It being accepted that the documents of which production and inspection are sought would, in the normal course, be the subject of legal professional privilege, and no question of express waiver of that privilege being raised, the question thus is whether waiver of that privilege should be implied from the fact that, in accordance with the direction given on 19 October 1995 Dr. Tinning's report was filed or, alternatively, whether in all the circumstances of the case, the law ought to impute to the Defendant waiver of privilege in the documents concerned.

Whatever may earlier have been the position (see, for example, Warner v. Womens Hospital [1]) the position would seem now to be that waiver is not to be implied or imputed where the document the delivery of which is relied upon to found the implication, or to support the imputation, of waiver was delivered - whether to the other party to the litigation or to a third party - pursuant to an order of a court or otherwise under compulsion of law unless the documents be later tendered in evidence on the hearing of the proceedings in which the parties are involved, or otherwise used in such a way on the hearing of those proceedings as would make it unfair to the other party not to treat the privilege as having been waived.

Thus, in Burnell v. British Transport Commission [2] counsel for the Defendant, cross-examining a witness, put to the witness certain observations made by the witness in a written statement. Denning LJ (as he then was) said [3]:

"... although this statement may well have been privileged from production and discovery in the hands of (the defendant) at one stage, nevertheless, when it was used by cross-examining counsel in this way, he waived the privilege, certainly for that part which was used; and in a case of this kind, if the privilege is waived as to the part, it must, I think, be waived also as to the whole. It would be most unfair that cross-examining counsel should use part of the document which was to his advantage and not to allow anyone, not even the judge or the opposing counsel, a sight of the rest of the document, much of which might have been against him."

In George Doland Limited v. Blackburn Robson Coates & Co. [4], Geoffrey Lane J (as he then was) held that the deliberate waiver of privilege of certain communications between solicitor and client relating to two particular subject matters before litigation became pending or contemplated, involved waiver of any other communications relating to those two subject matters, but did not involve waiver of the further privilege which applied to documents which were brought into existence after litigation was pending or contemplated.

In Nea Karteria Maritime Co. Limited v. Atlantic & Great Lakes Steam Ship Corporation (No. 2) [5], Mustill J (as he then was) said:

"I believe that the principle underlying the rule of practice exemplified by Burnell v. British Transport Commission is that, where a party is deploying in court material which would otherwise be privileged, the opposite party and the court must have an opportunity of satisfying themselves that what the party has chosen to release from privilege represents the whole of the material relevant to the issue in question. To allow an individual item to be plucked out of context would be to risk injustice through its real weight or meaning being misunderstood. In my view, the same principle can be seen at work in George Doland Limited v. Blackburn Robson Coates & Co. in a rather different context."

In Great Atlantic Insurance Co. v. Home Insurance Co. [6] the plaintiffs, when preparing their case, had received from their American attorneys a memorandum relating to the action. The first two paragraphs of the memorandum consisted of an account of a discussion between the attorneys and a third party and, in the course of discovery before trial, the plaintiff's solicitors disclosed only those two paragraphs of the memorandum. The solicitors intended to claim privilege for the remainder but omitted to do so. At the trial, the plaintiff's counsel read out in open court the first two paragraphs of the memorandum under the impression that it was complete as it stood. When counsel on both sides became aware some days later that the memorandum as read out was incomplete, the defendant's counsel asked for disclosure of the additional matter on the ground that, even if the whole document was privileged, the disclosure of part of it to the court amounted to a waiver of privilege. Lloyd J (as he then was) upheld the claim and the plaintiffs then appealed. When delivering judgment dismissing the appeal, Templeman LJ (as he then was) (with whose Judgment Dunn LJ agreed) after referring what Mustill J had said in Nea Karteria Maritime Co. Limited v. Atlantic & Great Lakes Steam Ship Corporation (No. 2) [7] said [8]:

"I agree and would only add that it would not be satisfactory for the court to decide that part of a privileged document can be introduced without waiving privilege with regard to the other part in the absence of informed argument to the contrary and there can be no informed argument without the disclosure which would make argument unnecessary.

