Burrows v Council for the Law Society of New South Wales

Judgment

On 23 February 2018, I concluded that documents which the Law Society had produced to the Court in answer to a subpoena which Ms Burrows had served and to which it had objected her having access, were privileged: s 118 Evidence Act 1995 (NSW).
That was because I was satisfied by the evidence and an inspection of the documents, that they were confidential communications between Ms Foord, the Society's Director, Professional Standards and a lawyer, made for the dominant purpose of giving the Council of the Law Society legal advice about resolutions which it came to consider about the suspension of Ms Burrow's practicing certificate and appointment of a manager to her law practice. Those resolutions resulted in her initiating these proceedings and finally resolving part of them.
I also concluded that the Society's production of the documents to the Court in answer to the subpoena had resulted in a waiver of its rights under s 468 of the Legal Profession Uniform Law 2014 (NSW).
These are the reasons for those conclusions.

The documents were privileged under s118 of the Evidence Act

In her evidence Ms Foord revealed the circumstances in which the documents had been created.
Ms Foord was not required for cross-examination, but the case advanced for Ms Burrows was that in her position, undoubtedly she had particular duties to perform for the Law Society as its Director of Professional Standards. In those circumstances, it was possible that all that she had done for the Council in respect of the resolutions it had considered, fell within those duties, which involved administration and oversight of solicitors, rather than the provision of legal advice.
Accordingly, what Ms Foord had said in her affidavit could not be taken at face value. The documents had to be inspected, because that legal advice had not, in fact, been given could be apparent on the face of the documents themselves.
The Law Society had no objection to my inspection of the documents, although submitting that was not strictly required, given Ms Foord's unchallenged evidence.
I concluded that in the circumstances, they should be inspected.
Having inspected the documents I was satisfied that there was no question but that Ms Foord's evidence had to be accepted, with the result the conclusion that the documents were confidential communications between Ms Foord and the Council, made for the dominant purpose of giving it legal advice about the resolutions which it came to consider in relation to Ms Burrows.
In those circumstances, Ms Burrows was not entitled to have access to the documents, s 118 of the Evidence Act being engaged, as it was. And it was for these reasons, that Ms Burrows was refused access to the documents which had been produced to the Court.

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