BT Australasia Pty Ltd v State of New South Wales (No 8)

Case •

[1998] FCA 295

•

1 APRIL, 1998

FEDERAL COURT OF AUSTRALIA

EVIDENCE - client legal privilege - loss of privilege - whether substance of confidential communication was disclosed - whether holder of privilege impliedly consented to disclosure of confidential communication - whether disclosure of confidential communication was inadvertent.

Evidence Act 1995 (Cth), ss 121, 122, 126

Adelaide Steamship Co Ltd v Spalvins, 2 March 1998, unreported (FCA/FC), followed.
Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1996) 40 NSWLR 12 (S Ct NSW/Rolfe J), cited.
Attorney-General of the Northern Territory v Maurice (1986) 161 CLR 475, cited.
Derby & Co Ltd v Weldon [1991] 1 WLR 73 (CA), cited.
Goldberg v Ng (1995) 185 CLR 83, cited.
Guinness Peat Properties Ltd v Fitzroy Robinson Partnership [1987] 1 WLR 1027 (CA), cited.
Hooker Corporation Ltd v Darling Harbour Authority (1987) 9 NSWLR 538, cited.
Springfield Nominees Pty Ltd v Bridgeland Securities Ltd (1992) 38 FCR 217 (FCA/FC), cited.
Woollahra Municipal Council v Westpac Banking Corporation (1992) 33 NSWLR 529, cited.

BT AUSTRALASIA PTY LTD V STATE OF NEW SOUTH WALES AND TELSTRA CORPORATION LIMITED

NG 572 OF 1997

JUDGMENT NO 8

SACKVILLE J
SYDNEY
1 APRIL 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY NG 572  OF 1995

BETWEEN:   BT AUSTRALASIA PTY LTD
  APPLICANT

AND              STATE OF NEW SOUTH WALES
  FIRST RESPONDENT

  TELSTRA CORPORATION LIMITED
  SECOND RESPONDENT

BETWEEN:

AND:

BETWEEN:

STATE OF NEW SOUTH WALES
CROSS CLAIMANT TO FIRST CROSS CLAIM

BT AUSTRALASIA PTY LIMITED
FIRST CROSS RESPONDENT TO FIRST CROSS CLAIM

BRITISH TELECOMMUNICATIONS PLC
SECOND CROSS RESPONDENT TO FIRST CROSS CLAIM

BT AUSTRALASIA PTY LIMITED
CROSS CLAIMANT TO SECOND CROSS CLAIM

AND:

TELSTRA CORPORATION LIMITED
CROSS RESPONDENT TO SECOND CROSS CLAIM
BETWEEN:

BRITISH TELECOMMUNICATIONS PLC
CROSS CLAIMANT TO THIRD CROSS CLAIM
AND:

TELSTRA CORPORATION LIMITED
CROSS RESPONDENT TO THIRD CROSS CLAIM
BETWEEN:

BRITISH TELECOMMUNICATIONS PLC
CROSS CLAIMANT TO FOURTH CROSS CLAIM
AND:

STATE OF NEW SOUTH WALES
CROSS RESPONDENT TO FOURTH CROSS CLAIM
BETWEEN:

STATE OF NEW SOUTH WALES
CROSS CLAIMANT TO FIFTH CROSS CLAIM
AND:

TELSTRA CORPORATION LIMITED
CROSS RESPONDENT TO FIFTH CROSS CLAIM
BETWEEN:

TELSTRA CORPORATION LIMITED
CROSS CLAIMANT TO SIXTH CROSS CLAIM
AND:

BT AUSTRALASIA PTY LIMITED
CROSS RESPONDENT TO SIXTH CROSS CLAIM
BETWEEN:

TELSTRA CORPORATION LIMITED
CROSS CLAIMANT TO SEVENTH CROSS CLAIM
AND:

BRITISH TELECOMMUNICATIONS PLC
CROSS RESPONDENT TO SEVENTH CROSS CLAIM
BETWEEN:

