Spalding v Radio Canberra Pty Ltd [2009] ACTSC 26

Spalding v Radio Canberra Pty Ltd [2009] ACTSC 26 - ACTSC 2009 case summary — Zoe

[48]

(1) This Division does not prevent the adducing of evidence given with the consent of the client or party concerned.

(2) Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120.

(3) Without limiting subsection (2), a client or party is taken to have so acted if:

(a) the client or party knowingly and voluntarily disclosed the substance of the evidence to another person; or

(b) the substance of the evidence has been disclosed with the express or implied consent of the client or party.

(4) The reference in paragraph (3)(a) to a knowing and voluntary disclosure does not include a reference to a disclosure by a person who was, at the time of the disclosure, an employee or agent of the client or party or of a lawyer of the client or party unless the employee or agent was authorised by the client, party or lawyer to make the disclosure.

(5) A client or party is not taken to have acted in a manner inconsistent with the client or party objecting to the adducing of the evidence merely because:

(a) the substance of the evidence has been disclosed:

(i) in the course of making a confidential communication or preparing a confidential document; or

(ii) as a result of duress or deception; or

(iii) under compulsion of law; or

(iv) if the client or party is a body established by, or a person holding an office under, an Australian law - to the Minister, or the Minister of the Commonwealth, the State or Territory, administering the law, or part of the law, under which the body is established or the office is held; or

(b) of a disclosure by a client to another person if the disclosure concerns a matter in relation to which the same lawyer is providing, or is to provide, professional legal services to both the client and the other person; or

(c) of a disclosure to a person with whom the client or party had, at the time of the disclosure, a common interest relating to the proceeding or an anticipated or pending proceeding in an Australian court or a foreign court.

(6) This Division does not prevent the adducing of evidence of a document that a witness has used to try to revive the witness's memory about a fact or opinion or has used as mentioned in section 32 (Attempts to revive memory in court) or 33 (Evidence given by police officers).

[50]

117 Definitions

(1) In this Division:

client includes the following:

(a) a person or body who engages a lawyer to provide legal services or who employs a lawyer (including under a contract of service);

(b) an employee or agent of a client;

(c) an employer of a lawyer if the employer is:

(i) the Commonwealth or a State or Territory; or

(ii) a body established by a law of the Commonwealth or a State or Territory.

(d) if, under a law of a State or Territory relating to persons of unsound mind, a manager, committee or person (however described) is for the time being acting in respect of the person, estate or property of a client - a manager, committee or person so acting;

(e) if a client has died - a personal representative of the client;

(f) a successor to the rights and obligations of a client, being rights and obligations in respect of which a confidential communication was made;

confidential communication means a communication made in such circumstances that, when it was made:

(a) the person who made it; or

(b) the person to whom it was made;

was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.

confidential document means a document prepared in such circumstances that, when it was prepared:

(a) the person who prepared it; or

(b) the person for whom it was prepared;

was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.

lawyer means:

(a) an Australian lawyer; and

(b) an Australian-registered foreign lawyer; and

(c) an overseas-registered foreign lawyer or a natural person who, under the law of a foreign country, is permitted to engage in legal practice in that country; and

(d) an employee or agent of a lawyer referred to in paragraph (a), (b) or (c).

party includes the following:

(a) an employee or agent of a party;

(b) if, under a law of a State or Territory relating to persons of unsound mind, a manager, committee or person (however described) is for the time being acting in respect of the person, estate or property of a party - a manager, committee or person so acting;

(c) if a party has died - a personal representative of the party;

(d) a successor to the rights and obligations of a party, being rights and obligations in respect of which a confidential communication was made.

(2) A reference in this Division to the commission of an act includes a reference to a failure to act.

