PRESTON v HARBOUR PACIFIC & ORS [2002] NSWSC 1256 | Case summary

JUDGMENT (Discovery - application for inspection) 1 By an Amended Statement of Claim filed on 2 May this year, the plaintiff seeks from the sixth defendant damages for defamation arising out of an alleged slander said to have been uttered by him in September 1998. 2 In very general terms, as I understand the case, the plaintiff suffered a loss in respect of the risk of which he had insurance coverage. The first defendant is the underwriting manager; the second, third and fourth 4 defendants are the solicitors for the underwriters. The fifth and sixth defendants are a firm of private investigators. It seems to me on reading the pleading, that a question arose at some point as to the bona fides as to the claim made by the plaintiff to be indemnified for the loss he said he sustained. 3 A fundamental allegation in the Amended Statement of Claim is that made in paragraph 6, to the effect that the first defendant to the fifth defendant, is vicariously liable for the alleged publication by the sixth defendant, Michael Maher, to a Mr Barry Short, who was the sole shareholder of a company, Elizabeth Street Finance Limited. 4 It is apparent from the interim defence filed by all defendants that at the s 7A trial, in addition to the more traditional issues for the jury to decide, there will seriously be litigated issues as to publication and vicarious liability as contended for by the plaintiff and as denied by the defendants. 5 The present application before me is by way of Notice of Motion filed on 28 October this year in respect of which there is one matter outstanding, namely a claim for access to documents in respect of which a claim has been made for legal professional privilege. 6 In support of the motion, two affidavits of Michael Gerard Coffey have been read; the first dated 11 December and the second 17 December. To the first affidavit are annexed lists of documents served by the first, second, third, fourth, fifth and sixth defendants. 7 Whilst a view can be formed that there is a cross referencing between the lists of documents, by considering paragraph 6 on page 3 of the first defendant's list, which relates to copies of privileged documents identified in the second to sixth defendant's discovery lists, in the context of this application it is desirable to consider the lists discretely, bearing in mind a fundamental component, namely the privilege claimed by the solicitors is, of course, the privilege of their client, the first defendant. 8 What has happened in the course of this application is this: that Mr Coffey, by reference to the schedules to the list of documents, has, in effect, isolated four categories. The first is correspondence between the first, second and fourth defendants. The second is a memo to files. The third is accounts between the solicitors and the first defendant, and the fourth is what I will call the Maher diaries. 9 In relation to the fourth, it appears that there is now no longer an issue and presumably access will be granted. 10 In relation to the first, second and third categories, the essential submission is that an examination of the list of documents discloses that components of each category have been placed in lists in respect of which no claim for privilege has been made, as well as in lists in respect of which a claim for privilege has been made. 11 As I understand the thrust of the submissions for the applicant, on the face of the list of documents, it appears, as this submission has described it, that a "choice" has been made to claim one part of the same category in the list and another part of the same category in another part of the list. 12 At its highest, by reason of the whole category being the same, an issue of waiver arises, or at a lesser level, again by reason of the overall same category, a question arises as to the proprietary of the discrimination which the discovering party appears to have made in preparation of his or its list of documents, thus leading to a point where, if necessary, I can avail myself of the powers under s 183 of the Evidence Act to examine the documents. 13 I have, I must say, a difficulty with that proposition, that when, on the face of the list of discovered documents, there is no more than a bifurcation of documents in the same category, by some being placed in a privileged group and others being placed in a non-privileged group, that that gives rise to either of the two courses the applicant suggests. 14 Insufficient material has been placed before me to presently incline me to the view that merely because, on the face of an otherwise properly constituted list of documents, if the same documents could be place in the two different categories, it is sufficient for an order to be made, with or without my inspecting the documents, in effect to give access. 15 I am not persuaded that discrimination amounts to a waiver, without more. 16 One component of this exercise is by reference to a document, M 37 on page 32, of Mr Coffey's second affidavit, being, on its face, a report dated 12 December 1997, in respect of which privilege is claimed and a series of other documents which, on the face of the list, do not appear to be connected with the Maher report. 17 I am prepared to accept, for the purposes of the disposition of this motion, that the following documents, which I believe went down to document M 74, were annexures or appendices to the principal document, M 37, and thereby are entitled to be embraced overall by the privilege attending the document to which they are annexed. 18 In the course of submissions Mr Coffey referred to a decision of myself in Marsden v Amalgamated Television Services Pty Ltd (7 May 1999) [1999] NSWSC 428, paragraph 64, where I referred, in the context of that particular application, to principles of fairness in the historical pre-Evidence Act context, as expounded in the well known case of Attorney-General of Northern Territory v Maurice (1996) 161 CLR 475 and Goldberg v Ng (1995) 185 CLR 83. 19 Without rehearsing the detail of the issue I was considering from April to May 1999, leading to my ruling in the Marsden case, I think it can be observed, first, that the Evidence Act in relation to what I will call legal professional privilege, questions of waiver have sustained notions of fairness. 20 Notions of fairness do not operate in a vacuum. The notion of fairness and its operation is triggered by something substantive and in a context. 21 I am not persuaded that there is something substantial that triggers that context in this application by reason of the fundamental basis upon which the claim is advanced, namely, that because some parts of the same category of documents is not claimed to be privileged and others are, there has either been a waiver of privilege or an established basis for the further examination on the question of access. 22 It might well be that as the litigation develops, some other properly constructed basis in pursuing the matter will evolve to a point that might compel the resistor to expose more by way of explanation or submission. But, that point has certainly not hitherto to been reached and the motion is dismissed. 23 I am inclined to make no other order than the applicant pay the respondent's costs of today. I order the applicant to pay the first defendant's costs in connection with Order 2 sought in the Notice of Motion, including costs of today. 24 I place the matter in the Registrar's directions list on 7 February 2003. **********

PRESTON v HARBOUR PACIFIC & ORS

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Judgment (15 paragraphs)

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Cases Cited (3)