Firns v Tzovaras

Chen v City Convenience Leasing Pty Limited [2005] NSWCA 297 Commonwealth of Australia v Northern Land Council (1991) 103 ALR 267 Idoport Pty Limited v National Bank (3) [1999] NSWSC 1026 CASES CITED : Jones v Monte Video Gasco (1880) 5 QBD 556 Lakatoi Universal Pty Limited v Walker (unreported, Rolfe J, 31 July 1998) Mulley v Manifold (1959) 103 CLR 341 Proctor & Gamble Australia Pty Limited v Medical Research Pty Limited [2001] NSWSC 183 Telstra Corporation Limited v BT Australasia Pty Limited (1998) 85 FCR 152

PARTIES : Charles Magnus Firns (Plaintiff) Ted Dorotheos Tzovaras (Defendant)

COUNSEL : C. Locke (Plaintiff) M. Dicker (Defendant)

SOLICITORS : Oliveri Attorneys (Plaintiff) Mallesons Stephen Jaques (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION PROFESSIONAL NEGLIGENCE LIST

20114/02 CHARLES MAGNUS FIRNS v TED DOROTHEOS TZOVARAS

JUDGMENT 1 HIS HONOUR: The defendant in this cause is seeking by way of notice of motion orders as to further discovery. That claim is resisted by the plaintiff. 2 Broadly, the proceedings between the parties are proceedings in which the plaintiff, Charles Magnus Wade Firns, sues the defendant, Ted Dorotheos Tzovaras, for professional negligence. The plaintiff is the youngest son of the late Ronald Douglas Firns (the deceased). In his amended statement of claim the plaintiff has pleaded that the deceased consulted the defendant "in or about November or December 1997" to advise him in respect of, and to revise his will, and to advise in relation to an appropriate ownership structure of assets which the deceased either owned or controlled. It is pleaded that the deceased owned a property at 6 Emmett Street, Crows Nest and that he had interests in various companies identified in para 6 of the amended statement of claim. 3 It is pleaded that the defendant prepared a Deed of Settlement between the deceased as settler and Cavavass Pty Limited as trustee dated 23 December 1997. The defendant also prepared the deceased's will dated 23 December 1997. The deceased died shortly after the will was executed. 4 In para 20 of the amended statement of claim the defendant's duty is expressed as being a duty to exercise reasonable skill and care: (a) to draft the deceased's will in a manner which effected the instructions of the deceased in relation to his intended bequests; (b) to draft the documentation for the establishment of the Cavavass Trust in a manner which effected the instructions of the deceased; (c) to draft and implement documentation to effect the transfer of the property held by the Jital Trust to the Cavavass Trust, including obtaining the consent of Tem Managers Ltd as trustee of the Jital Trust for those transfers; (d) to ascertain the assets and liabilities of the deceased and to ensure that adequate proof of title existed for those assets; (e) to ascertain the nature and extent of the property which would constitute the residue of the deceased's estate so as to ensure that the residue would be sufficient to cover the costs of administration of the estate and that the subject matter of the specific gift of the property at 6 Emmett Street, Crows Nest, would not have to be sold to meet those costs; (f) to advise the deceased that transfers of his assets otherwise than for full consideration within one year of his death would have the effect that the property purportedly transferred would be available as notional estate under the Family Provision Act 1982 (NSW)." 5 Breach of the duty is pleaded in para 21, and resulting loss and damage is pleaded in para 22. 6 To begin with, the plaintiff's claim against the defendant was as a beneficiary under the deceased's will, but in November 2004 the plaintiff was appointed administrator of the deceased's estate instead of Mr Lord and Mr Kerr, chartered accountants, who had earlier been appointed as joint administrators of the deceased's estate on 8 May 2000. In consequence of the plaintiff's appointment as administrator, the statement of claim was amended on 31 March 2005 to add his claim as administrator as against the defendant. 