Bin Li v Changshun Wang & Jianrong Su

Supreme Court of NSW|2023-07-17|Before: Walton J

Solicitors: Lawside Lawyers (Plaintiff/Respondent) No appearance for the first defendant Luminous Legal (Second Defendant/Applicant) File Number(s): 2021/330140

JUDGMENT

By a Statement of Claim filed 14 November 2021 Bin Lin ("the plaintiff") commenced proceedings against Changshun Wang ("the first defendant") and Jianrong Su ("the second defendant").
The second defendant is the plaintiff's husband's sister. The first defendant is the second defendant's husband (collectively "the defendants").

Further Background

The second defendant relied upon the affidavit of her solicitor, Mu Hudson Lu, of 4 July 2023 and Fenglan Su dated 19 June 2023. The plaintiff relied on an affidavit of her solicitor, Li Feng, of 18 June 2023 and 26 June 2023. An affidavit of Mr Feng of 10 May 2023 was annexed to Mr Feng's affidavit of 18 June 2023 as annexure A.
Over the course of the proceedings the plaintiff retained four law firms as follows: 1. Legal Point Lawyers - from an unknown date to about 19 August 2021; 2. KWL Lawyers - from about August 2021 to about August or October 2022; 3. Lexsons Law Firm ("Lexsons") - from about August or October 2022 to about 31 January 2023; 4. Lawside Lawyers - the solicitors for the plaintiff.
In August or September 2021, there was correspondence between KWL Lawyers and Luminous Legal, solicitors who act for the second defendant, "relating to the daughter of the defendants and the loan".
Upon taking over from KWL lawyers, Lexsons entered into a costs agreement with the plaintiff. In the costs agreement, the scope of work is described as including, inter alia, "Prepared litigation documents… issue any legal letters in this regard against Zisu Wang…". In relation to professional fees, the costs agreement records that, at stage 1, the following: "Amend Statement of Claim, and ascertain the assets status of Zisu Wang prepare evidence…".
Mr Hudson Lu the solicitor on the record for the second defendant indicated that he was informed, at about the time Lexsons took over the matter, that they intended to amend the Statement of Claim to include Ms Wang in the proceedings. The plaintiff obtained at least one adjournment from this Court so she could amend the Statement of Claim.
Notwithstanding this, later in December 2022 the Court was advised by the plaintiff that the Statement of Claim was not going to be amended and orders were sought for the filing of defences.
After Mr Feng of Lawside Lawyers started to act for the plaintiff, he wrote to Mr Lu advising that the plaintiff did not intend to amend the Statement of Claim although reserved the right to do so if the circumstances required. The second defendant subsequently filed a defence.
However, in April 2023, the plaintiff provided to the defendants a proposed amendment to the Statement of Claim to include Ms Wang as a defendant. After being questioned by Mr Lu as to the basis for delay in bringing the amendment, on 10 May 2023 Mr Fang wrote to the solicitors for the second defendant and on the same day affirmed an affidavit; in which he made statements which form the basis for the second defendant's contention that access should be provided to the documents on the basis of an implied waiver of legal professional privilege.
The first statement, appearing in correspondence of 10 May 2023, was in the following terms: Our client instructed us that she had difficulties with instructing Lexsons Legal, and there were miscommunications between the solicitor with carriage of these proceedings from that firm for our client. Our client instructed us that she had instructed Lexsons Legal to add Zisu Wang as a defendant ("the letter").
The second statement appeared in a paragraph of an affidavit affirmed by Mr Feng on 10 May 2023, in support of the Amendment Motion. The paragraph was as follows: I am instructed [by] Mrs Li she had difficulties with instructing Lexons Legal and that she had miscommunications between herself and her solicitor with carriage of the matter at that firm. I am instructed by Mrs Li that she had instructed [Lexsons] Legal to consider adding Zisu Wang as a defendant in these proceedings but she does not know the reason why that did not occur ("the affidavit passage").
There was a further aspect of this factual background which was relied upon by the second defendant in support of its motion. This concerned a response given by the plaintiff to a Notice to Produce.
On 15 May 2023, the second defendant served a Notice to Produce on the plaintiff. At para [2] of the Notice to Produce, the second defendant sought the following: [a]ll documents including but not limited to emails, notes, letters, tax invoices, bills, cost narrations, file notes, text messages and WeChat messages, between you and [Lexsons] Legal aka [Lexsons] Law Fim (Lexons) evidencing or recording instructions to and advice received from Lexons in relation to the inclusion of Zisu Wang as a defendant into these proceedings between 1 August 2022 and 28 February 2023.
On 29 May 2023, Mr Feng responded to the Notice to Produce in a letter in which advised, apparently by reference to para [2] of the Notice to Produce, that "our client has no documents to produce as the conferences were conducted by WeChat Video/audio calls in October or November 2022". The second defendant correctly identified that the documents cast doubt upon the accuracy of that response.
The subpoena sought, inter alia, "all documents between any person in your firm and [the plaintiff] evidencing or recording any conversation, correspondences, view, instruction and advice in relation to the inclusion of Zisu Wang as a defendant" in the present proceedings.
Production in response to the subpoena was marked packet S 44 Subsequently, after the separation of the packet into non-privileged (S 5) and privileged documents (S 6) privilege was claimed by the plaintiff's solicitor over the entirety of packet S-6, supported by the affidavit of Mr Feng of 18 June 2023. An itemised list of the documents produced by Mr Feng reveal written communications including instruction given and advice provided relating to Ms Wang. A sub-set of the subpoenaed materials, namely, the documents are the subject of the Motion. The Court did not inspect the documents for the purposes of determining the Motion.

