disclosure

17    The material which is the subject of paragraph 3 of Domino’s amended interlocutory application was tendered as confidential exhibits. I have reviewed that material. I find that all the material comprises or refers to confidential legal advice given to Precision by solicitors, barristers or patent attorneys and that the advice was given after the dispute with Domino’s began and which has resulted in the substantive litigation. Some of the material contained in Mr Parrott’s notebook are his notes of confidential legal advice to Precision which was passed on to him from Dr Green. As noted above, they are both directors of Precision. I accept their unchallenged evidence regarding the identity of the professional persons who gave the advice which is noted in their respective notebooks. I also accept their unchallenged summaries of the material in each of the entries and their purpose.

18    I have no hesitation in finding that the relevant material is covered by legal professional privilege. In the case of professional advice provided to Precision by its patent attorneys, s 200 of the Patents Act applies.

19    Domino’s relied upon the judgment of Refshauge J in Spalding v Radio Canberra Pty Ltd [2009] ACTSC 26; 166 ACTR 14 (Spalding) in support of its contention that, where a document containing privileged material is relied upon to refresh a witness’s memory, privilege is thereby waived. I consider that Spalding is plainly distinguishable. It involved a witness admitting under cross-examination that before she gave her oral evidence she had refreshed her memory by reading and relying upon a proof of evidence. That is far removed from the facts and circumstances here. Both Mr Parrott and Dr Green admit that they relied upon their respective notebooks in refreshing their memories but in circumstances where their notebooks contain not only privileged material but also much more material which is non-privileged.

20    This case is unlike Spalding, where the entire contents of the proof of evidence were privileged and there was evidence that it had been used in its entirety so as to produce an imputed waiver. As noted above, both Mr Parrott and Dr Green gave evidence that they had no intention of disclosing privilege in providing copies of their notebooks to Precision’s solicitors, nor did Domino’s identify any part of the affidavits prepared by either witness in the substantive proceedings which disclosed material which was privileged. The observations of Refshauge J in Spalding at [79], to the effect that a document which is read with the intention of trying to revive recollection as a whole and cannot be dissected into parts where recollection was actually revived, reflects the facts of that case which involved a document which was privileged in its entirety. I reject Domino’s submission that his Honour’s observations are directly applicable here.

21    Domino’s also relied on Parker J’s decision in Hamersley Iron Pty Limited v Metal and Engineering Workers’ Union – Western Australia [1998] WASC 289 (Hamersley). In that case, his Honour declined to order the defendants to return to the plaintiff a document which had been inadvertently discovered because his Honour found that “too much error lies on the side of the plaintiffs and too great a significance has become attached to the document for the purpose of the defendants since these errors, for it now to be fair that the defendants should return it to the plaintiff and be asked to erase it from their thoughts and strategies in the conduct of their defence”.

22    Hamersley turns very much on its own particular facts and circumstances. It is also notable that Parker J was influenced by Guinness Peat and that his Honour’s decision predates Expense Reduction. I do not consider that the decision assists in the resolution of these interlocutory applications.

23    The next issue is whether the privilege has been waived. I accept Ms Gourley’s account of the circumstances in which the disclosure occurred. The disclosure was unfortunate but it is properly understood and assessed in the context of high pressure and complex commercial litigation being conducted under tight time pressures in which, regrettably, human error can occur. I have taken into account that Ms Gourley and her colleagues had access to the notebooks from December 2016, but I consider that this must be looked at in the broader context of the onerous task of providing standard discovery in respect of these handwritten notebooks, together with a substantial volume of additional material. When she became aware of the disclosure, Ms Gourley took prompt steps to protect her client’s privilege. Domino’s did not contest Ms Gourley’s evidence that the production of the disputed material was not intentional.

24    I accept without reservation the unchallenged evidence of both Mr Parrott and Dr Green that, in providing their notebooks to Precision’s solicitors, neither intended to waive legal professional privilege. I also accept that Precision’s solicitors neither sought instructions to waive such privilege nor intended to waive privilege without their client’s instructions.

25    I do not accept Domino’s contention that privilege has been waived because Precision has referred to the notebooks in its evidence. Merely because Mr Parrott describes the general character of his notebooks in one of his affidavits in the substantive proceedings, and all of his first notebook is included in the discovered documents, does not constitute a waiver in respect of the relevant material which is contained in his fourth notebook. Likewise, while accepting that Dr Green refers to what he described as his “logbook” generally in one of his affidavits in the substantive proceedings and extracts from his single notebook have been discovered, this does not constitute a waiver of privilege in respect of the relevant material.

