Sevic v Roarty Matter No Ca 40037/98 [1998] NSWSC 462 - NSWSC 1998 case summary — Zoe

[14]

In General Accident Fire & Life Assurance Corp Limited v. Tanter [9], Hobhouse J (as he then was) was concerned to deal with such a situation. In that case, the plaintiffs brought an action against a number of underwriters and a broking company. The underwriters' cross-claimed against the brokers and before the trial the broker's solicitors served a notice on the underwriters' solicitors under the Civil Evidence Act 1968 (UK) preparatory to seeking leave from the court to admit in evidence at the trial a memorandum written by one of the broker's directors to the broker's solicitors recounting conversations between two of the broker's directors and also between another director and one of the underwriting defendants and/or that defendant's solicitor. At the time of the memorandum, it had not been anticipated that the underwriters would claim against the brokers. The memorandum had not been disclosed on discovery because it was privileged. At the trial, and before leave to put the memorandum in evidence had been sought, the underwriters called the particular underwriting defendant and the broker's counsel produced the memorandum and cross-examined him as to its contents, after counsel indicated that he would be calling the particular director who had countersigned the memorandum to give evidence when the broker's case was presented. Counsel's efforts to have the particular underwriting defendant acknowledge the correctness of the memorandum were unsuccessful and no reference was made to it on re-examination. Counsel for the underwriters then applied to the court for specific discovery of all documents relating to the topics of conversation mentioned in the memorandum, particularly the relevant proofs of the evidence of the broker's directors and all relevant pre-trial communications between the brokers and their solicitors and counsel on the basis that privilege in the memorandum had been waived by the brokers and had thereby been waived in respect of all those documents and conversations. Counsel also claimed the right to cross-examine the broker's witnesses on all those documents and topics.

Parties

Applicant/Plaintiff:

# Sevic

Respondent/Defendant:

Roarty Matter No Ca 40037/98 \[1998\] NSWSC 462

Legislation Cited (6)

Civil Evidence Act 1968

Land Rights (Northern Territory) Act 1976

Profession Act 1987

Civil Evidence Act 1968

Land Rights (Northern Territory) Act 1976

Profession Act 1987

Cases Cited (36)

Sevic v Roarty Matter No Ca 40037/98 [1998] NSWSC 462 (14 August 1998)

The grounds of appeal were that the Judge erred in holding the disclosure was under compulsion of law and that there was no waiver of legal professional privilege to the material upon which the report was based. The appellant submitted that despite the application of the Act the common law will still require the disclosure of related documents on the basis of "ordinary notions of fairness" as stated in Attorney General for the Northern Territory v Maurice (1986) 161 CLR 745 and explained in Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83.

8. Where there is inconsistency between the Act and the common law, the Act prevails. Therefore, the Act displaces the common law principles of disclosure waiver of the Maurice variety and implied consent waiver. Accordingly, the provisions of the Act apply: Adelaide Steamship Co Limited v Spalvins [1998] FCA 144; (1998) 152 ALR 418, Akins v Abigroup Limited.

3. At common law, production of a document in accordance with a Court direction does not amount to a waiver of legal professional privilege: British Coal Corporation v Dennis Rye Limited (No 2) [1988] 1 WLR 1113, Goldman v Hesper [1988] 1 WLR 1238, Giannarelli v Wraith (No 2) [1991] HCA 2; (1991) 171 CLR 592, Woollahra Municipal Council v Westpac Banking Corporation (1992) 33 NSWLR 529, Goldberg v Ng (1994) 33 NSWLR 639.

Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 71 ALJR 818

Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; (1984) 22 NSWLR 505; (1985) 62 ALR 85

R v Swaffield [1998] HCA 1; (1998) 151 ALR 98

Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642

Ravenor Overseas Inc v Roadhead [1998] HCA 17; (1998) 72 ALJR 671

Warner v Women's Hospital [1954] VicLawRp 59; [1954] VLR 410

"The authorities demonstrate that, where there is no intentional waiver, the question of whether a waiver should be implied depends on whether it would be unfair or misleading to allow a party to refer to or use material and yet assert that that material, or material associated with it, is privileged from production (see Attorney General for the Northern Territory v Maurice [1986] HCA 80; (1986) 161 CLR 475 at 480-483, 487-488 and 492-493)."

"A nice question would arise where the matter in issue whether a document prepared for the dominant but not sole purpose of providing legal advice was privileged from disclosure in some ancillary process involving the pre-trial gathering of evidence. Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 still represents the common law in this State. I recognise that most of the cases which arrived at the view which I have adopted saw it as an inevitable consequence that Grant v Downs no longer applies in jurisdictions where the Evidence Act principles apply: see, eg Adelaide Steamship at 428-9."

"The effect of our decision is that Pt 3.10 Division 1 of the Act should, through the common law, be applied derivatively to ancillary proceedings. We do not need to express a concluded view on the questions (a) whether that Division in fact codifies the law on client legal privilege and (b) whether the common law in Act jurisdictions ought in consequence be regarded as limited in its content to the principles in Division 1. We need, however, to emphasise that, in so far as previously established principles of the common law are now inconsistent with the Act and its purposes, they are to be taken as being modified correspondingly so as to avoid such inconsistency. Disclosure or waiver falls into this category. We emphasise this for this reason. Mr Bennett QC submitted that s122 of the Act should not be seen as precluding resort in all circumstances but the common law in cases of waiver, especially in circumstances where the protection of the common law is claimed to be more extensive than that of the Act. Reliance was placed upon that presumption in statutory construction against interference with fundamental rights accepted by O'Connor J in Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277 at 304 and reaffirmed by the High Court in Coco v R [1994] HCA 15; (1994) 179 CLR 427 (and see Pearce and Geddes, `Statutory Interpretation in Australia', 4th ed, paras 5.16-5.17). The cases on `issue waiver', it is said, fall outside the purview of s122 but should nonetheless survive despite this."

(1986) 161 CLR 745

(1995) 185 CLR 83

(1998) 152 ALR 418

(1991) 171 CLR 592

(1992) 33 NSWLR 529

(1994) 33 NSWLR 639

(1997) 71 ALJR 818

(1997) 71 ALJR 1428

(1984) 22 NSWLR 505

(1985) 62 ALR 85

(1998) 151 ALR 98

(1961) 108 CLR 642

(1998) 72 ALJR 671

(1996) 134 FLR 40

(1992) 29 NSWLR 487

(1997) 41 NSWLR 277

(1986) 161 CLR 475

(1994) 33 NSWLR 529

(1995) 36 NSWLR 275

(1976) 135 CLR 674

(1908) 7 CLR 277

(1994) 179 CLR 427

(1995) 185 CLR 98

Sevic v Roarty Matter No Ca 40037/98 [1998] NSWSC 462

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (99 paragraphs)

Parties

Legislation Cited (6)

Cases Cited (36)

Sevic v Roarty Matter No Ca 40037/98 [1998] NSWSC 462 (14 August 1998)