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.