Reviving the Witness' Memory (s122(6))
13 At common law the test was framed in terms of "refreshing a witness' memory". Section 122(6) employs the phrase "reviving a witness' memory". Nothing turns on this difference. The report of the Australian Law Reform Commission (Report No. 26 (interim) Evidence, Vol 1 para 614) makes it clear that the Statute is seeking to reproduce the common law (although using a phrase which they believed to be more apt) (see Lindgren J, MGICA (1992) Ltd v Kenny & Good Pty Ltd & Anor (No 2) ((1996) 135 ALR 743) at 749).
14 In MGICA, an expert had prepared a draft report. He read that report, together with other material, in preparation for his giving evidence. In these circumstances, Lindgren J said this: (at 748)
"In my view, the authorities show that the interests of fairness prima facie require that legal professional privilege be treated as lost where a witness, including an expert witness, has refreshed his or her memory for the purpose of giving evidence by reading a document to which the privilege attaches, and is called to give evidence by the party benefited by the privilege. The reason is that an important aspect of the fair treatment of the interests of the other party is that that party have adequate opportunity to test the witness' evidence by comparing with the document the evidence which the witness gives."
15 Should Mr Alder, having undertaken the process of comparing the solicitor's transcription of his notes with the notes themselves, and having been called as a witness by the defendants, be taken to have revived his recollection for the purposes of giving evidence? Section 122(6), in my view, contains an important qualifying phrase. The Division dealing with privilege (Pt 3, Div 10) does not prevent the adducing of evidence of a document used by a witness to revive his or her memory about a fact or opinion. The fact or opinion must relate to the evidence which the witness gives, or is able to give. The touchstone is fairness. Where a witness has given evidence about a fact or opinion, and has refreshed his or her recollection from a document relevant to that fact or opinion, the document used to refresh the witness' recollection should be made available to the cross examining Counsel upon request. It would be unfair were it otherwise.
16 In Arthur Henry Grundy & Anor v John Bertram Lewis & Ors (unreported, [1998] 1537 FCA (14.9.98)) Cooper J said this: (at p4)
"In my opinion, s122(6) enables evidence to be adduced of a document although the contents are subject to client legal privilege, where for the purposes of giving evidence of the fact, the witness has referred to the document prior to giving the evidence to try to revive the witness' memory of the fact. The sub-section does not apply generally to all documents to which recourse is had for the purpose of the litigation or for the framing of the case advanced."
17 In MIGCA (1992) Ltd v Kenny & Good Pty Ltd (supra) the material, otherwise privileged, which the expert had consulted, related to the subject matter, and to the evidence, which the witness had given. Lindgren J said this: (at p 749)
"The expert has given evidence that he used his draft report by reading it through, admittedly with other documents, for the purpose of refreshing his memory in preparing to give oral evidence. Mr Davies has put, in his usual persuasive manner, that this evidence is consistent with a minimal refreshment of memory from the draft reports. This is true, but it is also possible that the witness relied heavily on them. The witness' evidence does not distinguish in this respect between the draft reports and the other documents which he read. It is reasonable to think that a convenient, and perhaps the most obvious, direct and effective means of refreshment of memory of an expert witness would be for him to read a report in the form in which he had drafted it and in which he had stated his evidence and opinion on an issue, rather than, for example, to re-read documents which he had read prior to the writing of that draft report.
In my opinion, on the evidence, fairness to the applicant requires, rather than denies, that I should hold that the privilege has been lost in accordance with the prima facie position to which I referred."
18 In Newcastle Wallsend Coal Co Pty Ltd v Court of Coal Mines Regulation, the position was similar. A document had been used by a witness to refresh his recollection in respect of the evidence he gave. Powell JA identified the relevant facts in the following passage: (at 389/90)
"However, as the coal company, in no longer prosecuting its claim for privilege in respect of the record of the interview with Mr MacLean seems to recognise, the privilege which formerly attached to that record of interview has been lost by reason of the facts:
(1) that the copy of that record of interview which was later provided to Mr MacLean was provided to him for his own purposes and was not made subject to any condition as to non-disclosure; and
(2) as is clear from the extract from the transcript of the evidence given by Mr MacLean in the course of the investigation by Staunton A-DCJ, Mr MacLean used that record of interview for the purpose of refreshing his recollection before giving evidence before Staunton A-DCJ (s122(6))."
19 Here, it seems to me the position is quite different. There is nothing in the material, which is the subject of the claim for privilege, which has been used by Mr Alder to revive his memory about a fact or opinion which has been the subject of his evidence. The remaining entries in the Planner relate to different events, which were not the subject of his evidence. No evidence was given by Mr Alder concerning such events because, plainly, they related to his dealings with solicitors in the context of litigation which was then in contemplation or undertaken. The material, therefore, was privileged. I see no unfairness to the plaintiff, in the circumstances, in perpetuating that privilege.
20 I therefore hold that the balance of the document (being that part of the Communication Planner of Mr Alder in respect of which there is a claim for legal professional privilege) has not been used to revive Mr Alder's memory about a fact or opinion for the purposes of s122(6).
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