Argo Pty Ltd v Attorney-General for State of Tasmania
[2000] TASSC 27
•6 April 2000
[2000] TASSC 27
CITATION:Argo Pty Ltd & Others v Attorney-General for State of Tasmania & Others [2000] TASSC 27
PARTIES: ARGO PTY LTD
WRIGHT, Peter George
NATURELAND OF TASMANIA PTY LTD
TATLOW, Michael Winston
v
ATTORNEY-GENERAL FOR STATE OF TASMANIA
TASMANIAN DEVELOPMENT AUTHORITY
CHANDLER, Phillip Joseph
FAIRCLOTH, Peter Leonard
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 570/1990
DELIVERED ON: 6 April 2000
DELIVERED AT: Hobart
HEARING DATE: 31 March 2000
JUDGMENT OF: Cox CJ
CATCHWORDS:
Discovery and Interrogatories - discovery and inspection of documents - Production and inspection - Grounds for resisting production - Legal professional privilege - Waiver of privilege - Implied waiver - Whether inconsistency between conduct of plaintiffs and maintenance of confidentiality.
Legal Aid Commission Act 1990 (Tas), s11(2).
Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 168 ALR 123; Attorney-General (Northern Territory) v Maurice (1986) 161 CLR 475; Mann v Carnell (1999) 168 ALR 86, referred to.
Aust Dig Discovery and Interrogatories [449]
REPRESENTATION:
Counsel:
Plaintiffs: P A Norris
Defendants: T J Ellis
Solicitors:
Plaintiffs: Abetz Curtis & Worsley
Defendants: Director of Public Prosecutions
Judgment Number: [2000] TASSC 27
Number of paragraphs: 11
Serial No 27/2000
File No 70/1990
ARGO PTY LTD and GEORGE PETER WRIGHT and
NATURELAND OF TASMANIA PTY LTD and MICHAEL WINSTON TATLOW
v ATTORNEY-GENERAL FOR STATE OF TASMANIA and
THE TASMANIAN DEVELOPMENT AUTHORITY and
PHILLIP JOSEPH CHANDLER and PETER LEONARD FAIRCLOTH
REASONS FOR JUDGMENT COX CJ
6 April 2000
This action was commenced in 1990. In 1999, the defendants made application to the Master for an order that it be dismissed for want of prosecution. Objections being raised to the Master hearing it because of his association while in private practice with the solicitors acting for some of the parties, he disqualified himself from doing so and the matter is listed for disposition by a judge later in these Sittings. The fourth named plaintiff has filed two affidavits, the first sworn on 17 December 1999 and the second sworn on 30 March 2000. The Director of Public Prosecutions, acting on behalf of the applicant defendants, gave notice last December to cross-examine the deponent on his affidavit. He also gave notice that he required the production of a number of documents referred to in the fourth named plaintiff's December affidavit. By a joint memorandum signed by the solicitors for plaintiffs and defendants and dated 3 February 2000 addressed to the Registrar of this Court, it was said:
"The parties have identified an issue which would be better dealt with as a preliminary one before the hearing of the application in this matter which is set down for a full day on 18 April 2000. The issue is as to the production of certain documents identified or inferred in the course of Mr Tatlow's affidavit upon which he will be cross-examined. If it were determined as a preliminary point which documents Mr Tatlow might be obliged to produce, then those documents would be produced earlier than the hearing day which will enable the hearing to proceed more expeditiously.
We would be grateful if time before a Judge could be allocated for that purpose please."
The second affidavit of the fourth named plaintiff contains a sworn claim of legal professional privilege in respect of all the documents the Director of Public Prosecution seeks to have produced.
