Hamilton v State of New South Wales

Solicitors: Hoffman & Koops (Plaintiff/Appellant) Crown Solicitor's Office (DPP) File Number(s): 2013/55881 Publication restriction: Nil

Judgment

1. This is an appeal pursuant to Uniform Civil Procedure Rule ("UCPR") r 49.4 from a judgment of Harrison AsJ upholding the Director of Public Prosecution's ("DPP's") claim for client legal privilege over documents that were the subject of a subpoena issued by the plaintiff ("the subpoenaed documents"), Janice Hamilton (Hamilton v State of New South Wales [2015] NSWSC 1430; "Hamilton").
2. An appeal from an Associate Judge to a single Judge of this Court is governed by the same principles as those which govern an appeal from a single Judge to the Court of Appeal. [1] It follows that before she can succeed, Ms Hamilton must establish an appellable error of law or fact in her Honour's judgment. [2]
3. In the substantive proceedings, Ms Hamilton is suing the State of New South Wales ("the State"). Ms Hamilton asserts that the State is liable for the alleged misfeasance in public office of four police officers who investigated and charged her late de facto spouse, Ken Dyers, with sexual offences against children. The subpoenaed documents that she sought access to related to discussions between solicitors acting on behalf of the DPP and police concerning the prosecution of the charges against Mr Dyers.
4. For the reasons that follow, Ms Hamilton's appeal must be dismissed. In summary, Ms Hamilton has failed to establish any error on the part of Harrison AsJ in finding that the DPP had demonstrated that client legal privilege attached to the subpoenaed documents. Ms Hamilton did establish an error on the part of Harrison AsJ in finding that the DPP had instructed the Crown Solicitor to act on his behalf prior to providing copies of the subpoenaed documents to the Crown Solicitor in September 2014. However, Ms Hamilton failed to establish any error on the part of Harrison AsJ in finding that the DPP and the State had a "common interest" relating to Ms Hamilton's proceedings. [3] Ms Hamilton also failed to establish that the provision of the documents to the Crown Solicitor by the DPP constituted a waiver of the client legal privilege by the operation of s 122(2) of the Evidence Act 1995 (NSW). Those conclusions are sufficient to dispose of Ms Hamilton's appeal.

Factual Background and Pleaded Case

1. The following is taken from Hamilton at [4] to [12]. None of these findings were contested by the parties: "[4] By amended statement of claim filed 16 April 2014 ["ASOC"], Ms Hamilton alleges that four police officers, namely Detective Inspector Paul Jacob, Detective Sergeant Stuart Owen, Detective Senior Constable Graham Norris and Detective Senior Constable John Southgate ("the police officers"), were each guilty of the tort of misfeasance in public office. The alleged misfeasance by each of the police officers occurred between April 2005 up until the death of Ms Hamilton's de facto spouse, Ken Dyers ("Mr Dyers"). [5] From 2002 to 2005, the NSW Police Force conducted investigations into allegations of sexual offences perpetrated by Mr Dyers against two complainants ("Complainant 1 and Complainant 2"). Complainants 1 and 2 were both children whose parents were members of an organisation called Kenja, of which Ms Hamilton and Mr Dyers were the founders and leaders. The sexual abuse purportedly occurred during individual counselling sessions conducted by Mr Dyers at the Sydney premises of Kenja. [6] In February 2005, following a case review, the investigations into the allegations made by Complainants 1 and 2 were suspended without any charges being laid against Mr Dyers. [7] On 8 April 2005, one of the police officers [Norris] released a written report ("the Norris Report") recommending that an investigation and enquiry be undertaken into Mr Dyers. In October 2005, following the recommendations in that report, the NSW Police Force set up "Strike Force Caroola" to re-investigate the allegations made by Complainant 1 and Complainant 2 against Mr Dyers. The police officers were all involved in Strike Force Caroola. [8] On 27 October 2005, Mr Dyers was arrested in relation to the allegations. On 28 October 2005, a bail hearing took place at the Sutherland Local Court, with Mr Dyers being released on bail subject to conditions. On 24 and 25 May 2006, committal proceedings were held at the Downing Centre, and at the conclusion of such proceedings Mr Dyers was committed for trial, with bail being continued. [9] On 8 June 2006, Mr Dyers was indicted on 21 counts of aggravated indecent assault and aggravated sexual intercourse without consent. In September 2006, Mr Dyers made an application for a stay of the criminal proceedings. The application was opposed by the DPP. On 30 April 2007, the stay application was heard by Phegan DCJ over three days. On 3 May 2007, Phegan DCJ dismissed the application for a stay and decided that Mr Dyers was unfit to stand trial. On 7 June 2007, the Mental Health Review Tribunal determined, pursuant to the provisions of the Mental Health (Criminal Procedure) Act 1990 (NSW) that Mr Dyers would not become fit for trial within twelve months. Bail was continued. [10] Sometime in 2007, a further complainant ("Complainant 3") made allegations of sexual abuse against Mr Dyers. In 2003, Complainant 3 had been interviewed by police, and had denied that she had been sexually assaulted by Mr Dyers. She provided reasons for retracting her denial, and assisted police with their investigations relating to her allegations. She was interviewed by the police officers, as were other witnesses. [11] On 24 July 2007, one of the police officers [Southgate] wrote to the Mr Dyers' solicitors informing them that he was continuing investigations into allegations by Complainant 3, and a request was made that Mr Dyers be interviewed in relation to these allegations. [12] On 25 July 2007 at approximately 9.00 am, Mr Dyers was informed by his solicitor of the request made for a formal police interview. On 25 July 2007, shortly after being notified of this request, Mr Dyers committed suicide. Ms Hamilton alleges that she witnessed the suicide of Mr Dyers."
2. The Amended Statement of Claim ("ASOC") alleges that the conduct of each of Detectives Norris, Owen, Southgate and Jacob in investigating and causing the charging of Mr Dyers, opposing Mr Dyers' application for bail and, in the case of Detective Southgate, procuring an allegation from "Complainant 3", was undertaken without bona fides, and not believing or recklessly indifferent to the truth of the allegations made against Mr Dyers and whether their own conduct had any proper justification. Each Detective is alleged to have acted, inter alia, "maliciously and dishonestly", "in bad faith" and with "malice and/or reckless indifference" to the "harm or injurious effect" that their conduct may have had on either Mr Dyers or Ms Hamilton.
3. The ASOC pleads that the State is vicariously liable for the actions of the four officers and that otherwise the proceedings constitute a "police tort claim" within the meaning of s 9B(1) of the Law Reform (Vicarious Liability) Act 1983 (NSW) such that it is not maintainable against the individual officers but is maintainable against the State. [4] The ASOC also alleges that Ms Hamilton witnessed Mr Dyers' suicide and that it was "caused or actuated by the malicious and unlawful actions" of the four officers as pleaded. Ms Hamilton pleads that she has suffered psychological injury and harm. She seeks aggravated and exemplary damages.
4. In light of the issues that arose on appeal, three particular matters should be noted about the ASOC and the position of the DPP.
5. First, the ASOC makes no express allegation of impropriety against the DPP or any solicitor from the Office of the Director of Public Prosecutions ("ODPP"). The only express reference to the DPP is an assertion that he opposed Mr Dyers' application for a stay of his trial. [5]
6. Second, the time span of the events pleaded in the ASOC includes the period from the commencement of criminal proceeding on the arrest of Mr Dyers on 27 October 2005 until their effective conclusion in June 2007. As will become clear, the material before her Honour justified a conclusion that the DPP assumed the conduct of the proceedings from no later than the end of November 2005. [6]
7. Third, the ASOC makes serious allegations about the conduct of the four detectives during the period that the proceedings were conducted by the DPP and which clearly bear upon the conduct of the ODPP solicitors acting on his behalf. Thus [47], [50], [53] and [56] of the ASOC plead that during that period (and beyond) the four police officers, inter alia, "failed to consider the evidence given at the committal hearing that was adverse to the Police case". This relates to an earlier part of the ASOC that pleads that "[e]vidence was adduced at the [c]ommittal proceedings revealing deficiencies in the prosecution's case and/or [that] was consistent with Dyers' version of events". [7] The alleged failure to "consider" the evidence is pleaded to be part of the conduct of each detective that was malicious and dishonest. [8]
8. The clear import of these allegations is that there was something so significant about the evidence given at the committal hearing that, were it not for the alleged malice of one or more of the four detectives, it should have caused a cessation, or at least a serious reappraisal of the maintenance, of the prosecution against Mr Dyers. Although it is pleaded that each of the four detectives had knowledge of certain matters that predated the charging of Mr Dyers, this aspect of the allegation of wrongdoing on the part of the four detectives appears to be equally applicable to the ODPP solicitors who conducted the proceedings on behalf of the Director.
9. For the sake of completeness, I note that the State's defence, inter alia, denies any claim of wrongdoing on the part of the police officers and pleads that Ms Hamilton's claim is statute barred under the Limitation Act 1969 (NSW).