7 On 30 October 2002 an order for discovery was made directing the plaintiff to give discovery verified by affidavit of documents in various categories. There was substantial delay on the plaintiff's part but, eventually, on 5 August 2004, a verified list of documents was presented. Some time after the plaintiff's appointment as administrator a further list of documents was presented and duly verified as at 1 September 2005. 8 Yet a third list of documents was verified by the plaintiff on 7 December 2005 after consent orders were made on 9 November 2005 which, inter alia, required the plaintiff to serve "a further revised list of documents by 7 December 2005". 9 The obligation to discover is, of course, determinable by reference to the concept of relevance. A document is discoverable which is relevant to a fact in issue. Part 21 rule 21(2) of the Uniform Civil Procedure Rules provides that a document is relevant to a fact in issue "if it could, or contains material that could, rationally affect the assessment of the probability of the existence of that fact…regardless of whether the document or matter would be admissible in evidence." 10 A document may be considered relevant to a fact in issue "if it is reasonable to suppose that the document contains information which may - not which must - either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary": see Commonwealth of Australia v Northern Land Council (1991) 103 ALR 267 at 290 per Black CJ, Gummow and French JJ. 11 Facts in issue are to be determined by reference to the pleadings "because discovery is a procedure directed towards obtaining a proper examination and determination of these issues - not towards assisting a party upon a fishing expedition. Only a document which relates in some way to a matter in issue is discoverable but it is sufficient if it would, or would lead to a train of enquiry which would either advance a party's own case or damage that of his adversary": see Mulley v Manifold (1959) 103 CLR 341 per Menzies J at 345. 12 In the context of considering an application to set aside certain subpoenas in Lakatoi Universal Pty Limited v Walker (unreported, 31 July 1998), Rolfe J said, as to the notion of relevance (at p 11): "In determining the question of relevance, the court must bear in mind that the parties are entitled to build up an evidentiary mosaic. Generally, that cannot be done, particularly in complicated commercial litigation by the tender of one piece of evidence or the assertion that only limited material is relevant to the issues involved…the court should not be astute to find irrelevance at any early stage of the proceedings." 13 The above statement of approach was cited by Einstein J in Idoport Pty Limited v National Bank (3) [1999] NSWSC 1026 at 9 [36] as relevant on a discovery application, and I am mindful of what Rolfe J said in considering the present application. As I see it, the cause is one in which there are likely to be complicated factual issues as to causation and damages, and the Court should not at this stage be quick to find material irrelevant. 14 The current application represents a fourth attempt by the defendant to obtain discovery of documents. Each of the earlier lists has been verified on oath by the plaintiff, and the Court should ordinarily proceed on the basis that the plaintiff's affidavit is conclusive as to whether he has any further documents that are properly discoverable: see Jones v Monte Video Gasco (1880) 5 QBD 556 and Proctor & Gamble Australia Pty Limited v Medical Research Pty Limited [2001] NSWSC 183. In Proctor & Gamble Research Hunter J stated the position thus at pp 17-18 [64]-[66]: "64 I think the true rule in resolving a question of sufficiency of discovery is as follows: The affidavit verifying discovery is conclusive of the question unless it can be shown (i) by recourse to the documents discovered; (ii) from the content of the affidavit verifying discovery; (iii) from the pleadings, or "from any other source that constituted an admission of the existence of a discoverable document" that the discovery has been insufficient. Further, where the discovering party has misconceived the nature of the obligation of discovery it is not necessary to infer the existence of relevant documents other than those discovered (see M ulley v Manifold (1959) 103 CLR 341 at 343 and Falk v Finlay, Supreme Court of New South Wales, Austin J, 24 December 1999, unreported).

