Procedure - Discovery and interrogatories - Production and inspection - Grounds for resisting production - Legal professional privilege - Waiver of privilege.

Benecke v National Australia Bank (1993) 35 NSWLR 110; Mann v Carnell [1999] HCA 66; (1999) 168 ALR 86; Jessup & Anor v Gorjup 139/1997, referred to.

Judgment Number: [2001] TASSC 38

NIGEL DAVID ATKINSON v T & P FABRICATIONS PTY LTD (ACN 070 165 525), GEOFFREY ALAN PECKHAM, ROSS DAVID TOLMAN

1 Nigel David Atkinson ("the plaintiff") sues the defendants for damages for words published by Geoffrey Alan Peckham ("the second defendant") and Ross David Tolman ("the third defendant") of and concerning the plaintiff. The words published were to the effect that the plaintiff and two others had dishonestly obtained overtime payments when employed by T & P Fabrications Pty Ltd ("the first defendant"). The second and third defendants are directors and servants of the first defendant.

2 At the request of the defendants, the plaintiff was examined by Dr Sale. When arranging that examination, the defendants' solicitors provided Dr Sale with a copy of a statement of the second defendant, dated 30 April 1999. When reporting on his examination of the plaintiff, Dr Sale stated that he had studied the second defendant's statement. The defendants provided the plaintiff with a copy of Dr Sale's report in lieu of a proof of his expert evidence. The plaintiff thereafter requested that the defendants also provide a copy of the statement of the second defendant, referred to in Dr Sale's report. The defendants declined to do so on the basis that the statement was privileged. The plaintiff has applied to the Court for an order that the defendants provide him with a copy of the statement.

3 Counsel for the plaintiff acknowledges that the statement was subject to legal professional privilege at the time of its preparation, but contends that the defendants have waived privilege in relation to it. It is submitted that the defendants' provision of a copy of the statement to Dr Sale and their delivery of a proof of expert evidence in which Dr Sale refers to the statement, is conduct which amounts to an implied waiver of privilege.

4 A party's waiver of privilege may be implied by operation of law, even though it does not represent the subjective intention of the party; Benecke v National Australia Bank (1993) 35 NSWLR 110 and Mann v Carnell [1999] HCA 66; (1999) 168 ALR 86, par29. A party may waive privilege in relation to material by disclosing it in a manner that is inconsistent with the confidentiality which the privilege serves to protect. Depending upon the circumstances of the case, considerations of fairness may be relevant to a determination of whether conduct demonstrates such an inconsistency; Mann v Carnell (supra) at pars29 and 34. The law is not that every voluntary disclosure of privileged material to a third party necessarily waives privilege; Mann v Carnell (supra) at par30. In the course of preparing a matter for trial, it is common for parties to provide privileged documents to other parties with a common interest and to potential witnesses. Without more I am unable to conceive how, in the ordinary course, conduct such as this would be inconsistent with the preservation of the confidentiality of the material. The requisite inconsistency may be manifested when a party indicates an intention to rely upon evidence of a witness which is based upon privileged material provided to that witness. This, not infrequently, occurs when a party delivers an affidavit or proof of expert evidence of a witness. In that situation, the inconsistency between the party's conduct and the maintenance of a claim for privilege in relation to the material relied upon by the witness is compounded by the unfairness of allowing the party's witness to refer to that material whilst also allowing that party to shield the material from scrutinisation and testing by a claim of privilege. Jessup & Anor v Gorjup 139/1997 is a case where a claim for privilege was lost in these circumstances.

5 In this case, whilst Dr Sale referred to the second defendant's statement in the opening paragraph of his report, it appears from an examination of the report that the statement was not relied upon by Dr Sale for the purposes of the report. The report is expressed to be based upon what the plaintiff told Dr Sale and nothing said in the report suggests that any portion of it was based upon the second defendant's statement. This assessment is confirmed by the evidence of Dr Sale who says he did not rely on the second defendant's statement in forming his opinion or preparing the report and that his opinion was solely based on the history provided by the plaintiff and his behaviour during the interview.

6 As the defendants do not propose relying on any evidence from Dr Sale which is based on the privileged statement, their conduct is not inconsistent with the maintenance of a claim to privilege in relation to the statement. Nothing they have relevantly done with the statement has been or is likely to be unfair to the plaintiff. There are accordingly no grounds for implying that the defendants have waived privilege in relation to the statement. The plaintiff's application is dismissed.