The Subpoenaed Documents

1. On 8 December 2014, Ms Hamilton caused a subpoena to be issued to the DPP seeking the production of the ODPP's file in relation to the prosecution of Mr Dyers. On 10 February 2015, Ms Hamilton's solicitors provided an amended subpoena which narrowed the scope of the documents so that it only sought the following: "Copies of all documents held by the DPP in the file concerning the prosecution of Kenneth Emmanuel Dyers for the period 2005-2007, which record: (i) matters raised by the DPP in relation to the adequacy of the Police investigation into Kenneth Emmanuel Dyers generally, or the adequacy of any particular aspect of such investigation; (ii) Communications with the NSW Police in relation to (i), above; and (iii) any requests by the DPP for further investigatory work to be undertaken by the Police."
2. On 3 March 2015, the DPP filed a notice of motion seeking to be excused from the production of the amended subpoena under UCPR 1.9 "on the basis that [all] the documents captured by the subpoena are subject to client legal privilege." In support of the motion the Acting Deputy Solicitor for Public Prosecutions, Ms Johanna Pheils, swore an affidavit dated 12 March 2015 annexing a schedule listing six documents that answered the amended subpoena. The schedule referred to notes of a conference on 28 November 2005 between an ODPP solicitor and two police officers, one of whom was Detective Southgate, some undated draft submissions and four internal ODPP file notes. The claim for client legal privilege covers all of these documents.
3. In another affidavit sworn 20 March 2015, Ms Pheils stated that further material had been located that was captured by the amended subpoena. Ms Pheils stated that client legal privilege was claimed over all of these documents, apart from one document which was produced. A list of these further documents was attached to this affidavit. The list describes 12 documents, six of which are notes of conferences or telephone calls between an ODPP solicitor and police officers, including Detective Southgate. The first of these documents is dated 24 November 2005. The remaining six documents are emails internal to the ODPP or between ODPP solicitors and a Crown Prosecutor.
4. At the hearing of the appeal, counsel for the DPP, Mr Saidi, submitted that, as Harrison AsJ had inspected the documents the subject of the DPP's notice of motion, it was appropriate that I do the same. Senior Counsel for Ms Hamilton, Mr Brereton SC, did not oppose that course. It suffices to state that I have inspected the documents and that my inspection of the file notes of the conferences and conversations with police officers confirms that those documents were prepared by an ODPP solicitor.

The Judgment Appealed From

1. Before Harrison AsJ it was common ground that the DPP's claim of client legal privilege was governed by the Evidence Act. This position was maintained on appeal and is clearly correct. [9] Her Honour noted that it was not in issue that the DPP was the "client" for the purpose of considering any claim for client legal privilege, [10] and that "under s 23 of the Director of Public Prosecutions Act 1986 (NSW) ("the DPP Act"), a solicitor at the ODPP acts as a solicitor of the DPP in the exercise of the DPP's functions and instructs the Crown Prosecutors and other counsel on behalf of the DPP". [11] The same reasoning would apply to a Crown Prosecutor given that one of their functions is to "conduct, and appear as counsel in, proceedings on behalf of the" DPP. [12] (emphasis added)
2. Her Honour identified the "main issues" as first, whether the DPP had established on the balance of probabilities that the subpoenaed material was privileged and, if so, whether Ms Hamilton had established on the balance of probabilities that there had been a loss or waiver of any such privilege. [13]
3. In relation to the first issue her Honour noted that the competing submissions of the parties as to whether the DPP had discharged the onus of demonstrating the documents were privileged and found: [14] "I am satisfied firstly, that the documents were created for the dominant purpose of providing legal advice to the DPP and professional legal services relating to the criminal proceedings against Mr Dyers, in which the DPP was a party; and secondly, that although there are no express notations on the documents regarding their confidentiality, the ODPP solicitors and the police officers were under an obligation not to disclose their contents. Thus, the documents sought to be produced are the subject of client legal privilege."
4. In relation to the second issue, her Honour addressed and rejected two separate bases upon which Ms Hamilton argued that client legal privilege was waived under s 122 of the Evidence Act. First, in the circumstances in which I will describe, the DPP agreed that he had provided the subpoenaed documents to the Crown Solicitor in September 2014. Ms Hamilton contended that in doing so the DPP waived any privilege that may attach to the subpoenaed documents (s 122(3)(a)). Her Honour found that, as at that date, the Crown Solicitor was acting on behalf of both the DPP and the State and the effect of s 122(5)(b) was that this disclosure did not occasion a loss of privilege. [15] Her Honour also found that "the Crown agencies share a common interest" relating to the proceedings brought by Ms Hamilton such that disclosure by one to the solicitors acting for the other did not result in a loss of privilege pursuant to s 122(5)(c). [16]
5. Second, Ms Hamilton contended that "considerations of fairness" meant that the disclosure of the material to the Crown Solicitor's office in September 2014 was a waiver of any client legal privilege attaching to the material. Her Honour concluded that "client legal privilege has not been waived" and "that this is not a case where the interests of justice should dictate that that result should be otherwise". [17]