TELSTRA CORPORATION LIMITED
CROSS CLAIMANT TO EIGHTH CROSS CLAIM
AND:

STATE OF NEW SOUTH WALES
CROSS RESPONDENT TO EIGHTH CROSS CLAIM
JUDGE: SACKVILLE J
PLACE: SYDNEY
DATE:

1 APRIL, 1998

JUDGMENT NO 8

THE COURT ORDERS THAT:

  1. The State produce for inspection by BTA and BT plc the original, and provide to BTA and BT plc copies, of documents PTA 005 024 0138-0176 and PTA 006 003 0137-0375, referred to in par 24 of the statement of Mr Lopert dated 28 November 1997.

  1. The State pay the costs of BTA and BT plc of the motion.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY NG 572  OF 1995

BETWEEN:   BT AUSTRALASIA PTY LTD
  APPLICANT

AND              STATE OF NEW SOUTH WALES
  FIRST RESPONDENT

  TELSTRA CORPORATION LIMITED
  SECOND RESPONDENT

BETWEEN:

AND:

BETWEEN:

STATE OF NEW SOUTH WALES
CROSS CLAIMANT TO FIRST CROSS CLAIM

BT AUSTRALASIA PTY LIMITED
FIRST CROSS RESPONDENT TO FIRST CROSS CLAIM

BRITISH TELECOMMUNICATIONS PLC
SECOND CROSS RESPONDENT TO FIRST CROSS CLAIM

BT AUSTRALASIA PTY LIMITED
CROSS CLAIMANT TO SECOND CROSS CLAIM

AND:

TELSTRA CORPORATION LIMITED
CROSS RESPONDENT TO SECOND CROSS CLAIM
BETWEEN:

BRITISH TELECOMMUNICATIONS PLC
CROSS CLAIMANT TO THIRD CROSS CLAIM
AND:

TELSTRA CORPORATION LIMITED
CROSS RESPONDENT TO THIRD CROSS CLAIM
BETWEEN:

BRITISH TELECOMMUNICATIONS PLC
CROSS CLAIMANT TO FOURTH CROSS CLAIM
AND:

STATE OF NEW SOUTH WALES
CROSS RESPONDENT TO FOURTH CROSS CLAIM
BETWEEN:

STATE OF NEW SOUTH WALES
CROSS CLAIMANT TO FIFTH CROSS CLAIM
AND:

TELSTRA CORPORATION LIMITED
CROSS RESPONDENT TO FIFTH CROSS CLAIM
BETWEEN:

TELSTRA CORPORATION LIMITED
CROSS CLAIMANT TO SIXTH CROSS CLAIM
AND:

BT AUSTRALASIA PTY LIMITED
CROSS RESPONDENT TO SIXTH CROSS CLAIM
BETWEEN:

TELSTRA CORPORATION LIMITED
CROSS CLAIMANT TO SEVENTH CROSS CLAIM
AND:

BRITISH TELECOMMUNICATIONS PLC
CROSS RESPONDENT TO SEVENTH CROSS CLAIM
BETWEEN:

TELSTRA CORPORATION LIMITED
CROSS CLAIMANT TO EIGHTH CROSS CLAIM
AND:

STATE OF NEW SOUTH WALES
CROSS RESPONDENT TO EIGHTH CROSS CLAIM
JUDGE: SACKVILLE J
PLACE: SYDNEY
DATE:

1 APRIL, 1998

REASONS FOR JUDGMENT - NO 8

This is one of a number of Notices of Motion raising questions of loss of client legal privilege.  I have dealt with the applicable principles in BT (Australasia) Pty Ltd v State of New South Wales & Anor, 1 April 1998, unreported (Judgment No 7).

The present motion is brought by BT (Australasia) Pty Ltd (“BTA”) and British Telecommunications plc (“BT plc”).  The motion seeks an order that the State of New South Wales (“the State”)

“forthwith produce the original for inspection by BTA and BT plc, and serve on BTA and BT plc a copy of, each of the documents referred to in the statement of Paul Bernard Lopert, dated 28 November 1997 filed herein on behalf of [the State].”

