After Raine & Horne Marrickville’s solicitor annexed the letter to an affidavit in support of a preliminary discovery application, the former employee’s solicitor became aware that the real estate agency and its legal representatives were in possession of the letter and asserted legal professional privilege. 

The court heard that Raine & Horne Marrickville instructed the solicitor to claim that the former employee had either “deliberately or inadvertently” saved the legal document onto his work desktop, “giving rise to a waiver of privilege”.

“The court found that a fair-minded, reasonably informed member of the public, being aware of all the circumstances, would conclude that the proper administration of justice required the prevention of the plaintiff’s legal representatives from continuing to act in this matter,” the Supreme Court judgment read. 

“[This is] especially in circumstances where the letter had been sought to be used for their client’s advantage as part of the discovery process.” 

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The court has also ordered that the former legal representative cannot share the contents of the letter with the new representative and must destroy all copies.