Barry v James Hardie

Barry v James Hardie - [2000] NSWCA 353 - NSWCA 2001 case summary — Zoe

JUDGMENT:

At this point in the trial a call has been made by Mr Parker for the second defendant, the contents of which are amply recorded in the transcript which precedes these reasons. In reply to that call MFI 2, MFI 3, MFI 4 and MFI 5 have been produced. If I may indicate generally the contents of those documents without disclosing their contents, MFI 2 is two documents relating to the plaintiff's communication with the Queensland solicitors he first retained as referred to in pars 284, 285 and 286, of his affidavit, PX5, Messrs Shine Roche McGowan. MFI 3 contains two documents, which it is sufficient to say embody the advice given to the plaintiff by his present solicitor, Mr Fowlie, which is referred to in par 288 of the affidavit. The first document in MFI 3 is what has been described by counsel conveniently as a "filleted" version of a letter from Mr Fowlie to plaintiff setting out only the advice given by Mr Fowlie without setting out, if I may so describe them, the assumptions upon which that advice was given, as well as certain other details relating on my reading of the document only to the retainer by the plaintiff of Messrs Slater and Gordon, his present solicitors. The second document in MFI 3 is the full letter from Mr Fowlie, a partner of Messrs Slater and Gordon, to the plaintiff to which I have just referred. MFI 4 consists of two documents. It is I think innocuous to say that the first document is headed "Authority to Release Information" and the second document is headed "Asbestos Litigation (NSW) Conditional Costs Agreement." MFI 5 is a handwritten file note apparently written by Mr Fowlie containing certain information given by the plaintiff to Mr Fowlie on the date the document bears, which is additional to the material provided by the plaintiff to Messrs Shine Roche McGowan contained in MFI 2.
The context in which Mr Parker's call was made is that in paras 286 to 289 of his affidavit the plaintiff makes a number of assertions, in relation firstly to contacting Messrs Shine Roche McGowan and being interviewed by them, and then in relation to receiving certain paperwork from his present solicitors, Messrs Slater and Gordon, and then to receiving advice from them. Not surprisingly the second defendant would like to examine the plaintiff's original instructions to Messrs Shine Roche McGowan, as well as the "paperwork" referred to in par 287 of the plaintiff's affidavit as having been said to him by Messrs Slater and Gordon, as well as of course the complete advice given by Mr Fowlie to the plaintiff as referred to in paras 288 and 289 of his affidavit. Importantly, says Mr Parker, the plaintiff asserts in par 289 of his affidavit that until after he spoke to Mr Fowlie, as it is put in the affidavit, the plaintiff did not appreciate either that exposure to asbestos dust and fibre was a likely cause of his lung cancer, or that the manufacturers and suppliers of the asbestos cement products he came across during his working life had any legal obligation to him, or that at the time he came into contact with the products of those manufacturers they, the present defendants, knew that exposure to asbestos dust and fibre was capable of causing permanent injury to his lungs, including injury or damage associated with the development of lung cancer, or that there were steps which the present defendants could have taken from the time he first came across their products to reduce the risk of injury or the chance of his developing lung cancer, or that he had reasonable prospects of getting some compensation for his lung cancer.
These assertions are made, of course, in the context of s 32 of the Limitation of Actions Act 1974 (Qld) which seems to have been recognised in the decision of the Court of Appeal on a cross-vesting question which arose earlier in this case to apply to the present plaintiff (see Mason P. at par [37] in James Hardie & Coy Pty Ltd & Anor v Barry [2000] NSWCA 353). In the event presumably of his being required to establish the elements of s 32(2), the plaintiff makes the assertions to which I have just referred in relation to his lack of knowledge of certain matters until he saw Mr Fowlie and received his advice. Consequently, says Mr Parker, the second defendant would like to cross-examine the plaintiff on all of the documents which have been produced in response to his call which are contained in MFIs 2, 3,4 and 5.
Initially the basis of Mr Parker's submission was that at common law the plaintiff had waived legal professional privilege in relation to all of those documents because, he said, although they were unquestionably documents brought into existence for the sole purpose of obtaining legal advice, the reference to them in the assertions in the plaintiff's affidavit to which I have just referred meant that they were at least partly disclosed, and that as a matter of fairness it was not possible for the opposing party, in this case the second defendant, or ultimately this Tribunal to understand the nature of the communication received from Mr Fowlie by the plaintiff as referred to in his affidavit without access being granted to, and presumably if appropriate evidence being given of, communications by the plaintiff to Mr Fowlie upon the basis of which Mr Fowlie gave his advice.
