Plaintiff v Defendants

Supreme Court of Victoria|2008-11-11|Before: FORREST J

EVIDENCE - Legal professional privilege - Waiver - Instructions to solicitor - Identification of instructions does not constitute waiver - Solicitor's notes of meeting with third party - Privileged communications.

1 The plaintiff, Mark French, is a professional cyclist. He has issued proceedings in relation to a broadcast by the three defendants, Triple M Melbourne, Triple M Sydney and Triple M Adelaide, of a programme known as "The Cage". In the course of a discussion between the presenters, it is asserted that imputations arose to the following effect:

(a) That he was a drug cheat who had knowingly taken performance enhancing steroids.

(b) That he informed on his team mates and was accordingly un-Australian.

2 This is an application by the defendant to gain access to eight documents produced by the plaintiff's former solicitors Messrs Minter Ellison and Messrs Piper Alderman between 2 December 2003 and 7 January 2004. I note that at the time the plaintiff was also represented by Lancione Partners, which firm later became part of Piper Alderman, solicitors in Adelaide.

3 The plaintiff claims legal professional privilege over each of the documents. The defendants accept that in respect of seven of the documents, legal professional privilege applies, but contend that the plaintiff has waived such privilege. The defendants contend that the eighth document[1] is not privileged or alternatively is not protected by reason of the waiver.

4 I have inspected each of the documents in dispute.

5 The following facts can be gleaned from the pleadings and the material referred to on this application. I stress that at this point of time there has been no evidence led in the course of the imminent jury trial and that no findings of fact have been made. With this caveat, I think that the relevant facts are as follows.

6 On 2 December 2003, the cleaning staff at the Australian Institute of Sport, Del Monte in Adelaide, found a quantity of vials and injection equipment in Mr French's room. Mr French was interviewed by Martin Barras, a senior track coach of the AIS, and Dr Peter Barnes, whom I understand to be a doctor engaged by AIS.

7 On 3 December, it appears that Dr Barnes and Mr Barras compiled notes of the interview which they then signed but which Mr French declined to sign.

8 Mr French had sought legal advice from Minter Ellison, solicitors, and notes of his conference as well as correspondence are amongst the contested documents.

9 On the following day, 4 December, it can be inferred that Mr French met with his solicitor, Ms Alison Crawford of Lancione Partners (it appears that Ms Crawford had taken over conduct of Mr French's legal affairs), and gave her instructions which were noted "responses to ROI notes".[2] The other six documents (apart from that compiled in January of 2004), are all solicitors' notes and correspondence relating to Mr French and the discovery of the materials and dated between 2 December and 5 December 2003.

10 On 5 December, Ms Crawford wrote to Mr Blaylock, the senior manager of Media and Public Relations and Business Operations at the Australian Sports Commission in the ACT. The correspondence was by fax and, set out within it, a response to a number of the paragraphs contained in the notes of interview compiled by Barnes and Barras. It was prefaced by the following statements:

"I act for Mark French.

I refer to our meeting on 4 December 2003.

Thank you for the opportunity to take instructions from my client. Based on those instructions, the following is a clarification and correction of some aspects of the notes of record of interview of my client taken on 2 December 2003; a copy of which you have in your possession.

The interview took place in the presence of Martin Barras and Dr Peter Barnes, following the discovery of a plastic "sharps" container in the room previously occupied by my client at AIS Del Monte Adelaide.

My client was informed of the discovery by Mr Barnes on 2 December 2003 at about 2pm and an interview was convened in his office at 7.30pm.

When my client arrived for the interview he was asked to remain outside the interview room for about four minutes. The plastic sharps container, with its lid removed, was in the interview room when my client entered it.

The following responses address specific paragraphs of the notes of record of interview:

1. In relation to paragraph 4, my client confirms that he was only ever shown the plastic sharps container, referred to as the white plastic bucket but not any plastic bag. The notes of the record of interview refer to the Evidence as being the contents of the white plastic bucket and of the plastic bag. My client has no knowledge of a plastic bag nor its contents.

[The letter then continued with a series of specific responses to paragraphs of the notes of interview.]

11 The letter did not recite any advice given by either Minter Ellison or Ms Crawford. It simply responded to various aspects of the Notes of Interview.

12 It is necessary to mention a couple of other matters prior to completing the factual background. On 19 December 2003, the Australian Sports Commission and Cycling Australia requested that a Mr Stanwick report to it in relation to potential breaches of various anti-doping provisions relevant to Mr French's scholarship at the AIS and his participation in the sport of cycling.

