Crawford v Harry Bailey and Ors (unreported, Supreme Court of New South Wales, Common Law Division, 26 October 1990)

with R. Wilkins

Instructed by: Maurice May and Co

Counsel for the Respondent: Mr J. McCarthy QC

with P. Jones

Instructed by: Australian Government Solicitor

FOSTER J. I have heard very full argument on this matter as to whether certain documents, in respect of which legal professional privilege is claimed, should, at this point of time, be made available in response to a subpoena issued by the applicant against the respondent. The applicant's subpoena is dated 23 November 1992 and is directed to Doctor Bryant of the Department of Clinical Psychology of Westmead Hospital. It requires the production of documents described in a schedule. The schedule reads as follows:

"All letters of instruction from the Australian Government

Solicitor; your complete file on Wesley Thomas Dingwall

including any notes in interview, tape recordings and any

documents given by the Australian Government Solicitor."

2. The respondent, the Commonwealth of Australia, through its counsel, has in response to the subpoena, handed to the Court a schedule of documents falling within the demand of the subpoena but in respect of which privilege is claimed. These documents comprise a number of letters of instruction sent on dates set out in the schedule, being letters sent by the Australian Government Solicitor to the doctor. They also include the reports of two doctors, a Doctor Ilbery and a Professor Breslin, which were forwarded by the respondent to Doctor Bryant. The documents also include a medical chronology and an earlier report of Doctor Bryant dated 10 November 1992.

3. I have considered the matter on the basis, with consent of both parties, that the full report of Doctor Richard Bryant, dated 20 November 1992, of his examination of the applicant in these proceedings is to be tendered in evidence.

4. I therefore approach the matter on the basis, in effect, that that has been done, and that that evidence has been duly placed before the Court. The question, put simply, is whether, in response to the subpoena, these documents should be treated as being documents that should be made available at this point of time to the applicant.

5. The documents are clearly documents which must be accepted as being subject to legal professional privilege. The contrary has not been argued. Their very nature indicates that this would be so. With the exception of Dr Bryant's earlier report of 10 November 1992, they are all documents forwarded to a potential witness to the proceedings by the solicitor of one of the parties for the purpose of the obtaining of evidence to be used in the litigation.

6. The only question that has been argued before me is whether, in circumstances to which I shall advert in a moment, the privilege in respect of these documents should be treated as having been relevantly waived, so that the documents would then become available for examination by the applicant and his legal advisers. The matter has been fully argued before me with reference to authority. There is no doubt that the major authority in the area is currently that of Attorney-General for the Northern Territory v Maurice and Ors [1986] HCA 80; (1986) 161 CLR 475, a decision of the High Court of Australia.

7. The broad question in that case was whether, in circumstances where a document referred to as a claim book had been put forward almost as a pleading on behalf of the plaintiff, documents associated with it in its preparation, and which were apparently source material for it, could be the subject of legal professional privilege, or whether the putting forward of the claim book in itself operated as a waiver of that claimed privilege.

8. It may be observed at the outset that Maurice's case seems to have concerned a rather special type of document being adduced into evidence and rather special type of documents associated with that document. Undoubtedly, the documents sought to be obtained on the basis that privilege had been waived, were documents that could fairly properly be described as source material for the document that went into evidence. Undoubtedly, they were documents which could be said, putting it no higher, were of use in the preparation of the document that went into evidence. In the context of those facts, members of the High Court discussed matters of general principle relating to legal professional privilege and waiver.

9. I find it necessary to refer only to two passages in the reported decision. In the judgment of Mason and Brennan JJ., at 487-488, the following statement of principle appears:

"The limiting effect of legal professional privilege on the

availability of evidence otherwise relevant is confined,

inter alia, by the doctrine of waiver. A litigant can of

course waive his privilege directly through intentionally

disclosing protected material. He can also lose that

protection through a waiver by implication. An implied

waiver occurs when, by reason of some conduct on the

privilege holder's part, it becomes unfair to maintain the

privilege. 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:

'(W)hen his conduct touches a certain point of

disclosure, fairness requires that his privilege

shall cease whether he intended that result of

not. He cannot be allowed, after disclosing as

much as he pleases, to withhold the remainder.

(Wigmore, Evidence in Trials at Common Law 1961,

vol. 8, para. 2327, p 636.)'

"Hence the implied waiver inquiry is at bottom focused on

the fairness of imputing such a waiver."

10. In his separate judgment Gibbs C.J., at 484, after a discussion of the authorities, said in relation to the case before him that:

"The case is not one in which the disclosure of a document,

or the giving of evidence, without the disclosure of

associated material, would give a partial or misleading

picture, or would otherwise prejudice or embarrass the

appellant in the conduct of the case."

11. His Honour went on to hold that in the circumstances of the case under consideration a waiver could not be implied. There are a number of other passages in the judgment to like effect and to which I find in the circumstances it unnecessary to refer. I should indicate that I have also had the benefit of considering the judgment of Enderby J in the case of Crawford v Harry Bailey and Ors (unreported, Supreme Court of New South Wales, Common Law Division, 26 October 1990) in which his Honour gave consideration to the decision in Maurice's case.

12. When it became apparent in the preliminary argument in relation to this matter, that the only matter to be posed for consideration was whether I should find implied waiver at this point of time, discussion ensued as to the best way of handling the general presentation of the matter for my consideration. The argument in this regard was conducted within the framework of the decisions and the principles to which I have referred. The situation put simply amounted to this, that documents were referred to in a schedule, which documents were obviously properly the subject of a claim for privilege but were susceptible to waiver if waiver were established.