Mr Parker supported his assertion that the common law alone was relevant by reference to what was said by the High Court in Mann v Carnell (1999) 74 ALJR 378 at 384, particularly at par [27]. However, Ms Katzmann for the plaintiff took me to Pt 23 r 1 of the Supreme Court Rules where "privileged document" is defined relevantly in subparagraph (i) as being "a document of which evidence could not be adduced in the proceedings on the objection of any person, by virtue of the operation of Pt 3.10 Div 1 of the Evidence Act", and took me also to Pt 23 r 2(1) where the exception "other than a privileged document" occurs in brackets in relation to the obligation to produce documents for inspection, and took me also to Pt 36 r 13 of the Rules, in particular subrule (2) where it is said that the Court shall not compel, and r 16 shall not require, production of a document relevantly where evidence of it could not be called over objection of the person producing the document by virtue of the operation of Pt 3.10 Div 1 of the Evidence Act, and to r 16 of Pt 36 relating to production of documents on notice, which is specifically stated to be subject to r 13, to which I have just referred.
Mr Parker then conceded in reply that the matter was indeed determined by the contents of Pt 3.10 of the Evidence Act 1995 which of course contains ss 118 and 122. S 118 of course relates to the adducing of evidence, and provides that if on objection by a client a court finds that adducing evidence would result in disclosure of a confidential communication made between the client and a lawyer or the contents of a confidential document, whether delivered or not, prepared by the client or a lawyer (relevantly to the present case) for the dominant purpose of the lawyer providing legal advice to the client, such evidence may not be adduced.
S 122(2) is relied upon by Mr Parker as an exception to s 118, and relevantly he relies upon pars 286 to 289 of the plaintiff's affidavit to assert that the plaintiff has knowingly and voluntarily disclosed to another person, in this case this Tribunal and the other parties appearing before it, the "substance of the evidence" meaning, he says, in this case the substance both of the communications by the plaintiff to Mr Fowlie and Mr Fowlie's communications to the plaintiff. Thus, he says, s 118 does not prevent the adducing of evidence of such communications and therefore, because of the operation of the Supreme Court Rules to which I have just referred, does not prevent their being compellable on a Notice to Produce or rather, to characterise it correctly, a call on documents as if on subpoena, as strictly was undertaken in the present case.
Mr Parker takes me to a number of decisions but the principal one upon which he relies is Telstra Corportion Limited v BT Australasia Pty Limited (1998) 85 FCR 152. In particular he refers to what was said by Branson and Lehane JJ, who were in the majority in that case, at 168 where they made clear that the operation of s 122 must be understood in the context of the common law existing at the time of its enactment. In particular Mr Parker asserts that this is a "state of mind" case of the type referred to by Branson and Lehane JJ at 167 in Telstra, and that in those circumstances as a matter of fairness it is not possible for the second defendant and ultimately the Tribunal to understand that the nature of communication made by Mr Fowlie to the plaintiff which he refers to in his affidavit without access to the documents available to Mr Fowlie at the time the advice was given.
Ms Katzmann resists that call on the basis that within s 122(2) the plaintiff has not disclosed in paras 286 to 289 of his affidavit the "substance" of MFI 2, his original instructions to Shine Roche McGowan, nor page 1 of the letter of advice from Mr Fowlie to himself which is part of MFI 3 nor the retainer arrangements referred to at page 3 onwards of that same letter of advice, part of MFI 3, as well as in MFI 4, the Authority to Release Information and the Fee Agreement to which I have already referred, nor, says Ms Katzmann, has the plaintiff disclosed the "substance", within s 122(1), of MFI 5, the file note recording additional oral instructions given by the plaintiff to Mr Fowlie following his original instructions to Shine Roche McGowan in MFI 2.