26    There is no suggestion that the disclosure was made in circumstances where Precision sought to achieve some forensic or other advantage for itself. Rather, the disclosure was entirely the consequence of human error and oversight.

27    On the question of relief, Domino’s relied upon the observations of the High Court in Expense Reduction at [45] and [61]. It emphasised the word “ordinarily” in [45] and submitted that the further observations at [61] confirm that not all cases of inadvertent disclosure will give rise to an order for return of privileged material. So much may be accepted. For example, conduct on the part of a party or its legal representatives may be relevant to the discretion concerning relief. I am not persuaded, however, that there is any basis for withholding the relief sought by Precision.

28    I reject Domino’s submission that the conduct of Precision and its solicitors should disentitle Precision from obtaining the relief it seeks. Domino’s drew attention to the long period over which the discovery process took place, namely from at least 9 November 2016 until 24 April 2017. That is true but as I have indicated above, the standard discovery process was plainly a demanding one.

29    Another matter relied upon by Domino’s is the time period over which Mr Parrott, Dr Green and Precision’s solicitors had possession of the notebooks. But, as noted above, this fails to take into account the broader context. The notebooks comprise a small part of voluminous material which had to be identified, collated and assessed in order to fulfil Precision’s standard discovery obligations. Domino’s position heavily relies on what I consider to be an inappropriate use of hindsight. The inadvertent error by Precision’s solicitor needs to be viewed in the context of all the other steps being undertaken by Precision’s solicitors at the relevant time in terms of matters such as interviewing witnesses, preparing affidavits, briefing counsel and generally having their client’s case ready for trial.

30    Domino’s submitted that another relevant consideration weighing against the relief sought by Precision is that for a “great deal” of the relevant material, the privilege is not apparent on the face of the documents or, where it is, it is not clear whether the advice was given by a qualified legal practitioner or patent attorney. Having reviewed all the relevant material, and taking into account the evidence and explanations provided by Precision, I reject this submission.

31    Domino’s relied upon Mr Prescott’s evidence, which was to the effect that he doubted whether he, and Domino’s legal team generally, would be able to put out of their minds the information they have learned having reviewed the relevant material and taking into account its relevance to the issues in the substantive proceeding. I do not accept this submission. Whether or not Domino’s legal team can put the material out of their individual minds is largely beside the point. The order sought by Precision is that Domino’s and Navman “not rely on or use” any of the information. Any competent lawyer should be able to comply with such an order, having regard to their professional training and ethical obligations. It is not a question of putting the material out of mind, but rather not relying on it or using it in the substantive proceeding. I do not accept that, in all the circumstances of this case, fairness weighs in favour of Domino’s and Navman being able to rely on or use the documents.

32    Accordingly, I find that there was no waiver of privilege in the relevant material. Moreover, I consider that it is appropriate to grant Precision the relief it seeks. For the reasons given above, I am not persuaded that there are sufficient discretionary grounds for withholding such relief.

(b) Domino’s challenge to Precision’s claims of privilege in Part 2 of the List of Discovery

33    This dispute relates to 57 pages from Dr Green’s Logbook. Domino’s challenges whether the pages are truly covered by legal professional privilege. In his affidavit dated 30 August 2017, Mr Prescott identifies various concerns he has on this matter by reference to relevant parts of affidavits by Mr Parrott and Dr Green. There is a confidential and privileged exhibit (NP-1) in which Mr Parrott has placed a number of entries in his fourth notebook which he says documented legal advice from Mark Allen (solicitor); Carmen Champion (barrister); Aaron Cornish (barrister); Simon Reynolds (patent attorney) and Elan Susson (patent attorney). Mr Prescott gave evidence regarding his concerns about the claims for privilege. He gave various examples for these concerns in respect of documents at pages 008, 016, 056, 061, 088, 092 and 135 of NP-1. He also deposed that Domino’s had issued a notice to produce in respect of the 57 pages.

34    In respect of the Withheld Logbook Pages, Domino’s seeks an order pursuant to r 20.32 of the Federal Court Rules 2011 (Cth) (FCRs) that Precision produce those documents for inspection by Domino’s. Alternatively, it seeks an order pursuant to r 20.35 that Precision produce the documents to the Court for inspection and that Domino’s have access to them.

