Evidence - Facts excluded from proof - On grounds of privilege - Professional confidence - Legal profession - Waiver of privilege - Production for inspection of proof of evidence used to refresh witness's memory - Whether inconsistent with maintenance of the privilege.

Mann v Carnell [1999] HCA 66; (1999) 168 ALR 86; Mather v Morgan [1971] Tas SR 192; Mancorp Pty Ltd v Baulderstone Pty Ltd (t/as Baulderstone Hornibrook) (1991) 57 SASR 87; Trade Practices Commission v TNT Management Pty Ltd and Others (1984) 56 ALR 647, referred to.

Judgment Number: [2000] TASSC 38

KAREN JANE VERDOUW, ERIC VERDOUW, MARK WILLIAM VERDOUW, TRACY ADELLE VERDOUW, JEFF WITBREUK and CHRISTINA WITBREUK

1 The plaintiff, having acknowledged in cross-examination that prior to giving evidence he had refreshed his memory by reference to (inter alia) a document described as his proof of evidence, I have been asked to rule whether or not counsel for the first-named defendant, having called for the production of that document, may inspect it without penalty. I have taken evidence on the voire dire as to its nature, provenance and use. In the first place it can be observed that it is clearly a privileged document. Secondly, it is a document which physically came into existence on 29 February 2000. I infer that it is a compilation of instructions taken from the witness at an unknown time or times from about the date the writ was issued, or shortly before, and that it was first prepared by counsel for the plaintiff, or by one of his colleagues. As typed, it was not, in the witness's view, wholly accurate and he made some notes upon it, from which it appears a further document, for the assistance of counsel and part of his brief, was prepared. The witness has not seen the latter document.

2 Between the 29 February 2000 and last weekend, the trial having started on Monday of this week, he looked at it again and the witness acknowledges that it has refreshed his memory in respect of some parts of his evidence. He acknowledges that there may have been some details which he had forgotten which came back to his mind after having read the document. I have no evidence as to what part of the document revived his memory and what needed no refreshment. It is a lengthy document which I have not perused, but which I infer deals generally with the entire subject matter of his evidence-in-chief. The question is, has the privilege been waived? If after having exhausted his memory in the witness box he had used this document to refresh his memory, that would clearly constitute a waiver of the privilege. His behaviour in doing so would be inconsistent with the maintenance of the privilege and it would not be fair to the opposing side not to be able to see the document thus used. However, the purpose for which this document was prepared by the plaintiff's solicitors was not to refresh his memory but to confirm their instructions, and far from refreshing his memory of it in respect of certain parts of his evidence, he has, it appears, filled in gaps in detail not known to the solicitors or has contradicted details which he contends they have noted incorrectly. What part of the remainder actually refreshed his memory is not known, as I said.

3 The recent case of Mann v Carnell [1999] HCA 66; (1999) 168 ALR 86 deals with the general question of waiver of privilege. In their joint judgment, Gleeson CJ, Gaudron, Gummow and Callinan JJ said at 94:

"It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege."

A little further on, on the same page, their Honours said:

"Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is 'imputed by operation of law'."

And their Honours refer to Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83 at 95_._ They continued:

"This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege."

"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; there is not some overriding principle of fairness operating at large."

Now in that context I asked myself whether, having regard to considerations of fairness, there is any inconsistency in the plaintiff, having perused the document, prepared by others, for the purpose of giving final instructions to his solicitors and counsel but having derived some presently unquantifiable assistance from it in refreshing his memory as to some parts of his evidence, being able to maintain his privilege of keeping the contents of it confidential.

4 In Mather v Morgan [1971] Tas SR 192, Burbury CJ and Neasey J said that no hard and fast rule could be laid down as to the production and inspection of a document used out of Court to refresh memory. They were not dealing with a privileged document, the out of Court use of which had assisted memory, but they did say at 206 that the document:

"... may contain matter which it would not be fair to let cross-examining counsel see. It may for instance be part of the brief of the opposing side."

This certainly acknowledges the likelihood of unfairness to the party whose witness it is whose memory is refreshed by the production and inspection of part of his counsel's brief and suggests that privileged documents would normally be protected from production. In Mancorp Pty Ltd v Baulderstone Pty Ltd (t/as Baulderstone Hornibrook) (1991) 57 SASR 87 at 89, Debelle J said that he noted that their Honours, in the Tasmanian case to which I have just referred, made it clear that they were not ruling on the question whether the principle should apply in the case of privileged documents, and he said:

"They expressly left that question open:" (citing pages 206 and 208 of the Tasmanian Report).

With respect, although any comments about privileged documents would have been obiter dicta, I do not read those pages as expressly leaving the question open. They simply noted that there was no question of privilege in the case before them and that there was no reason appearing from the contents of the document why it should not have been produced.

5 As Debelle J noted, the only case by that time decided in respect of out of court privileged documents was Trade Practices Commission v TNT Management Pty Ltd and Others (1984) 56 ALR 647, where Franki J allowed production and inspection of a proof of evidence made by a witness to his legal advisers about one month earlier, and from which he had refreshed his memory at various times with a view to giving evidence. Franki J noted, at 688, that no request had been made of him to receive evidence concerning the precise purpose for which the document was provided to the witness. The evidence here makes it appear, and I so find, that this document was not intended for the purpose of refreshing memory, but rather of confirming instructions and correcting any misconceptions held by the plaintiff's solicitors as to those instructions. The privilege was clearly not intentionally or expressly waived by the plaintiff or by his advisers, nor in my view was it impliedly waived. The plaintiff, in his capacity as a witness in his own cause, coincidentally may have been able to refresh his memory on some unidentified parts of his evidence. There was no cross-examination directed to those parts of his evidence which were the subject of refreshed memory, and hence no way of knowing their significance in the overall case. To compel production of the whole of this privileged but incomplete document would, in the circumstances, be unfair to the plaintiff in my view, whereas failure to afford the defendant's counsel the opportunity to see it after only in effect having elicited that it was one of several documents, the remainder of which are available to both sides, if not already before the Court, which the witness read before giving his evidence and from which he had refreshed his memory, could not without more, in my view, constitute unfairness to the defendant. In the case before Franki J the evidence suggests that the witness was given his proof of evidence as an aide memoire and that he used it as such. It was on that basis that he considered the privilege was waived. In Mancorp Pty Ltd v Baulderstone Pty Ltd (supra) the application was made by cross-examining Counsel on the basis:

"... that privilege has been waived by the handing of the statement to the witness for the purpose of refreshing his memory before he gave his evidence". (at 88)

6 The present case, in my view, is a far cry from either of those cases. The facts of each individual case must be looked at to see if, in the circumstances, privilege has been waived. The test is whether or not it can be said that the client's action is, having regard to any questions of fairness between the parties, inconsistent with the maintenance of the privilege, and I refer to Mann v Carnell (supra) again. I am satisfied that there is no inconsistency here and that accordingly there has not been any waiver.