The parties have been able to resolve the dispute relating to the production of documents referred to in Mr Lopert’s statement, except for two documents.  The motion was heard on the assumption that the two documents in contention were the subject of client legal privilege.  This course was adopted in order to avoid the need for me to examine the documents.  It was said by Mr Lindsay SC, who appeared with Mr Einstein for BT (the collective term I adopt for BTA and BT plc), that if I were to examine the documents my position as the trial Judge might be placed in jeopardy.  Accordingly, the motion has been dealt with on the assumption that the two documents are the subject of client legal privilege, but BT wishes to reserve its entitlement to challenge that claim of privilege in the future, should it be necessary to do so.

The issue raised by the motion is whether the State has lost client legal privilege in two documents referred to in the statement of Mr Lopert.  The original of Mr Lopert’s statement, dated 28 November 1997, was filed in Court on 1 December 1997, and copies were served on other parties to the litigation on the same day.  The statement has not been tendered, nor have the contents otherwise been adduced in evidence, in the proceedings.  BT’s position is that the specific reference by Mr Lopert in his statement to the two privileged documents has resulted in the loss of privilege otherwise available to the State in respect of those documents.

Mr Lopert’s Statement
Mr Lopert was the General Manager, Commercial Services, of the Commercial Services Group of the State, between December 1987 and July 1995.  He is no longer employed by the State.  In his statement, Mr Lopert recounts that the State, in April 1991, issued an invitation to submit expressions of interest to develop a communications network for the State.  Four of the parties submitting expressions of interest were invited to tender to a formal Request for Tender (“RFT”).  The parties so invited included BTA which, in September 1991, was invited to submit a response to an RFT for the design, implementation and operation of a telecommunications network for the New South Wales Public Sector.  Mr Lopert explains that the New South Wales State Contracts Control Board established a system for the evaluation of responses to the RFT to be undertaken by evaluation teams comprising appropriately qualified persons.  Those teams were to report to a Steering Committee, of which Mr Lopert was chairman.  The Steering Committee was charged with making the final recommendation to the Board in relation to a contract or contracts for the State’s telecommunications network.

On 8 January 1992, the State received an initial tender response from BTA.  According to Mr Lopert, staff of the Telecommunications Unit of the Commercial Services Group and the evaluation teams conducted an extended process of written “questions and answers” with each tenderer.  In addition, a series of formal meetings took place between the State and each of the tenderers.  This process occurred during the period January 1992 to November 1992.

In the meantime, on 14 August 1992, the Steering Committee examined tenders from BTA, and two other companies including one known as “Horizon”.  Horizon was nominated by the Steering Committee as the “preferred tenderer”.  However, on 21 September 1992, a meeting of the Steering Committee resolved that Horizon should be removed as the preferred tenderer and a “Best and Final Offer” should be required from all three tenderers.  In consequence of this resolution, BTA and the other tenderers were supplied with a pro-forma contract, which they were invited to negotiate with the State, and guidelines for the submission of a Best and Final Offer.  The State received BTA’s Best and Final Offer on 18 October 1992.

The critical paragraph of Mr Lopert’s statement for the purposes of the present motion is par 24.  Although the paragraph is lengthy, it should be set out:

“Based on the reports to the Steering Committee by the evaluation teams (including consultants engaged by them): PTC 005 001 0016-0028; PTC 005 001 0030-0058; PTC 005 001 0059-0084; PTC 005 001 0128-0150; PTC 005 001 0227-0230; PTC 005 001 0235-0240; PTC 005 001 0297-0300; PTC 005 001 0291; PTC 004 024 0085-0114; PTA 005 024 0138-0176; PTA 006 003 0137-0375; PTC 005 001 0282-0283; PTC 005 001 0010-0014, and by a reading of BTA’s Best and Final Offer: PTW 002 045, it was my understanding and belief that:

(a)each of the Government’s requirements and objectives as set out in the RFT would be met by BTA’s Best and Final Offer, with the exception that:

(i)the network now excluded radio;

(ii)video services were not required services;

(iii)there were circumstances provided for in the TDN Agreement in which an Agency may not be connected to the TDN;

(b)that BT Australasia Pty Limited (“BTA”) and British Telecommunications plc (“BTP”) each understood:

(i)that the benchmark TDN provided for in the RFT was to be used only to provide a common basis for tenderers to prepare example prices so they could be compared directly;

(ii)that the data contained in the RFT was based on a selective survey of Agencies over the period 1989 to 1991;

(iii)that Agencies which existed at the time of the selective survey, may no longer exist or may have changed substantially in their telecommunications requirements;

(iv)that the above survey was based on a subset of voice and data information; and

(v)that the private network component of the TDN was to be designed and built based on the actual traffic data collected by BTA after Agencies were connected to CNH,

and that understanding formed the basis for BTA’s Best and Final Offer;

(c)that the TDN Agreement would provide substantial savings to the Government which could not be quantified precisely in advance but which were of the order of magnitude of those identified in reports to the Steering Committee;

(d)that BTA would provide a service known as Customer Net Horizon (“CNH”) to Agencies within a 6 to 12 month period after the commencement of the TDN Agreement;

(e)that BTA would accomplish cutover of Agencies from CNH to a private telecommunications network (the “PN”) by about the second year of operation of the TDN Agreement;

(f)That CNH would be used by BTA to:

(i)bring Agencies onto the TDN;

(ii)provide early savings to the Government;

(iii)provide a means of data collection as to the use and requirements of Agencies for telecommunications services;

(iv)provide additional network resilience for Agencies after connection to the PN;

(g)that BTA would construct a fully digital network with the capacity to support advanced telecommunications services;

(h)that BTA would deliver and maintain a proper and adequate system for accounting to the Government and Agencies for the supply of all telecommunications services, including services provided by carriers;

(i)that BTA would deliver telecommunications network services to a world class standard;

(j)that BTA would provide substantial State development benefits to the Government including by means of direct investment, employment of staff, research and development activities, location of major international network facilities and a regional headquarters in Sydney;

(k)that BTA had properly and adequately researched the Government’s network requirements and had properly and adequately prepared its Best and Final Offer;

(l)that BTA would market the TDN to Agencies;

(m)that BTA would provide services under the TDN Agreement more cheaply than Telecom;

(n)that BT plc would contribute to BTA’s resources, skills and experience in the implementation of the TDN Agreement and;

(o)that the Government was not warranting or in any way representing to BTA or BTP the volume of traffic available from Agencies or which would use the TDN.”

The two documents in dispute in the present motion are among those referred to in par 24, namely, PTA 005 024 0138-0176; and PTA 006 003 0137-0375.  I refer to them as the “disputed documents”.

The present motion was filed by BT on 2 March 1998.  On 5 March 1998, Mr Lopert signed a further statement (“Mr Lopert’s second statement”).  On the same day, the State served the second statement on BT, together with a copy of all documents referred to in that statement.  The only relevant difference between Mr Lopert’s first statement and Mr Lopert’s second statement was the deletion of any reference in par 24 to the two disputed documents. 

Ms Grant’s Evidence
Ms Grant is a solicitor employed by the Crown Solicitor, and has the conduct of these proceedings on behalf of the State.  She has sworn an affidavit which was read on behalf of the State.  Ms Grant was not cross-examined.

In her affidavit, Ms Grant recounts that on 9 January 1998 the Crown Solicitor’s Office (“CSO”) received a request from BT’s solicitors for copies of all documents referred to in a number of statements filed on behalf of the State.  While those documents were being collated, inquiries revealed that par 24 of Mr Lopert’s first statement included references to documents for which a claim for client legal privilege had previously been made by the State.

