Baulch v Lyndoch Warrnambool & Anor (Ruling no 1)
[2008] VSC 421
•30 September 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT WARRNAMBOOL
COMMON LAW DIVISION
No. 1360 of 2007
| KAREN ANN BAULCH | Plaintiff |
| v | |
| LYNDOCH WARRNAMBOOL | Defendant |
---
JUDGE: | FORREST J | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 30 September and 1, 2, 3, 6, 7, 8, 9 & 10 October 2008 | |
DATE OF RULING: | 30 September 2008 | |
CASE MAY BE CITED AS: | Baulch v Lyndoch Warrnambool & Anor (Ruling No. 1) | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 421 | |
---
EVIDENCE – Legal Professional Privilege – Disclosure Waiver – Solicitor’s notes of interview provided to potential expert witness – Notes not used as basis for expert opinion – No waiver of legal professional privilege
RULING No.1
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J.B. Richards SC with Mr J.J. Fitzpatrick | Stringer Clark |
| For the Defendant | Mr P.A. Scanlon QC with Mr W.R. Middleton | Lander & Rogers |
HIS HONOUR:
This is an application by senior counsel for the defendant to have the notes of the plaintiff's instructing solicitor's interview with the plaintiff produced to the court. It is said that the plaintiff has waived legal professional privilege which attends such notes.
The facts can be stated in short compass. On 6 August 2008, the plaintiff's solicitors wrote to a Mr Geoff Waddell, a professional consulting engineer with experience in ergonomics arranging for him to meet with the plaintiff on 12 August 2008. Amongst a raft of documents which included medical reports, statements and a report from another engineer/ergonomist was “Item No. 28, Solicitor's notes of interview”.
On 25 September 2008, Mr Waddell completed his report. That report appears to comply with the provisions of Order 44 of the rules of this court. At 3.1 of the report Mr Waddell listed the documents that he had read. That list did not include the solicitor's notes of interview referred to in the letter of 6 August 2008 of the plaintiff's solicitors.
The witness was required, pursuant to Rule 44.03(2)(e) to provide any literature or other materials utilised in support of the opinion. It can, I think, therefore be reasonably inferred that the notes of interview did not form part of the material utilised in support of the opinion. That leaves to be determined the issue as to whether the provision to the expert of the solicitor's notes of interview constituted a waiver of legal professional privilege on the part of the plaintiff. It is what is classically referred to as a question of disclosure waiver.
The starting principle is that legal professional privilege is a fundamental common law right or immunity[1]. Both the High Court and the Court of Appeal in this State have on a number of occasions over the past 20 years considered the question of disclosure waiver. In particular, there are the decisions of Mann v Carnell,[2] Attorney-General Northern Territory v Maurice[3] and Goldberg v Ng.[4] Those decisions of the High Court have been analysed and applied by the Court of Appeal on two separate occasions in this State. Firstly, in British American Tobacco Ltd v Cowell[5] and secondly in State of Victoria v Davies.[6]
[1]see Daniels Corp Pty Ltd & Anor. v Australian Competition and Consumer Commission (2002) 77 ALJR 44 [11] to[ 44] and [132], Baker v Campbell [1983] 153 CLR 52.
[2](1999) 201 CLR 1
[3](1986) 161 CLR 475
[4](1995) 185 CLR 83
[5](2002) 7 VR 524
[6](2003) 6 VR 245
A fundamental principle relating to disclosure waiver was set out in Mann v Carnell by Gleeson CJ, Gaudron, Gummow and Callinan JJ.
“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 the maintenance of confidentiality; not some overriding principle of fairness operating at large”.[7]
[7](1999) 201 CLR 1, [29]
In Attorney General v Maurice, Mason and Brennan JJ said as follows:
"An implied waiver occurs when, by reason of some conduct on the privilege holder's part, it becomes unfair to maintain the privilege. The holder of the privilege should not be able to abuse it by using it to create an inaccurate perception of protected communication. Professor Wigmore explains: 'He cannot be allowed, after disclosing as much as he pleases, to withhold the remainder.' In order to ensure that the opposing litigant is not misled by an inaccurate perception of the disclosed communication, fairness will usually require that waiver as to one part of a protected communication should result in waiver as to the rest of the communication on that subject-matter."[8]
[8](1986) 161 CLR 475, 487-488
I pause to say that in this case there is no question of partial disclosure. All that has occurred is a solicitor's letter identifying that the solicitor holds a set of notes said to be instructions given by the plaintiff and provision of those notes to a potential witness. In State of Victoria v Davies[9] the Court of Appeal was concerned with the identification within a list of documents of surveillance videos. Batt JA with whom Callaway and Chernov JJ agreed said as follows:
"His Honour applied the correct test for determining whether there had been implied waiver, namely, whether the conduct of the party claiming privilege was inconsistent with the continued assertion to privilege. But I respectfully consider that the conclusion of which his Honour arrived by applying the test to be erroneous. The videos were merely listed, that is enumerated, as is done in an affidavit of documents. I cannot think that the giving, properly, of their dates and places as a waiver of their contents. They were not ‘included’ or supplied and their contents were not ‘set out’ or reproduced as visual images in whole or in part. As Gibbs CJ stated in Attorney General (NT) v Maurice by reference to authority, it has been held that the privilege in respect of a document is not waived by the mere reference to that document in pleadings or in an affidavit, although the position will be different if the document is reproduced in full in the pleading or affidavit. Dawson J said in the same case that for waiver to happen the content of the communication itself must be revealed."[10]
[9](2003) 6 VR 245
[10](2003) 6 VR 245, [30]
The court went on to say:
"It may be accepted that by listing them the appellant categorised them as material it then intended to tender or otherwise use at trial. But it had not at that stage used them and it was at liberty to resile from that intention at any time before it actually carried it into effect. I conclude, therefore, that, since what the appellant had done was, in my opinion, not inconsistent with its continued assertion of privilege or - to put the matter concretely - since the surveillance video tapes had not been tendered or otherwise used and their content had not been otherwise revealed, legal professional privilege in them had not been impliedly waived by the appellant."[11]
[11](2003) 6 VR 245, [30]
Mr Richards drew my attention to a portion of Williams’ Civil Procedure and the commentary on Rule 29.01:
"Disclosure of a document protected by legal professional privilege to an expert witness for the purpose of litigation is not a waiver. Waiver of the privilege might occur if the witness gives evidence that is based upon material that is covered by privilege."[12]
[12]Note at 495
Whilst each of the cases cited in Williams in support of the above proposition were decided before BAT and Davies, they nevertheless support the proposition which I consider is fatal to the application made by the defendant, namely that the mere enumerating of the notes within the letter of instructions and its provision, with no more, to a witness, cannot of itself constitute a waiver of legal professional privilege. No other matter which would enable the court to conclude that there had been an implied waiver has been established.
In my view the application should be dismissed.
0
5
0