65 The rationale for Chancery's approach to contests over discovery was expressed by Bowen LJ in Lyell v Kennedy No 3 (1884) 27 Ch D 1 at 30 as follows: 'The true canon to be always borne in mind, is this: that you are appealing to the oath or conscience of the other side, and that you cease to appeal to his oath the moment you begin to contest his accuracy.' 66 It is on this basis that the Courts have been averse to cross examination on affidavits verifying discovery. See Fruehauf Finance v Zurich Australian Insurance Ltd (1990) 20 NSWLR 359 at 360 et seq. in which Giles J, as his Honour then was, extensively reviewed the authorities." 15 Of course, the circumstance that the plaintiff has acknowledged the need to provide three lists of documents, two of which have been since his appointment as administrator, evidences the insufficiencies of the first two lists, one of which was after his appointment as administrator. This is a matter to be weighed against the conclusiveness of the discovery thus far provided. Nevertheless, there exists a need for the defendant to establish why further discovery should be ordered. 16 Concerns about the sufficiency of the discovery provided were expressed in letters from the defendant's solicitors dated 22 February 2006 and 14 March 2006. 17 On 22 February 2006 the defendant's solicitors wrote: "We refer to the Short Minutes of Order dated 9 November 2005. We have received your client's further revised list of documents as required by paragraph 1 of the Short Minutes of Order. However, the list did not attach Index 1 or Index 2 in relation to the documents identified under Schedule 1 Part 1. Please provide us with a copy of Indexes 1 and 2 as a matter of urgency. Further, please confirm that your client's discovery now includes all of the following categories of documents required by the defendant and requested in our letter dated 8 November 2005. For the avoidance of doubt, the defendant requires confirmation that all of the following discovery has been provided by the plaintiff: 1. All documents relevant to the administration of the estate of the late Ronald Firns Snr. 2. All documents relating to the transfer, sale, ownership and/or value of the property at 6 Emmett Street, Crows Nest. 3. All documents relating to the following corporations: (a) Glass Slipper Racing Pty Ltd; (b) Ancient Earth Pty Ltd; (c) Pacific Ra Pty Ltd; and (d) Cavavass Pty Ltd. 4. The records of the administration, and in particular documents created by the previous administrators Messrs Lord and Kerr; and 5. All documents in relation to Cavavass Pty Ltd (of which the plaintiff is a director and shareholder) and the Cavavass Trust, including, but not limited to, documents prepared by the liquidator. On receipt of Index 1 and Index 2 of your client's further additional list of documents and the confirmation requested we will contact you to arrange a convenient time to inspect the documents…" 18 On 14 March 2006 the defendant's solicitors wrote: "We refer to our letter dated 22 February 2006 to which we have not received a response. Unless we receive a complete response from you by close of business on Friday 17 March 2006, we will apply to list this matter for directions at the first available opportunity. Your failure to respond is prejudicing our client's ability to properly progress its defence of this matter, consider the completeness of your client's discovery, prepare its evidence and comply with court orders. We attach a copy of our letter dated 22 February for your ease of reference…" 19 By letter dated 15 March 2006 the plaintiff's solicitors responded: "We refer to your letter of 22 February 2006 and 14 March 2006. We note that the plaintiff's Further Additional List of Documents was sent to you on 7 December 2006 and it was not until now that you inform us that you do not have a copy of the Index in relation to the documents referred to in Schedule 1 Part 1. We again enclose copy of the said Index to the Schedule. As to paragraph 3 of your letter 22 February 2006 we are instructed that our client has discovered all documents in his possession including the categories of documents in points 1 to 5…" 20 Mr Dicker submitted that the Court should be satisfied by reference to the documents that have been discovered that discovery thus far is inadequate. 21 When the plaintiff was appointed administrator of the deceased's estate, the accountants previously charged with the joint responsibility as administrators were called upon to hand over documents. That they did so is evidenced by a letter from those former administrators to the plaintiff's solicitors dated 15 December 2004 and by a letter from the former administrators to the plaintiff dated 22 December 2004 which identifies the material then transferred as consisting of a bundle of correspondence, some photographs, an affidavit and twenty folders: "(i) Bundle of correspondence plus 2 photographs. (ii) Affidavit of Donald Rae Wright including exhibits. (iii) Blue folder marked 'HESKIN' plus inclusions. (iv) Blue folder marked 'FAMILY MEMBERS' plus inclusions. (v) Blue folder marked 'CAVAVAS PTY LTD' plus inclusions. (vi) Blue folder marked 'RDF HOLDING' plus inclusions. (vii) Blue folder marked 'JITAL TRUST' plus inclusions. (viii) Blue folder marked 'CORRESPONDENCE' plus inclusions. (ix) Blue folder marked 'CORRESPONDENCE 3' plus inclusions; (x) Blue folder marked 'SANGRO' plus inclusions. (xi) Blue folder marked 'CREDITORS' plus inclusions. (xii) Blue folder marked 'EMMETT STREET' plus inclusions. (xiii) Blue folder marked 'MASTER FILE NO. 2' plus inclusions. (xiv) Blue folder marked 'CORRESPONDENCE 2' plus inclusions. (xv) Blue folder marked 'DOMINIC SUM' plus inclusions. (xvi) Blue folder marked 'RUMA NAMODIA' plus inclusions. (xvii) Blue folder marked 'ROMAR INVESTMENTS' plus inclusions. (xviii) Blue folder marked 'VANBROOK' plus inclusions. (xix) Blue folder marked 'CHASETOWN' plus inclusions. (xx) Blue folder marked 'ESTATE OF RONALD DOUGLAS FIRNS - MASTER FILE' plus inclusions. (xxi) Blue folder marked 'AJIT' plus inclusions. (xxii) Blue folder marked 'MAPMARKERS' plus inclusions." 