I have been asked to determine whether, if the documents are privileged, that privilege has been waived by the plaintiffs. The documents in question are as follows:
"(a)Letter from Plaintiffs' solicitors to Legal Aid Commission of Tasmania ('LAC') dated 29 March 1993 (December Affidavit 4.43) ('the 29 March LAC letter);
(b) Not pursued;
(c)Letter from LAC to Plaintiffs' solicitors dated 18 March 1996, withdrawing legal aid (December Affidavit 4.72) ('Withdrawal of aid letter');
(d)Written advice of Mr S P Estcourt inferred to exist by DPP (December Affidavit 4.72) ('the Estcourt Advice');
(e)Not pursued;
(f)Letter from Slater & Gordon to Plaintiffs dated 24 January 1997, declining to accept instructions (December Affidavit 7.1) ('the Slater & Gordon decline letter');
(g)Letter from fourth named defendant to Slater & Gordon dated 31 January 1997 re Town Agents (December Affidavit 7.2) ('the 31 January Tatlow letter');
(h)Slater & Gordon information to Tatlow dated 26 May 1997, inferred to exist in written form by DPP, re merit of proceedings (December Affidavit 7.4) ('the 1997 merit information');
(i)Slater & Gordon advice to Plaintiffs dated January 1998, inferred to exist in written form by DPP, of merits of proceedings (December Affidavit 7.5) ('the 1998 merit advice');
(j)Not pursued."
The December affidavit contains a lengthy recitation of the history of the action since its commencement in May 1990. The action is for damages for intentional interference by the second and third named defendants with the contractual rights of the plaintiffs who claim that a contract for the transfer of certain mining interests for $3,000,000 could not be completed due to the defendants' deliberate actions in encouraging certain public officers to withhold the issue of necessary licences. As a result, the plaintiffs claimed a loss of $2,840,000. The statement of claim was signed by Mr S P Estcourt, who was then a member of the firm of Archer Bushby, the solicitors for the plaintiffs at that time. The history recited is mainly directed to the difficulties said to have been experienced by the plaintiffs in obtaining production of relevant documents in the period up to mid-1995. In May 1992, the plaintiffs' then solicitors made application to the Australian Legal Aid Office for legal assistance in respect of this and an allied action against former solicitors for the plaintiffs ("the Launceston action"). In September 1992 they wrote to the Legal Aid Commission seeking a response. By letter of 1 July 1993 from the Legal Aid Commission to the plaintiffs' solicitors, legal aid was granted to investigate and advise on the merits of extending aid but limited to the sum of $2,880. By 1995, the plaintiffs' solicitors had still not been able to obtain copies of the defendants' documents because they had insufficient funds to reimburse the Director of Public Prosecutions for the cost of producing them. A cheque for the required amount was sent by the plaintiffs' solicitors to the Director of Public Prosecutions on 15 September 1995. By par 4.68, the fourth named defendant deposed:
"The plaintiffs' solicitors subsequently retained Mr Stephen Estcourt of counsel to advise the Legal Aid Commission of Tasmania as to the merits of the plaintiffs' case both in this proceeding and the Launceston action."
Mr Estcourt indicated that a fee of $4,000 was anticipated and the plaintiffs' solicitors sought further aid from the Legal Aid Commission to cover this fee. The Legal Aid Commission agreed, but after the completion of the investigation, aid was withdrawn by it by letter dated 18 March 1996.
In December 1996, the plaintiffs approached Messrs Slater and Gordon, Solicitors of Melbourne "with a proposition that they undertake the carriage of this proceeding and/or the Launceston action on a 'no win no fee' basis". At first (in January 1997), Slater and Gordon declined to accept instructions, but in February of that year they accepted a retainer to investigate further. In May 1997, they indicated that they had formed a preliminary view that both actions had merit. They confirmed this view in January 1998 and in May 1998 indicated that they were willing to act on a partially funded and partially "no win no fee" basis. Agreement was finalised on the terms of the retainer in September 1998. The subsequent history is not relevant for present purposes. I deal now with each document sought by the defendants to be produced by the plaintiffs.
(a) The 29 March LAC letter
In the December affidavit at par 4.42, it is deposed as follows:
"By letter dated 18 March 1993 from the DPP to the Plaintiffs' Solicitors, the DPP stated
'I am concerned, and so are my clients, that this action should now proceed to finality however I am also concerned that the next steps to be undertaken (completion of discovery and interrogation) will be costly and time consuming. I am troubled about your client's financial status and am taking instructions to apply for security for costs. This is not a step which I take lightly but, in my view, must be taken in light of the obvious financial status of your client and delays which have occurred to date in this litigation.'
Now produced and marked with the letters 'MWT 22' is a true copy of the said letter dated 18 March 1993."
Paragraph 4.43 reads:
"By letter dated 29 March 1993 from the Plaintiffs' Solicitors to the Legal Aid Commission of Tasmania, a copy of the letter from the DPP dated 18 March 1993 was forwarded to the Legal Aid Commission of Tasmania. Still no response was received in relation to the Plaintiffs' Application for Legal Aid."