Submissions of the Parties

It was common ground that, subject to any waiver of privilege, the documents were privileged communications between the plaintiff and her former solicitors, Lexsons. It may be noted, in that respect, that the second defendant confirmed in oral submissions that it did not seek access to any contents of the documents, which did not directly concern whether or not Ms Wang was to be added as a defendant to the proceedings. The second defendant accepted that there should be a redaction of documents by the plaintiff to remove privileged components of the documents which did not concern Ms Wang being joined as a party to the proceedings. It was submitted that a procedure should be put in place whereby, subject to the Court's ruling on the Motion, the plaintiff would have the first opportunity of undertaking redactions to that effect.
The second defendant submitted, however, that the letter and the affidavit passage waived legal professional privilege.
The second defendant's submission in this respect is expressed in two parts: 1. The plaintiff had waived privilege because she squarely put in issue what instructions she gave her solicitor about the joinder of Ms Wang ("the first contention"); 2. There is an issue waiver such that the waiver also concerns communications from the plaintiff's solicitor to her on the same topic. Thus, it is contended that the waiver extends to not just to what the plaintiff said to her solicitor but what the solicitor, in turn, did with those instructions and why ("the second contention").
As to the second contention, the second defendant relied upon those aspects of the affidavit passage in which Mr Feng stated that there were "miscommunications between [the plaintiff] and her solicitor" as to the joinder of Ms Wang as a defendant and that, whilst the plaintiff had instructed Lexsons to "consider adding Ms Wang as a defendant" in the proceedings she did not "know the reasons why that did not occur", in order to contend that, in substance, the plaintiff's solicitor was communicating, on behalf of the plaintiff, that the plaintiff was putting in issue either the competency of Lexsons or that Lexsons had deliberately not acted in accordance with the instructions given to it.
The plaintiff contended that there was no waiver of privilege in the letter or affidavit passage by Mr Feng, or alternatively, if the Court were minded to find that privilege have been waived, the waiver of any privilege was "very limited in scope and would only pertain (at most) the underlining instructions given by Ms Li to Lexons Legal on the issue of joining [Ms Wang]".
Regarding the first contention, it was submitted that Mr Feng had only disclosed that Ms Li had instructed her solicitors to "consider adding [Ms Wang] as a defendant in the proceedings. Nothing else of substance was disclosed". The fact that the plaintiff had instructed her solicitors to amend the pleadings was a "very limited fact" and not one which, on its own, was confidential (reliance was placed, in this respect, upon ss 118 and 119 of the Evidence Act 1995 (NSW), a consideration to which I will return).
It was submitted that the second defendant already knew that information because her solicitor was given notice back in December 2022 that Lexsons and the plaintiff intended to amend the Statement of Claim. Reliance was also placed upon the fact that Mr Feng stated in his affidavit that he did not intend to waive privilege over any matters in his affidavit.
Thus, it was submitted that the fact that a law firm had been instructed to amend a pleading and that such an instruction was conveyed to a "counter-party", does not amount to a waiver preventing the other party to access copies of all documents identifying precisely what instructions have been given at that time.
As to the second contention, emphasis was placed by the plaintiff on the nature of relevant communications by Mr Feng, which, it was submitted were limited in scope and only pertained to instructions given by the plaintiff to Lexsons on the issue of joining Ms Wang.
It was submitted that the relevant communications fell into two discrete parts. In the first part, there were "instructions" to Lexsons, and, in the second there was "advice" from Lexsons. Even if there had been a waiver of the former, it was submitted that does not extend then to a waiver with respect to the latter: R v Kinghorn (No 4) [2019] NSWSC 1420 at [207]. It did not follow that the putting of Lexsons advice in issue creates waiver of privilege. The plaintiff never disclosed the substance of any advice given by Lexsons on that topic, so there could not be any waiver for the purposes of s 122 of the Evidence Act.

