Adam Wellington v State of New South Wales [2024] NSWDC 237 | Case summary

District Court of NSW|2024-05-24|Before: Mr P

Solicitors: Brydens Lawyers (Plaintiff) Crown Solicitors Office (Defendant) File Number(s): 2019/160458

INTRODUCTION

By Notice of Motion ('NOM') filed 29 February 2024, the first defendant, the State of New South Wales ('SNSW'), and the second defendant, Department of Justice ('DOJ'), seeking various orders. Order 1 is as follows: 'The Court review the plaintiff's claim for client legal privilege in connection with the documents referred to in Schedules A and B of this Motion.'
As such, that orders seeks that the Court grant access to the defendant parties to documents produced under the Aboriginal Legal Service ('ALS'), being documents; 1. Listed in Schedule A from subpoena packet S-22 produced by ALS on 23 October 2023, 2. Listed in Schedule B from subpoena packet S-23 produced by ALS on 23 October 2023, and 3. In subpoena packet S-25 produced by ALS on 27 October 2023.
The plaintiff submits that the documents are covered by legal professional privilege and should not be produced. This is disputed by the defendants.
Privilege is claimed over these documents due to concurrent proceedings also involving the plaintiff.
The defendant read an affidavit of Sophie Hawkins-Adams dated 1 March 2024 which became exhibit 1 of the NOM.

BACKGROUND

The plaintiff filed an Amended Statement of Claim on 28 April 2021 ('ASOC'). I understand from the parties that there is to be a Further Amended Statement of Claim ('FASOC') to be filed which was to have been filed by 29 March 2024, pursuant to orders made by the Judicial Registrar on 7 March 2024.
At ASOC paragraph 11, it is alleged that the plaintiff was certified as unsuitable for placement at Parklea Correctional Facility ('Parklea') by reason of events and investigations which had occurred there during a prior period of incarceration in 2014.
Additionally, at ASOC paragraph 12, it is alleged that the plaintiff's lawyers notified the first defendant on a number of occasions that the plaintiff was inappropriately placed at Parklea, and that he required for his safety, immediate transfer to another facility.
The ASOC and the documents referred to in [2] above, allege that the first defendant was negligent, which is denied by the defendants, by reason of placing the plaintiff in Parklea and for not transferring him from Parklea once the notification had been made by the ALS to the first defendant of the previous incident.
The plaintiff alleges that the reason he should not have been placed at Parklea is due to an alleged assault that occurred there in 2014. As such, the Department of Corrections ('DOC') filed a subpoena with the online Registry within the District Court on 5 September 2023 to the ALS, who acted for the plaintiff in previous criminal law proceedings.
On 17 July 2023, the plaintiff's current legal representative, Mr David Le of Brydens Lawyers ('Brydens'), purported to serve 11 documents to the defendants solicitors, including those set out above in [2].
The ALS produced documents in response to subpoenas for production to the Court on 23 October 2023 which are contained in subpoena packets S-22 and S-23. The parties have general access to S-22. However, S-23 is subject to a claim of legal privilege by the ALS, and the parties do not have access to them.
On 27 October 2023, a letter was provided to the defendant's solicitors, stating that Brydens intended to claim privilege over one of the packets S-22, with a schedule of documents attached. There was various correspondence between the parties after that date.
On 2 February 2024, a letter was sent to Brydens seeking, among other things, a schedule over which documents subject to a claim for privilege in S-22, S-23 and S-25.
On 15 February 2024, a letter was received from the plaintiff's solicitors which asserted that S-25 was identical to S-22, with the three documents for which the plaintiff claims privilege having been removed in S-26. There was further correspondence between the parties after that date.