Ground 6: Finding of Confidentiality of ODPP and Police Communications

1. Ground 6 of Ms Hamilton's appeal contends "that her Honour erred in finding that the documents recording conversations between officers of the DPP and police officers were confidential and accordingly legal privileged". As this is the only ground of appeal that address the first of the "main issues" that her Honour identified it should be addressed at the outset.
2. This ground of appeal is not concerned with those documents the subject of the claim for privilege that constitute internal working documents of the ODPP or advice to the DPP, they being protected by either or both of ss 118 and 119(b) of the Evidence Act. Instead, it is only concerned with those documents the subject of the claim for client legal privilege that recorded meetings and telephone conversations between ODPP solicitors or a Crown Prosecutor on the one hand and police officers on the other. With these documents the DPP relied on s 119 to found its claim for privilege. Section 119 provides: "119 Litigation Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of: (a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made, or (b) the contents of a confidential document (whether delivered or not) that was prepared, for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party."
3. Section 117 defines "confidential communication" and "confidential document" as follows: "confidential communication" means a communication made in such circumstances that, when it was made: (a) the person who made it; or (b) the person to whom it was made; was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law. "confidential document" means a document prepared in such circumstances that, when it was prepared: (a) the person who prepared it; or (b) the person for whom it was prepared; was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law."
4. As noted above, Harrison AsJ found that both the ODPP solicitors and the police officers who were party to the meetings and telephone calls referred to in the documents were under an obligation of confidence. In the case of the ODPP solicitors, her Honour referred to the "solicitor client relationship" and clause 15 of the Code of Conduct of the ODPP as the source of the obligation of confidence. [18] The former derives from s 23 of the DPP Act which refers to the functions of an ODPP solicitor as, inter alia, "act[ing] as solicitor for the Director in the exercise of the Director's functions". The latter directs ODPP staff, including its solicitors, "not [to] publish or disseminate outside the ODPP any internal email, memorandum, instruction, letter or other document" unless it is necessary for performance of "official duties", "union duties" or "otherwise authorised by law".
5. Ms Hamilton's written submissions in support of this ground did not contend that Harrison AsJ erred in concluding that the ODPP solicitors were subject to an obligation of confidence. Instead, it was only contended that her Honour erred in concluding that the relevant police officers were under an obligation not to disclose the content of their communications with the ODPP solicitors as recorded in the documents the subject of the privilege claim. [19] Of itself, that contention was of no assistance to Ms Hamilton because it follows from the definition of "confidential communication" and "confidential document" that Ms Hamilton can only succeed on this part of the appeal if she establishes that neither of the persons referred to in sub-paragraph (a) or (b) of those definitions were subject to an obligation of confidence. However, at the hearing of the appeal, Mr Brereton SC sought to overcome this by arguing, by analogy with State of New South Wales v Jackson [2007] NSWCA 279 ("Jackson"), that the person referred to in each of sub-paragraph (b) of those definitions was the DPP personally and, as he was not shown to be under any obligation of confidence in dealing with the material, then the claim for privilege must fail.
6. I will deal with Mr Brereton SC's reliance on the Jackson argument first. At the outset, I note that no argument to the effect put by Mr Brereton SC was made on behalf of Ms Hamilton before Harrison AsJ. It seems likely that, if it had, evidence might have been available to demonstrate that the DPP is personally required to keep such communications confidential. [20] Nevertheless, no point to that effect was taken by Mr Saidi, and I will address the argument on its merits.
7. In Jackson, the Court of Appeal rejected a claim for client legal privilege in respect of statements from two witnesses to the respondent's accident at a high school. The statements were obtained by the respondent's teacher and given to the Deputy Principal. [21] The statements were prepared by the witnesses. [22] Giles JA (with whom Mason P and Beazley JA, as her Honour then was, agreed) found that no client legal privilege was available under s 118 of the Evidence Act as it is "confined to client/lawyer dealings, by communications between client and lawyer or between lawyers or in preparation of documents by client or lawyer". [23] As the witness statements "were obtained by a dealing between the client (the Department, through the agency of Mr Harman) and third parties" being the authors of the witness statements, [24] they could only be privileged under s 119. However his Honour found that neither the person who prepared the document, being the witnesses, or the person for whom it was prepared, namely the Department, were under an obligation of confidence. As a result, the witness statements were not "confidential document[s]" and were not privileged by the operation of s 119. [25]
8. Mr Brereton SC pointed to that part of Giles JA's judgment in Jackson in which his Honour concluded that the "party for whom [the witness statements] were prepared" was the Department rather than the teacher who physically received them from the witnesses namely: [26] "As I have said the statements were prepared by Ms Jackson and Luke Blenman. The person for whom the statements were prepared was either Mr Harman, who obtained the statements, or the Department (strictly the appellant as the legal entity) on whose behalf he obtained them. In my view it was the Department. It was the client in s 119, with the interest in the statements, and the statements were prepared for it as the intended recipient and potential user of the statements. They were not prepared for the person who happened to ask on its behalf that they be prepared." (emphasis added)
9. By analogy with this reasoning Mr Brereton SC argued that the ODPP solicitors who received communications from the various police officers they consulted did so on behalf of the Director who was the "client" for the purposes of s 119. He submitted that the claim for privilege failed because neither the Director nor the relevant police officers were shown to be under an obligation of confidence.
10. This aspect of Jackson does not have any relevance to the documents the subject of this point of the appeal. These documents record communications between an ODPP solicitor and a police officer concerning the criminal proceedings against Mr Dyers. If they are the subject of a claim for privilege it is because their production would result in the disclosure of a "confidential communication between ... a lawyer acting for the client and another person" namely a police officer, as referred to in the second limb of s 119(a) of the Evidence Act. When the definition of "confidential communication" in s 117 is read with the second limb of s 119(a) then it is clear that the reference to the "person who made it" in paragraph (a) of the definition and the reference to the "person to whom it was made" in paragraph (b) of the definition are references to either the "lawyer acting for the client", in this case the ODPP solicitor, and "another person", in this case the police officer, depending on who is speaking to whom.
11. The position may have been different if the documents recorded a communication between the DPP personally and a police officer. In those circumstances it would only be privileged if it was "a confidential communication between the client and another person" as referred to in the first limb of s 119(a). In such a case the "person who made it" in paragraph (a) of the definition of "confidential communication" and the reference to the "person to whom it was made" in paragraph (b) of that definition would be the DPP and the police officer. Even so, it would be surprising if a statutory office holder such as the Director did not have some form of obligation to keep the terms of the communication confidential unless the disclosure was otherwise required in the discharge of their duties.
12. The reasoning in Jackson does not affect this analysis. Unlike this case, Jackson did not concern any communications "between a lawyer acting for a client and another person" as referred to in the second limb of sub-paragraph 119(a) of the Evidence Act. Instead, it concerned a claim that production of the witness statements would result in disclosure of the contents of a "confidential document" within the meaning of sub-paragraph 119(b) or was otherwise "a confidential communication between the client and another person" as referred to the first limb of s 119(a). Hence the reference by Giles JA to the Department's status as a "client" in Jackson at [39] extracted above in [30].
13. This is sufficient to dispose of this aspect of the appeal. However, in the event the matter proceeds further I will address the challenge to the finding that the police officers were under an obligation not to disclose the contents of their communications with ODPP solicitors as recorded in the subpoenaed documents.
14. As noted by Mr Brereton SC, there is no evidence that any express obligation of confidence of any kind was imposed on the police officers who participated in the relevant conferences and telephone calls. Thus, for example, there was no evidence before her Honour of any discussion with the police officers to the effect that their communications with the ODPP solicitors were confidential and nor was there any evidence of a general instruction to that effect having been given. No evidence was placed before her Honour of the terms and conditions of the officer's employment.
15. Nevertheless, an obligation of the kind referred to in the definition of confidential communication can be implied. In Jackson, Giles JA noted that the obligation can "extend to an unspoken obligation and to an ethical, moral or social obligation". [27] At [46] his Honour approved a statement by Bergin J (as her Honour then was) in Rickard Constructions Pty Ltd v Rickard Hails Moretti Pty Ltd [2006] NSWSC 234 ("Rickard") to the effect that the "matters relevant in assessing whether a confidential obligation is implied in relationships or circumstances outside that of solicitor/client include the nature of the relationship in question and the circumstances, including conduct and/or conversations, surrounding the communications or documents in question" [28] as well as it "is also permissible to have regard to the nature of the documents in question and the purpose and context of their communication". [29]
16. The nature of the relationship between police officers and solicitors from the ODPP who discuss proposed and existing criminal proceedings that arise out of investigations the former have conducted is, at least in part, governed by statute. Often the DPP will have taken over a prosecution after the police have charged the accused. [30] After assuming the conduct of the proceedings, the DPP retains a power to issue a written request to the Commissioner for Police or the police officers who conducted the investigation to "investigate or further investigate matters associated with the alleged commission of the offence". [31] If such a written request is issued it must, so far as practicable, be complied with. [32] Investigating police officers owe a statutory duty of disclosure to the DPP of "all relevant information, documents or other things obtained during the investigation that might reasonably be expected to assist the case for the prosecution or the case for the accused person". [33] Generally in discussing pending cases with ODPP solicitors police officers are discharging their statutory function of providing "police services … by way of [the] detection of crime" and services "necessary for, or incidental" [34] to that end.
17. Otherwise, the discussions between police officers and ODPP solicitors about pending criminal cases, including those recorded in the documents the subject of this application, clearly concern a matter of great seriousness. The variety of topics discussed extend to assessments of the relative strengths and weaknesses of Crown witnesses and possible lines of inquiry. Those are the subject matters of the subpoenaed documents (see [14]). The disclosure and discussion by police officers of lines of inquiry without the approval of the DPP of such matters may compromise any further investigation. Otherwise, it is inappropriate for police officers to disclose either their or the DPP's assessment of the relative strengths or weaknesses of witnesses or the case generally. In this context, the DPP has the conduct of prosecutions and not the police. It is not in the interests of either victims, the accused or potential jury members for police to be able to freely discuss such matters. Overall, the maintenance of the integrity of the prosecution, the interests of the accused and the proper administration of justice all point to police officers not being at liberty to freely disclose the contents of their discussions with ODPP solicitors on these and similar topics.
18. Consistent with the approach stated by Bergin J in Rickard, the nature of the relationship in question, the topic of the relevant communications sought to be discovered by obtaining access to the subpoenaed documents, being the strength and weaknesses of the prosecution case against Mr Dyers, and possible lines of inquiry and the purpose and context in which the communications occurred warrant the conclusion that Harrison AsJ did not err in finding that the police officers who participated in those communications were subject to an implied obligation to keep them confidential.
19. Consequently, I reject ground 6.