Ms Grant says that the CSO’s practice in preparing statements has been to exclude any reference to privileged documents, except where instructions have been obtained expressly to waive privilege.  She says that the CSO has not received any instructions in the proceedings from the State to waive client legal privilege.  Ms Grant also says that all privileged documents contained within the State’s discovery are isolated within the CSO from the general discovery documents.  There is, however, no distinguishing discovery number pattern for privileged documents.  Accordingly (she says), when faced with a multitude of the documents, the likelihood of human error is very real.  Ms Grant further explains that, during the course of preparation of Mr Lopert’s statement, her understanding is that original and copy documents were collated by paralegals for discussion between counsel and Mr Lopert. 

She continues:

“It is not clear to me how the two references to privileged documents came to be included in [Mr Lopert’s first statement].  I believe the document references would have been in Counsel’s draft statement and final form of statement.  No one associated with the statement’s preparation had authority to disclose privileged documents.  So far as I am aware, one, if not more, paralegals were responsible for the final assembling of the documents referred to in the statement.”

Submissions:
BT submits that the State has lost client legal privilege on any one of a number of grounds:

  • By referring to the privileged documents in par 24 of his first statement, Mr Lopert had used the documents to revive his memory about a fact or opinion (Evidence Act, s 122(6)).

  • By serving Mr Lopert’s first statement, which includes an express reference to the disputed documents, the State must be taken to have given its consent to the disclosure of the documents (Evidence Act, s 122(1)).

  • Mr Lopert’s first statement asserts to the knowing and voluntary disclosure by the State of the substance of the documents (Evidence Act, s 122(2)).

  • The disputed documents “affect the rights” of BT (Evidence Act, s 121(3)).

  • Inspection of the disputed documents is reasonably necessary to enable a proper understanding of documents according deliberations of the Steering Committee (Evidence Act, s 126).

  • If the common law applies, the State’s privilege in the disputed documents has been waived by the principles settled by the High Court in Attorney-General for the Northern Territory v Maurice (1986) 161 CLR 475 and Goldberg v Ng (1995) 185 CLR 83.

The State disputes these contentions.  In particular, Mr Muddle contends that there can be no express or implied consent to disclosure, nor any knowing or voluntary disclosure, in circumstances where there has been inadvertent disclosure of a document.  He further submits there can be no implied consent to disclosure arising from material which has not been read in Court.

Disclosure
It is convenient to deal first with the issue of disclosure.  As I have discussed in Judgment No 7, the Full Court in Adelaide Steamship Co Ltd v Spalvins, 2 March 1998, unreported, has laid down the test for determining whether the substance of a confidential communication has been disclosed for the purposes of subss 122(2) and (4) of the Evidence Act.  That test, according to Adelaide Steamship, is now incorporated by the common law as modified by the “derivative” operation of the Evidence Act.  That test is “a quantitative one, which asks whether there has been sufficient disclosure to warrant loss of the privilege” (at 12).

In the present case, Mr Lopert referred in his statement to the two disputed documents, among a number of other reports to the Steering Committee, as providing the bases for his understanding and belief in the many issues specified in par 24.  In my view, this does not amount to a disclosure of the substance of the two privileged documents.  The form of Mr Lopert’s statement is very similar to the Part B statement dealt with by Rolfe J in Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1996) 40 NSWLR 12. There, Ampolex expressed views in a Part B statement as to the likely outcome of pending litigation. The views, which were set out in some detail, were said to have regard to the pleadings, the evidence available to Ampolex “and the advice of the barristers and the solicitors engaged by Ampolex for the purposes of the litigation” (see at 14). Rolfe J accepted (at 18) that the advice played a part in the formation of Ampolex’s view. However, his Honour said that

“the question is whether the statement of Ampolex’s view, albeit based on the material to which Ampolex refers, is a disclosure of Ampolex’s view or a disclosure of the material on which that view was based. Section 122(2) of the Evidence Act 1995 requires a disclosure of the substance of the legal advice. I do not regard the statement of Ampolex’s view as constituting a disclosure of the legal advice. It may be that in forming its opinion Ampolex has misconstrued or misunderstood the advice. However that may be, the statement does not rise above a statement of Ampolex’s view and it does not purport to state the advice, or its substance or effect and, therefore, it does not amount to a disclosure of the advice.”