Legal Professional Privilege - the nature, scope and purpose of the privilege

Legal professional privilege is a rule of substantive law (Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 ('Daniels') [9] (Gleeson CJ, Gaudron, Gummow and Hayne JJ), and a practical guarantee of 'fundamental rights' (Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1996) 188 CLR 501 ('Propend'), 540 (Gaudron J); Goldberg v Ng (1995) 185 CLR 83, 121 (Gummow J).
The privilege is: 1. an immunity from the production of documents; 2. an immunity from disclosure of information (including once documents are produced); and 3. a rule of evidence to shield privileged documents from being tendered into evidence (Baker v Campbell (1983) 153 CLR 52 ('Baker'), 59 and 60, 68-69, and 70, (Gibbs CJ - in dissent but recognising the immunity from production and disclosure in judicial proceedings), 82 and 83 (Mason J similarly in dissent but recognising the immunity from production and disclosure in legal proceedings) 90 (Murphy J), 101 (Brennan J), 112 (Deane J), 124-125 (Dawson J); Glencore International v Commissioner of Taxation (2019) 265 CLR 646, [21]-[26] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); Daniels [9]-[11] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).
I accept that the purpose of privilege is to allow full and frank communications between lawyer and client without fear of the subsequent disclosure of the communications (Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49, [35] (Gleeson CJ, Gaudron and Gummow JJ); Baker, 128 (Dawson J); Attorney-General (NT) v Kearney (1985) 158 CLR 500, 532 (Dawson J)). The Court does not however have the power to waive or abrogate the privilege (Griffin v Sogelease Australia Ltd (2003) 57 NSWLR 257, [28]-[34] (Tobias JA, Meagher and McColl JA agreeing); Legislation Act 2001, ss 6 and 171; Baker, 116-117 (Deane J)).

Legal Professional privilege - the onus and burden of proof

The plaintiff bears the onus of establishing his claims for privilege (Grant v Downs (1976) 135 CLR 674 ('Grant'), 689 (Stephen, Mason, Murphy JJ)).
The moving parties bear the onus of establishing that any privilege has been waived (State of New South Wales v BetFair Pty Ltd (2009) 180 FCR 543, [54]).
Privilege may be established by: 1. pointing to the nature of the documents, (Grant, 689 (Stephen, Mason and Murphy JJ); AWB Ltd v Cole (No 5) (2006) 155 FCR 30 ('AWB (No 5)', [44] (Young J)). 2. evidence as to the circumstances in which a document came into existence, (Grant, 689 (Stephen, Mason and Murphy JJ)) and the drawing of inferences from those proven facts, (Hastie Group Ltd (in liquidation) v Moore [2016] NSWCA 305, [33] (Beazley P and McFarlan JA)). 3. global descriptions - depending upon the nature of the documents the subject of the claim (Neal v Neal [2018] NSWSC 1356, [4], [10], [13] - [16] (Hallen J) (subpoena to a lawyer for documents in relation to a legal proceedings)).
Under section 133 of the Evidence Act 1995 ('the Evidence Act') the Court has a power to order that documents be produced to it and inspected for the purpose of deciding a question of privilege.
I accept that this discretionary power (Grant, 688 (Stephen, Mason and Murphy JJ) should only be exercised 'if need be' where it cannot otherwise be determined on the evidence as it would undermine the substantive right to claim privilege and avoids the complications which might arise from the documents having been seen by the judge (Grant, 677 (Barwick CJ), see also State of New South Wales v Jackson [2007] NSWCA 279 at [24] (Giles JA with whom Mason P and Beazley JA agreed)).
Section 118 of the Evidence Act confers a protection from the disclosure of the contents of the communication or document. As such, the privilege extends to any document prepared by a lawyer or client from which there might be inferred the nature of the advice sought or given, or otherwise a relevant confidential communication or document (Propend, 569 (Gummow J)).
Privilege will attach to a document where the document: 1. would result in the disclosure of a 'confidential document'; or 2. is a 'confidential document' or would otherwise result in the disclosure of the contents of a 'confidential document'.
A 'confidential communication' means a communication that is made in circumstances that, when it was made the person who made it 'or' the person to whom it's made was under an express obligation not to disclose its contents, whether or not the obligation arises under law (section 117(1) of the Evidence Act).
Under section 119 of the Evidence Act; 1. 'Evidence is not to be adduced if, on objection by a client, the Court finds that adducing the evidence would result in disclosure of- 1. A confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made, or 2. The contents of a confidential document (whether delivered or not) that was prepared, 1. for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court) or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party'.

APPLICATION OF THE LEGAL PRINCIPLES

The claimed client legal privilege involves the Court assessing two elements; 1. Whether the ALS documents in question are privileged, and 2. If the ALS documents are privileged, whether the client has waived his privilege having already served some of the ALS documents.