Mr Ellis for the defendants argues that this communication is not a matter of professional privilege if only because there is no solicitor/client relationship between the Legal Aid Commission and the plaintiffs' solicitors, but that if there were such a privilege, it has been waived by reason of a reference to the contents of the letter. Having regard to the limited nature of the enquiry I have been asked to undertake and not having been made aware of the full contents of that letter, I find difficulty in determining the first part of the objection. However, assuming that the nature of the communication is such as to amount to a confidential one, the dominant purpose for which it was made being the obtaining or giving of legal advice or assistance or its use in legal proceedings (Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 168 ALR 123), the communication is, in my view, the subject of legal professional privilege. The Legal Aid Commission Act 1990, s11(2) provides:
"11 …
(2) The same privileges as those that arise from the relationship of client and legal practitioner acting in a professional capacity and in the course of professional employment shall arise ¾
(a) between a person who has applied for legal aid, or to whom legal aid is being provided, and an officer who practices as, or performs any of the functions of, a legal practitioner for the person under this Act; and
(b) between a private legal practitioner and the Commission in relation to services provided by the private legal practitioner for a person under this Act."
In these circumstances, the relationship is equated to that of solicitor/client and attracts the same privilege. I shall deal with waiver in more detail later, but it is sufficient to say here that the contents of the letter have not been referred to. All that was revealed was that the Director of Public Prosecution's letter referred to in par 4.42 and annexed to the affidavit was sent by letter to the Legal Aid Commission. There is no basis for suggesting waiver of privilege in these circumstances.
(c) Withdrawal of aid letter
(d) The Estcourt advice
It is convenient to deal with these matters together. Paragraphs 4.71 and 4.72 of the December affidavits state:
4.71 By letter dated 29 January 1996 the Legal Aid Commission of Tasmania agreed to grant aid in the sum of Four Thousand dollars ($4,000.00) to permit proper canvassing of the issues by Mr Estcourt. Now produced and marked with the letters 'MWT 41' is a true copy of the said letter dated 29 January 1996.
4.72 After completion of the investigation of the matter, aid was withdrawn by letter dated 18 March 1996, from the Legal Aid Commission of Tasmania to the Plaintiffs' Solicitors."
The text of the letter referred to in par 4.71 and attached to the affidavit is:
"I acknowledge receipt of your letter of 24 January last. This matter has now dragged on for years. I am now at a stage where unless I receive an opinion to the effect that the plaintiffs to this cause of action actually have a case, aid will be withdrawn. I am therefore prepared to grant aid in the sum of $4000 to permit a proper canvassing of the issues by Mr Estcourt. Please do not apply for an extension of this sum - it will not be granted. If Mr Estcourt is unable to reach a concluded view, again do not apply for an extension, because if he cannot tell me, in the time provided, whether or not the plaintiffs have a case, I will presume that either they do not or that the issue is too complicated to permit the Commission to fund it. It is further a requirement that any opinion from Mr Estcourt be received at this Commission by no later than 15 March next, as too much time has elapsed already on this matter."
Mr Ellis argues that it is unreasonable not to infer that, Mr Estcourt having been asked to give advice to the Legal Aid Commission by a deadline of 15 March and the Commission having refused aid on 18 March, written advice was furnished by Mr Estcourt prior to the latter date. No doubt it was, but the issues raised are whether the Commission's letter of 18 March and Mr Estcourt's opinion are the subject of legal professional privilege and if so, whether they were waived. It would be obtuse to suggest that the subject matter of both documents was not highly confidential and brought into existence for the purpose of advising the plaintiffs in respect of the actions. As I understand it, the main thrust of Mr Ellis' argument was that neither the relationship between the Legal Aid Commission and the plaintiffs' solicitors, nor that between Mr Estcourt and the Legal Aid Commission, was a solicitor/client one; but in view of the Legal Aid Commission Act, s11(2), the privileges pertaining to that relationship are accorded to the relationships between the Legal Aid Commission, Mr Estcourt and the plaintiffs' solicitors. It appears that Mr Estcourt was retained by the plaintiffs' solicitors on behalf of the plaintiffs and his advice to them through their solicitors was clearly entitled to the privilege. As between the plaintiffs' solicitors and the Legal Aid Commission, the privilege is guaranteed by s11(2)(b). I turn then to the question of waiver.
