A similar approach was taken by the Court of Appeal in Benecke v National Australia Bank (1993) 35 NSWLR 110. In that case Gleeson CJ stated (at 111-112):
"The law permits the search for truth in legal proceedings to yield, in certain circumstances, to the public interest in publicising the secrecy of communication between lawyer and client. In the present case, however, the appellant herself lifted the veil of secrecy by giving the version of the communications. Thereafter there was no reason in principle whey the pursuit of truth should not take its course, or why the Court should be inhibited in seeking to ascertain the true facts concerning those communications."
8 As the defendant's counsel have submitted there has been significant elaboration on the principles outlined in Telstra, particularly to be found in Wayne Lawrence Pty Ltd v Hunt [1999] NSWSC 1044, at [12] [a decision of Hodgson CJ in Eq., as his Honour then was], which has since been referred to with apparent approval on a number of occasions - see, e.g., United Rural Enterprises Pty Ltd v Lopmand Pty Ltd [2002] NSWSC 1142, at [14]; and Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd [2004] NSWSC 1084, at [14]. In Wayne Lawrence Hodgson CJ in Eq. said:
"[T]he question of whether the advancing of a person's state of mind is to be taken as … waiving privilege, is a matter of degree in each case. It does not seem to me that the assertion of a belief must, in all circumstances, be taken as consenting to evidence being led of any legal advice or confidential communication that could be relevant to whether such a belief was held or the reasonableness of such belief. It seems to me that factors relevant to whether that consent is to be considered as having been given, or whether privilege is taken to have been waived, would include the significance of the belief to the case as a whole; the relevance of the reasonableness of the belief to the case as a whole; the probability or otherwise of the legal advice being relevant to the holding of that belief, or being relevant to its reasonableness; and in circumstances where the Court inspects the legal advice in question in order to make a decision, the extent to which the legal advice does in fact bear upon the holding of the belief or its reasonableness, and the extent to which the legal advice relevant to those matters is inextricably bound up with legal advice going to other questions as to which there has been no consent or waiver."
9 Ultimately each of the factors referred to by Hodgson J requires to be weighed against the particular template thrown up whenever questions of waiver of legal professional privilege or client legal privilege are raised in a particular context.
The instant proceedings and context
10 It is inappropriate to repeat the record. The terms of the amended summons filed on 25 January 2005 are clear. The latest amended defence to the summons filed on 17 Dec 2004 does not require any extensive repetition.
11 The Court has had the additional benefit of receiving detailed written overview submissions from both parties in relation to the matter to be litigated during the final hearing. Those submissions are of particular assistance in throwing up the particular focus likely to be litigated in terms of the pleaded issues.
12 The particular issues which appear to raise the relevance of legal advice concern the plaintiff's claim that he was induced to retire promptly from his positions as chairman of the board of IAG and as a director of the company by reason of alleged representations made by members of the board to the effect that if he retired he would be paid his full retirement benefit under the policy than being considered. His case is, inter alia, that IAG thereafter acted unconscionably, not only in delaying payment of any retirement benefit, but then in failing to pay the correct amount of the benefit. The amended summons further includes claims grounded upon alleged breaches of section 82 of the Trade Practices Act 1974 and/or section 68 of the Fair Trading Act 1997 and there are claims that the conduct of IAG was oppressive to, unfairly prejudicial to or unfairly discriminatory against Mr Whitlam in contravention of section 233 of the Corporations law.
13 It is clear from many of the documents to be found in IAG's proposed tender bundle that legal advice obtained for IAG has not been fully disclosed. In some cases partial disclosure of the substance of some of the legal advice received by IAG appears to have been disclosed.
14 In general terms, a careful examination of the materials to which the plaintiff has drawn attention makes clear, as I see it, that there has been a waiver of legal professional privilege concerning legal advice taken by IAG concerning its decision as to whether to pay a retirement benefit to Mr Whitlam in what amount and at what time and for what reasons. The materials before the Court make entirely clear that the board of IAG claims to have deferred its decision as to whether to pay a retirement benefit to Mr Whitlam in accordance with the Retirement Benefit Policy, initially because of the shareholders resolution which, if adopted, would have prevented the payment of that benefit to him without shareholder approval, and then as a result of the commencement of proceedings by ASIC and in the light of an opinion obtained from senior counsel as to the implications of those proceedings. Pointing to one only of the places where this claim is advanced by ASIC or its chairman or by others, I refer to the letter of 11 October 2002 from Mr Strong the then chairman of IAG to Mr Whitlam [plaintiff's bundle of documents volume 2: document 2-235].
15 Further, the document behind tab 42 of IAG's proposed tender bundle, being a report or 4 November 2002 by the Group General Counsel, entitled "Mr Whitlam-Retirement Benefit", deals in a number of places with matters concerning the board's reasons for deferring the decision in respect of Mr Whitlam's retirement benefits in late 2001 is suggested as still remaining relevant. Hence one finds a number of statements in this document where matters have been "masked for legal professional privilege". That formulation is to be found on page 2 and in the attachment 1 in the paragraphs numbered 5, 6, 8 and 11. Legal professional privilege has been waived in relation to each of these matters as it seems to me. Likewise, it seems to me that the same privilege has been waived in the same document in the attachment entitled 'chronology' in relation to the entry for 29 October 2001.
16 Further, it seems to me quite clear that against the principles earlier set out, legal professional privilege has been waived in relation to advice provided by Mr Bathurst QC on 29 October 2001 and to the brief provided to Mr Bathurst in respect of that advice.
17 Likewise [although there may be an overlap on the particular advice referred to], legal professional privilege has been waived concerning the content of the additional advice being referred to in the last paragraph on the first page of the minutes of the meeting of the board held on 4 December 2001 [appearing behind tab 38 in the defendant's proposed bundle of documents] and also concerning the matter masked at the top of the second page of the same document. Finally, there has also been a waiver of legal professional privilege in relation to the advices given by Mallesons and by Mr Walker SC [referred to on page 2 of the letter of 23 April 2001 from Mallesons to ASIC and to the Group Secretary and General Counsel of NRMA Insurance Group Limited to be found behind tab 15 of the defendant's proposed tender bundle].
18 I should make clear that I reject as misconceived the proposition put forward by IAG that in the context of the pleaded issues there is a distinction of significance to the legal professional privilege waiver point by reason of the suggestion that only the conduct of the defendant's board seen as a 'corporate organ' is relevant, as opposed to the obvious relevance in relation to the pleaded issues of the state of mind of then directors of IAG at particular point in times.
19 There is also a very significant case management consideration which requires to be taken into account. The application for access to this wider material has been pressed extremely late, truly at the doorstep of the final hearing. The parties have placed before the Court detail of the past consent orders with respect to discovery and the correspondence which has passed between the parties over an extended period in relation to discovery. It is plain enough from the correspondence that the parties reached an accord in a number of areas. Importantly, IAG agreed not to press its request for Mr Whitlam to give discovery of documents relating to proceedings brought by ASIC on the express basis that Mr Whitlam narrowed his discovery requests.
20 Mr Black has deposed as follows:
"5. Prior to the letter dated 24 December 2004 from Watson Mangioni to Mallesons, the plaintiff has not sought discovery of the further categories of document specified in paragraphs 1-2 of the plaintiff's motion dated 20 January 2005. Many documents falling within those categories have already been discovered, subject to IAG's claim for legal professional privilege, as falling within category 3 of the discovery categories ordered by Justice Bergin on 27 August 2004 (Annexure "F"). Other documents which do not fall within that or any other discovery category, including legal advices provided to IAG management concerning the day-to-day conduct of these proceedings, will not have been discovered.