Are the documents privilege

Mr David Le, solicitor for the plaintiff, makes claims for privilege over the documents in relevant correspondence attached to exhibit 1.
The leading authority with regard to client legal privilege is Norman v Wittington [2022] NSWSC 160 (24 February 2022) where his Honour Justice Beech-Jones, (Chief Judge of Common Law as he then was) stated as follows: '[7] Both at common law and under s 122(2), the courts will impute an intention to a party to waive privilege where the actions of a party are plainly inconsistent with the maintenance of the confidentiality which the privilege is intended to protect (Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303; [2013] HCA 46 at [30] (French CJ, Kiefel, Bell, Gageler and Keane JJ); "Expense Reduction"). Such a consequence will follow "even though that consequence was not intended by the party losing the privilege" ([id]). In DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499; [2003] FCA 384 ("DSE") Allsop J (as his Honour then was) observed that where a "party entitled to the privilege makes an assertion (express or implied), or brings a case, which is either about the contents of the confidential communication or which necessarily lays open the confidential communication to scrutiny and, by such conduct, an inconsistency arises between the act and the maintenance of the confidence, informed partly by the forensic unfairness of allowing the claim to proceed without disclosure of the communication" waiver of the privilege will be imputed (at [58]). However, such a waiver does not arise merely because a communication is relevant or from a party simply denying in a pleading an assertion about their state of mind, including that it was influenced by legal advice (DSE at [115] to [122]). [8] These principles require close attention to the manner in which Ms Newman has sought to deploy the above assertion in her affidavit. To this time, Ms Newman has only filed and served the affidavit. As noted, it was filed along with her initiating process. At the time she filed it, there was no cross‑claim from Mr Whittington. Paragraph 19 of the affidavit is part of a section entitled "Background" which provides a summary of events preceding the alleged defamatory publications about her by Mr Whittington that she complained of in her original statement of claim. Whatever Ms Newman's purpose in filing and serving the affidavit, it did not involve its deployment to defeat some of the particulars of Mr Whittington's claim for aggravated damages. The fact that it may now be relevant to that claim does not mean there has been a waiver. This position may alter should Ms Newman either seek to read the affidavit for that purpose or manifest an intention to do so. However, at present, there has not been a waiver.'
A strong presumption exists that documents produced in professional discourse between solicitor and client will be covered by privilege, as prima facie the relationship is premised upon the provision or requesting of legal advice (DSE (Holdings) Pty Ltd v InterTan Inc (2003) 135 FCR 151).
Therefore, unless there is a contrary indication, such communications may be assumed to be for the purpose of seeking legal advice (AWB (No 5) [44]).
Privilege may be established by the nature of the document subject to the claim (Neal v Neal [2018] NSWSC 1356 [4], [10], [13]-[16] (Hallen J). The plaintiff submits that little evidence is needed to establish the plaintiff's claim for privilege given the nature of the documents, being communications between the plaintiff and the ALS, his former lawyers.
The parties sensibly agreed with my suggestion that I see the documents as that appeared to be the only way to resolve the impasse. The relevant documents were provided to me by the Registrar. They were the three letters from the ALS to the plaintiff dated 21 April 2016, 4 May 2016 and 1 August 2016 contained in Subpoena Packet S-22 as documents from the ALS over which the plaintiff had claimed privilege.
Having viewed the documents, it seems to me that they are not privileged, as the dominant purpose of the documents over which privilege is claimed, is regarding whether the plaintiff can be moved around correctional facilities and attend a funeral.
There is no evidence that the involvement of the ALS and its correspondence arose in the context where the documents in dispute were created for the 'dominant purpose' of providing the individual with professional legal services relating to legal proceedings, including anticipated legal proceedings. I make this finding which is in no way critical of the claim for privilege made by the ALS and accept that they acted prudently to protect their client in proceedings where they were not retained by the plaintiff.

ORDERS

I make the following orders: 1. The claim for privilege in respect of the relevant documents is dismissed. 2. Costs of the notice of motion reserved. 3. I revoke order 6 made by the Judicial Registrar on 23 May 2024 and reserve the question of those costs. 4. List the matter for further directions before the Judicial Registrar on 3 July 2024.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 June 2024

Adam Wellington v State of New South Wales

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