Waiver of Legal Professional Privilege: Principles

Legal professional privilege applied to the communications between the plaintiff and her former solicitors. The question raised in these proceedings is whether the privilege had been waived by the plaintiff.
Waiver is an intentional act done with knowledge whereby a person abandons a right or privilege. It may be express or implied: Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66 at [29] ("Mann"); Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; [2013] HCA 46 at [30] (per French CJ, Kiefel, Bell, Gageler and Keane JJ: "Expense Reduction Analysts"). In this case, the Court is concerned with an implied waiver arising from statements made by Mr Feng in the letter and the affidavit passage and in one respect an implied issue waiver (and as I will discuss below, Mr Feng expressly states that he did not intend to waive privilege).
In GR Capital Group Pty Ltd v Xinfeng Australia International Investment Pty Ltd [2020] NSWCA 266 at [52] - [54] ("GR Capital Group") Macfarlan JA (with whom McCallum JA and Simpson AJA agree) stated that the authoritative decisions of the High Court in Mann and Osland v Secretary, Department of Justice (2008) 234 CLR 275; [2008] HCA 37 categorically state that, at common law, the test to determine whether there has been a waiver of legal professional privilege by the privilege holders conduct is one of consistency between that conduct and the retention of the privilege. It was stated that there did not appear to be any difference between the applicable test under the common law and that under s 122 of the Evidence Act, which refers to the same type of inconsistency. Thus, it has been held that the principles articulated in relation to waiver at common law apply with equal force in relation to the statutory question posed by s 122(2) of the Evidence Act: Expense Reduction Analysts at [32]; Secure Logic Pty Limited v Pail William Noble [2019] NSWSC 991 at [18] (per Slattery J); Yang v New South Wales Land and Housing Corporation [2023] NSWSC 84 at [47] (per Ierace J) ("Yang")
In GR Capital Group the following principles were stated with respect to the question of waiver at [57]: 1) The test is one of inconsistency between the privilege holder's conduct and its maintenance of the privilege, not one of general fairness or of relevance to an issue in the proceedings. 2) Enquiring whether the privilege holder has made express or implied assertions about the contents of the confidential communications, and whether its conduct has therefore "laid open the communications to scrutiny", assists in ensuring that the court's focus is on inconsistency rather than simply relevance. If the privilege holder is understood to be asserting something about the contents of the communications, it is but a short step to conclude that it would be inconsistent for it to prevent those contents being scrutinised. 3) On the other hand mere relevance of the content of the privileged communications to an issue raised in the proceedings by the privilege holder does not equate to inconsistency - something more is needed. It is of the essence of legal professional privilege that, if maintainable, it entitles a party to withhold potentially relevant documents from inspection by the other party. 4) The determination of whether there has been an express or implied assertion about the contents of privileged communications giving rise to a relevant inconsistency is an evaluative decision to be made after consideration of the whole of the circumstances of the case. No hard and fast rules can be formulated. Those circumstances will include the degree of relevance of any advice to the issues in the proceedings, the centrality of the relevant issues in the proceedings and the likelihood of advice having been given, informed, as the High Court said in Mann v Carnell, by considerations of fairness. 5) Having considered all those circumstances, the court must decide whether it would be inconsistent with the privilege holder's conduct for it to maintain privilege. The line between relevance to an issue and inconsistency in this context may be very fine and therefore one on which views might well differ.
It was emphasised in GR Capital Group that decisions which predate Mann must be approached with caution. It was emphasised that, in particular, the proposition that relevance to a fact put in issue by the privilege holder is sufficient to give rise to a waiver was no longer correct.
The second defendant relied upon the judgment of the New South Wales Court of Appeal in Benecke v National Australia Bank (1993) 35 NSWLR 110 ("Benecke"). That decision predates Mann, but nonetheless is cited with approval by the High Court in Mann at [29]. It is, in some respects, instructive in the present context and bears some closer consideration.
The appellant in Benecke had a property in Mulgrave. She borrowed money from the respondent and her loan was secured by mortgages over those properties. She defaulted on her repayments and the respondent instituted proceedings against her seeking possession of the properties and judgment for the amount of the outstanding debt.
During the course of the proceedings, senior counsel appearing for the appellant sought an adjournment. When the matter resumed the Court was informed that the proceedings (including proceedings brought by the appellant when she sought to set off against her debt) had been compromised. The Court made a judgment giving effect to the settlement. Later the appellant instituted further proceedings based upon an allegation that the settlement was not authorised by her.
