Alexander Prus-Grzybowski v Paul Anthony Edward Everingham, Peter George Howard and Peter John Butler Tiffin [1986] NTSC 57; 44 NTR 7; 87 FLR 186 (12 December 1986)

COURT IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA Kearney J.(1) CWDS Evidence - legal professional privilege - waiver of privilege - when waiver in respect of one document implies a waiver in respect of related documents - relevance to waiver of using in court part of privileged material - application of principle of fairness in conduct of trial in deciding whether privilege waived. Evidence - legal professional privilege - client deceased - whether privilege continues after death - who may waive privilege after death. Evidence - legal professional privilege - solicitors acting for both parties in a transaction - whether each party can insist upon disclosure of the documents relevant thereto. Cases applied: Attorney-General for the Northern Territory v Maurice (1986) 65 ALR 230 (Fed. Court) Bullivant v Attorney-General for Victoria (1901) AC 196 Chant v Brown [1849] EngR 128; (1849) 7 Hare 690; Doe d. Marriott v Hertford General Accident Fire and Life Assurance Corp. Ltd v Tanter Lyell v Kennedy 24 Nea Karteria Maritime Co. Ltd v Atlantic and Great Lakes Steamship Corp. Proctor v Smiles Russell v Jackson ; ; Cases considered: George Doland Ltd v Blackburn Robson Coates and Co. Great Atlantic Insurance Co. v Home Insurance Co. Cases referred to: Bucknell v British Transport Commission (1956) 1 QB 187 HRNG ALICE SPRINGS #DATE 12:12:1986 Counsel for plaintiff: M. Abbott QC, J. Tippett Solicitors for plaintiff: McCormack and Co. Counsel for first and second defendants: B. Lander QC Solicitors for first and second defendants: Poveys Third defendant: In person JUDGE1 I rule today on the plaintiff's application of 1 and 3 December for further discovery, production and inspection of documents. The background to the application is as follows. On 17 November the defendants were ordered to discover the contents of 4 files said to have been created by the defendants in the course of the legal practice of the firm of solicitors which they formerly constituted, Paul Everingham and Co., for the purpose of conducting legal work on behalf of the plaintiff. Those files were said to be numbered 6816, 6838, 7961 and 9642. The affidavit of discovery has not yet been filed. 2. The files of the firm are, I am informed, recorded on a card-index system. The plaintiff subsequently called for the cards relating to the files on legal work carried out by the firm for the plaintiff. On 24 November the defendants produced 4 cards from the firm's card-indexing system, listing files which were said to have been created by the firm in relation to the plaintiff. They were tendered in evidence for the purposes only of this application. They consist of 2 white cards, a green card and a blue card; all 4 are headed with the name of the plaintiff. The 2 white cards refer to files 2044, 3501, 5577, 5978, 6816, 6838 and 7961. The green card refers to files 9642 and 10800. The blue card refers to file 12852. So there are 10 file numbers in all. 3. The plaintiff sought on 1 December that the defendants produce these 10 files for inspection. 4. In response to the order of 17 November the defendants had in fact produced a file-cover numbered 6816 (described on one of the white cards as "6816 A PJT Lease from W.H. Whitlock") together with certain documents placed in that file by the defendants' solicitors, Poveys, being the documents which they considered constituted the proper contents of that file. It appeared that the reason for this was that the Poveys' office in Darwin received from its office in Alice Springs certain empty file-covers and, separately, certain documents. Accordingly, file 6816, now Exhibit P16, represents the defendants' attempt through their solicitors to reconstitute file 6816 disclosed on the white file card, as it originally was. 5. The plaintiff contends that the defendants are required to search through documents clearly in their possession and to discover and produce those documents which relate to the topics which, according to the 4 file cards, are dealt with in the other 9 files. In other words, the plaintiff contends that the defendants should now reconstitute and produce those 9 files. The defendants contend that they have already carried out in full their obligations as regards discovery, having searched all their documents and discovered those they consider thus far to be relevant and not protected from discovery by reason of privilege. Ultimately, it became unnecessary for me to deal with the submission, as regards the 7 files on the 2 white cards; see p 16 hereof. 6. The defendants acknowledge that they hold documents which came into existence in the course of their acting as solicitors for the deceased William Whitlock. They state that they do not propose to discover or produce these documents, on the ground that they are privileged from production being communications between Mr Whitlock as client and the defendants as his solicitors. That is to say, the defendants say they are unable to produce these documents because of legal professional privilege. 