It is not suggested in this case that there has been any express waiver of the privilege, but rather that there has been an implied waiver in respect of both documents. In Attorney-General (Northern Territory) v Maurice (1986) 161 CLR 475, Gibbs CJ, at 481, referred to:
"… the rule that in a case where there is no intentional waiver the question 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."
He went on:
"Thus it has been held that the privilege in respect of a document is not waived by the mere reference to that document in pleadings (Roberts v Oppenheim (1884) 26 Ch D 724; Buttes Oil Co v Hammer [No 3] (1981) QB 223, at pp 252, 268) or in an affidavit (Lyell v Kennedy (1884) 27 Ch D 1, at p 24; Infields, Ltd v P Rosen & Son (1938) 3 All ER 591, at p 597; Tate & Lyell 'International Co Ltd v Government Trading Corporation', The Times, 24 October 1984) …"
In Mann v Carnell (1999) 168 ALR 86 at 94, Gleeson CJ, Gaudron, Gummow and Callinan JJ in a joint judgment said:
"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 (Ross T Smyth & Co Ltd v T D Bailey, Son & Co [1940] 3 All ER 60 at 70; Larratt v Bankers and Traders Insurance Co Ltd (1941) 41 SR (NSW) 215 at 226; The Commonwealth v Verwayen (1990) 170 CLR 394 at 406, 422, 467, 472; 95 ALR 321). 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 (Cross on Evidence, 5th Aust ed (1996), para 25005; Attorney-General (NT) v Maurice (1986) 161 CLR 475 at 497-498; 69 ALR 31). Examples include 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 (Benecke v National Australia Bank (1993) 35 NSWLR 110), 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 (Lillicrap v Nalder & Son (a firm) [1993] 1 WLR 94; [1993] 1 All ER 724).
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' (For example, Goldberg v Ng (1995) 185 CLR 83 at 95; 132 ALR 57). 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 National Australia Bank (1993) 35 NSWLR 110, 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."
Again, at 96, they said:
"Disclosure by a client of confidential legal advice received by the client, which may be for the purpose of explaining or justifying the client's actions, or for some other purpose, will waive privilege if such disclosure is inconsistent with the confidentiality which the privilege serves to protect. Depending upon the circumstances of the case, considerations of fairness may be relevant to a determination of whether there is such inconsistency."
In my view, it cannot be said that there is any inconsistency between the conduct of the clients in acknowledging the existence of a letter from the Legal Aid Commission advising them that aid has been withdrawn and the maintenance of the confidentiality which the law protects subject to waiver. The affidavit is directed to giving explanations as to the slow progress which has attended the prosecution of the plaintiffs' claim. The fact that by reason of impecuniosity assistance was sought from the Legal Aid Commission and withdrawn by that authority after considering confidential material relating to the plaintiffs' case, affords an explanation for some of the delay. I was told by counsel for the plaintiffs without demur from counsel for the defendants, that at the hearing at which the Master disqualified himself from proceeding further, the defendants had indicated that the merits of the plaintiffs' case were not in issue on the application to dismiss for want of prosecution, but only prejudice and delay were. There can be no question of unfairness in the plaintiffs' relying on the fact of a withdrawal of aid evidenced by the letter referred to in the affidavit, but declining to disclose the contents if they relate to confidential advice on the merits of the claim. As to Mr Estcourt's letter of advice, if, as seems highly likely, it exists, there is equally no lack of fairness to the defendants in its contents not being disclosed and no inconsistency between the plaintiffs' implied reference to it and the maintenance of its confidentiality.
(f) The Slater and Gordon decline letter
(g) The 31 January Tatlow letter
(h) The 1997 merit information
The 1998 merit advice
These documents likewise relate to confidential assessments of the plaintiffs' prospects of success. Merit not being in issue and the affidavit being filed to explain delay, the plaintiffs' conduct in adverting to the progress of their dealings with Slater and Gordon is likewise not inconsistent with their right to have confidential exchanges with their legal advisers protected by legal professional privilege. The defendants are not disadvantaged or subjected to any form of unfairness by not having access to the documents which were referred to only to explain the delay in prosecuting the case. In my view, the plaintiffs have not waived privilege in respect of any of the named documents.
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