Waiver: Joint Clients

1. Ground 1 contends that her Honour erred in finding that "the DPP and NSW Police Force were joint clients, and therefore there had not been a waiver of legal professional privilege". Ground 2 contends that her Honour erred in admitting the affidavit of Ms Helen Maamary sworn 3 July 2015. Both of these grounds concern her Honour's finding that the effect of 122(5)(b) of the Evidence Act was that the "disclosure" of the subpoenaed documents to the Crown Solicitor in September 2014 did not occasion a loss of privilege because by that time the Crown Solicitor had been retained to act on behalf of the DPP. To address these grounds it is necessary to address some aspects of s 122 and then describe how Ms Maamary's affidavit came to be read.
2. Section 122 provides as follows: "122 Loss of client legal privilege: consent and related matters (1) This Division does not prevent the adducing of evidence given with the consent of the client or party concerned. (2) Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120. (3) Without limiting subsection (2), a client or party is taken to have so acted if: (a) the client or party knowingly and voluntarily disclosed the substance of the evidence to another person, or (b) the substance of the evidence has been disclosed with the express or implied consent of the client or party. (4) The reference in subsection (3) (a) to a knowing and voluntary disclosure does not include a reference to a disclosure by a person who was, at the time of the disclosure, an employee or agent of the client or party, or of a lawyer of the client or party, unless the employee or agent was authorised by the client, party or lawyer to make the disclosure. (5) A client or party is not taken to have acted in a manner inconsistent with the client or party objecting to the adducing of the evidence merely because: (a) the substance of the evidence has been disclosed: (i) in the course of making a confidential communication or preparing a confidential document, or (ii) as a result of duress or deception, or (iii) under compulsion of law, or (iv) if the client or party is a body established by, or a person holding an office under, an Australian law - to the Minister, or the Minister of the Commonwealth, the State or Territory, administering the law, or part of the law, under which the body is established or the office is held, or (b) of a disclosure by a client to another person if the disclosure concerns a matter in relation to which the same lawyer is providing, or is to provide, professional legal services to both the client and the other person, or (c) of a disclosure to a person with whom the client or party had, at the time of the disclosure, a common interest relating to the proceeding or an anticipated or pending proceeding in an Australian court or a foreign court. (6) This Division does not prevent the adducing of evidence of a document that a witness has used to try to revive the witness's memory about a fact or opinion or has used as mentioned in section 32 (Attempts to revive memory in court) or 33 (Evidence given by police officers)."
3. Both before her Honour and on this appeal it was common ground that the burden of demonstrating a loss of client legal privilege by waiver rests upon the party who asserts it. The general test for waiver is set out in s 122(2) of the Evidence Act. Section 122(3) instances two specific circumstances in which that test will be satisfied by disclosure of the substance of the evidence. However there are two exceptions to the circumstances said to constitute a waiver. The first exception applies to the form of disclosure referred to in s 122(3)(a) namely where the "client or party knowingly and voluntarily disclosed the substance of the evidence to another person". In that case, if the disclosure was made in the circumstances referred to in s 122(4) then no waiver will result. The second exception is specified in s 122(5) and applies to s 122(2) (and thus s 122(3)) in that if the disclosure occurred in any of the circumstances referred to in s 122(5)(a) to (c) then s 122(2) (including s 122(3)) will not operate a waiver "merely because" of that disclosure. However, such a disclosure coupled with other circumstances could give rise to a waiver under s 122(2) because it could involve the "client or party concerned [acting] in a way that is inconsistent" with the maintenance of the privilege. Properly analysed ground 7 of the appeal raises an issue as to whether, even if waiver under s 122(3) was not established, the DPP's conduct resulted in a waiver under s 122(2).
4. I have already adverted to the voluntary disclosure of the subpoenaed document to the Crown Solicitor by the DPP that was relied on by Ms Hamilton before Harrison AsJ as constituting a waiver. The evidence of that disclosure emerged from an exchange before Harrison AsJ between Senior Counsel for Ms Hamilton, Mr Bannon SC, and Counsel for the DPP (and the State), Mr Saidi. Mr Bannon SC stated that instead of cross-examining Ms Pheils he sought a concession that "the documents the subject of the subpoena to the DPP were provided by the DPP to the defendant in the substantive proceedings in about September 2014 by provision to the Crown Solicitor". [35] Mr Saidi asserted that the DPP retained the Crown Solicitor "in the substantive proceedings from 25 July 2014" and stated that the "best answer" he could provide to Mr Bannon SC's request was that the documents were provided "only after the instructions were received and it was about September of 2014 that documents were first received from the Director". [36] Mr Bannon SC's response made it clear that he accepted the concession of disclosure in September 2014 but not the assertion that the Crown Solicitor was retained.
5. Her Honour found that: [37] "The State of NSW conceded that the documents were knowing[ly] and voluntarily disclosed by the DPP to the Crown Solicitor, but argued that since the DPP, by September 2014, had engaged the Crown Solicitor to act on his behalf, s 122(5) applies so that there is no waiver. By that time, the NSW Police Force had also instructed the Crown Solicitor."
6. This accurately reflects what occurred except that the concession was made on behalf of the DPP, not the State. The reference to s 122(5) of the Evidence Act accurately reflects the basis upon which this was argued, although it was meant to be a reference to s 122(5)(b). However, the focus on that provision by the parties was misconceived. As the above exchange indicates, the DPP's response to the contention that it waived privilege by providing the documents to the Crown Solicitor was that he did so only after instructing the Crown Solicitor to act on his behalf. If the Crown Solicitor was retained at that time then the correspondence enclosing the documents was itself a "confidential communication" between a client and a lawyer. Thus, it was itself privileged under s 118 and, by operation of s 122(5)(a)(i), the disclosure did not involve the DPP acting in a manner inconsistent with the maintenance of the privilege. If it was established that the Crown Solicitor was retained by the DPP at the relevant time then that was a complete answer to this aspect of Ms Hamilton's waiver contention.
7. On the appeal, Mr Brereton SC sought to argue that her Honour erred in finding that s 122(5)(b) was satisfied because her Honour did not give any consideration as to whether the provision of material to the Crown Solicitors by the DPP "concern[ed] a matter in relation to which the same lawyer is providing, or is to provide, professional legal services" to both the DPP and the State in its capacity as the party liable for the actions of the police officers. However, that was irrelevant if it was demonstrated that the DPP had retained the Crown Solicitor by the time it provided her with the documents the subject of the subpoena. Section 122(5)(b) is concerned with disclosure between clients who have retained the same solicitor and not between those clients and their own solicitor as that will usually be governed by s 118 (and s 122(5)(a)(i)).
8. Mr Brereton SC also argued that, even if the Crown Solicitor was retained by the DPP prior to September 2014, the disclosure of the documents to the Crown Solicitor was still a waiver because it was "a disclosure to a lawyer who acts for somebody else and regards themselves as free to deploy those documents for the benefit of that other client," namely, the State. [38] If established then, at best, the circumstance that a party provides documents to their lawyer and that lawyer is free to use them on behalf of another client could only constitute acting "inconsistently" as referred to in s 122(2). Accordingly, I will return to address this point when dealing with the last ground of appeal.
9. This still leaves the complaint about her Honour's reliance on Ms Maamary's affidavit. After the exchange noted in [45] above, the affidavits were read and Mr Bannon SC commenced his submissions. On the present issue he pointed to a passage in Ms Pheils' affidavit in which she stated that the DPP instructed the Crown Solicitor on 9 December 2014, being the day after the subpoena was issued, [39] and otherwise pointed to the absence of any evidence that the DPP retained the Crown Solicitor prior to September 2014. [40] Mr Saidi addressed the issue by indicating he would obtain a copy of the letter of instruction and tender it. [41] Later Mr Saidi stated that he had the letter of instructions but he would not tender it because the document "itself" was privileged. He stated that an affidavit would be prepared instead and it could be filed by the following day. [42] Her Honour granted leave to rely on the affidavit given the "late notice" of the point by Ms Hamilton. [43] In response, Mr Bannon SC stated that he would need to "read the affidavit". [44] He identified three possible approaches his client would adopt in relation to the affidavit, namely, proceeding on the basis that the affidavit was read and relied on with its effect addressed in submissions; issuing notices to produce to seek documents to test its contents; and the "worst case" being that they "apply to ask questions" of the deponent. [45] As he was outlining these possibilities her Honour stated "[y]ou have to let my Associate know". [46] Ultimately, the matter was left on the basis that a supplementary affidavit would be filed.