7. On 1 and 3 December Mr Abbott dealt with this contention. He submitted that all communications between Mr Whitlock and the defendants about the dispute between Whitlock and the plaintiff concerning the plaintiff's occupancy of Agricultural Lease No. 606, and the defendants' file notes in relation thereto, should be produced, because the privilege which 8. The submission was that the defendants, by discovering a copy document (a proof of evidence of Mr Whitlock dated 26 November 1974 (now Exhibit P74)) in the affidavit of discovery sworn by Mr Howard on 28 October 1980, and not objecting therein to its production on any ground of privilege, had waived legal professional privilege in respect of all the materials mentioned in the preceding paragraph. 9. Exhibit P74 deals with matters then in dispute between Mr Whitlock and the plaintiff concerning the septic tank, the alleged sub-letting of part of Agricultural Lease No. 606 for use as a junk and metal storage yard, the drinking water, the alleged sub-letting of the adjoining property, and how it was that the plaintiff secured occupancy of the premises. 10. Mr Abbott relied on 4 authorities on waiver of privilege decided between 1972 and 1984: George Doland Ltd v Blackburn Robson Coates and Co. , Great Atlantic Insurance Co v Home Insurance Co. , Nea Karteria Maritime Co Ltd v Atlantic and Great Lakes Steamship Corp. and General Accident Fire and Life Assurance Corp. Ltd. v Tanter 11. In George Doland (supra) the plaintiff's solicitor testified as to a discussion he had had with his client's managing director, relating to 2 matters raised by the action. It was held that the waiver of legal professional privilege thereby involved, permitted the defendants to cross-examine the solicitor on any documents relating to the 2 topics discussed (as opposed to those relating merely to the fact of the discussion), provided they had not been brought into existence for the purpose of the litigation. Mr Abbott relied upon this case as authority for the proposition that waiver of privilege as to part of a topic meant that privilege was waived as to the whole; he submitted that that was the case here, as far as concerned the topics dealt with in Exhibit P74. 12. In Great Atlantic Insurance Co. (supra) the plaintiff had disclosed part of a privileged document and, by error, had omitted to claim privilege for the remainder of it. Plaintiff's counsel read the part disclosed on to the Court record, being under the mistaken impression that it constituted the whole of the document. When it was found that there was more to the document, the defendant sought disclosure of the remainder of it, on the ground that the disclosure of part amounted to a waiver of privilege for the whole. In general, privilege must be asserted as to the whole of a document. It was held that the document dealt throughout with the same subject-matter so a waiver of privilege as to part meant that a claim that the remainder was privileged was not possible; that is, the introduction of part of the document into the trial record waived privilege as to the whole of it. A party cannot disclose only those parts of a document which are to his advantage, though severance is possible if the document deals with several entirely different subject-matters. It can be seen that this case was concerned with waiver of privilege concerning part of a single document, which is not the case here; Mr Abbott submits, however, that it supports his submission that waiver is complete as to all documents dealing with the topics dealt with in Exhibit P74. 13. In Nea Karteria Maritime Co. Ltd. (supra) two questions of privilege were involved. Part of a privileged document (a statement by witness A) had been put to witness B when he was questioned before the trial; B assented to it in his pre-trial statement, which was inconsistent in that respect with his testimony. The plaintiff taxed him with this inconsistency, in cross-examination. The plaintiff, called on as a result to produce the statement by witness A, claimed privilege for that document. The first question was whether privilege had been waived as to the document. 14. Witness B claimed that he had made his pre-trial statement "just to be rid of the lawyers". The plaintiff then called the Greek lawyer in question; he had conducted the interview on the basis of a written list of questions he had been given by the plaintiff's English solicitor. One of the defendants then sought that the plaintiff produce the list of questions; the plaintiff claimed privilege. The second question was whether privilege had been waived as to the list. 15. As to the first question, Mustill J. considered that the plaintiff had not waived privilege as to the statement by witness A. His Honour noted that the putting to a witness of a statement made out of court by someone else does not make the out of court statement part of the material before the court. If the witness assents to it, it becomes part of that witness' evidence; but until that happens, it has no status at all. What the plaintiff had been taxing B about, was B's own prior inconsistent statement, which happened to take the form of an assent to something previously said by A. On the issue of waiver Mustill J. considered that the relevant question was whether the plaintiff had made use of A's statement before the face of the Court; and clearly he had not. In his Honour's view the rule was that there was waiver as to the whole of a party's privileged material relevant to an issue, where that party chose to deploy in Court part of that material; and that this rule was exemplified in Bucknell v British Transport Commission (1956) 1 QB 187 and George Doland (supra). I note that in the present case the defendants have not sought to "deploy in Court' any of the material in question. They did not claim privilege for the copy document of 26 November 1974; when they produced it, the plaintiff tendered it in evidence, and it was ultimately received in evidence over the defendants' objections. 