22 The material discovered after 22 December 2004 was the material identified in the list provided on 1 September 2005, set out at pp 51-56 in the exhibit folder, and in the list of 7 December 2005, set out at pp 63-83 of the exhibit folder. 23 Mr Dicker submitted that having regard to the amount of material handed over by the administrators in December 2004, it is apparent that the lists of documents discovered since then are incomplete. The documents described in the list on 1 September 2005 do not appear to relate to material which the former administrators had and the list on 7 December 2005 does not convey that the documents tally with the descriptions of the items delivered to the plaintiff by the former administrators either. The twenty-two items which came into the plaintiff's possession in December 2004 are not comprehensively described in the letter dated 22 December 2004 (see [21] above) but, presumably, each of the twenty-two folders contain more than one document and various names are mentioned as identifying the various blue folders (see [9] above). Documents have been produced concerning "Mapmakers", "Cavavass", "Ajit Enterprise", "Ruma Namodia" and "RDF Holdings" but there is no reference in the scheduled documents to "Heskin", "Jital Trust", "Sangro", "Roma Investments", "Vanbrook", or "Chasetown". As I understand Mr Dicker's submission, one would have expected there to be documents itemised matching those identities. 24 The next matter relied upon by Mr Dicker is that there was a meeting of creditors of the plaintiff pursuant to Part X of the Bankruptcy Act on 4 August 2005. The plaintiff's solicitors presented a claim of $400,000 for legal services provided to the plaintiff up to 4 August 2005 (see p 16 of the exhibit folder). A memorandum of fees was tabled and in that memorandum there is a claim itemised of 455 hours in relation to the perusal of documents (see p 31 of the exhibit folder). According to the file note from Ms Cridland who attended the meeting of creditors, Mr Oliveri said that he spent 455 hours looking at documents because there were 10,000 documents to consider. The content of that note is disputed. In a letter dated 22 June 2006 (exhibit folder p 113), it was denied that Mr Oliveri asserted there were 10,000 documents to consider, and that assertion was attributed to the deceased's former de facto wife. 25 Neither Ms Cridland nor Mr Oliveri has presented an affidavit in relation to the present application, and I am unable to find for present purposes that there were 10,000 documents calling for inspection by Mr Oliveri at any time prior to the creditors' meeting or, indeed, when the various lists of documents were prepared and verified. That said, however, the fees item appearing at p 31 of the exhibit makes a claim for the provision of professional services which involved the perusal of documents occupying 455 hours, and it is a reasonable inference that a very substantial volume of documents must have required consideration to account for such a lengthy period of time being taken by the plaintiff's solicitor in perusal. Thus far, the documents discovered are approximately 465 in number (although I note it is stated at p 121 of the exhibit folder that the discovered documents number 650). 26 Mr Locke, in voicing the plaintiff's resistance to the orders sought in the notice of motion, submitted that it is of fundamental importance for the plaintiff to prove that the various categories of documents concerning which the defendant seeks discovery should be relevant having regard to the issues in the cause. Mr Locke submitted that in determining whether or not there was any breach of duty by the defendant what is relevant is what occurred before the death of the testator and not after his death. 27 Whilst in determining whether there was a breach of duty it would be relevant to look to events preceding the death of the deceased, the cause would give rise to issues on causation and damage which render relevant what happened after his death, including the steps taken by the administrators. If there was a breach of duty, what was the effect upon assets of the estate as identified? I accept Mr Dicker's submission that the issues that arise in this cause are such that it is relevant to consider what happened after the death of the deceased in considering the issue of causation and damages. 28 Mr Locke further submitted that further discovery should not be ordered because of the defendant's delay. That submission requires consideration of the course of the litigation to date, and in particular the pursuit by the defendant of the discovery process. Discovery was first ordered on 30 October 2002 and the first list of documents was not provided until 19 October 2004, some two years later. That delay is prima facie to be attributable to the plaintiff, not the defendant. The history in relation to the discovery process since October 2004 is to be gleaned from the content of the exhibit folder, and the exchange of correspondence between the solicitors for the parties. I do not propose to record all the correspondence exhaustively, but I do not consider that there has been delay on the defendant's part such as should prevent an order for further discovery now being made. 29 In para 1(a) of the notice of motion the defendant seeks documents relating to the administration of the estate of the deceased. I am satisfied these documents are prima facie relevant and, accordingly, that they comprise a proper subject for discovery on the issues that arise in this cause. Further, I am persuaded by Mr Dicker's arguments that the earlier response by the plaintiff directed to discovery is incomplete. 