SOUTH AUSTRALIAN GOVERNMENT FINANCING AUTHORITY v BANK OF NEW ZEALAND(No 3) No. SCCIV-99-1428 [2002] SASC 22

DEBELLE J. The plaintiff applies for leave to appeal from the judgment delivered on 18 January 2002. On that day orders were not made, although the terms of orders were canvassed with the parties. The reason why the orders were not made is that they would have required the disclosure of a witness statement and the plaintiff had indicated its intention to appeal.

The terms of the orders have been settled with the parties this morning and it is from those orders which the plaintiff seeks to appeal. The effect of the orders is that persons called the BT Companies should produce for inspection two statements of one Ian Fraser Bell. The BT Companies do not apply for leave to appeal.

The issues in this matter concern legal professional privilege. It is not necessary to restate those decisions which refer to the rationale and importance of that principle. The question of legal professional privilege concerns a common law right. I acknowledge also that, as a general rule, legal professional privilege applies to a statement of a witness prepared for the purpose of litigation.

Notwithstanding these matters, I do not think that this is an appropriate case in which to grant leave to appeal. The orders are interlocutory in nature. They are the kind of orders which could have been made in the course of a trial: compare Mancorp Pty Ltd v Baulderstone Pty Ltd (1991) 57 SASR 87. Had it been made in the course of a trial, leave to appeal would plainly not have been granted.

In addition, I do not agree with the arguments advanced by Mr Wells QC that the decision involves a departure from settled principle. In my view there is no question of principle at issue in this matter. The issues were determined according to well-settled principle so that no question of general principle was raised. I simply applied well-settled rules of law in determining whether there was an imputed waiver of the privilege in respect of these two statements.

The orders which I will make in a moment will affect the substantive rights of the plaintiff to the extent that two statements held by them and believed to be privileged will be disclosed. However, for the reasons above, I do not think I should grant leave.

I do not believe that the disclosure of the statements will result in substantial injustice to the plaintiff. Plainly, if the later statements are entirely consistent with but simply a more elaborate version of the first, there could be no question of injustice because of the identity of the two statements. If, however, the later statements are entirely inconsistent with the earlier statement in respect of which the plaintiff had waived privilege, plainly there would be an injustice to the defendant in not disclosing that statement. In other words, the interests of justice, as well as the interests of fairness, militate against there being any substantial injustice in refusing leave to appeal.

As I have said, the principles are well-settled. All I have done is apply well-settled principle. There is no question of general or public importance arising out of the reasons for judgment. For these reasons I would refuse leave to appeal.

Two further matters affect the exercise of my discretion. The first is that the BT Companies themselves have not appealed. It may well be that there is a common interest between the plaintiff and the BT Companies, but the fact that the BT Companies do not apply for leave to appeal is, I think, a matter to which it is proper to have regard.

Secondly, this action has been set down for trial to commence on 4 March 2002. It has been set down for some time. There is no realistic opportunity for an appeal to be heard and determined before that time. The trial date has been fixed for some time. This is a long and complex action and special provision has been made for the trial. If there is an appeal and the trial cannot commence on 4 March, it may well be many months before the action can again be listed for trial. That, of course, is not conclusive but it is, nevertheless, a factor to which I have regard in the exercise of my discretion.

In referring to the fact that BT companies have not appealed, I do not for one moment suggest that SAFA is not entitled to be heard on this application or, indeed, on the appeal.