[66]

That general principle is of great importance to the protection and preservation of the rights, dignity and freedom of the ordinary citizen under the law and to the administration of justice and law in that it advances and safeguards the availability of full and unreserved communication between the citizen and his or her lawyer and in that it is a precondition of the informed and competent representation of the interests of the ordinary person before the courts and tribunals of the land. Its efficacy as a bulwark against tyranny and oppression depends upon the confidence of the community that it will in fact be enforced. That being so, it is not to be sacrificed even to promote the search for justice or truth in the individual case or matter and extends to protect the citizen from compulsory disclosure of protected communications or materials to any court or to any tribunal or person with authority to require the giving of information or the production of documents or other materials: see Pearse v Pearse [1846] EngR 1195; (1846) 1 De G & SM 12 at 28-29; [1846] EngR 1195; 63 ER 950 at 957; Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52 at 115-116. The right of confidentiality which the principle enshrines has recently, and correctly, been described in the European Court of Justice as a 'practical guarantee' and 'a necessary corollary' of 'fundamental, constitutional or human rights': see A M & S Europe Ltd v Commission of The European Communities [1983] 1 QB 878 at 941, 947; Baker v Campbell (supra). Indeed, the plain basis of the decision of the majority of this Court in Baker v Campbell was the acceptance of the principle as a fundamental principle of our judicial system: see per Murphy J, Wilson J, Deane J, Dawson J. Like other traditional common law rights, it is not to be abolished or cut down otherwise than by clear statutory provision. Nor should it be narrowly construed or artificially confined.

...

Waiver of legal professional privilege by imputation or implication of law is based on notions of fairness. It occurs in circumstances where a person has used privileged material in such a way that it would be unfair for him to assert that legal professional privilege rendered him immune from procedures pursuant to which he would otherwise be compellable to produce or allow access to the material which he has elected to use to his own advantage. Thus, ordinary notions of fairness require that an assertion of the effect of privileged material or disclosure of part of its contents in the course of proceedings before a court or quasi-judicial tribunal be treated as a waiver of any right to resist scrutiny of the propriety of the use he has made of the material by reliance upon legal professional privilege.

[68]

Waiver of privilege at common law

At common law, a person who would otherwise be entitled to the benefit of legal professional privilege may waive the privilege. It has been observed that 'waiver' is a vague term, used in many senses, and that it often requires further definition according to the context. Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege. Examples include a disclosure by a client of the client's version of a communication with a lawyer, which entitles the lawyer to give his or her account of the communication, or the institution of proceedings for professional negligence against a lawyer, in which the lawyer's evidence as to advice given to the client will be received.

Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is 'imputed by operation of law'. This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege. Thus, in Benecke v National Australia Bank, the client was held to have waived privilege by giving evidence, in legal proceedings, concerning her instructions to a barrister in related proceedings, even though she apparently believed she could prevent the barrister from giving the barrister's version of those instructions. She did not subjectively intend to abandon the privilege. She may not even have turned her mind to the question. However, her intentional act was inconsistent with the maintenance of the confidentiality of the communication. What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large. (Footnotes omitted).

[71]

Where a witness has been permitted to refer to a document in order to refresh his (sic) memory in court while giving evidence, cross-examining counsel is entitled to inspect the document without penalty and the witness may be cross-examined as to the contents of the document: see Woodcock v Nichol (1976) 13 ALR 411 at 414. The circumstances in which a witness will be permitted to use a document to refresh his memory in the witness box are summarised in Cross on Evidence (Australian looseleaf ed), par 17175, and in A L C Ligertwood, Australian Evidence (1988), pp 298-302.

Before giving evidence, a witness is entitled to refresh his memory out of court in any way he can: see Collaton v Correll [1926] SASR 87; O'Sullivan v Waterman [1965] SASR 150 at 156. In that case, there is no rule requiring production of the document before the witness is permitted to give evidence, except when recollection is not being revived and the witness is, in effect, giving oral secondary evidence of an available and unproduced document: see King v Bryant (No 2) [1956] QSR 570; R v Kingston [1986] 2 Qd R 114 at 126-127. If any document is used for the purpose of stimulating recollection, it is usual and reasonable that it should be produced in court and made available for inspection by cross-examining counsel: see Collaton v Correll (supra); O'Sullivan v Waterman (supra); Taylor, A Treatise on the Law of Evidence (12th ed, 1931), par 1413. See also R v Pachonick [1973] 2 NSWLR 86; R v Alexander [1975] VicRp 74; [1975] VR 741; Ames v Nicholson [1921] SASR 224; Phipson on Evidence (14th ed), par 12-46. Failure to produce the document does not preclude the witness from testifying to his recollection of the facts but it will go to the weight of the evidence: see Collaton v Correll; O'Sullivan v Waterman_. In_ Collaton v Correll_, Napier J said (at 94) that the failure to produce the document 'might well justify grave suspicion of the evidence'._