Counsel for the plaintiffs attempted to distinguish the decisions in Burnell v. British Transport Commission and George Doland Limited v. Blackburn Robson Coates & Co. on the grounds that it was necessary in those cases for the whole statement to be disclosed in order that the consistency of the testimony of a witness could be scrutinised. In my judgment, however, the rule that privilege relating to a document which deals with one subject matter cannot be waived as to part and asserted as to the remainder is based on the possibility that any use of part of a document may be unfair or misleading, that the party who possesses the document is clearly not the person who can decide whether a partial disclosure is misleading or not, nor can the judge decide without hearing argument, nor can he hear argument unless the document is disclosed as a whole to the other side. Once disclosure has taken place by introducing part of the document into evidence or using it in court it cannot be erased."

Thus far, the authorities to which I have referred have dealt with the position where there has been a disclosure, or use, of part only of a privileged communication during the course of a hearing; they have not dealt with the position where documents have been disclosed to third parties, or even to a party to the proceedings, pursuant to an order of the court or otherwise under compulsion of law, nor have they dealt with the position of those documents which may be described as documents "associated" with documents which have been produced.

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.

Hobhouse J held that the application was premature, since at the time it was made leave had not been sought to put the memorandum in evidence pursuant to the 1968 Act and the particular director had not then given evidence. At that stage the memorandum had merely been used as a vehicle for cross-examination and was not part of the evidence before the court. The giving of notice under the 1968 Act before the trial operated as a waiver of privilege in the whole of the memorandum, but such waiver did not extend to the documents relating to the matters referred to in the memorandum. It was only if and when the memorandum was adduced in evidence at the trial that the issue of potential further waiver could arise and then it would have to be determined according to the underlying principle of fairness in the conduct of the trial. In the course of ruling on that question, Hobhouse J, having referred to the Judgment of Mustill J in Nea Karteria Maritime Co. Limited v. Atlantic & Great Lakes Steam Ship Corporation (No. 2) [10] and, in particular, to the passage to which I have earlier referred, said [11]:

"Looking at the reasoning of Mustill J, it seems to me clear that he is approaching the matter using the words `deploying in evidence' in a strict sense. In other words, he is looking to see what is in evidence and what is not in evidence; and applying the principle he repeatedly refers to what was given in evidence.

This judgment does not, in my view, support (counsel for the underwriters') submission. It does not support the submission that you do not have to take into account whether or not the document has been put in evidence as opposed to whether or not it has merely come before the court, or that privilege has been waived without its being put in evidence."

The question of the effect upon legal professional privilege of the delivery of a document by order of the court or otherwise under compulsion of law was dealt with by Hobhouse J in Pamplin v. Express Newspapers Limited [12], a case arising in relation to a taxation of costs. Proceedings in relation to the taxation of costs in England were at the time governed by RSC Ord 62 and the Practice Notes issued in relation thereto. At the relevant time the Practice Notes which had been issued required that, when bills of costs were lodged for taxation, they should be supported by the relevant papers, failure to comply with which requirement might have resulted in the bill being refused or the allowance for taxation reduced. The papers which were required to be provided included cases to counsel to advise with his advices; opinions and instructions to counsel to settle documents and briefs to counsel; the solicitor's correspondence and attendance notes and the solicitor's files. Clearly enough, those classes of documents would consist of documents which were either wholly privileged or substantially so.

In Pamplin v. Express Newspapers Limited [13], Hobhouse J, while taking the view, as had Stevenson J in Hobbs v. Hobbs & Cousens [14], that the lodging of documents in association with the lodging of a bill of costs for taxation did not amount to a waiver of legal professional privilege, differed from Stevenson J and held that, that notwithstanding, the requirement to accord to the other party to the taxation procedural fairness might, in an appropriate case, require the taxing master to disclose what would otherwise have been privileged documents to that other party in order that he might raise objections to the taxation.