13. In consonance with the authorities to which I have referred, an essential question emerged as to whether the documents referred to in the schedule could properly be said to be associated, within the meaning of the authorities, with the primary document, namely the report of Dr Bryant which was to be tendered in evidence. It was clear that a consideration that could properly be involved in the determination of that issue was whether or not the documents had been viewed by Dr Bryant as providing information necessary to the formation of the opinions which he expresses in his report.

14. This was a matter that could not really be determined without having evidence from Dr Bryant. As this problem arises not only in respect of Dr Bryant's report but in respect of the reports of two other practitioners which are intended to be put in evidence in these proceedings, the question arose as to whether it was reasonable or practicable for those doctors to be called to Court in advance of their giving their evidence at the appropriate time in the case, simply to give evidence on the question of whether and to what extent they had had regard to or had been influenced by material sent to them by the Australian Government Solicitor and which is the material set out in the schedule of documents.

15. In my view which I expressed at the time, it would have been a very unfortunate use of Court time and the doctors' time for such a procedure to be followed and I indicated that as a matter of discretion I would not be prepared to follow it. In those circumstances, the question arose as to the best method of placing before the Court at this stage, being the stage of considering whether material, the subject of a subpoena should be also the subject of access being granted to the party issuing the subpoena, material which could be placed before the Court in some other way.

16. I indicated a view, which has been accepted as a direction, that inquiries should be made of the doctors by the Australian Government Solicitor, bearing upon the question of what use or otherwise was made by the medical practitioners of the material that had been sent to them. I have been told today by leading counsel for the Commonwealth that questions in three precise forms were addressed to these practitioners. The third question is in my view the important question for present purposes. That question was: "Have you relied upon any of the above-mentioned information in expressing your opinion as set out in your report?". The answer given by Dr Bryant to that question, as I have been informed, was "No".

17. In these circumstances, it has been submitted to me that I should not at this point of the case, and considering this subpoena, form the view that there has been effectively a waiver made by the Commonwealth of its claim for privilege in respect of these documents and that I should accordingly not allow access to them. As I see it, two answers have been made to this proposition. The first is based upon a submission of law derived from the statement of principle to be found in Maurice's case, that is to the effect that the mere fact that the documents were placed before the doctor is sufficient to involve a waiver, it not being necessary to determine at this point of time whether or not the doctor made any particular use of the documents in reaching his opinion.

18. This submission is, as I apprehend it, based upon certain passages in the judgment of Enderby J to which I have made reference, in which his Honour gave consideration to the principles of Maurice's case and to consequences which his Honour considered could be drawn from them.

19. His Honour had before him a document admitted into evidence as, of course, Dr Bryant's document will be admitted into evidence in this case, which made express reference to the fact that it was answering express questions which had been directed to the doctor in that case. In light of the authorities that would, no doubt, have been sufficient to determine the question in favour of the application of the doctrine of implied waiver.

20. I have come to the view, upon a close consideration of the judgments in Maurice's case that it cannot be regarded as authority for a wide principle that, whenever documents are sent to a potential witness as part of material being placed before him in order that he may provide a report of an expert kind to be used as evidence in a case, that those documents, ipso facto, although they had the protection of legal professional privilege, necessarily would lose it because of the doctrine of waiver. Maurice's case does not go as far as that. It requires, certainly, that there be an indication that the documents were used in the preparation of the evidentiary document in a way that could be said to influence the content of that document.

21. It is not unworthy of note that the documents in Maurice's case were, in fact, material that could properly be described as source material for the evidentiary document. There is no doubt that the decision in Maurice's case depended, to a considerable extent, upon the fact that the document in question, the primary document, did to a large extent, partake of the nature of a pleading. I would not, therefore, accept the view that the documents in these present proceedings are liable to production as being privileged documents in respect of which waiver is established, simply on the basis that they were provided to the doctor as part of material put to him for the purpose of obtaining his expert opinion. If that were so, really, legal professional privilege would cease to have any substance.

22. I am faced, then, with a situation where I have, as a result of a direction I have given, been informed that the doctor has expressed the view that he did not rely upon these documents in forming his opinion. In that situation, I have been asked to consider the documents myself, in effect to assess what weight I should give at this stage to the doctor's answer to the question put by the solicitor. In any situation where a question is posed and an answer given, there is a possibility of misunderstanding between the parties. This type of misunderstanding is frequently the subject of cross-examination and efforts made further to elucidate the question in Court in oral evidence. That cannot be done in relation to the doctor's current answer.

23. If I were to examine these documents and for myself form the view that I have some uneasiness as to the answer given by the doctor to the question in the form in which it was posed, I would still have to consider whether in those circumstances I should permit inspection of those documents at this point of the case. I would have to consider whether indeed I should permit that inspection in the absence of the doctor being called to give evidence and his being asked the very questions which still might be hovering in the air.

24. If I were to come to that view I would simply have reached a point in deliberations which was reached before I gave the direction that I have already given and which has been responded to.

25. I think in the circumstances and for those reasons I should not take the course at this stage of looking at the documents purely for the purpose of forming some view as to the exact significance of the doctor's answer to the question in the form in which it was posed to him.

26. I have decided, therefore, that I should not require the production in response to the subpoena of the documents described in the schedule which has been provided to the Court. This decision does not, of course, preclude the matter being raised again, if that be the desire of the applicant, when the doctor is in fact giving evidence in respect of the report which is to be tendered.

27. At this stage, however, I have come to the conclusion after full consideration of the matter and the authorities which have been cited, that I must allow at this point of time the claim for privilege that has been made.