Goldberg v Ng

[29]

All documents including (but without limiting the generality of the foregoing) correspondence, files, file notes, minutes and records of conversations or proceedings relating to the complaint to the Society by Bernard Ng regarding Harold John Goldberg, Solicitor, and concerning the accounting by Mr Goldberg to Mr Ng for moneys paid to him or his agent by Mr Ng in or about February 1989. On 8 May 1991, the Law Society filed a notice of motion seeking an order that the subpoena be set aside. The notice of motion came before the Registrar in Equity who declined to grant the relief sought. A further notice of motion filed by the Law Society for review of the decision of the Registrar was heard and dismissed by a Master in Equity. A notice of appeal from the decision of the Master was filed by the Law Society. It came on for hearing before Powell J. The Law Society submitted that the subpoena was tantamount to the seeking of discovery from a stranger to the litigation and that, in any event, the Society was entitled to resist the subpoena on the ground of "public interest immunity". Powell J rejected both submissions and dismissed the appeal. The subpoena was then answered and the Law Society produced to the court four bundles of documents. The relevant documents for present purposes are those which were contained in what was described as Bundle A and which included two statements prepared by Mr Goldberg together with some annexed documents including "a draft brief" [2] . The circumstances in which those statements were prepared by Mr Goldberg and provided to the Law Society will be subsequently explained. Access to the relevant documents was withheld from the Ngs pending the outcome of other proceedings and any appeal. 1. It is not clear whether Bundle A included any other documents such as a record of oral interviews between Mr Goldberg and an officer of the Law Society. The appeal has been argued on the basis that it did not and it is convenient to proceed on that basis.

[48]

Deane J wrote [15] : Waiver of legal professional privilege by imputation or implication of law is based on notions of fairness. It occurs in circumstances where a person has used privileged material in such a way that it would be unfair for him to assert that legal professional privilege rendered him immune from procedures pursuant to which he would otherwise be compellable to produce or allow access to the material which he has elected to use to his own advantage. Thus, ordinary notions of fairness require that an assertion of the effect of privileged material or disclosure of part of its contents in the course of proceedings before a court or quasi-judicial tribunal be treated as a waiver of any right to resist scrutiny of the propriety of the use he has made of the material by reliance upon legal professional privilege. Dawson J wrote [16] : it is clear enough that an implied waiver may be required by fairness notwithstanding that it was not intended. It would not be fair to allow privilege to be waived with respect to a portion of a document or a conversation without requiring disclosure of the rest of it, at least if the document or conversation dealt with the one subject matter: see Burnell v British Transport Commission [17] and Great Atlantic Insurance Co v Home Insurance Co [18] . So much may be obvious, but legal professional privilege is concerned with protecting the confidentiality of a relationship and if that confidentiality is abandoned by a particular disclosure it may be necessary in fairness, whether further disclosure was intended or not, to require disclosure extending beyond the particular communication [19] . The cases are not entirely consistent and perhaps what is fair by way of disclosure must ultimately depend upon the relevant circumstances. 1. (1986) 161 CLR 475. 2. Maurice (1986) 161 CLR 475 at 481. 3. Maurice (1986) 161 CLR 475 at 487-488. 4. Wigmore, Evidence in Trials at Common Law (1961), vol 8, par 2327, p 636. 5. [1981] 1 WLR 529; [1981] 2 All ER 485. 6. Maurice (1986) 161 CLR 475 at 492-493. 7. Maurice (1986) 161 CLR 475 at 497-498. 8. [1956] 1 QB 187. 9. [1981] 1 WLR 529 at 536; [1981] 2 All ER 485 at 490. 10. See Wigmore on Evidence (McNaughton rev 1961), vol 8, par 2327.

[58]

In the Court of Appeal, both Mahoney JA and Clarke JA concluded that the effect of the delivery of the relevant documents to the Law Society was that it would be unfair to permit reliance by Mr Goldberg upon legal professional privilege to prevent those documents being made available for inspection by the Ngs. Their Honours approached the question of fairness on the basis that, notwithstanding that it was at the request of Ms Shirvington, Mr Goldberg's provision of the documents to the Law Society had been voluntary. In that, they were fully justified. It is true that the Law Society possessed powers of compulsion [20] . It is also true that a failure by a solicitor to respond adequately to a complaint of professional misconduct might, in some circumstances, be seen by the Law Society as itself constituting such misconduct. The Law Society's powers of compulsion were not, however, invoked in the present case. Nor is there anything to suggest an express or implied threat by the Law Society or by anyone on its behalf that its powers of compulsion would be invoked or that Mr Goldberg would be seen as guilty of professional misconduct if he declined to produce to the Law Society the privileged statements prepared for his own solicitor in relation to his dispute with the Ngs. Certainly, Mr Goldberg did not allege in his affidavit or oral evidence that he had handed over the statements in response to such a real or imagined threat. To the contrary, the plain inference from the evidence is that Mr Goldberg's provision of the two statements to the Law Society was voluntary and for the calculated purpose of demonstrating the reliability of his denial of Mr Ng's allegation of a failure to account. Thus, in the account of the first meeting between himself and Ms Shirvington which is set out in his affidavit, Mr Goldberg swore that he had informed Ms Shirvington that he was "prepared to give" the first statement to her "as I wish to be full and frank - I have nothing to hide". The same inference is at least as plain in the case of the second statement which presumably was expressly directed to Mr Ng's allegations. That second statement was prepared and delivered to the Law Society after the provision of the first statement with a comment by Mr Goldberg to the effect that he was "prepared" to provide it to the Law Society "on the same basis as the previous one".

Goldberg v Ng - [1995] HCA 39 - HCA 1995 case summary — Zoe

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Judgment (172 paragraphs)

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Cases Cited (17)