It is conventient to record at this stage pars 286 to 289 of the plaintiff's affidavit, for Ms Katzmann refers me to them in detail. They read: 286. Shortly after I contacted Shine Roche McGowan, a solicitor visited me at my home and he interviewed me. Shine Roche McGowan then referred me to Ken Fowlie at Slater and Gordon in Sydney towards the end of 1989. 287. Mr Fowlie advised me that my case was worth investigating with a view to commencing proceedings against the manufacturers of asbestos cement building products I have encountered during my working life. Slater and Gordon sent me some paperwork to complete to enable Slater and Gordon to investigate my case and then provide me with more advice. 288. Subsequently, Mr Fowlie contacted me. Mr Fowlie told me that, subject to obtaining medical and scientific confirmation, there was a significant likelihood that that exposure to asbestos dust and fibre was a cause of my lung cancer. Mr Fowlie also told me that I had reasonable prospects of success in proceedings for damages against the manufacturers of the asbestos cement products I came across during the course of my working life. 289. Until after I spoke with Mr Fowlie I did not appreciate that: (a) exposure to asbestos dust and fibre was a likely cause of the development of my lung cancer; (b) the manufacturers and suppliers of the asbestos cement products I came across during my working life had any legal obligations to me; (c) at the time I came into contact with their products the defendants knew that exposure to asbestos dust and fibre was capable of causing permanent injury to my lungs, including injury or damage associated with the development of lung cancer; (d) there were steps which the defendants could have taken from the time I first came across their products to reduce the risk of injury, to reduce the chance of me developing lung cancer; (e) I had reasonable prospects of getting some compensation for my lung cancer.
Ms Katzmann asserts that in none of those paragraphs has the plaintiff disclosed the "substance", within s 122(2), of his instructions to Shine Roche McGowan or to Mr Fowlie or of the retainer arrangements made between himself and Mr Fowlie. Ms Katzmann asserts that the only matter the "substance" of which the plaintiff has disclosed is Mr Fowlie's advice to him, and in recognition of that she produces the "filleted" letter which is the first document in MFI 3 and which she contends is the only document to which the second defendant is entitled in response to its call.
In support of the proposition that documents may be divided in the fashion in which the "filleted" letter has been divided, she takes me to chapter 3 of Cross on Evidence (Australian Edition) (loose leaf) at paragraph [47,270] on page 47,325 where the learned authors say that it may be possible to divide an opinion into a series of confidential communications, some of which have been disclosed and some of which have not, for the purposes of s 122(2). The learned authors cite Amplex Limited v Perpetual Trustee Company (Canberra) Limited (1996) 40 NSWLR 12 at 18 per Rolfe J for that proposition. With great respect that must be so, but that does not end the matter.
As to MFI 3, it seems to me that the first page of the document headed "Your Instructions" is necessary in order to understand what is meant by the words "based on your current instructions" which under the heading "Compensation Options" commence the "filleted" section of the letter produced voluntarily by the plaintiff as part of MFI 3. How, one asks rhetorically, is it possible to understand the advice given by Mr Fowlie to the plaintiff on his "instructions" in that letter without reading the first page of the letter which sets out what the "instructions" referred to in the advice were? With great respect to Ms Katzmann's learned argument I am of the view that page 1 of Mr Fowlie's letter to the plaintiff, part of MFI 3, falls properly within Mr Parker's call and it should be the subject of access pursuant to it.
Different principles however apply to the final part of that letter which is not disclosed in the "filleted" letter, part of MFI 3. This section which immediately follows the paragraph headed "Time limits for bringing a claim for damages" which is disclosed in the "filleted" letter begins with the heading "Retaining Slater and Gordon". I have carefully read the remainder of the letter following that heading and the subsequent headings in it, and they relate in my view purely and simply to the rights and obligations of the plaintiff vis a vis his solicitors, Messrs Slater and Gordon, and vice versa. They do not relate in any way to the matters referred to in the plaintiff's affidavit at pars 286 to 289 relied upon by Mr Parker. I must emphasise in passing that Mr Parker does not rely on any other section of the plaintiff's affidavit in support of his call. I do not consider therefore that Mr Parker's client is entitled to the remainder of Mr Fowlie's letter to the plaintiff, part of MFI 3 starting with the heading "Retaining Slater and Gordon" and extending to the end of the document.
It follows from what I have said that I do not think Mr Parker's client is entitled on its call to access to MFI 4, the authority to release information and the fee agreement to which I have referred, because the same principles apply to those documents, namely that they relate purely and simply to the plaintiff's rights and obligations vis a vis his present solicitors and vice versa and not to the issues raised in paragraphs 286 to 289 of the plaintiff's affidavit. I have read them carefully and I am satisfied that this is the case.
