(2009) 74 NSWLR 333
Banksia Mortgages Limited v Croker [2010] NSWSC 535
Great Atlantic Insurance Co v Home Insurance Co [1981] 1 WLR 529
Source
Original judgment source is linked above.
Catchwords
(2009) 74 NSWLR 333
Banksia Mortgages Limited v Croker [2010] NSWSC 535
Great Atlantic Insurance Co v Home Insurance Co [1981] 1 WLR 529
Judgment (2 paragraphs)
[1]
Judgment
HIS HONOUR: This is a claim for legal professional privilege in respect of a document headed, "Statement as to accident occurrence", a statement taken from the plaintiff by the plaintiff's solicitors on 15 December 2015. The document has not been signed by the plaintiff but it is common ground that it is his document, that it was prepared by his solicitor for the purpose of the solicitor having written instructions as to the circumstances of the plaintiff's accident. The statement relates only to that accident. These proceedings were commenced by a statement of claim dated 14 December 2015 and filed on 15 December 2015, the same day that the statement was generated. There is really no dispute to the claim that the document is subject to the privilege contained in s 118 of the Evidence Act 1995. However, the defendant maintains that there has been a loss of that privilege pursuant to s 122 of the same statute.
On 8 February 2016, the defendants' solicitors sought particulars from the plaintiff. The particulars sought were numerous: there are 115 questions, a number of which have a number of sub‑questions. The plaintiff's solicitors delivered the particulars on 18 February 2016 some ten days later which, considering the amount of information that was sought by the defendant, was a remarkably swift response. However, an error was made.
I should point out that inadvertently the plaintiff disclosed the statement that had been taken from the plaintiff to the defendant's solicitors but this was quickly realised and the document was returned to the plaintiff's solicitor and the defendant did not keep a copy.
On 11 May 2016, the plaintiff's solicitor wrote to the defendant's solicitor about a number of matters. The relevant part of the letter is this:
"In our letter to you of 18 February 2016 (answers to request for further and better particulars), at the answer (s) to particulars 21 and 84, reference is made to the front wheel of the shopping trolley coming into contact with the pallet guard. This was a dictational error on the part of the writer, for which he apologises. By way of clarification, and to avoid any confusion, it was the rear wheel of the trolley that came into contact with the unsecured pallet guard.
The writer takes some comfort in noting in the plaintiff's statement as to the accident's occurrence - a copy which was inadvertently forwarded to yourselves (acknowledging no copy is retained by your office), clearly recites contact between the trolley and the pallet guard being with the rear wheel.
Again, the writer apologises for any confusion in this regard."
The defendant submits that the penultimate paragraph which I have quoted amounts to a waiver of legal professional privilege in respect of the statement now in question.
The first thing I would point out is that the letter of 11 May 2016 was pointing out that earlier incorrect particulars had been delivered, that the error in those particulars contained was a mistake made by Mr Brennan, the solicitor, personally, and the particulars that should be considered by the defendant's solicitor were that it was the rear wheel of a shopping trolley being pushed by the defendant that came into contact with the relevant piece of pallet guard.
The penultimate paragraph which I have quoted was really a vehement assertion by Mr Brennan that it was clearly his mistake as an earlier statement made by the plaintiff clearly referred to the rear wheel of the trolley striking the relevant piece of pallet guard. It was not necessary for the plaintiff's solicitor to include the penultimate paragraph. It was stated merely to point out that it was Mr Brennan's error rather than any change of instructions by the plaintiff.
The question is whether this "disclosure" of one small part of the contents of the statement now in question amounts to a waiver of legal professional privilege over the whole statement. It must be remembered that s 122(2) is in these terms:
"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 s 118…"
The first question to be considered is whether the plaintiff's solicitor acted in a way that was inconsistent with his client's objecting to producing the statement because of the privilege that it had under s 118. This matter is not without authority. The relevant leading authority as far as I am aware is Bailey v Department of Land and Water Conservation [2009] NSWCA 100; (2009) 74 NSWLR 333. The leading judgment was delivered by Tobias JA with whom both Allsop P and Hodgson JA concurred. After reviewing the pre-existing law at some length and in particular the decision of the English Court of Appeal in Great Atlantic Insurance Co v Home Insurance Co [1981] 1WLR 529; [1981] 2 All ER 485, his Honour concluded at [132]:
"In my opinion, Great Atlantic stands only for the proposition that where the whole of a document is a privileged communication between legal advisor and client, the party entitled to claim that privilege cannot waive the privilege as to part of the communication but claim it with respect to the remainder if to do so would result in unfairness. Either privilege is claimed with respect to the whole or waived as to the whole. The only exception to this will be where the communication dealt with two entirely different subject matters in respect of which privilege was claimed for the one but there was one that was relevant to the issues at hand and waived for the other which was not."