Mr Lopert says in his statement that he had an understanding and belief on a large number of issues.  These are said to be based on eleven reports (including the two disputed documents) and on a reading of BT’s Best and Final Offer.  To paraphrase Rolfe J, Mr Lopert’s statement does not rise above a statement of his understanding and belief and does not purport to state the substance or effect of the two disputed documents.  For example, it is impossible to discern from Mr Lopert’s statement the topic or topics with which the two disputed documents were concerned.  Thus I do not think that BT have made out a case that privilege in the disputed documents has been lost by reason of disclosure. 

Consent
Subject to the issue of inadvertence raised by Mr Muddle, I think that BT are on stronger ground when they submit that the State has lost client legal privilege in the disputed documents because it has impliedly consented to the disclosure of the contents of those documents.  In Judgment No 7, I distinguish between a case where privileged communications are relevant to an issue in the proceedings, and one where a party relies on material specifically referring to privileged communications in order to advance its claim in the proceedings.  In the former, in the absence of further evidence, it is difficult to conclude that the relevant party has impliedly consented to the disclosure of the communications, even if it is thought unfair that the party should be able to insist in retaining its privilege in those communications.  In the latter case, however, the party has voluntarily invoked and relied on the hitherto confidential communications to support its case.  It is therefore much easier to imply that the party has consented to disclosure of the contents of the documents upon which it has expressly relied in order to advance its claims.

Unless the State can make out its claim that the reference to the disputed documents in Mr Lopert’s statement was inadvertent, I think that by filing and serving Mr Lopert’s statement it must be taken to have impliedly consented to the disclosure of the contents of those documents.  Mr Lopert’s statement specifically identifies the disputed documents as providing one of the sources for his belief on issues critical to the outcome of the litigation.  The reference to the document is plainly designed to support his evidence and to bolster the State’s case.  While, as I have held, the reference in Mr Lopert’s statement to the documents does not disclose their contents, in my view a party to litigation can consent to disclosure of confidential communications in a manner other than disclosure of the substance of the communications.

The Question Of Inadvertence
It was well established under the pre-Evidence Act common law that inadvertent disclosure of a privileged document in the course of discovery did not ordinarily waive privilege in that document: Woollahra Municipal Council v Westpac Banking Corporation (1992) 33 NSWLR 529. The issue in the present case concerns the application of common law principles, insofar as they have been modified by the “derivative” effect of the Evidence Act, as was decided in Adelaide Steamship.  In determining whether the principles stated in the Evidence Act have been satisfied, the fact that a disclosure of, or reference to, a document has been made inadvertently or by error may be of considerable significance.  For example, it could hardly be said that a party has knowingly and voluntarily disclosed the substance of a confidential communication (Evidence Act, s 122(2)) where the disclosure was made as the result of the relevant document being mistakenly included in a file provided to another party for inspection. Similarly, if a party refers to an otherwise privileged document, in circumstances suggesting that the party has consented to disclosure of the document, the fact that the reference was inadvertent or mistaken is likely to rebut the inference of consent that otherwise might be drawn.

In applying pre-Evidence Act common law principles governing waiver of legal professional privilege, it has not usually been difficult to determine whether a disclosure of an otherwise privileged document has been inadvertent.  In Hooker Corporation Ltd v Darling Harbour Authority (1987) 9 NSWLR 538, for example, the solicitor responsible for discovery gave evidence that a privileged document had been erroneously included in a list of non-privileged documents. The solicitor deposed that he had instructions to claim privilege where appropriate (at 540). In Guinness Peat Properties Ltd v Fitzroy Robinson Partnership [1987] 1 WLR 1027 (CA), a discovered file included a privileged document which had been left there by mistake. In Derby & Co Ltd v Weldon [1991] 1 WLR 73 (CA), markers which had been attached to certain documents to show that they were privileged had become detached, and the documents were consequently produced for inspection. In other instances, documents with markers still attached were mistakenly produced for inspection.

