Chen v Nature’s Care Holdings Pty Ltd

The background to this matter is set out in the recent judgment of Rees J in proceedings 2024/23372 (the “Main Proceedings”) . [1]

I am to hear the plaintiffs’ application for the continuation of urgent interlocutory relief granted on 23 January 2024 by Rees J in the Main Proceedings on Monday and Tuesday next, 5 and 6 February 2024.

The parties are engaged in the very large task of preparing for that hearing. Notices to Produce have been exchanged and I have made urgent rulings in relation to them.

In that context, by Summons filed in Court on 31 January 2024, the first and second defendants in the Main Proceedings, Ms Jina Chen and Mr Michael Wu, seek:

The mailboxes were maintained by Ms Chen and Mr Wu when they were directors and employees of one or more of the defendants, who are the plaintiffs in the Main Proceedings. They are no longer directors or employees of any of those companies.

Accordingly the application must be seen to be made under s 198F(2) of the Corporations Act which provides:

The mailboxes have been in existence since 2015. Mr Wu’s former mailbox contains 65GB of data comprising 154,485 items. Ms Chen’s former mailbox, contains 19.5GB of data comprising 47,755 items.

The defendants, the plaintiffs in the Main Proceedings, wish to review the documents in the mailboxes to ascertain whether any of the documents are the subject of client legal privilege. I was informed, although there was no direct evidence of this, that this task could not be completed prior to the hearing in the Main Proceedings next week.

My attention has been directed to the decision of the Full Court of the Supreme Court of South Australia in State of South Australia v Barrett. [2]

In that case, former directors of a bank sought, under provision analogous to s 198F of the Corporations Act, documents “in the nature of advices to or requests for advice from the Bank with respect to aspects of the transactions which are the subject of the present litigation. [3]

Olsson J said:

Mullighan J said:

This case is different to Barrett in that the documents that Ms Chen and Mr Wu seek to inspect are their own email mailboxes, in the sense that they are mailboxes maintained by them when they were directors of the defendants. The fact remains, however, that these mailboxes comprise a part of the books of the defendants, and should there be privileged communications within those mailboxes, that privilege enures for the benefit of the relevant defendant company.

However, in the urgent circumstances facing the parties preparing for contested and potentially significant interlocutory application next week, I took the practical course of enquiring of Ms Chen and Mr Wu whether they would undertake to the Court that, should inspection of their mailboxes be permitted, they would not contend that any of the defendants, as plaintiffs in the Main Proceedings, has waived such privilege as might attach to documents in those mailboxes.

That undertaking has now been given to the Court.

I make the following orders:

I expect that those advising Ms Chen and Mr Wu will not seek to tender at the hearing any document in a mailbox that is obviously privileged. I will hear argument at the hearing of the interlocutory application in relation to any controversies that thereby arise.