30 In deciding on the form of the order that should now be made, I am mindful that the plaintiff consented to an order that he serve a revised verified list of documents by 7 December 2005. The required content of that revised list was earlier expressed in the letter from the defendant's solicitors to the plaintiff's solicitors dated 8 November 2005: "We refer to tomorrow's directions hearing and attach proposed short minutes of order for the further progress of the proceedings. We have included the order in relation to discovery on the basis that your client's additional verified list of documents is inadequate as it does not include: (a) the records of the administration, and in particular documents created by the previous administrators Messrs Lord and Kerr; and (b) all documents in relation to Cavavass Pty Ltd (of which the plaintiff is a director and shareholder) and the Cavavass Trust, including, but not limited to, documents prepared by the liquidator. It has recently come to our attention that the Crows Nest property was sold to a company related to the plaintiff and that he in fact received hundreds of thousands of dollars from the sale of that property - see page 13 of the Controlling Trustee's Report to Creditors & Notice of Meeting dated 25 July 2005 and prepared by Ivor Worrell. For the avoidance of doubt, therefore, to the extent that the defendant has not previously expressly sought discovery of these documents, the defendant requires full and proper verified discovery of the following categories of documents: 1 All documents relevant to the administration of the estate of the late Ronald Firns Snr. 2 All documents relating to the transfer, sale, ownership and/or value of the property at 6 Emmett Street, Crows Nest. 3 All documents relating to the following corporations: (a) Glass Slipper Racing Pty Ltd; (b) Ancient Earth Pty Ltd; (c) Pacific Ra Pty Ltd; and (d) Cavavass Pty Ltd." 31 In the letter from the plaintiff's solicitor dated 15 March 2006 (set out in [19] above) there was no complaint about the relevance or the width of expression of the categories of documents referred to in the letter from the defendant's solicitors dated 22 February 2006. Rather, the plaintiff's response through his solicitors was that the necessary documents had been produced. 32 I consider that the Court should now order that the plaintiff give further discovery relating to the categories referred to in para 1(a), 1(c) and 1(d)(ii) of the notice of motion. Paragraph 1(c) overlaps with para 1(d), and in fashioning the terms of the order for discovery I will take this into account. 33 In para 1(b) the defendant seeks documents in the following category: "documents held by and legal advice given to the plaintiff by his legal advisers, listed in Annexure A to this notice of motion relating to assets of the Deceased and/or plaintiff's rights in relation to the Deceased's will dated 23 December 1997 and/or the plaintiff's rights in relation to the Cavavass Trust" 34 Annexure A identifies various firms and counsel from whom legal advice was obtained by the plaintiff in connection with the administration of his father's estate. 35 This is an issue which was addressed in letters passing between the solicitors for the defendant and the solicitors for the plaintiff. The correspondence is lengthy and I do not propose to record it here. It starts, relevantly, with a passage appearing in the letter from the defendant's solicitor to the plaintiff's solicitor dated 5 June 2006 (see in particular p 99 of the exhibit folder). There is then a letter from the defendant's solicitor to the plaintiff's solicitor dated 19 June 2006 (see p 2 of that letter at p 106 of the exhibit folder). There is then a response from the plaintiff's solicitor dated 22 June 2006 (see pp 113-114 of the exhibit folder), and, finally, there is the letter from the defendant's solicitor to the plaintiff's solicitor dated 12 July 2006, and in particular pp 118-120 as set out in the exhibit folder. 36 In short, this exchange of correspondence began with the solicitor for the defendant asserting, following a review of the affidavits served by the plaintiff, that it was apparent that the plaintiff had obtained legal advice in connection with the father's estate and sources of that advice were then identified by reference to the affidavits served. The complaint was made that some documents were served in relation to this advice, but it was evidence that there were other sources of advice in relation to which there was no discovery. Those missing sources were identified. Then, in the later letter of 19 June 2006 the failure to discover documents concerning advice was again asserted. When the plaintiff's solicitor responded on 22 June 2006 the failure to discover from the sources about which complaint had been made was sought to be explained. The final letter in the exchange, from the defendant's solicitor, effectively joined issue by asserting that the failure to discover from the sources under discussion was not satisfactorily explained because the documents were in the plaintiff's control or power. 37 It was submitted by Mr Dicker that privilege had been lost to the category of documents sought in para 1(b) of the notice of motion when regard is had to the nature of the issues that arise in this case. Mr Dicker submitted that there are issues in this cause as to the following matters:

(ii) whether alleged assets were really assets of the estate;

(iii) whether the alleged loss and damage was caused by the breaches alleged or was due to other causes, including reliance on other advice by the plaintiff and/or the former administrators;

(iv) whether the losses were caused by other factors;

(v) the substance of the advice that the plaintiff and the former administrators received and, after his appointment, the substance of the advice the plaintiff received in his capacity as administrator. 38 Mr Dicker submitted that because these issues arise in the proceedings, consent to the waiver of privilege is imputed. 39 Mr Locke joined issue on that submission essentially upon the basis that the documents which it is contended ought to be discovered are not relevant to the issues in this cause. I am persuaded by Mr Dicker's submissions that they are relevant. 40 Whilst s 118 of the Evidence Act acknowledges privilege in relation to communications there addressed, s 122(1) recognises privilege may be lost. Under s 122(1) evidence may be adduced where given with the consent of the party concerned. According to common law principles, considerations of fairness could result in privilege to documents being lost, and in Telstra Corporation Limited v BT Australasia Pty Limited (1998) 85 FCR 152 it was considered that s 122(1) should be considered to extend to consent which was imputed. Beaumont J dissented, but in their joint judgment Branson and Lehane JJ said (at 168): "The primary judge expressed the view that, while "consent" in s 122(1) might include implied as well as express consent, it would be straining language excessively to hold that it extended to a 'consent' imputed to a party on the basis of fairness. Presumably an implied consent, as envisaged by his Honour, is one that is found to be, on the evidence, real and voluntary though not express. In fact, however, the cases, not surprisingly, use the terms 'implied' and 'imputed' interchangeably (see, for example, Maurice at 488 per Mason and Brennan JJ, Goldberg at 95-96 per Deane, Dawson and Gaudron JJ and at 109 per Toohey J). Once it is accepted that consent for the purposes of the section extends beyond express consent, we think it should be taken to extend to imputed consent. In particular, if that were not so, a defendant ordinarily would no longer be able, where the plaintiff alleges that a transaction was procured by the defendant's undue influence, to lead evidence to the effect that the plaintiff had comprehensive legal advice, immediately before entering into the transaction as to its effect. We cannot believe that that was intended. It follows that, in such cases, the position has changed little, if at all, following the introduction of the Act…" 41 More recently in Chen v City Convenience Leasing Pty Limited [2005] NSWCA 297 Gzell J, with whom the other members of the court agreed, said at p 8: "32 In my view, the majority in Telstra were correct in concluding, at 168, that the Evidence Act 1995, s 122(1) is to be construed as reaching to cases in which the client or party concerned is deemed to have consented to the disclosure of otherwise privileged material in terms of the common law rule. 33 This approach has been adopted in a number of single judge decisions. In Wayne Lawrence Pty Ltd v Hunt [1999] NSWSC 1044, Hodgson CJ in Eq at [12] accepted that the decision of the majority in Telstra correctly interpreted and applied the Evidence Act 1995, s 122(1). In Garratt's Ltd v Thanga Thangathurai [2002] NSWSC 39, Bergin J concluded at [51] that consent for the purpose of the sub-section included conduct amounting to imputed or implied waiver. Those terms appear to be used interchangeably in the authorities. In Fort Dodge Australia Pty Ltd v Nature Vet Pty Ltd [2002] FCA 501 at [10], Hely J, while acknowledging that the issue before him in ancillary process was one of waiver of privilege at common law rather than by reference to s 122(1), observed that there was little difference between the issue as to whether a party had given its implied consent to the disclosure of the substance of evidence over which privilege was claimed as that term was used in the provision, or whether a party's conduct amounted to an imputed waiver at common law. His Honour cited Bergin J's judgment in Thanga . In BP Australia Pty Ltd v Nyran Pty Ltd [2002] FCA 1302, Nicholson J at [8] concluded that he must apply the common law of imputed waiver, but followed Telstra in saying that s 122(1) was to be understood in terms of the common law on that topic. Campbell J came to the same conclusion in United Rural Enterprises v Lopmand [2002] NSWSC 1142 at [12]. The decisions are discussed without dissent by Allsop J in DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499 at [102]-[111]. McDougall J came to the same conclusion in Singapore Airlines v Sydney Airports Corporation [2004] NSWSC 380 at [52], [56]. And see my judgment in Wyadra Pty Ltd v Mailler (No 2) [2005] NSWSC 88 at [6]. 