In my opinion, the evidence of Ms Grant does not rebut the inference that the State had impliedly consented to the disclosure of the two disputed documents.  This case is different from the inadvertent disclosure cases to which I have referred.  Ms Grant frankly acknowledges that she does not know how the privileged documents came to be included in Mr Lopert’s statement.  Her evidence indicates, however, that Mr Lopert’s statement was prepared with the assistance of counsel.  I infer, in the absence of other evidence, that counsel approved the statement, including the reference to the disputed documents, for filing and service in the proceedings.  There is no suggestion that Mr Lopert (who did not give evidence on the motion) was mistaken or misinformed when he referred to par 24 of his statement to the disputed documents.

At best, Ms Grant’s evidence suggest that there was a failure in communication within the CSO or between the CSO and counsel.  Consequently, counsel (and perhaps the solicitor directly involved in the preparation of the statement) may not have been aware of the practice to which Ms Grant refers in relation to privileged documents.  But the evidence is consistent with counsel having formed the view that, even if the documents were privileged, it was appropriate from the State’s forensic perspective for Mr Lopert to refer to them in his statement.  In any event, the evidence does not show that either counsel or Mr Lopert referred to the disputed documents inadvertently or by mistake.  Nor does it show that the statement was filed and served under any misapprehension or error as to the privileged status of the disputed documents. 

Loss of Privilege in a Statement
Mr Muddle submitted that the filing and service of a statement in legal proceedings could not result in loss of privilege in documents referred to in the statement, at least until the statement is tendered in evidence or otherwise relied on in court.  He cited in support of this proposition the decision of McLelland J in United States Surgical Corporation v Hospital Products International Pty Ltd, 13 October 1981, unreported (S Ct NSW/McLelland J). However, that case was concerned with common law waiver of privilege by disclosure. It was not concerned with the derivative application of s 122(1) of the Evidence Act.  I do not think that the authority is of assistance in the present context.

I see no reason why the filing and service of a statement in legal proceedings cannot constitute implied consent to the disclosure, for the purpose of the proceedings, of otherwise privileged communications referred to in the statement.  It is true that a witness statement filed in proceedings cannot be used for any purpose other than the proceedings, save with the consent of the maker of the statement or the leave of the Court: Springfield Nominees Pty Ltd v Bridgeland Securities Ltd (1992) 38 FCR 217 (FCA/FC). But the statement is intended and can be used in the proceedings. The filing and service of the statement by one party is capable of amounting to consent by that party to the disclosure in the proceedings of documents referred to in the statement. Whether such consent is to be implied in a particular case will of course depend on the circumstances.

Conclusion
An order should be made that the State produce for inspection by BTA and BT plc the original, and provide to BTA and BT plc copies, of documents PTA 005 024 0138-0176 and PTA 006 003 0137-0375, referred to in par 24 of the statement of Mr Lopert dated 28 November 1997.  The State should pay BT’s costs of the motion.

I certify that this and the preceding eleven (11) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate:

Dated:  1 April, 1998

Counsel for the Applicant: Mr G C Lindsay SC and Mr S Einstein.
Solicitor for the Applicant: Middletons Moore & Bevins.
Counsel for the First Respondent Mr W G Muddle and Mr D R Stack
Solicitor for the First Respondent Crown Solicitors Office

Counsel for the Second Respondent:

Mr A W Street SC and Mr J R J Lockhart
Solicitor for the Second Respondent: Blake Dawson Waldron.

Date of Hearing:

25 March 1998
Date of Judgment: 1 April, 1998
Actions
Download as PDF Download as Word Document
Cases Citing This Decision

1

Laws v GWS Machinery Pty Ltd and 2 Ors; Laws v GWS Machinery Pty Ltd [2006] NSWSC 492
Cases Cited

8

Statutory Material Cited

0

Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237
Grant v Downs [1976] HCA 63
Goldberg v NG [1995] HCA 39