ASIC v Vines [2003] NSWSC 1005 | Case summary

1 HIS HONOUR: On Day 7 of this hearing Mr Schneider, a witness for the plaintiff, gave evidence with respect to the composition of his affidavit. The evidence led senior counsel for the first defendant to make a call for the production by the plaintiff of drafts of parts of Mr Schneider's first affidavit referred to by him in his oral evidence in cross-examination. 2 On Day 8 (that is, yesterday) senior counsel for the plaintiff responded to that call by producing in court three volumes of material, while indicating to the Court that the plaintiff claimed privilege with respect to the whole of the material. That led the first defendant to make an application for access to the produced material on the ground of waiver of privilege. 3 This morning, Day 9 of the hearing, I heard extensive argument in support of that application. In my view it is unnecessary, in dealing with the application, to embark upon any lengthy exploration of the law of waiver of privilege. It is enough to begin by stating the following propositions: (i) Although the application for access arose during the course of the final hearing, it was, in essence, an interlocutory application - to which it seems that the common law principles would apply, according to the decision of the High Court in Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49 (especially at 59, 73, 81FF and 100) - but for the existence in this Court of rules of court, including Pt 23 r1(c) and Pt 36 r 13(2)(a), which seem to have the effect that the Court should deal with the application under the statutory principles of the Evidence Act. (ii) None of the parties submitted to me that the law of waiver of privilege under the Evidence Act is different in content from the common law in any manner relevant to the resolution of this issue. (iii) Where a witness refers to a document to refresh his or her memory for the purpose of giving oral evidence, the case law establishes that there is an implied waiver of privilege in respect of that document: Mancorp Pty Ltd v Baulderstone Pty Ltd (1991) 57 SASR 87, 90, per Debelle J; MGICA (1982) Ltd v Kenny & Good Pty Ltd (No. 2) (1996) 135 ALR 743, 744 per Lindgren J; and see more generally Mann v Carnell (1999) 201 CLR 1 (especially at 9-11 and 17); Attorney-General (Northern Territory) v Maurice (1986) 161 CLR 475 (especially at 483, 487, 492, 497). (iv) Somewhat more broadly, there is authority for the view that an implied waiver of privilege may arise where a document is used as a memory stimulus for the purpose of oral evidence: Mather v Morgan [1971] Tas SR 192 at 206 per Burbury CJ and Neasey J, cited by Debelle J in Mancorp at 89. 4 Building on these foundations, senior counsel for the first defendant submitted that there was a waiver of privilege with respect to the produced documents in the following way. First, he said the affidavit of Mr Schneider made on 23 September 2002 was, when prepared, a privileged document. That privilege was waived in respect of the affidavit when the plaintiff chose to file and serve it and then subsequently to tender it in evidence at the hearing. 5 My ruling with respect to the admissibility of the affidavit was that only parts of it could be read and that in respect of other parts, relating to accounts of conversations, the witness's evidence should be given orally. 6 As regards the parts of the affidavit that were read, senior counsel for the first defendant contended that Mr Schneider had given oral evidence in cross-examination which amounted to a waiver of privilege, in respect of drafts prepared by a solicitor employed by the plaintiff which he used for the purposes of preparing the affidavit. 7 Mr Schneider's evidence was that he composed his affidavit himself (T512.43), that he wrote the affidavit, typed it, discussed it and provided it to the plaintiff (T513.2-3). He said that he discussed the draft affidavit, after he had prepared it, with his solicitor (T513.42), although the discussion related only to parts of the document. 8 Later he gave evidence that he had discussions with another person in composing those parts of his affidavit relating to conversations (T517.14). The person with whom he had those discussions was Jonathan Caddick, a solicitor employed by the plaintiff (T517.44). 9 Mr Schneider then gave the following evidence: Q. So Mr Caddick provided you with a draft of parts of your affidavit, did he? A. Well, I can - yep, we would have a discussion about something, and then he would provide it - he provided parts back.

Q. Mr Caddick provided you with drafts of parts of your affidavit; is that correct? A. Yep. Q. And he, in fact, provided you with a draft of most of your affidavit, didn't he? A. No. Q. Did you use Mr Caddick's drafts in the composition of your affidavit? A. Yep - some parts I took, some parts I revised. Sorry, maybe I haven't answered the question. Q. In composing your affidavit -- A. Yes. Q. -- you relied partly, at least, on drafts provided to you by Mr Caddick; is that correct? A. Physically, yes, relied on, yes, the production of. 10 Later again, in answer to questions as to how he prepared for his oral evidence-in-chief, Mr Schneider said (T521-522) that he did nothing other than to re-read his affidavit more than once. 11 The question is whether, in light of the principles that I have outlined, Mr Caddick's evidence establishes a waiver of privilege on the part of the plaintiff. In my opinion, it does not. 12 It is unnecessary for me to decide, and I do not decide, the following two questions: (i) whether the principles about waiver of privilege by referring to a document to refresh memory or as a "memory stimulus" apply to the preparation and tendering of an affidavit, as opposed to the giving of oral evidence; (ii) whether, if they do, privilege is waived where a draft is prepared by a solicitor or other person for the witness, otherwise than as a reflection of instructions given by the witness to that person. 13 In the present case, even assuming answers to those two questions favourable to the first defendant, the facts do not establish anything that might constitute a waiver of privilege for the purposes of the Evidence Act or the common law. All that we have in this case is evidence that the witness had a discussion with a solicitor employed by the plaintiff and then, subsequently, the solicitor provided a draft of part of the affidavit. There is nothing in that evidence to indicate that in preparing the draft the solicitor did anything other than seek to reflect the information provided by the witness in the preceding discussion. 14 Given that the drafts in question were prepared by a solicitor consequent upon discussions with the witness, the proper inference, in the absence of other evidence, is that the drafts were nothing more than drafts intended to reflect the information supplied by the witness. That being so, it is contrary to Mr Schneider's evidence to contend that the drafts produced by Mr Caddick were used to refresh his memory or otherwise as a memory stimulus. 15 If the process of a solicitor taking instructions for the preparation of an affidavit and then preparing a draft on the basis of those instructions and for review by the witness were intrinsically a process which involved waiver of privilege in respect of the draft as soon as the affidavit were read, there would be profound consequences for legal practice in respect of the preparation of affidavits. An important and unacceptable exception would be created to the substantive right constituted by the law of privilege. 16 In a case such as the present, my view is that the privilege has not been waived and, therefore, I reject the application. **********

ASIC v Vines

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