10. The next day, 3 July 2015, Ms Maamary's affidavit was filed which stated as follows: "1. l am a solicitor employed in the office of Richard Kelly, Acting Crown Solicitor, and I have day-to-day supervision of this matter on behalf of the defendant subject to the direction and control of Mr Kelly. 2. I believe that the information contained in this affidavit is true to the best of my knowledge, information and belief. 3. On 22 February 2013, the plaintiff filed a Statement of Claim in the Supreme Court of New South Wales. 4. On 25 February 2013, the Director of Public Prosecutions ("the Director") instructed the Crown Solicitor to hold a watching brief for him with respect to the proceedings instituted by the plaintiff, being proceedings numbered 2013/55881, being these proceedings before the Supreme Court. 5. On 28 February 2013, the NSW Police Force instructed the Crown Solicitor to act for the defendant, the State of New South Wales, in proceedings numbered 2013/55881, being these proceedings before the Supreme Court. 6. On 16 April 2014, the plaintiff filed an Amended Statement of Claim in these proceedings. 7. On 25 July 2014, the Director formally instructed the Crown Solicitor to act on his behalf in relation to his interests in respect of these proceedings numbered 2013/55881. 8. On 8 December 2014, the Supreme Court issued a Subpoena to Produce to the Director at the request of the plaintiff ("the subpoena"). 9. On 9 December 2014, the Director instructed the Crown Solicitor to act on his behalf specifically with respect to issues arising as a result of the service of the subpoena, in addition to the matter generally."
11. On 7 July 2015, written submissions were filed on behalf of Ms Hamilton in relation to Ms Maamary's affidavit. It was submitted that the affidavit was inadmissible because even though the DPP's notice of motion was "an interlocutory proceeding", Ms Maamary had failed to state the source of her knowledge to make the assertions in the affidavit. [47] Otherwise, it was submitted that her affidavit did not bring the disclosure within s 122(5)(b). The submissions concluded: "Despite the foregoing and in the event that the Court should rule that Ms Maamary's affidavit is admissible in form, the Plaintiff reserves her rights to take such steps as she may be advised, including the service of a Notice to Produce calling for the production of the letter of instruction and to cross examine the deponent of the affidavit in question."
12. On 17 July 2015, the DPP filed written submissions in response. The DPP contended that a proper basis for Ms Maamary's knowledge could be inferred from her statement that she "has the day to day supervision of the matter on behalf of the Defendant". It was further contended that none of the steps foreshadowed in the extract at [50] above should be permitted "unless and until [Ms Hamilton could] show, to at least a prima facie level, that there is a basis for not accepting" Ms Maamary's statements concerning the DPP's retainer.
13. Neither party sought to relist the matter. Instead, her Honour published her reasons which recounted leave being granted to the filing of "affidavit evidence in order to clarify the exact date that the Crown Solicitor was engaged" and then described the contents of Ms Maamary's affidavit. [48] Her Honour stated that "I accept Ms Maamary's evidence as she is a solicitor and an officer of the Court". [49] Her Honour's judgment makes no reference to the competing submissions as to the admissibility of Ms Maamary's affidavit or to Ms Hamilton's application to test it if the affidavit was admitted.
14. On the appeal Ms Hamilton makes two complaints in relation to this aspect of her Honour's judgment. First, she contends that Ms Maamary's affidavit was not admissible and thus there was no evidentiary foundation for a finding that the DPP retained the Crown Solicitor prior to September 2014. Second, she contends that she was denied natural justice by the manner in which the affidavit came to be relied on without her objection to its admissibility being expressly addressed or her being given the opportunity to apply to test it in the manner referred to in the submissions noted above.
15. I accept both contentions. In relation to the first, s 75 of the Evidence Act provides: "In an interlocutory proceeding the hearsay rule does not apply to evidence if the party who adduces it also adduces evidence of its source".
16. In New South Wales Crime Commission v Vu [2009] NSWCA 349 ("Vu") Spigelman CJ at [42] held that s 75 of the Evidence Act does not require the testifying party to "identify the ultimate source of the information" upon which the hearsay statement is based. However, it must at least identify a source. Thus in Wily v Terra Cresta Business Solutions Pty Ltd [2006] NSWSC 949, Palmer J stated at [11]: " … [T]he requirement of the section [s 75 Evidence Act ] that the source of the information be revealed goes some way to assisting the Court in assessing the reliability of that evidence. Without any indication of the source of the evidence proffered on information and belief, the Court is unable to assess its weight nor can the opponent test the evidence or make any sensible submission as to its weight ."
17. This passage was endorsed by Spigelman CJ in Vu at [45] as well as the following statement made by Thomas J in Deputy Commissioner of Taxation v Ahern (No 2) (1988) 2 Qd R 158 at 163 with respect to a similar provision of the Rules of the Supreme Court of Queensland: "The object of the disclosure is to provide some specified source which can, if necessary, be followed up by the adversary or the court. In a case such as the present a broad reference may suffice such as to a bundle of documents so long as they are somehow identified and can be produced if necessary, or there is a proper explanation for their absence."
18. In Vu at [47] Spigelman CJ noted that it is not necessary to name an informant with respect to every source of information to satisfy s 75. [50] However, the failure to do will affect the weight to be attached to the evidence, as will whether the source is a person reasonably likely to have knowledge of the relevant fact. [51]
19. Ms Maamary's affidavit neither expressly nor implicitly identified any source for her assertion that the DPP instructed the Crown Solicitor to act on his behalf on 25 July 2014. She did not say she was instructed or witnessed the giving of instructions, nor did she say that she read a letter of instruction or that her understanding was based on reading the file. Given that Ms Maamary identified herself as the solicitor with the "day-to-day supervision of [the] matter" on behalf of the "defendant" being the State it might be inferred that she had access to and was familiar with its file for the proceedings. However, that does not advance the matter because it cannot be inferred that any such file included instructions from the DPP. The omission by Ms Maamary to identify any source of the assertions in her affidavit in the form of either a specific document or a file of documents may have been deliberate because of a concern that doing so might itself amount to a waiver. Whether or not that is so the Court should not be left to guess as to whether there was any source of Ms Maamary's knowledge.
20. Her Honour's finding that the DPP had already retained the Crown Solicitor when the subpoenaed documents were provided to the Crown Solicitor in September 2014 was solely based on the affidavit of Ms Maamary. It follows that I accept that her Honour erred in so finding because Ms Maamary's affidavit was not admissible. In his written and oral submissions Mr Saidi sought to sustain the finding because a number of items of correspondence that were tendered before her Honour contained assertions by the Crown Solicitor of a retainer from the DPP in July 2014 and those assertions are evidence of that fact. At least at this point of the analysis this does not assist the DPP. Her Honour's finding was not based on those assertions and no submission was put to her Honour that those assertions supported such a finding. Those assertions were made in a context where Ms Hamilton's solicitor (ultimately) made it clear that they should be the subject of proof and in circumstances where the burden of proof of the retainer was on the DPP.
21. The circumstances in which her Honour came to rely on Ms Maamary's affidavit also involved a denial of nature justice. As noted, her Honour's judgment does not refer to the objection taken to Ms Maamary's affidavit or Ms Hamilton's application to test its contents. Although it might be concluded that both were implicitly rejected, the better explanation is that they were overlooked. Both the objection and the application to test the contents of the affidavit were matters of substance and, if they were considered, it is to be expected that there would be some mention of that consideration in her Honour's judgment. Instead, her Honour relied on the affidavit to base a rejection of at least part of her case on waiver. The end result was the Ms Hamilton lost part of her case on waiver because of evidence which she was not given the opportunity to address upon despite her efforts. This constituted a denial of procedural fairness.
22. In his written and oral submissions on this issue, Mr Saidi recounted the background to this aspect of the dispute, which he said involved late notification by Ms Hamilton of the basis of her case for waiver including any notice that put the DPP to proof of his contention that he retained the Crown Solicitor in July 2014. He submitted that, if Ms Hamilton wished to take up any of the steps noted in the extract from its submissions set out at [50], it was incumbent on her to have the matter relisted before her Honour and make the application. However, this overlooks the objection that was taken to the admissibility of Ms Maamary's affidavit. Until that objection was ruled upon there was no further step that Ms Hamilton could take. The various steps that Mr Bannon SC referred to in [50] were all predicated on the affidavit being ruled admissible. If it was inadmissible, Ms Hamilton did not need to take any of them. If her Honour proposed to rely on an affidavit that was not read in open Court and to which objection was taken then her Honour could not do so until there was a ruling on the objection and Ms Hamilton was afforded an opportunity to at least apply to test the contents of the affidavit.