Attorney-General for the Northern Territory v. Maurice [15] required a consideration by the High Court of the position where the document in question had been distributed to parties in accordance with a practice direction but the document had not become part of the evidence in the proceedings in relation to which it was distributed.

The proceedings in Attorney-General for the Northern Territory v. Maurice [16] were proceedings in relation to a land claim which had been made pursuant to the provisions of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). The Act provided (inter alia) for the appointment of an Aboriginal Land Commissioner and authorised the Commissioner (inter alia) to do all things necessary or convenient to be done for or in connection with the performance of his functions. Under that authority, the first Aboriginal Land Commissioner, Toohey J, promulgated practice directions to govern the procedure of land claims, those practice directions requiring that a "claim book" be lodged with the Commissioner's Associate and provided that, except in special circumstances, no date would be fixed for the hearing of an application until the "claim book" relating to the application had been lodged.

In the case in question, the "claim book" was prepared and lodged with the Commissioner and distributed to lawyers representing the other parties to the claim. The general nature of such "claim books" was described by Toohey J in an article entitled "Aboriginal Land" [17] as follows:

"Claimants are required to lodge particulars of their claim, the primary purpose of which is to identify the land claimed and those said to be the traditional Aboriginal owners. The practice developed of lodging a claim book some weeks before the hearing. Usually this book is prepared by one or more of the anthropologists whom the claimants propose to call in support of their claim. The claim book has become a substantial and sophisticated document which not only identifies the land and the traditional owners. It plots sites of significance on a map, formulates the principle of local traditional land holding and, with the use of genealogies, identifies the traditional owners, gives some of the history of the claim area since white contact, and generally canvasses the advantages to the claimants and the disadvantages to others if the claim is acceded to."

At an earlier hearing of the claim, counsel for the claimants tendered the "claim book", but the tender was not formally accepted or rejected. Counsel also made some references to the "claim book" in his opening address and in the course of his examination of two witnesses.

For reasons which need not be entered upon, the original inquiry did not proceed and the inquiry was later commenced de novo. On the fresh hearing, the claimants did not rely on the 1982 "claim book". The respondents sought to have produced documents some of which had been prepared for the purposes of the land claim and formed source material for the 1982 claim book.

As I read them, the burden of the several Judgments in the High Court was, first, that the "claim book" was akin to a pleading in ordinary civil proceedings; second, that the "claim book" had not actually been used as evidence on the earlier hearing; and, third, that such use as had been made of the "claim book" on the earlier hearing had not placed the respondents at any disadvantage; it following that there had been no waiver of legal professional privilege and, in particular, no waiver of legal professional privilege in relation to the source materials used to prepare the "claim book".

The question of the effect upon legal professional privilege of disclosure pursuant to an order of a court or otherwise under compulsion of law was discussed by the Court of Appeal in England in British Coal Corporation v. Dennis Rye Limited (No. 2) [18] and Goldman v. Hesper [19].

In British Coal Corporation v. Dennis Rye Limited (No. 2) [20] the plaintiff brought an action against the defendants claiming a substantial sum of money which it was alleged has been overpaid on invoices issued by the defendants. The plaintiff also claimed damages for fraudulent or negligent misrepresentation and conspiracy to defraud. The plaintiff subsequently handed over to the Police certain documents which had been created for the purposes of the action in order to assist the Police in their investigation into the allegations of fraud. The Police subsequently brought criminal charges against the defendants. Before the criminal trial began, the prosecution supplied the documents to the defendants in accordance with the established guidelines for the disclosure of documents to the defence and, during the trial, the plaintiff was ordered to disclose to the defendants a further set of documents which had been created for the purposes of the civil action and which were relevant to the criminal proceedings. The defendants were acquitted. In the civil proceedings which followed, the plaintiff applied for the return of both sets of documents and an injunction restraining the defendants from using the documents or any information taken from them in the action brought by the plaintiff or in any other legal proceedings involving either or both of the parties on the ground, inter alia, that the documents were protected by legal professional privilege. The judge granted the relief sought.

