However, as the coal company, in no longer prosecuting its claim for privilege in respect of the record of the interview with Mr MacLean seems to recognise, the privilege which formerly attached to that record of interview has been lost by reason of the facts:
(1) that the copy of that record of interview which was later provided to Mr MacLean was provided to him for his own purposes and was not made subject to any condition as to non-disclosure … ''
6 Mr Shand, of Queen's Counsel for Drabsch, objects that the document is a confidential document, being a witness statement, and that it does not lose its confidentiality by being handed to the witness: "in order to lose the privilege there must be a positive licence or permission given to … the prospective witness, to do what he likes with it." Perhaps another way of putting it is that the communication back to the witness of the document is parallel with his original undoubtedly confidential communication of the material to the solicitor, is therefore itself a confidential communication, and cannot be taken as an implied consent to further communication. Mr Shand spoke in terms of the common law concept of waiver. He sought to distinguish the Newcastle Wallsend case on the basis that there the witness's statement "was particularly provided to him for his own purposes." Mr Shand also sought to bring the matter within the "common interest" exception in sub s (5), but I found it difficult to understand the common interest he sought to rely on.
7 The first thing to be said is that any suggestion that these provisions of the Act should be construed by reference to the common law should be rejected, as it was rejected by the High Court in relation to the hearsay provisions of the Act in Papakosmas v The Queen [1999] HCA 37. The Act lays down a detailed regime as to privilege; those provisions should be applied according to their terms and their construction should not be governed by the pre existing common law principles. Secondly, I cannot see, on an examination of the report of the Newcastle Wallsend case that the facts were significantly different from this case. Nor can I see the basis for the assertion that the statement was in that case "particularly provided" to the witness for his own purposes. Thirdly, the appropriate questions to be asked, as they arise from the terms of the statute, are whether Drabsch knowingly and voluntarily disclosed to another person the substance of the evidence and whether that disclosure was made in the course of making a confidential communication, being a communication made in such circumstances that when it was made the person who made it or the person to whom it was made was under an express or implied obligation not to disclose its contents.
8 In my view, privilege does not attach to the McErlane statement because the communication from Drabsch's solicitor to McErlane of the statement was made knowingly and voluntarily and not in the course of making a confidential communication. The matter seems to me really to be on all fours with the decision of the Court of Appeal in the Newcastle Wallsend case. Furthermore, the decision of the Court of Appeal in Amalgamated Television Services Pty Ltd [1999] NSWCA 97 and particularly what was said by Giles JA at [27] - [29] seems to confirm that the delivery of the statement could not be characterised as a confidential communication. In any event, there being no evidence but that the statement was sent to McErlane without comment and with no restriction imposed on his use of it, it seems to me that the circumstances were not such as to impose an obligation of confidentiality on him. In my opinion, it was a statement made by him, it was given to him without comment, and there was nothing in the circumstances that precluded him from giving it to anyone else as his version of the facts if he chose. If I am correct in this, that concludes the matter.
9 Accordingly, I do not need to determine contention (b). However, I shall add that, in relation to the communication by Mr O'Dea to the underwriters' solicitors, the question that arises under the Act is whether the substance of the evidence has been disclosed with the express or implied consent of the client to another person. Mr Shand submitted that the confidentiality of the witness statement persisted when McErlane handed the statement to Mr O'Dea, "who has no authority at all to rob Mr Drabsch of his privilege," and was not authorised by Drabsch to convey the statement to the underwriters. However, it follows from what I have said above as to the lack of restriction placed on the use of the statement when sent to him and McErlane's freedom to use it as he chose that, when Mr O'Dea as his agent conveyed it to the underwriters, that was done with Drabsch's implied consent and would have destroyed privilege if it still existed.
10 In my view, sub s (5) would not in either case (a) or (b) of the communication of the McErlane statement prevent the operation of sub s (2) or (4). In the case of the disclosure to McErlane, there were at the time actual proceedings against Drabsch, but no actual or anticipated proceedings against McErlane; McErlane could not at that time be regarded as having a common interest with Drabsch in the proceedings against the latter. In the case of the communication to the underwriters, there was no proceeding (actual or anticipated) in which Drabsch had a common interest with them.
11 I have some doubts as to whether privilege, if it still existed, would have been given away by the matters relied on by Mr Marshall in contentions (c) and (d) of his submissions. However, it is not necessary for me to decide that.
12 In short, in my opinion, privilege has ceased to attach to the McErlane statement and s 119 of the Act does not prohibit it being put into evidence, and I so rule.
oOo