In the course of those further proceedings, the appellant, by her originating process and evidence given in support of a claim that the first proceedings had been settled without her consent gave an account of her discussions with senior counsel which was disputed by the respondent.
The appellant contended that it was not open to the other party to seek to contradict her by calling senior counsel to give evidence because communications between the appellant and her counsel were covered by legal professional privilege, that privilege belonged to the appellant, and she did not consent to senior counsel disclosing its terms (at p 111).
By reference to Grant v Downs (1976) 135 CLR 674; [1976] HCA 63 and Baker v Campbell (1983) 153 CLR 52; [1983] HCA 39, Gleeson CJ made reference to the nature and extent of legal professional privilege and public policy considerations attaching to it as follows (at p 111): The rule that prevents an unauthorised disclosure of confidential communications between a client and a legal adviser, when such communications are for the purpose of obtaining legal advice, or for use in existing or anticipated litigation, constitutes a restriction upon the capacity of courts to ascertain the truth in certain circumstances. That restriction, however, is regarded as acceptable on the ground that it promotes the public interest, and assists the administration of justice, by facilitating the representation of clients by legal advisers. It does this by encouraging uninhibited communication. Thus, in cases where the rule operates, one aspect of the public interest is preferred against another (discovering the truth).
Nonetheless, his Honour came to the view that it would be inconsistent with the reason for the existence of the privilege to permit it to operate in the manner for which the appellant had contended in those proceedings. His Honour expressed the reservation in this way (at p 111 - 112): But for her own actions, the privilege would have enabled the appellant to insist that nobody should be able to give evidence of the confidential communications between the appellant and her senior counsel about the settlement of the first proceedings, without the consent of the appellant. However, it did not enable the appellant to make public her version of those communications and, at the same time, to enforce silence on the part of others who disagreed with that version. The law permits the search for the truth in legal proceedings to yield, in certain circumstances, to the public interest in preserving the secrecy of communications between lawyer and client. In the present case, however, the appellant herself lifted the veil of secrecy by giving her version of the communications. Thereafter, there was no reason in principle why the pursuit of the truth should not take its course, or why the court should be inhibited in seeking to ascertain the true facts concerning those communications.
Gleeson CJ's observations came as short further reasons to those delivered by Clark JA, with which he agreed. The Chief Justice also agreed with the orders proposed by Clarke JA.
In Clark JA's judgement (with whom Sheller JA agreed) the following statement was made as to the relevant principles and the disposition of the matter as follows (at p 116 - 117): In her amended summons the appellant claimed that her case had been settled without her consent and added a contention that the lawyers on both sides were apparently acting in concert. In her affidavit in support, sworn on 23 October 1992, she unequivocally asserted that Ms Beazley had compromised the proceedings contrary to her express instructions that the matter proceed to trial. It is readily apparent, therefore, that if Ms Beazley had been unable to give evidence it would have been necessary for the judge to decide the case upon the uncontradicted evidence of the appellant. The injustice of such a situation needs no emphasis from me. However, the law did not require the judge to act in that way. The appellant, in making her assertions that her lawyers compromised the proceedings without her consent, opened up the question of the authority of the lawyers to act as they did and thereby waived her privilege. I take this to be clear as a matter of legal principle on grounds of basic fairness. Although it might have been thought that the position was so clear that there would be no authoritative decision which was helpful on the point there are in fact dicta to be found in the cases which demonstrate the fallacy of the argument. In [Thomason v Campbelltown Municipal Council] (1939) 39 SR (NSW) 347; 56 WN (NSW) 108, Jordan CJ said (at 358-359; 111): "… Hence, in effect, one of the issues in the case was what advice if any the plaintiff had received from her legal advisers as to her alternative legal rights. In these circumstances, since the fact and nature of the advice is an issue in the case, I am of opinion that privilege cannot be raised to prevent the proof of the advice. The position is analogous to that which arises in a suit in Equity to set aside a transaction on the ground of undue influence. In such a suit, it has always been the practice for the defendant to cross-examine the plaintiff with a view to proving that the plaintiff had competent legal advice when he entered into the transaction, and to call and examine the legal adviser if he is available." Again, in [Attorney-General for the Northern Territory v Maurice] (1986) 