On appeal it was held that, since the plaintiff had made the two sets of documents available in accordance with its duty to assist in the conduct of criminal proceedings against the defendants, it would be contrary to public policy if that disclosure could then be construed as an express or implied waiver of the privilege to which the plaintiff was entitled in the civil action for which the documents had been created, and that accordingly, the documents remained privileged and could not be used by the defendants in the civil action.

Goldman v. Hesper [21] was another appeal relating to the question arising on a taxation of costs. In the course of his Judgment, Taylor LJ (as he then was) with whom Lord Donaldson of Lymington MR and Woolf LJ (as he then was) agreed, said (inter alia) [22]:

"It is therefore clear that there is now a statutory requirement on a claimant for costs to disclose privileged documents to the court. Normally, where privilege exists it applies to protect disclosure not only to the opposing party, but also to the court. So the rule clearly makes inroads into that general protection. It follows that once a party puts forward privileged documents as part of his case for costs some measure of their privilege is temporarily and pro hac vice relaxed. In most cases, as Hobhouse J observed in Pamplin's case, no problem would arise on taxation about privilege. However, when the problem does arise the taxing officer has the duty of being fair to both parties: on the one hand, to maintain the privilege so far as possible and not disclose the contents of a privileged document to the paying party unnecessarily; on the other hand, he has to see that the party is treated fairly and given a proper opportunity to raise a bone fide challenge. The contents of documents will almost always be irrelevant to considerations of taxation, which are more concerned with time taken, the length of documents, frequency of correspondence and other aspects reflecting on costs. In my judgment the approach adopted by Melford Stevenson J in Hobbs' case ... was too rigid and uncompromising. There may be instances in which taxing officers may need to disclose part, if not all, of the contents of a privileged documents in striking the appropriate balance. He will no doubt use all his expertise and tact in seeking to avoid the situation wherever he can. I do not envisage it occurring, except very rarely. Of course it is always open to the claimant not to rely on privileged documents which he regards as peculiarly sensitive.

By the same token voluntary waiver or disclosure by a taxing officer on a taxation would not in my view prevent the owner of the document from reasserting his privilege in any subsequent context. Applying this pragmatic approach to the present case, it seems to me that the course adopted by the Registrar here was fair and reasonable.

The decisions of Hobhouse J in Pamplin v. Express Newspapers Limited [23] and of the Court of Appeal in England in Goldman v. Hesper [24] were considered by McHugh J in Giannarelli v. Wraith (No. 2) [25] when considering questions arising in a taxation of costs in the court which had been referred by the registrar sitting as a taxing officer. When dealing with those questions, McHugh J held:

1. that it was open to a taxing officer to direct production of correspondence passing between a party, its solicitors and insurers;

2. but that a party could refuse to produce documents on the ground that they were subject to the benefit of legal professional privilege;

3. that the taxing officer was not entitled to refuse to tax the bill until the production of all the documents but must decide on all the evidence before him without drawing inferences adverse to the respondents from their reliance on legal professional privilege;

4. that if the respondents decided to disclose privileged documents to the taxing officer he was obliged to make copies available to the appellants.

In Woollahra Municipal Council v. Westpac Banking Corporation [26] Giles J (as he then was) held that there had been no implied waiver of a claim for legal professional privilege over documents which had been produced to a local government inspector under the threat of the exercise by the inspector of his powers of requiring compulsory disclosure.

In Goldberg v. Ng [27] the majority (Mahoney JA as he then was, and Clarke JA) held that there had been a waiver of legal professional privilege by Mr. Goldberg since:

1. the disclosure of the material in question in its privileged form to the Law Society was a voluntary and considered disclosure; and

2. that, while the disclosure to the Law Society was in the context of the complaint which had been made by the Ng's, the genesis of the complaint was the same dispute as that which had led to the proceedings which had been commenced by the Ng's against Mr. Goldberg in the Equity Division of the Court.