23. I am satisfied that grounds 1 and 2 of the appeal are made out and the finding that the DPP retained the Crown Solicitor in July 2014 cannot be sustained. However, I do not consider that the appropriate course is to determine this aspect of the appeal only on the evidence that was properly before her Honour. Were it not for the outcome of the consideration of the remaining grounds of appeal, I would have either remitted the matter or determined it myself and allowed the parties to file further evidence and submissions on this issue. This is so because, if I was to proceed to determine this issue on the basis that I rejected Ms Maamary's affidavit and did not allow further evidence, it would mean that the absence of any ruling on the objection to Ms Maamary's affidavit occasioned unfairness to the DPP. If the objection had been ruled upon by her Honour and the affidavit rejected then it would have been open to the DPP to apply to supplement it. This aspect of the waiver claim only truly emerged immediately prior to the hearing before Harrison AsJ and the DPP sought to address it by filing an affidavit soon after the hearing concluded. If the affidavit had been rejected prior to the judgment then the DPP could have applied to adduce further evidence. Given the late stage that Ms Hamilton raised this issue I expect that such an application would have had reasonable prospects of success.
24. Grounds 3, 4 and 5: Common Interest
25. Ground 3 of the appeal contends that Harrison AsJ erred in finding that there was "a common interest between the DPP and the NSW Police Force and therefore there had not been a waiver of legal professional privilege" (by the disclosure to the Crown Solicitor in September 2014). Ground 4 contends that "her Honour erred in finding that the Plaintiff's case involved an allegation that the DPP should not have maintained the prosecution" of Mr Dyers. Ground 5 contends that "her Honour erred in finding that there was a common interest between Crown agencies".
26. These grounds can be dealt with together. They all concern s 122(5)(c) of the Evidence Act. They will be addressed on the assumption that the DPP failed to establish that when the subpoenaed documents were provided to the Crown Solicitor in September 2014, the Crown Solicitor was retained to act on his behalf.
27. At the risk of repetition it is necessary to note how the argument before Harrison AsJ devolved to s 122(5)(c). Ms Hamilton contended that client legal privilege over the subpoenaed documents was waived because the DPP had acted inconsistently with the maintenance of that privilege (s 122(2)) by knowingly and voluntarily disclosing the documents to "another person", being the Crown Solicitor (s 122(3)(a)). The DPP contended that it did not act inconsistently because it "merely" disclosed the documents "to a person" with whom, at the time of disclosure, it had a common interest relating to Ms Hamilton's proceeding (s 122(5)(c)), being the State in its capacity as the body legally responsible for the NSW police force or the four detectives named in the ASOC. The argument proceeding accordingly. It follows that one of the common premises of the argument before Harrison AsJ was that the "person" to whom disclosure was made as referred to in s 122(5)(c) was the State in its capacity as the body legally responsible for the police force or the four detectives named in the ASOC; that is the Crown Solicitor received the documents as its agent on its behalf. [52] Another common premise is that in so far as s 122(5)(c) refers to a "common interest relating to the proceeding" the relevant proceeding is that commenced by Ms Hamilton. On the appeal, neither party sought to depart from those two premises and I will adopt them.
28. I have summarised the reasoning of Harrison AsJ on this issue in [20]. The relevant paragraph of her Honour's judgment that is the subject of complaint by these three grounds is as follows: [53] "So far as s 122(5)(c) is concerned, I am satisfied that the Crown agencies share a "common interest" in the anticipated legal proceedings instigated by Ms Hamilton. In Marshall v Prescott (No 4) [2012] NSWSC 992, Bellew J at [62] stated that a mere common interest in the outcome of litigation will be sufficient to enable any party with that interest to rely upon s 122(5)(c). While the DPP is not named as a party to the litigation, Ms Hamilton's case is based in part on the allegation that criminal proceedings were never justified due to the state of the evidence and the DPP should not have maintained the continuation of the prosecution."
29. The phrase "common interest" as used in s 122(5)(c) is not defined. Instead resort is usually had to the common law discussion of that concept. [54] In Marshall v Prescott [2013] NSWCA 152 ("Marshall v Prescott") at [63] Barrett JA (with whom McColl and Ward JJA agreed) approved the approach adopted in an Irish case, Hansfield Developments v Irish Asphalt Ltd [2009] IEHC 420, which treated common interest privilege as an instance of the circumstances in which a waiver might not be imputed from disclosure of the relevant material. His Honour held that the relevant inquiry was "whether the relationship between the parties was sufficiently close that the transmission of documents should not be held to amount to an implied waiver of the privilege". [55] The claim for privilege in Marshall v Prescott did not fall to be determined under the Evidence Act and it is not necessary to determine whether that aspect of its approach conforms with s 122.
30. In Rickard, Bergin J synthesised the discussion of common interests in various cases as follows: [56] "Instances in which a 'common interest' has been found to exist include: (a) an insured and an insurer/underwriter: Bulk Materials (Coal Handling); Guinness Peat Properties Ltd v Fitzroy Robinson Partnership [1987] 1 WLR 1027; (b) a company and parent (being the beneficial holder of a 50% interest) company: Rank Film Distribution Ltd v ENT Ltd (1994) 4 Tas R 281; (c) a company asserting rights to mineral resources and the sovereign state claiming (territorial) jurisdiction to grant such rights: Buttes Gas & Oil Co v Hammer (No. 3) [1981] QB 223; and (d) a liquidator and creditors, (being the beneficiaries of both the liquidator's statutory obligation to provide information and the liquidation itself): Southern Cross Airlines Holdings Ltd (in liq) v Arthur Andersen & Co (a firm) (1998) 84 FCR 472. The concept of a "common interest" is not rigidly defined, and is a question of fact in each case: Network Ten Ltd v Capital Television Holdings Ltd (1995) 36 NSWLR 275. A common interest in relation to proceedings is an identity between genuine interests, and should be distinguished from the contingent intersection of selfish interests: Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1995) 37 NSWLR 405 at 409-410 ["Ampolex"]; Network Ten Ltd v Capital Television Holdings Ltd (1995) 36 NSWLR 275 ['Network Ten"]; Bank of Nova Scotia v Hellenic Mutual War Risks Association (Bermuda) Ltd. ("The Good Luck") [1992] 2 Lloyd's Rep. 540 ["The Good Luck"]. In New South Wales a common solicitor is not a pre-requisite to a claim of a common interest in relation to the proceedings: Network Ten Ltd v Capital Television Holdings Ltd (1995) 36 NSWLR 275 at 280."
31. This analysis should not be treated as identifying definite categories of common interests. In Rickard, Bergin J noted that "each case must be considered on its own facts". [57] In Marshall v Prescott, Barrett JA addressed the existence of a common interest by conducting a "broad … evaluation of the circumstances". [58]
32. The present case involves a suggested common interest between two entities one of whom is a party to litigation and the other who is not. Two related issues arise concerning the application of s 122(5)(c) to the circumstances of this case, namely, the need for a commonality of interest and what type of "interest" suffices.
33. In relation to the first issue there is an apparent tension between the three authorities cited in the above synthesis from Rickard concerning competing interests, namely Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1995) 37 NSWLR 405 ("Ampolex"); Network Ten Ltd v Capital Television Holdings Ltd (1995) 36 NSWLR 275 ("Network Ten") and Bank of Nova Scotia v Hellenic Mutual War Risks Association (Bermuda) Ltd [1992] 2 Lloyd's Rep. 540 ("The Good Luck"), on the one hand and Marshall v Prescott on the other. In Ampolex at 410 Giles CJ Comm D referred to Network Ten and The Good Luck, and stated that "two persons interested in a particular question will not have a common interest for the purposes of common interest privilege if their individual interests in the question are selfish and potentially adverse to each other." However, in Marshall v Prescott, [59] Barrett JA concluded that a "presently existing common interest will not be destroyed by the circumstance that there is a potential for future divergence of interests". His Honour approved a judgment of Robert Walker J in Nauru Phosphate Royalties Trust v Allen Allen & Hemsley (22 March 1996, 13 Tolley's "Professional Negligence", 64) ("Nauru Phosphate") upholding a claim of common interest privilege protecting disclosure of communications between a firm of solicitors and their professional indemnity insurers concerning a claim against the solicitors, [60] notwithstanding the "potential for further dispute between the solicitors and the insurer" as to the obligation to indemnify, [61] and that "each party had a very distinct legal interest of its own in the defence of the claim made by the client". [62]
34. On closer analysis, however, the tension between the two disappears once it is appreciated that Ampolex, Network Ten and The Good Luck all involved a claim for privilege in respect of documents concerning a commercial transaction that preceded the litigation in which disclosure was sought. Thus, in those cases the relevant "question" or inquiry concerned their common interests in respect of the transactions (and not the ensuing litigation). Marshall v Prescott concerned communications relating to litigation and a common interest in the outcome of the litigation was found to exist notwithstanding the potential divergence of interests at some point in the future. [63] Thus, the analysis of Barrett JA in Marshall v Prescott bears out the proposition stated at first instance in Marshall v Prescott (No 4) [2012] NSWSC 992 at [61] by Bellew J and cited by Harrison AsJ in the extract noted above, namely, that "that a mere common interest in the outcome of litigation" will suffice. [64] This is especially so in the context of this case which is directed to s 122(5)(c) which refers to a "common interest relating to a proceeding."