13 On 8 June 2004, the Court of Arbitration for Sport Oceania found that Mr French breached the anti-doping policies of the Australian Sports Commission and Cycling Australia. In the course of that hearing, a ruling was given by the arbitrator that the letter of 5 December constituted a waiver of legal professional privilege, at least over the instructions given in relation to the response to the letter.

14 Finally, Mr French lodged an appeal against the finding of the Court of Arbitration. The appeal was successful, and as I understand it Mr French was acquitted of each of the charges.

15 Mr O'Meara, who appeared with Mr McClintock SC for the defendants, contended that the letter of 5 December contained an express waiver of any privilege that might attach to any instructions or correspondence relating to the prospective charges. He submitted that the reference to instructions was sufficient to invoke the principles of waiver set out in Attorney General (NT) v Maurice,[3] as restated by the High Court in Mann v Carnell[4] and recently set out in Osland v The Secretary of the Department of Justice.[5] He also argued that the eighth document, Document 47, notes of a meeting with Mr Stanwick and the Frenchs on 7 January 2004 and their solicitor, apparently recorded by the solicitor, did not attract legal professional privilege as they were notes of a non-privileged communication.

16 Ms Treleaven, who appeared with Mr Hayes for the plaintiff, contended that the waiver which had to be imputed simply did not exist. The reference to instructions was superfluous as it was clear that the responses in relation to the record of interview had to be given on instructions. Mere reference to the existence of instructions does not constitute waiver, she contended. Moreover, there was no evidence of any forensic advantage being sought by deploying a partial disclosure which may produce an element of unfairness. She also contended that if there was a waiver, it would be limited to the instructions given in respect of the response on 4 December (Document 86), rather than a whole raft of other privileged material compiled around the time. She also said that privilege attended the compiling of Document 47, that is the 7 January 2004 note.

Did the 5 December letter constitute a waiver of legal professional privilege?

17 The starting principle is that legal professional privilege is a fundamental common law right or immunity.[6]

"The holder of the privilege should not be able to abuse it by using it to create an inaccurate perception of the protected communication. Professor Wigmore explains: '... He cannot be allowed, after disclosing as much as he pleases, to withhold the remainder.' In order to ensure that the opposing litigant is not misled by an inaccurate perception of the disclosed communication, fairness will usually require that waiver as to one part of a protected communication should result in waiver as to the rest of the communication on that subject matter."[7] (My emphasis)

19 In Mann v Carnell, Gleeson CJ, Gaudron, Gummow and Callinan JJ said.

"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 the maintenance of confidentiality; not some overriding principle of fairness operating at large".[8]

20 In Osland v Secretary to the Department of Justice[9] Gleeson CJ, Gummow, Heydon and Kiefel JJ said as follows:

"Waiver of the kind presently in question is sometimes described as implied waiver, and sometimes as waiver 'imputed by operation of law'. It reflects a judgment that the conduct of the party entitled to the privilege is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. Such a judgment is to be made in the context and circumstances of the case, and in the light of any considerations of fairness arising from that context or those circumstances.

Whether, in a given context, a limited disclosure of the existence, and the effect, of legal advice is inconsistent with maintaining confidentiality in the terms of advice will depend upon the circumstances of the case. As Tamberlin J said in Nine Films and Television Pty Ltd v Ninox Television Ltd, questions of waiver are matters of fact and degree". [10]

21 Mere identification of the existence of a document or, in the context of this case, a statement as to the existence of instructions does not of itself constitute a waiver. In State of Victoria v Davies[11] the Court of Appeal said:

"As Gibbs CJ stated in Attorney General (NT) v Maurice by reference to authority, it has been held that the privilege in respect of a document is not waived by the mere reference to that document in pleadings or in an affidavit, although the position will be different if the document is reproduced in full in the pleading or affidavit."

22 The reference to instructions in the 5 December letter was superfluous; the letter was clearly written on the basis of instructions without such an express reference being needed.

23 In my view, what was done by the letter of 5 November is no different to what is done day in day out by solicitors either forwarding a letter of demand or responding to allegations made by another party. Such demands or responses are made upon instructions (which may be stated expressly or implicitly) given by the client; there is, in my view, no inconsistency in the requisite sense where a solicitor sets out the client's instructions in respect of matters of fact. In this case, the reference to taking instructions and then asserting that "the response was based on instructions" cannot, without more, place this letter in any different position to any other letter asserting or disputing factual contentions based on instructions given by the client.