In the appeal to the High Court from the Judgment of the Court of Appeal in Goldberg v. Ng [28] the majority (Deane, Dawson and Gaudron JJ) were of the opinion that, in the circumstances, a waiver of privilege ought to be imputed by operation of law since:

1. the plain inference from the evidence was that the production of the privileged documents to the Law Society was a voluntary one and not one made in response to a real or imagined threat by the Law Society to exercise its power of compulsion;

2. that the proceedings in the Equity Division of the Court and the Law Society's procedures consequent upon Mr. Ng's complaint were but different emanations of the one dispute; and

3. that in the circumstances, it would be unfair if the Ng's were deprived of access to and the possible use of the materials which had been used to provide an answer to and were treated by the Law Society as in fact providing an answer to their complaint.

The dissents of the minority in the High Court (Toohey and Gummow JJ) were based upon their view that the disclosure by Mr. Goldberg was not in the circumstances to be regarded as voluntary. Thus, Toohey J said [29]:

"In the present case Mr. Goldberg disclosed material to the Society. He did so because there was a complaint against him by one of the respondents. He disclosed the material, not merely on the understanding but on the undertaking by the Society that there contents would be kept confidential. Disclosure was in the context of the investigation of the complaint by the Society exercising its powers under the Legal Profession Act 1987 (NSW) (`the Act'), as it then stood. Complaints of professional misconduct could be referred by the Society Council to the Legal Profession Disciplinary Tribunal which could order the legal practitioner's practising certificate be cancelled. Additionally, the Society Council was empowered to cancel or suspend the practising certificate of a solicitor who failed to give a satisfactory explanation for specified conduct. Disclosure by Mr. Goldberg was made for the purposes of the Act and was confined to the Society. These considerations militate strongly against any implied or imputed waiver."

"However, I agree also with the statement of Kirby P that, to say that Mr. Goldberg `chose' to make the disclosure he did, does not tell the full story. In my view it is here that the critical point is reached.

As I have indicated, the interview with Mr. Goldberg was conducted in a particular legal setting provided by the existence of the compulsive powers enjoyed by the Society, pursuant to statute, in dealing with complaints by clients. Looked at objectively, the occasion in which the disclosure was made by Mr. Goldberg was not one in which he was an entirely free actor. Even without the backing provided by the statutory sanction, it might be thought incumbent upon Mr. Goldberg as a practitioner whose conduct has been called into question to deal with it fully and frankly before the responsible professional body.

In Woollahra Municipal Council v. Westpac Banking Corp and Network Ten Limited v. Capital Television Holdings Limited, Giles J treated as very significant the circumstance that an alleged implied waiver of legal professional privilege involved making documents available to enable the recipients to carry out their statutory duties and that there existed statutory compulsory processes. I agree."

In the present case, Dr. Tinning's report was filed, and a copy served, in pursuance of a direction given by the Court. As is clear, that report has not yet been, and may never be, tendered in evidence, nor has it been used in any way which would, in my view, make it unfair for the Appellant, at this stage of the proceedings, to be denied access to the documents to which it refers. What course should be taken if, and when, it is sought to tender Dr. Tinning's report in evidence, or to have Dr. Tinning give evidence to the effect of that contained in his report, is not a matter which this Court is called upon to determined and can only properly be determined in the circumstances existing at the time.

As I have earlier indicated, in my opinion the Appeal should be dismissed with costs.

FITZGERALD AJA: I have had the advantage of reading the draft reasons for judgment of the other members of the Court. There is no need for me to restate the circumstances giving rise to this appeal.