161 CLR 475, reference was made to the passage in [Wigmore], Evidence in Trials at Common Law (1961) vol 8, par 2327 at 636, to this effect: "… (W)hen his conduct touches a certain point of disclosure, fairness requires that his privilege shall cease whether he intended that result or not. He cannot be allowed, after disclosing as much as he pleases, to withhold the remainder." This principle of waiver has been applied in a number of cases in the United States in which an attorney had been charged by his client, either directly or indirectly, with fraud or other improper or unprofessional conduct: see [Popovitch v Kasperlik 70 Supp 376] (1947) at 381; [Wigmore] (1961) vol 8, par 2328, at 638. It follows that I am of the opinion that the appellant waived her legal professional privilege and there could be no objection to the evidence of Ms Beazley or the appellant's other legal representatives on the ground of privilege.
Before turning to the question posed by the parties as to whether the Evidence Act operated in the circumstances of this matter and, in particular, whether the provisions of s 118, 119, 122 and 131A applied, It is appropriate to consider the reliance placed by the plaintiff upon the statement made by Mr Feng in his affidavit of 10 May 2023 that he did not intend to waive privilege. In the present context, however, that consideration is irrelevant because it does not matter that the plaintiff, or her agent, her solicitor, might never have intended to waive privilege: Mann at [29]; Expense Reduction Analysts at [30] (see also In the matter of Jimmy's Recipe Pty Ltd [2020] NSWSC 516 at [8]). The relevant question is whether there is an inconsistency between the conduct of the plaintiff or her solicitor and the maintenance of the claim for privilege. Thus, as earlier mentioned, the question overall is whether the party has acted in a way that is inconsistent with the party objecting to the production of the document.
I turn briefly then to the question posed by the parties as to whether the common law or the Evidence Act applied in the determination of the issues raised by the Motion, and in particular, the question of waiver. The plaintiff contended that ss 118 and 119 of the Evidence Act applied and accordingly the issue of waiver was to be dealt with under s 122, in particular, the plaintiff submitted that the communications that were alleged to have waived privilege disclose nothing of substance such that, by virtue of s 122(3) of the Evidence Act, client legal privilege has not been waived.
Before turning to the broader question, I would observe that, even if s 122 of the Evidence Act operated upon the present controversy, it would not defeat the second defendant's contention as to the evidence of an implied waiver. This is because, for reasons developed below, if the communications in question, in fact, concerned evidence, the substance of the evidence was disclosed by the letter or the affidavit passage (see s 122(3)(b) of the Evidence Act).
The second defendant (applicant) submitted that the common law applies in the present case and that s 122 has no application to the present matter because s 131A of the Evidence Act does not extend to pre-trial document disclosure, as in this case, because "the person producing the documents is not the same as the person claiming the privilege" (Yang at [47]).
Strictly speaking, it is unnecessary to resolve the issue of whether s 122 applies because for all relevant purposes, as I have already found, s 122(2) replicates the common law. However, I will make some brief observations bearing upon the controversy.
There is substance in the proposition advanced by the second defendant that the common law, not s 122, applies in this case. This is for two reasons. First, s 131A of the Evidence Act provides the mechanism that extends the application of s 122 to the disclosure of documents at an interlocutory stage: The Presbyterian Church of Victoria Trusts Corporation v Anstee [2014] VSC 426 at [12] (per Sifris J) citing Expense Reduction Analysts at [32]).
Secondly, as per the judgment of Ierace J in Yang at [47], s 131A only applies where the person producing the document is also the person that claims privilege over the document (See also State of New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60 at [32], referred to by Stephen Odgers in Uniform Evidence Law (17th ed, 2022, Thomas Reuters) at page 1284. In Yang, the person producing the document was a doctor and the person claiming the privilege was the plaintiff. This is analogous to the present case as Lexsons, the former solicitor, is the person producing the documents and the plaintiff is the person claiming the privilege. The result is that when the person producing the document is not the person claiming privilege s 131A will not be engaged, and following this, s 122 will not extend to document disclosure at an interlocutory stage.
In the claim for privilege with respect to item 49, the plaintiff also relies upon s 131 of the Evidence Act. However, at common law the privilege only applies to admissions made in negotiations: Australian Competition and Consumer Commission v NSW Ports Operations Hold Co Pty Ltd [2020] FCA 1232 at [51] (per Wigney J). The document at item 49 is a communication between the respondent and her former solicitor and the common law "without prejudice privilege" does not attach to it. In any event, in my view, the exception in s 131(2)(c) and (g) apply in the present context. Section 131 does not apply to document at item 49.