This brings me to MFI 2 and MFI 5. MFI 2 is the plaintiff's original instructions in the form of a form filled out by himself and a statement given by him to Messrs Shine Roche McGowan, and MFI 5 is a file note apparently taken by Mr Fowlie setting out additions and amendments to the original statement, MFI 3. When one asks oneself the question rhetorically whether the plaintiff has disclosed the "substance" of MFI 2 and MFI 5 in pars 286 to 289 of his affidavit, one arrives at the conclusion that he has not. Par 286 which I have quoted simply refers to the fact of the plaintiff being interviewed by Shine Roche McGowan and then being referred to Mr Fowlie of Slater and Gordon. Par 287 refers to advice given by Mr Fowlie to the plaintiff and the handing to him of some paperwork. Par 288 refers to further advice given by Mr Fowlie to the plaintiff and par 289 refers to an absence of various forms of knowledge until the plaintiff had spoken to Mr Fowlie. Of course the second defendant would like to know what the plaintiff told Shine Roche McGowan in order to ascertain whether prima facie what the plaintiff says in paragraph 289 is true, and one inevitably has considerable sympathy with that point of view. However, when one sees that the matter is governed by s 122(2), as Mr Parker ultimately recognised, as a result of the operation of the Supreme Court Rules, by which I am of course bound in this Tribunal, it becomes apparent that applying s 122(2), upon which Mr Parker ultimately solely relies, the second defendant is not entitled to MFI 2 and MFI 5.
I am fully mindful of what was said by the majority in the Telstra case, and I understand that waiver within the meaning of s 122(2) may be implied as well as express, and that the words "knowingly and voluntarily" in the subsection refer to the disclosure, not to the waiver said to be implied from the disclosure referred to in the subsection, as indeed the majority in the Telstra case say at 168. However, that qualification does not remove the requirement in 122(2) that the "substance of the evidence" be disclosed. In this case the "evidence" is the contents of MFI's 2 and 5, and I am not satisfied on the text of his affidavit that the plaintiff has in fact disclosed the "substance" of MFI 2 or MFI 5.
It would be different, for example, if the plaintiff in his affidavit used such words as "I told Mr Fowlie" or "I told Shine Roche McGowan" followed by what I might, adopting counsel's term, call a "filleted" version of his instructions to those persons. This the plaintiff did not do. Had he done so, the exception in s 122(2) would have applied to MFI 2 and MFI 5. As he did not, the exception does not apply and I therefore refuse the second defendant access to MFI 2 and MFI 5.
In case it is not already clear from what I have earlier said, I do not consider that the second defendant is entitled, either by the direct route of disclosure of the "substance" of MFI 2 or MFI 5 in his affidavit within s 122(2) or by the indirect route of s 126 of the Evidence Act, to access to MFI 2 or MFI 5. S 126 of course reads: If, because of the application of s 121, 122, 123, 124 or 125, this Division does not prevent the adducing of evidence of a communication or the contents of a document, those sections do not prevent the adducing of evidence of another communication or document if it is reasonably necessary to enable a proper understanding of the communication or document.
Mr Parker, as I understand it, asserts that within this section MFI 2 and MFI 5 are "reasonably necessary to enable a proper understanding" of the portions of MFI 3 to which I have allowed access. Put shortly, he asks rhetorically how can his client and ultimately this Tribunal understand the advice given by Mr Fowlie if access is not granted to the instructions in the form of the statements and forms in MFI 2 and MFI 5 which were before Mr Fowlie when he gave the advice. The answer to that submission, I think, is that the opening section of the full letter in MFI 3 on page 1 headed "Your Instructions" makes clear the instructions upon which Mr Fowlie was giving his advice.
True it is that this section of Mr Fowlie's letter to the plaintiff is in summary form, but it refers to the salient sections of MFI 2 and MFI 5 which Mr Fowlie considered necessary to set out in order for the plaintiff to be able to understand the advice he was giving. I have already said that I consider that the second defendant is also entitled to this section of the letter so it too can understand the advice the plaintiff was given, but I consider that this section of the letter also provides sufficient information to the second defendant to enable it too within s 126 to have a proper understanding of the advice given by Mr Fowlie to the plaintiff.
Therefore I do not consider that s 126 provides a further route for the second defendant to obtain access to MFI2 or MFI5.
I am now informed by counsel for both the second defendant and the plaintiff that there are no further matters with which they would have me deal and with which I have not already dealt in the course of these reasons. Ms A Katzmann with Mr M P Cahill instructed by Slater & Gordon appeared for the plaintiff Mr J H L Forrest with Mr D E Graham instructed by Allen Allen & Hemsley appeared for 1st defendant Mr T G R Parker instructed by Toomey Pegg & Drevikovsky appeared for 2nd defendant

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