Correctly or otherwise,[31] the appellant concedes that the documents referred to in Dr Tinning's report would be subject to legal professional privilege and immune from an order for production if they had not been referred to in that report. I understood the appellant to concede that, by reason of the decision of this Court in Akins v Abigroup Ltd,[32] her appeal cannot succeed in this Court if the common law with respect to legal professional privilege was "derivatively" altered by the Evidence Act 1995 . However, she disputes that the Act had such an effect on the common law principles which are applicable to the present issue. On her argument, she must therefore establish that the respondent impliedly waived his legal professional privilege in the documents and/or that the law imputes such a waiver. According to her submissions, the test of implied or imputed waiver is whether it would be inconsistent or otherwise unfair for the respondent to maintain his legal professional privilege in the circumstances,[33] notwithstanding the enactment of the Evidence Act.

It is convenient to begin by assuming that the appellant has correctly stated the test to be applied.

The respondent filed and served Dr Tinning's report because, although he was not compelled to do so, it was necessary to do so if he intended to rely on the report in connection with the "liability issue" between the parties. It does not follow that filing and serving the report entitles the respondent to rely on it for that purpose. The appellant legitimately criticised the course adopted by the respondent, which does not comply with the Rules and is incompatible with the purposes of Practice Direction 81. However, the appellant did not really try to persuade this Court that the respondent could tender the report at trial over the appellant's objection as a statement of Dr Tinning's opinion, notwithstanding that the report does not set out the facts on which his opinion was formed.[34]

In my opinion, Dr Tinning's report is plainly inadmissible.[35] Further, in my opinion it should not be admitted. The objection to its reception into evidence is not a mere technicality. It is impossible to assess the worth of an opinion related to the negligence or otherwise of a medical practitioner which is based on unknown assumptions.

Plainly, therefore, there is no prospect of unfairness to the appellant at trial. The respondent's case will have to be put to the appellant's witness in cross-examination,[36] Dr Tinning's report will not be able to be tendered by the respondent and he will not be able to give evidence without leave,[37] and, if Dr Tinning does give evidence, the appellant, would, if appropriate, be permitted to reopen her case. It is unnecessary to discuss further possibilities. It is beyond question that the Court has ample power to prevent unfairness at trial.[38]

Once this position is reached, it is difficult to find any foundation for the order for production of the documents sought by the appellant. She submitted that access to the documents might facilitate settlement, or assist in the preparation for cross-examination of Dr Tinning if he is called as a witness by the respondent. However, litigation remains an essentially adversarial process, and there are, as yet, limits on the extent to which a defendant must assist a plaintiff to prepare and settle or present his or her case. Indeed, that that is so is implicit in the appellant's acceptance that she must establish unfairness or inconsistency before she is entitled to the production of the documents which are referred to in Dr Tinning's report.

While fairness is a concept with a subjective component on which reasonable minds can differ,[39] the appellant has failed to persuade me that, in the circumstances described, fairness requires that the respondent be deprived on the legal professional privilege which is otherwise acknowledged to exist in the documents referred to in Dr Tinning's report. More particularly, nothing unfair has occurred or is likely to occur pre-trial, and, as I have said above, the course adopted by the respondents will not lead to unfairness at the trial.

It remains to add that, in circumstances in which the respondent has achieved nothing in the litigation by filing and service of Dr Tinning's report without the documents to which it refers, I can perceive no material inconsistency in his insistence in maintaining his legal professional privilege in respect of those documents.

In the reasons for judgment of the other members of the Court, reference is made to other issues and to a number of decisions, principally English decisions, which are not all easily reconcilable. It is unnecessary for me to consider those matters.