16. As to the second question Mustill J., considered that it was essential for the purpose of determining the circumstances in which witness B had accepted the truth of the account of witness A, that the whole of the substance of the interview between the Greek lawyer and witness B be disclosed. He considered that the list of questions was the basis for one-half of the exchange between the two and constituted the agenda of their meeting; and that as the lawyer had given evidence to that effect, the list had been "deployed" and privilege in it had been waived. Mr Abbott conceded that the plaintiff in Nea Karteria had used the list to obtain a benefit, but submitted that it did not matter whether a party had used a document which it had discovered. In effect, the submission was that the defendants' production of the document of 20 November 1974 was a sufficient "deploying" of part of privileged material to constitute a waiver of privilege as to the rest of the material relevant to the issues therein dealt with in that document. 17. In Tanter's case (supra) a witness had been cross-examined as to the contents of a document produced by the party cross-examining. It recorded certain conversations. That party had earlier indicated it would seek leave to have the document (privilege as to which it had waived pre-trial) admitted into evidence under the Civil Evidence Act 1968. Counsel for the other party then applied for specific discovery of all documents relating to the topics discussed in the conversations mentioned in the document, on the basis that privilege in those documents had been thereby waived. Hobhouse J. refused the application as misconceived and premature on the basis that the document was not yet part of the evidence before the Court, and privilege had thus far been waived only as to the document itself and not as to documents relating to matters referred to in it. His Honour was of opinion that, assuming the document was later admitted into evidence, the waiver of privilege was limited to the waiver of confidentiality in the conversations there recounted, and did not extend to the subject matter of those conversations, so that there would be no right to have the documents relating to that subject matter discovered. His Honour discussed the cases mentioned above and, noting that in each case the document in question had been adduced in evidence, agreed with the approach taken by Mustill J. in Nea Karteria (supra) and doubted the decision in George Doland (supra). 18. I respectfully agree with the analysis by Hobhouse J. When the question is whether privilege has been impliedly waived as to related documents, whether or not the privileged source document has been used in court by the party against whom further discovery is sought, is a crucial factor. A party is always at liberty to waive privilege as to certain documents, but to claim privilege as to others, on discovery; see Lyell v Kennedy, 27 ChD1 at p 24 per Cotton L.J. So the waiver of privilege on discovery, as to the document of 20 November 1974, did not at that timeamount to a waiver of privilege as to other documents. The waiver of privilege as to part of a document is in general a waiver as to the whole, but that is not the issue here. The question is as to the degree to which the rule in Lyell v Kennedy (supra) applies to proceedings in court. It applies, in my view, until the document said to involve a waiver of privilege as to other documents, is used in court by the party said to be waiving the privilege. When that occurs, whether there is waiver as to associated documents is determined by applying the principle of what is fair in the conduct of the trial; any waiver relates only to the transaction to which the document in question relates. Until the source document is used in court by that party, the question of implied waiver of privilege as to other documents does not arise; as Hobhouse J. put it in Tanter'scase (supra) at p 48 - "... it cannot be suggested that any use by an opposite party amounts to a waiver by the original party of anything. Likewise the mere production of the document on discovery, or in some pre-trial procedure, cannot in the ordinary course be treated as a waiver of anything beyond the document itself." 19. It was part of Mr Abbott's submission that Tanter's case (supra) is not good law; as is apparent from the foregoing, I reject that contention. I note that the judgment of Hobhouse J. has been criticized by the learned editors of Phipson: see 1st Supplement to 13th edition (1982) para.15-20, quoted by Toohey J. in Attorney-General for the Northern Territory v Maurice at 242. It is stated in Phipson that - "... it can hardly be right that a party can selectively waive privilege at the time of serving his list of documents, on the basis that the loss of privilege is confined to the documents disclosed unless