Allsop P, while generally agreeing with Tobias JA, said this commencing at [3]:
"3. The second comment concerns Great Atlantic Insurance Co v Home Insurance Co [1981] 1 WLR 529 and is by way of qualification. I would distinguish Great Atlantic from the facts here. In Great Atlantic, part of a privileged document was disclosed. It was not possible to sever or segregate the balance of the document from the waived part. Here, the privileged portion redacted was a section of a document otherwise not privileged (as recognised before the primary judge, though an inappropriate claim for privilege had been made over the whole document). I would leave for an occasion on which it was necessary to decide the true limits of any principle in Great Atlantic, if such extends beyond waiver through dealing or acts inconsistent with the maintenance of the confidentiality of the communication and thus the privilege: Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 at 13 [29]. It is also necessary to recognise in any discussion of Great Atlantic that unintentional acts, which are not irrevocable, do not necessarily lead to waiver: for example, see Hooker Corporation Ltd v Darling Harbour Authority (1987) 9 NSWLR 538.
4. The third comment also concerns the notion of inconsistency in the waiver of privilege and is by way of elaboration. Though fairness may have a part to play in assessing inconsistency, it is not a freestanding or overriding principle of fairness "operating at large": Mann v Carnell at 13 [29]. I agree with Hodgson JA in Archer [2008] NSWCA 164 at [48] cited by Tobias JA. I would also refer to what I said in DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 384; 127 FCR 499 at 504-529 [11]- [113] (though in context of the common law). At 519-520 [57]-[58] I agreed with Hodgson J (as he then was) in Standard Chartered Bank of Australia Ltd v Antico (1993) 36 NSWLR 87 as to the need to make an express or implied assertion of the content of the confidential communication. His Honour repeated these comments in Archer at [47]-[48]. The importance of this repetition, after Mann v Carnell, is to reinforce the fact that the relevant issue is inconsistency, not general fairness. As the discussion in DSE reveals (especially at 521-529 [70]-[113]) there is, after Mann v Carnell, a latent difficulty in some of the jurisprudence arising from the application of general notions of fairness verging on a discretion. Mann v Carnell brought an important clarification and sharpness to the analysis which cannot be easily reconciled with Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475 in its application to specific circumstances, or generally. With the greatest respect to those who consider that Mann v Carnell worked no real change (cf the Full Court of the Federal Court in Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86; 229 ALR 304 at 316 [44]) a review of many of the decisions based on a general overriding principle of fairness and a reconsideration of them based on assessing the inconsistency with the confidentiality underlying the privilege (even informed in part by fairness) leads one to appreciate the practical reality of the change. The approaches in many of the cases discussed in DSE at 521-529 [70]-[113] would be difficult to sustain under Mann v Carnell."
The author of Odgers' Uniform Evidence Law 12th edition at p 971 added this comment to the dictum of Tobias JA in Bailey's case:
"As Allsop JA (with whom Hodgson JA agreed) pointed out at [3]-[4], a principle based on conceptions of 'a freestanding overriding principle of fairness operating at large' is not supportable under the common law as developed by the High Court or this provision. However, it is very likely that the Courts will develop the 'acted inconsistently principle' to cover circumstances of selective or partial disclosure by a party for forensic advantage, even if the terms of s 122(3) do not catch such conduct."
For that comment, the author cites the decision of Schmidt J in Banksia Mortgages Limited v Croker [2010] NSWSC 535. Mr Roberts also referred me to Odgers' commentary at the foot of p 972 and top of 973 of the same work in which the author discusses the issue of disclosure by mistake. Suffice it to say I do not believe that what has been done here shows an inconsistency with the claim for legal professional privilege. What the solicitor did was unnecessary but clearly he was only pointing out that the error was his and not his client's for which he took responsibility and offered an apology. That is not conduct, in my view, which is inconsistent with the plaintiff's claim for privilege in respect of the whole of the statement which the defendant otherwise admits is privileged under s 118.
The correct particulars were given and the unnecessary statement by the plaintiff's solicitor did not amount to any waiver of privilege. So I uphold the claim for legal professional privilege in respect of the statement which is MFI 7.
[2]
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Decision last updated: 27 January 2017