As I said earlier, I understand that the appellant conceded that she cannot satisfy the different test which would be applicable if the common law with respect to legal professional privilege, pre-trial, has been "derivatively" altered by the Evidence Act. As noted by Sheller JA, there are decisions of the Full Federal Court[40] and the Full Family Court[41] which support the decision of this Court in Akins, and there are obviously good reasons for Australian intermediate appellate courts to march in step whenever possible.[42] However, as the President pointed out in Akins, the development of the common law by an intermediate appellate court by analogy to legislation is not without obstacle when the common law has been stated by the High Court in different terms from the proposed principle prior to the enactment of the material statute. The circumstance that the High Court might be prepared to depart from earlier decisions for the common law to evolve in conjunction with legislative change[43] does not necessarily make it appropriate for an intermediate appellate court to decline to apply a common law principle which has been stated by the High Court.[44] Further, since there is a single common law for Australia,[45] the argument for derivative evolution of the common law by reference to statute might be less cogent if the new principle would result in the application of different common law principles in different Australian jurisdictions. However, the conclusion which I have otherwise reached makes it unnecessary for me to consider the effect of the Evidence Act on this occasion.

I agree that the appeal should be dismissed with costs.

[1954] VicLawRp 59; [1954] VLR 410

[2] [1956] 1 QB 187; [1955] 3 AER 822

[3] [1956] 1 QB 190; [1955] 3 AER 822

[4] [1972] 1 WLR 1338; [1972] 3 AER 959

[5] [1981] Com LR 138, 139

[6] [1981] 1 WLR 529; [1981] 2AER 485

[8] [1981] 1 WLR 538; [1981] 2 AER 492

[9] [1984] 1 WLR 100; [1984] 1 AER 35

[11] [1984] 1 WLR 113; [1984] 1 AER 47

[12] [1985] 1 WLR 689; [1985] 2 AER 185

[14] [1960] P 112; [1959] 3 AER 827

[15] [1986] HCA 80; (1986) 161 CLR 475; 69 ALR 31

[17] (1985) 15 Federal Law Review 159, 173

[18] [1988] 1 WLR 1113; [1988] 3 AER 816

[19] [1988] 1 WLR 1238; [1988] 3 AER 97

[22] [1988] 1 WLR 1244-5; [1988] 3 AER 101-2

[25] [1991] HCA 2; (1991) 171 CLR 592; 98 ALR 1

[26] (1992) 33 NSWLR 529

[28] [1995] HCA 39; (1995) 185 CLR 83; 132 ALR 57

[29] 185 CLR 110; 132 ALR 75-6

[30] 185 CLR 122-3; 132 ALR 85[31]

Cf Grosvenor Hill (QLD) v Interchase Corporation Ltd (in liquidation) (Unreported, Queensland Court of Appeal, 19 December 1997).[32]

[33] Attorney- General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475; Goldberg v Ng (1995) 185 CLR 98. Correctly, in my opinion, the appellant did not argue that it could be inferred that the respondent intended to waive privilege.

[34] Supreme Court Rules, Part 26, rr13A and 13B.

[35] See, for example, Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642; Paric v John Holland (Constructions) Pty Ltd (1984) 22 NSWLR 505 (NSW CA); [1985] HCA 58; (1985) 62 ALR 85 (HC).

[36] Browne v Dunn [1893] 6 R 67 (HL).

[37] Supreme Court Rules, Part 36, rule 13A(5).

[38] See, for example, State Pollution Control Commission v Australia Iron & Steel Pty Ltd (1992) 29 NSWLR 487.

[39] See, for example, Clough v Tameside & Glassop Health Authority [1988] 2 All ER 971 and the cases there cited.

[40] Adelaide Steamship Co. Ltd v Spalvins [1998] FCA 144; (1998) 152 ALR 418.

[41] RE:Z (1996) 134 FLR 40.

[42] Cp R v Morrison (Unreported, QLD Court of Appeal, 26 June 1998).

[43] See, for example, Northern Sandblasters Pty Ltd v Harris (1997) 71 ALJR 1428; R v Swaffield [1998] HCA 1; (1998) 151 ALR 98.

[44] Ravenor Overseas Inc v Roadhead [1998] HCA 17; (1998) 72 ALJR 671, 672; Garcia v National Bank Ltd (1998) HCA 48, (6 August 1998).

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