The question of the use of a document to refresh memory out of court was considered at length in Mather v Morgan [1971] Tas SR 192. In that case the Full Court of the Supreme Court of Tasmania held that, as a general rule, where a witness has refreshed his memory by reading a document before he came into court, in the absence of any good reason to the contrary, the document should be produced to the cross-examiner on demand and the cross-examiner is entitled to inspect it and use the document in cross-examination. The documents under consideration in Mather v Morgan (supra) were notes and a report made by a police officer in respect of observations he had made. Burbury CJ and Neasey J said (at 206):

In our view the decisions which clearly establish the right of cross-examining counsel to inspect a document used in the witness box by a witness to refresh his memory justify the conclusion that he should be given the opportunity to exercise the same right in relation to a document used by the witness to refresh his memory before he comes into court. The rationale of the decisions is that in the interests of justice cross-examining counsel should be able to check the source of the witness's memory stimulus, and test the reliability of the witness' oral testimony by reference to it.

In our opinion it is not possible to lay down a hard and fast rule that the document must always be produced. For example, the document may not be in the control of the witness (as it is when he uses it in the witness box). It may have been destroyed or become unavailable since it was used to refresh memory. Upon the assumption, which we make for present purposes, that a document used to refresh memory out of court may be any document (not being confined to a contemporaneous record made by the witness) it may contain matter which it would not be fair to let cross-examining counsel see. It may for instance be part of the brief of the opposing side.'

It will be noted that their Honours allowed for certain exceptions and, in the course of their reasons, their Honours made it clear that they were not ruling on the question whether the principle should apply in the case of privileged documents. They expressly left that question open: see Mather v Morgan (at 206, 208).

The reference in this and other cases to "without penalty" refers to a consequence of a call at common law that has now been abrogated by s 35 of the Evidence Act.

[84]

The reason why the use of the privileged document is deemed to be a wavier is founded on notions of fairness. There is a number of reasons why the requirements of fairness dictate that the document should be inspected. They include:

(1) The reasons given by Mustill J in the passage just cited, namely that it enables the opposite party and the court to 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. It avoids the risk of an individual item being plucked out of context with the potential for its real weight or meaning being misunderstood;

(2) there is possibility that any use of a part of a document may be unfair or misleading: see Great Atlantic Insurance Co v Home Insurance Co (supra) (at 535-536; 490);

(3) The party who possesses the document is not the most appropriate person to decide whether a partial disclosure is misleading or not and the judge cannot decide the issue unless the document is disclosed as a whole to him and to the other party: see Great Atlantic Insurance Co v Home Insurance Co (at 538-539; 492);

(4) It avoids false aids to testimony: see Wigmore on Evidence (Chadbourn revision), Vol 3, par 762 where it is stated:

'On a general principle, that has in view the risk of imposition and false aids, against which the opponent is entitled to the means of protection, the writing must be shown to him on request. Furthermore, as by this opportunity of inspection the opponent is guarded against imposition clearly apparent, so by cross-examination based on the paper he may further detect circumstances not appearing on the surface, and may expose all that detracts from the weight of testimony'; and

(5) The interests of justice require that cross-examining counsel should be able to check the source of the witness's memory stimulus, and test the reliability of the witness's oral testimony by reference to it: see Mather v Morgan (at 206).

At a glance

Court

Decision date

Before

Source

Judgment (143 paragraphs)

Spalding v Radio Canberra Pty Ltd [2009] ACTSC 26 (24 March 2009)

Parties

Legislation Cited (6)

Cases Cited (12)