35. In relation to the second issue, what kind of "interest" must the non-party have in the party's successful pursuit of the litigation? Clearly the relevant interest must be more than a mere preference as to how the litigation should unfold. In many of the cases where a common interest was established the prospects of a non-party avoiding a legal liability on the one hand or successfully establishing a liability and recovering on the other were advanced by the party's successful pursuit of the litigation. Thus the most common example given is where an insurer's exposure to its insured is limited by the insured successfully defeating litigation against it (e.g. Nauru Phosphate). In Marshall v Prescott, an insurer's ability to pursue separate recovery action was predicated on the successful recovery by a party to proceedings and that was found to be sufficient to ground a common interest. [65] Moreover, a financial interest in the outcome of litigation may suffice. In Rickard, Bergin J found that a litigation "funder had and has an interest in the most advantageous conduct of these proceedings by the plaintiff" [66] and that sufficed at least in circumstances where the relationship between the funder and the plaintiff was "collaborative and supportive". [67]
36. I have already described the pleaded allegations, the statutory relationship between the DPP and the relevant police officers as well as what is known or pleaded about the DPP's conduct in the prosecution of Mr Dyers. In his written and oral submissions, Mr Brereton SC emphasised that no express allegation of misconduct or misfeasance is made in the ASOC against the DPP or the ODPP solicitors and the Crown Prosecutor who appeared on his behalf. The written submissions contended that the DPP's conduct "is not attacked by the pleading". [68] While there is no express allegation of impropriety against the DPP, an attack on the conduct of the prosecution by the DPP is implicit in the ASOC given the allegations that are made concerning the prosecution of Mr Dyers during a period after the DPP assumed the conduct of the prosecution and the absence of any suggestion that the ODPP's solicitors were misled by any police officer or otherwise inhibited in forming their own decision as to whether to maintain the prosecution.
37. If Ms Hamilton was to succeed on so much of the ASOC that impugns the conduct of the four detectives in relation to the prosecution of Mr Dyers from the time the DPP assumed conduct of the proceedings then, leaving aside any question of whether any of the DPP, a Crown Prosecutor or ODPP solicitors are a "public officer", there would clearly be an enhanced potential for them to be found liable for misfeasance in public office (or perhaps malicious prosecution). While the prospect of them being joined to these proceedings or being sued in separate proceedings now appears remote, the same could not be said as at September 2014 even allowing for possible Limitation Act defences. From the DPP's perspective that was a realistic prospect at that time. In those circumstances her Honour was correct to hold that the DPP and the State had a "common interest in the outcome" of Ms Hamilton's proceedings which satisfied s 122(5)(c).
38. Otherwise I note that the successful establishment of so much of the allegations that concern the prosecution of Mr Dyers after that was assumed by the DPP would have the strong likelihood of reflecting adversely on the DPP and ODPP staff especially having regard to his and their statutory and professional responsibilities. The DPP (and ODPP staff) were more than mere witnesses to the events pleaded surrounding the prosecution of Mr Dyers. The DPP was statutorily charged with responsibility for the conduct of the prosecution sought to be impugned by the ASOC.
39. Neither the parties or my research has revealed any case that has considered whether an adverse reflection on a statutory office holder's performance would be capable of amounting to an "interest" sufficient to satisfy the phrase "common interest" in s 122(5)(c). Given the instances of commercial or financial interests that have been held to fall within that phrase (or its equivalent at common law) there does not seem to be any reason for construing the phrase "common interest relating to the proceedings" as excluding the "interest" of a statutory office holder in countering allegations of the kind made in the ASOC. However, in light of the conclusion in [76] it is not necessary to decide that.
40. The written submissions in support of these grounds of appeal did not address them separately. As best as I can ascertain, the import of ground 3 is that Harrison AsJ erred in proceeding on the basis that all "Crown agencies" share a common interest in anticipated legal proceedings against the State. I do not understand her Honour to have approached the matter on that basis. Instead, her Honour simply accepted that in this case the relevant Crown agencies shared a common interest. For the reasons given that ground fails, as do grounds 4 and 5. Ground 7: Unfairness and Waiver
41. Ground 7 contends that "her Honour erred in finding that the public interest did not warrant the disclosure of the documents, notwithstanding the claim for privilege."
42. I have briefly summarised the approach of Harrison AsJ to this aspect of Ms Hamilton's case on waiver at [22]. Her Honour rejected the contention that either "considerations of fairness", the "public interest" or the "interests of justice" warranted disclosure of the documents. [69]
43. No criticism can be levelled against her Honour for making findings in those terms. In doing so her Honour was simply addressing various contentions made to her on behalf of Ms Hamilton. However, those contentions were mostly misconceived. The references to the "public interest", the "interests of justice" and the "administration of justice" appear to have been derived by the parties from observations concerning the rationale for the existence and scope of legal professional privilege and its exceptions at common law stated by Gibbs CJ in R v Bell; Ex parte Lees [1980] HCA 26; (1980) 146 CLR 141 at 147 and Attorney-General (NT) v Kearney [1985] HCA 60; (1985) 158 CLR 500 at 515. In the written submissions in support of the appeal reference was also made to Deane J's discussion of the public interest rationale for the privilege in Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52 at 120.
44. None of this was of any assistance to her Honour or the resolution of this appeal. Those discussions of the rationale for legal professional privilege do not suggest that the "public interest" or the "interests of justice" limit the scope of claims for legal professional privilege at common law. Most significantly, they are of no relevance to the construction of s 122 of the Evidence Act. Parliament has made its own judgment as to what the public interest and the interests of justice require and that is reflected in Part 3.10 of the Evidence Act.
45. Once the arguments concerning s 122(3) and 122(5) had been addressed all that remained for consideration by Harrison AsJ was whether the DPP's provision of the subpoenaed documents to the Crown Solicitor was conduct of a kind referred to in s 122(2) of the Evidence Act. The same issue now arises on the appeal and it falls to be resolved on the assumption that it has not been demonstrated that the DPP retained the Crown Solicitor prior to handing the documents over but it has been demonstrated that the DPP shared a "common interest relating to the proceedings" with the State.
46. The test posed by s 122(2) is whether that conduct of the DPP was inconsistent with the maintenance of client legal privilege. The relevance of considerations of "fairness" to that test was explained in Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 at [29] per Gleeson CJ, Gaudron, Gummow and Callinan JJ as follows: "What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large."
47. Although it was framed in different ways at different times, the case put on behalf of Ms Hamilton for waiver is reflected in the submission made by Mr Brereton SC noted above (at [49]) namely that the documents were given to the Crown Solicitor who was "free to deploy those documents for the benefit" of the State's defence. In the written submissions filed in support of the appeal it was contended that the effect of providing the documents was to confer on the State "the forensic advantage of potentially probative evidence that is withheld" from Ms Hamilton. [70]
48. The onus of proving that the DPP's conduct was inconsistent with the maintenance of client legal privilege over the subpoenaed documents rested upon Ms Hamilton. All she established was the mere provision of documents to the solicitors for the State with whom it has a common interest. Of itself that does not operate a waiver (s 122(5)(c)) or establish an inconsistency under s 122(2). The position may be different if Ms Hamilton demonstrated that the subpoenaed documents had actually been deployed in the conduct of the litigation but she did not.
49. It follows from the above that, as framed, ground 7 of the appeal was misconceived. However, even if it is treated as raising an issue as to whether Ms Hamilton demonstrated a waiver under s 122(2), it fails. Result
50. It follows that Ms Hamilton has established grounds 1 and 2 of the appeal but failed on the remainder. The effect of failure on the remaining grounds is that Harrison AsJ's refusal to grant access to the subpoenaed documents must be upheld. Accordingly, the appeal will be dismissed.
51. In relation to the costs of the appeal, absent argument to the contrary, I order some diminution in the DPP's costs to allow for Ms Hamilton's success on grounds 1 and 2. I order that Ms Hamilton pay 75% of the DPP's costs of the appeal. If either party seeks to vary that order they can apply within the time provided for in UCPR 36.16(3A).