Consideration

The plaintiff contended that the statements made by Mr Feng conveying the plaintiff's instructions to her former solicitors constituted a "very limited fact" which, "of its own", was not confidential (in fact, it had earlier been disclosed).
However, the letter and the affidavit passage squarely put in issue what instructions the plaintiff gave to her former solicitor about the joinder of Ms Wang.
That consideration needs to be examined in the context of issues raised by the second defendant in opposition to the Amendment Motion based upon an unexplained delay. The reliance by the plaintiff in the letter and affidavit passage upon instructions given to her solicitors which were not followed, in substance, engages directly with the proposition that there was an unexplained delay by the second defendant. As I will discuss below, those statements engage with the proposition that the second defendant seeks to advance on the Amendment Motion that there was a deliberate and informed decision not to join Ms Wang.
In those circumstances, there is a clear waiver as to legal professional privilege with respect to the instructions given by the plaintiff to Lexsons as to the joinder of Ms Wang to the proceedings.
However, the waiver of privilege is not confined, in my view, to communications from Ms Wang to her solicitor regarding the joinder. Rather, the waiver extends to communications from the plaintiff's solicitors to the plaintiff on that question.
The reference to "miscommunication" between the plaintiff and a former solicitor, and the plaintiff having no knowledge of the reason why a joinder did not occur in the affidavit passage, offers to the solicitor for the second defendant reasons why Ms Wang was not joined in the proceedings, notwithstanding the plaintiff's instructions to the contrary.
Accordingly, the plaintiff puts in issue, through her solicitor, not only what she instructed her solicitor to do, but what the solicitor did with those instructions and why.
Bringing to bear the approach discussed in authorities earlier referred to in this judgment, such as GR Capital Group, there is an inconsistency between the plaintiff's conduct and her maintenance of privilege over communications between the plaintiff and a former solicitor as to the possibility of a claim being made against Ms Wang.
The plaintiff, by her solicitor, has put in issue the advice given by her former solicitor, or at least the communications to her by her former solicitor, because the concept of "miscommunication" must necessarily refer to a communication of some kind occurring between the former solicitor and the plaintiff, as a client.
It is theoretically possible that the "miscommunication", refined to this context, may involve something other than the former solicitor's incompetence in not giving effect to his client's instructions or a failure to provide advice or a failure to follow the instructions.
However, the prospect that the reference to "miscommunication" in the letter or affidavit passage merely conveyed that there was a misunderstanding, that is, the solicitor did not understand the instructions given by the plaintiff, is somewhat remote. First, the "miscommunications" presumably do not apply to the instructions given by the plaintiff to her solicitors per se, as the description of the instructions to her former solicitor in the letter and the affidavit passage to join Ms Wang are expressed in clear and emphatic terms - "to consider adding [Ms Wang]". Secondly, there is evidence of a costs agreement between the plaintiff and her former solicitor and the discussion between the second defendant's solicitor and the plaintiff's former solicitor at about the same time, making clear that there was communicated to the former solicitor an intention to add Ms Wang as the defendant. I agree with the second defendant that what is left in the balance after this analysis is that the letter and the affidavit passage imply the former solicitors were acting incompetently or in deliberate defiance of instructions.