24 Indeed, the defendants' application is, in my view, quite breathtaking. It not only asserts that the instructions given by Mr French in response to the Notes of Interview are no longer privileged, but also apparently privileged documents compiled on the days preceding the letter and afterwards (at least into January 2004) are said to no longer be privileged.

25 This is not a case in which one can say that there is some forensic advantage to Mr French by setting out his response to the notes of interview; moreover, this is quite unlike a case where a party deploys part of a legal advice and withholds the balance. That is an example of an inconsistency in behaviour which will in turn create an unfairness and constitute a waiver.

26 I reject the proposition that the hearing before the Court of Arbitration for Sport resulted in a waiver. Putting to one side the correctness of the ruling requiring Mr French to answer questions pertaining to his instructions, the substance of the instructions was not disclosed at that hearing to the extent that a waiver could be imputed.

27 In summary, there was no inconsistent conduct by the plaintiff personally or by his lawyers which would give rise to the unfairness required to establish a waiver of legal professional privilege.

28 I conclude therefore that there has been no waiver in relation to any of the seven documents over which privilege is claimed. Even if I was persuaded that there had been a waiver, in my view it would only relate to Document 86 which constitutes the instructions in respect of the response to the notes of interview and no more.

29 The plaintiff's instructing solicitor kept notes of a meeting between herself, Mr French and Mr Stanwick, an investigator engaged by the Court of Arbitration for Sport. The meeting took place on 7 January 2004 and the notes appear to come from that date.

30 Initially, Mr O'Meara accepted that this record was privileged, but in the course of argument contended that it did not attract privilege as it was not a record of a privileged communication.

31 This document is not a record of communication between Mr French and his solicitor - it does not contain advice or instructions. However, legal professional privilege is not limited only to these communications. It attaches to any document provided that it is brought into existence for the dominant purposes of judicial or quasi-judicial proceedings, so it applies to draft pleadings, statements from potential witnesses, surveillance film and any other materials which are to be deployed in the lawyer's brief.

32 In Mitsubishi Electric Australia Pty Ltd v VWA,[12] Batt JA (with whom Callaway and Charles JJ agreed) said as follows:

"I consider first the dominant purpose that communicating reports. As summarised by Gummow J in Hartogen Energy by reference to High Court decisions, the purpose, that is the intended use, for which a document is brought into existence is a question of fact. Ordinarily the purpose will be that of the maker of the document, but that will not always be the case, as where some other person such as a solicitor commissioning the provision of a technical report, calls the document into existence. In that case the relevant intention will not be that of the author, but the solicitor. Likewise in the statement of principle in Grant v Downs Barwick CJ included the dominant purpose of the person under whose direction, whether particular or general, the relevant document was produced or brought into existence." (Citations omitted).

33 In AWB Limited v Cole (No.5),[13] Young J of the Federal Court said as follows:

"Where a lawyer has been retained for the purposes of providing legal advice in relation to a particular transaction or series of transactions, communications between the lawyer and the client relating to that transaction will be privileged, notwithstanding they do not contain advice on matters of law; it is enough that they are directly related to the performance by the lawyer of his or her professional duty as a legal adviser to the client. In Dalleagles, Anderson J said that professional discourse in a professional capacity between a solicitor and his client with reference to the transactions covered by his instructions should be regarded as prima facie for the purpose of giving and receiving advice. In his Honour's view, this would apply to any communication that is on its face a communication of a professional nature from the solicitor to the client or his agent touching the subject matter of the solicitor's engagement and any communication from the client to the solicitor in connection with that engagement. (Citations omitted - emphasis added).

34 The propositions which I have referred to are not confined to communications alone, but apply to documents brought into existence by the solicitor for the purpose of conducting the client's case and in providing advice. The notes of the interview on 4 January taken by the solicitor fall squarely within that category and as such are privileged.

35 In summary, in my view, none of the documents over which access is sought have been demonstrated to have been the subject of waiver. Document 47 is a privileged document. I reject the application brought on behalf of the defendants.

[6] See Daniels Corp Pty Ltd & Anor. v Australian Competition and Consumer Commission (2002) 77 ALJR 44 [11] to[ 44] and [132], Baker v Campbell [1983] HCA 39; [1983] 153 CLR 52

[9] (2008) 82 ALJR 1288 [45] and [49]

[10] See also Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83, 95, 109

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