Orders

1. Accordingly, the Court orders that: 1. The Plaintiff's notice of motion filed 28 October 2015 be dismissed; and 2. The Plaintiff pay 75% of the Director of Public Prosecution's costs of the notice of motion filed 28 October 2015.

Endnotes

1. Komatsu Marketing Support Australia Pty Ltd v Marsh Pty Ltd [2012] NSWSC 163 at [6]
2. Carbotech-Australia Pty Ltd v Yates [2008] NSWSC 540 at [3]
3. s 122(5)(c), Evidence Act
4. s 9B(2) of The Law Reform (Vicarious Liability) Act 1983 (NSW)
5. ASOC at [36]
6. See [15] and [16] below
7. ASOC at [32]
8. ASOC at [48], [51], [54] and [57]
9. Evidence Act; s 131A
10. Hamilton at [22]
11. Hamilton at [22]; see R (Cth) v Petroulias (No 22) (2007) 176 A Crim R 309; [2007] NSWSC 692 at [56]; Aouad v R; El-Zayet v R [2013] NSWSC 760 at [31]
12. Crown Prosecutors Act 1986 (NSW); s 5(1)(a)
13. Hamilton at [22] to [23]
14. Hamilton at [24] to [37]
15. Hamilton at [46]
16. Hamilton at [47] to [48]
17. Hamilton at [52]
18. Hamilton at [36]
19. Hamilton submissions at [4]
20. see Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1, 7
21. Jackson at [3] to [4]
22. Jackson at [11]
23. Jackson at [36]
24. Jackson at [37]
25. Jackson at [51] to [52]
26. Jackson at [39]
27. Jackson at [41]
28. Rickard at [33]
29. Rickard at [33]
30. DPP Act; s 9
31. DPP Act; s 18(1)
32. DPP Act; s 18(2)
33. DPP Act; s 15A(1)
34. Police Act 1990 (NSW), s 6(2)
35. Transcript 2/7/2015 at 5.30
36. Transcript 2/7/2015 at 6.10
37. Hamilton at [42]
38. Transcript 19/07/2016 at 24.50
39. Transcript 2/7/2015 at 20.36
40. Transcript 2/7/2015 at 21
41. Transcript 2/7/2015 at 30.45
42. Transcript 2/7/2015 at 43.1
43. Transcript 2/7/2015 at 43.28
44. Transcript 2/7/2015 at 43.43
45. Transcript 2/7/2015 at 44.28
46. Transcript 2/7/2015 at 44.22
47. Evidence Act; s 75
48. Hamilton at [44] to [45]
49. Hamilton at [45]
50. See Proctor Gamble Australia Pty Ltd v Medical Research Pty Ltd [2001] NSWSC 183 at [54]-[56]
51. See Vu at [46]; Liu v The Age Company & Ors [2010] NSWSC 1176 at [42] to [43] per McCallum J
52. Hamilton written submissions at [20] state that "[e]ffectively, the documents were provided to the Crown Solicitor in its capacity as agent for the Defendant"
53. Hamilton at [47]
54. Rickard at [50ff]
55. Marshall v Prescott at [63]
56. Rickard at [50] to [51]
57. Rickard at [56]
58. Marshall v Prescott at [69]
59. Marshall v Prescott at [62]
60. Marshall v Prescott at [62]
61. Marshall v Prescott at [71]
62. Marshall v Prescott at [71]
63. Marshall v Prescott at [69]
64. Bulk Materials (Coal Handling) Services Pty Ltd v Coal and Allied Operations Pty Ltd (1998) 13 NSWLR 689 at 695 per Giles J
65. Marshall v Prescott at [67]
66. Rickard at [57]
67. Rickard at [41]
68. Hamilton written submissions at [22]
69. Hamilton at [48] and [52]
70. Hamilton written submissions at [25]

Amendments 31 August 2016 - typographical errors: [15], changed "28 November 2015" changed to "28 November 2005" [45], deleted 'the' in third sentence [47], amended "inconsistently" to "inconsistent" [50], amended "2015" to "2014" [79], changed "amount into" to "amounting to". 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: 31 August 2016