Returning to the issues raised by the second defendant on the Amendment Motion, if the plaintiff instructed her former solicitor to add Ms Wang as a defendant (or to consider doing so), and that step was not taken due to incompetence, then it could not be said she made a deliberate and informed decision not to join Ms Wang. This would stand in contradiction of one of the contentions raised against the Amendment Motion by the second defendant. The same may be said of a deliberate refusal to follow instructions. This illustrates how the letter, and the affidavit extract provided an explanation for the course of events leading to the Amendment Motion. Those implicit suggestions as to the conduct of the former solicitor constitute an implied issue waiver.
In the absence of access to communications from the former solicitor to the plaintiff regarding the joinder of Ms Wang, the second defendant is unable to test the plaintiff's contention that she gave instructions and that they were not obeyed through incompetence or maligned design. In this respect, the waiver issues in this matter are analogous to Benecke. The plaintiff expressed her version of the communications to her former solicitors in the letter and the affidavit passage, implicitly raising the matters discussed in these considerations, whilst at the same time seeking to prevent the second defendant from seeking to identify the truth of the communications.
The letter and the affidavit extract also refer to the plaintiff not knowing the reason why the former solicitors did not act on her instructions. That statement, when combined with the notion that there was a miscommunication, relevantly correlates with the contention of the second defendant on the Amendment Motion vis-a-vis mala fides. Where a party claims that the party is unaware of the position of the party's lawyer, and there is material suggesting that that party may have had legal advice on the subject matter, that advice is put in issue and there is an inconsistency between the conduct of the party and the maintenance of confidentiality over the advice. The same is true of communications.
The proposition advanced by the second defendant as to mala fides, could not be described as fanciful, having regard to the evidence of Fenglan Su. The assertion that the plaintiff had no knowledge of the basis of the former solicitor failing to act upon her instructions, opens the question for examination by the second defendant of the communications between her former solicitor and herself, including whether advice was given by the former solicitor not to join Ms Wang, and whether the advice was not accepted. The plaintiff has, therefore, in my view, directly put in issue what communications passed between her and her former solicitor including what the solicitors said to her on receipt of the instructions, what the former solicitor did with those instructions and why the solicitors so responded. In doing so the plaintiff has waived privilege.

Conclusion

In all the circumstances, I grant the orders sought in the first prayer for relief in the Motion, subject to inspection and access by the second defendant being confined to items 49, 93, 112, 113, 122, 132, 141-144, 183 and 184 as referred to in the Motion, and to the contents of those documents which concern communications between the plaintiff and her former solicitors, Lexsons, as to whether or not Ms Wang should be added as a defendant to the proceedings.
Access shall be first granted to the plaintiff with a view to the redaction of the specified documents which do not match that limitation. The redacted documents shall be provided to the second defendant by 12 noon, Thursday 20 July 2023.

Directions

The second defendant shall bring in Short Minutes of Order reflecting this judgment by no later than 4.30 pm, Wednesday 19 July 2023.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 July 2023

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