35    As noted above, the 57 pages are referred to implicitly in Part 2 of Precision’s List of Documents. They are described there as “Alex Green logbook excerpts recording legal advice provided to Precision”, as being from late 2014 onwards and that the ground of privilege is stated to be “client legal privilege”. It is significant that Mr Cordiner QC properly acknowledged that this statement of the ground of privilege was “standard”.

36    The requirements of a List of Documents are set out in r 20.17 of the FCRs. Relevantly, they include a requirement that each document in the discovering party’s control for which privilege from production is claimed must be described, as must the grounds of the privilege. Importantly, provision is then made in r 20.17(3) for an application to be made by a party to the Court seeking an order that inter alia a more detailed list of documents be provided. In Guy Carpenter & Company Pty Limited v Grove (No 3) [2011] FCA 1250 (Grove), Jagot J highlighted the relevance of r 20.17(3). In that case, the List of Documents for which legal professional privilege was claimed did not identify the topic about which the advice was said to have been given. The applicant submitted that the Court should apply the principles relating to a claim for legal professional privilege which is challenged, as set down in cases such as Barnes v Commissioner of Taxation [2007] FCAFC 88; 242 ALR 601. Justice Jagot stated at [4] in Grove that there was a difference between the obligation of a party providing verified discovery in accordance with the FCRs and the evidentiary onus to which a party may be subject if a claim for legal professional privilege is challenged. Where a List of Documents complies with the obligation imposed under r 20.17(2), her Honour found that the appropriate course was to seek to be provided with a more detailed list of documents than would otherwise be required. Her Honour was not satisfied in the circumstances there that a more detailed list should be provided. Accordingly she rejected this aspect of the application.

37    During the course of the hearing, Domino’s made an oral application for an order to be made under r 20.17(3)(b). Domino’s submitted that such an order should be made based in large part on Mr Prescott’s evidence as to his concerns regarding the correctness of Precision’s claim for privilege in respect of the 57 pages. This concern was, in turn, based on Domino’s scepticism regarding the correctness of Precision’s claim for privilege in respect of the extracts from the notebooks which had been inadvertently disclosed. In circumstances where that latter claim has been upheld, the substantial basis for Domino’s submission relating to the 57 pages disappears.

38    Domino’s has not persuaded me that this is an appropriate case to exercise the discretion in its favour under r 20.17(3)(b) in respect of any of the 57 pages. Domino’s reliance on rr 20.32 and 20.35 was misconceived having regard to r 20.17(3)(b). This part of Domino’s amended interlocutory application should be dismissed.

39    As noted above, Precision opposed those parts of Domino’s amended interlocutory application concerning paragraphs 3A and 3B. Mr Webb SC, who appeared together with Mr Flynn and Dr Hughes for Precision, submitted that these amendments were only drawn to Precision’s notice on 24 August 2017. They were objected to because of the prejudice to Precision who had not had an opportunity to adduce evidence in respect of the matter. If necessary, I would have upheld this objection but, for reasons given above, it is unnecessary to dispose of these parts of the amended interlocutory application on that basis because they fail for other reasons.

Conclusion

40    Domino’s amended interlocutory application should be dismissed. Orders should be made substantially in accordance with those sought by Precision in its interlocutory application dated 3 August 2017. No party advanced any reason why costs should not follow the outcome. Given Navman’s limited role, it is appropriate that Domino’s bear Precision’s costs. Orders will be made accordingly.

41    Finally, it is appropriate to say something about that part of this skirmish which relates to the documents which Precision inadvertently disclosed in the course of discovery. I doubt that in earlier times, when there was greater professional courtesy between legal practitioners, this matter would have resulted in the response displayed by Domino’s and its legal team. As I have found, the disclosure here was regrettable but entirely inadvertent and understandable in the context of the exacting demands placed on legal practitioners in large and fiercely contested commercial litigation. The human errors could just as easily, and understandably, have been those of Domino’s legal team. The proper course which should have been taken by Domino’s lawyers, after explaining the matter to their client and on taking instructions, would have been politely and promptly to return the material or attend to its destruction as requested by Ms Gourley. Instead, a belligerent and unforgiving approach was adopted and aggressively pursued, one which was designed to take advantage of the human error of a professional colleague. This conduct is notably more regrettable than the conduct of Precision’s solicitors. It displays very poor judgement. Moreover, it strikes me as being the very kind of conduct which the plurality in Expense Reduction had in mind when their Honours highlighted the responsibilities of solicitors at [64]-[67].

Associate:

Dated:    6 September 2017