34 It was submitted that decisions relating to ancillary process were of little assistance as they applied the common law principle and not that under the Evidence Act 1995, s 122(1). 35 A number of things can be said of that submission. First, it does not apply to New South Wales decisions on ancillary process since 1 October 1999 because the Supreme Court Rules 1970 imported the provisions of the Evidence Act 1995 into ancillary process. Secondly, as was established in Telstra and referred to in Fort Dodge there is little difference between the two because the common law principle of implied waiver is encompassed within consent for the purposes of s 122(1). Thirdly, United Rural Enterprises concerned an objection to evidence and did not involve ancillary process. 36 In my view the single judge decisions that have followed Telstra have conformed to it and, in particular, have accepted that the Evidence Act 1995, s 122(1) is to be construed as including implied waiver of client legal privilege within consent." 42 It seems then to be clear following Chen that whether the issue is to be approached by reference to common law principles or by reference to s 122(1) of the Evidence Act implied or imputed waiver is to be equated with consent. 43 Mr Dicker referred to the content of a number of documents which have been made available and which refer to advice given and/or the content of advice at various times, including the following: · Advice from Mr Beavan of counsel of 27 November 2000 · Letter from the plaintiff to Turner Freeman dated 14 December 2000 · Letter from Turner Freeman to counsel dated 7 September 2000 · Letter from Turner Freeman to the plaintiff dated 18 October 2000 · Letter from the plaintiff to the then administrator, Mr Lord, dated 22 November 2000 · Memorandum from the plaintiff dated 29 November 2000 · Letter from Tress Cocks Maddocks dated 8 October 2002 · Letter from Dawn Wade referring to advice given by Mr Priestley of Queen's Counsel dated 30 January 2003 · Bill of costs dated 9 February 2000 containing many references to the substance of advice given · Letter from Turner Freeman to Maurice Blackburn Cashman dated 8 December 2003 · Letter from the plaintiff to John Lord as the administrator dated 8 February 2001. 44 Mr Dicker submitted that the disclosure of advice given as evidenced in and by the above letters affords further support for the submission that consent to the waiver of privilege is to be imputed in this case. 45 I have concluded that this submission is correct and that the defendant is entitled to the order sought in para 1(b) of the notice of motion. 46 The defendant has sought an order that the plaintiff file an affidavit setting out the detail of the steps he has taken to locate and discover all the documents in his possession, custody or control such as are discoverable. It was submitted that an order in these terms, whilst unusual, is appropriate having regard to the history of this matter and having regard to the assertion made by the plaintiff's solicitors that they "are instructed" that all relevant documents have been discovered. I am persuaded by Mr Dicker's submissions that it is appropriate that there be a departure from the usual terms of the requirement for verification in the present case. 47 The defendant has been substantially successful on this application and costs should follow the event.

Formal orders 48 1. Order that by 4.00 pm on 25 September 2006 the plaintiff give verified discovery of documents falling within his possession, custody or control in the following categories: (a) documents relating to the administration of the estate of Ronald Firns Snr (the deceased), including but not limited to documents created by the previous administrators, Messrs Lord and Kerr; (b) documents held by and legal advice given to the plaintiff by his legal advisers listed in Annexure A to the notice of motion relating to assets of the deceased and/or the plaintiff's rights in relation to the deceased's will made on 23 December 1997 and/or the plaintiff's rights in relation to the Cavavass Trust; (c) all documents relating to the transfer, sale, ownership and/or value of the property at 6 Emmett Street, Crows Nest; (d) all documents relating to the following corporations: (i) Glass Slipper Racing Pty Limited;

(v) the Cavavass Trust; (e) all documents relevant to determining the present value of: (i) the assets of the deceased's estate;

(ii) the assets held on trust for: (a) the Jital Trust;

2. Order as sought in para 2 of the notice of motion.

3. The plaintiff is to pay the defendant's costs of the notice of motion. **********

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