Burrows v Council for the Law Society of New South Wales

[2018] NSWSC 235

Supreme Court

New South Wales

Medium Neutral Citation:	Burrows v Council for the Law Society of New South Wales [2018] NSWSC 235
Hearing dates:	23 February 2018
Date of orders:	23 February 2018
Decision date:	02 March 2018
Jurisdiction:	Common Law
Before:	Schmidt J
Decision:	Access sought to the documents produced to Court is refused.
Catchwords:	SUPBOENA – notice of motion – privilege – s 118 Evidence Act 1995 (NSW) – waiver - s 468 Legal Profession Uniform Law 2014   EVIDENCE – privilege – client legal privilege
Legislation Cited:	Evidence Act 1995 (NSW) Legal Profession Uniform Law 2014 (NSW) Legal Profession Act 1987 (NSW)
Cases Cited:	Attorney General (Northern Territory) v Maurice (1986) 161 CLR 475; [1986] HCA 80 Council of the New South Wales Bar Association v Archer (2008) 72 NSWLR 236; [2008] NSWCA 164
Category:	Procedural and other rulings
Parties:	Zali Burrows (Plaintiff) Council for the Law Society of New South Wales (First Defendant) Richard Stephen Savage (Second Defendant)
Representation:	Counsel: Mr R K Newton (Plaintiff) Ms C A Webster SC (Defendant)     Solicitors: Zali Burrows (Plaintiff) Clifford Flax (Defendant)
File Number(s):	2018/24244
Publication restriction:	Nil

Judgment

1. On 23 February 2018, I concluded that documents which the Law Society had produced to the Court in answer to a subpoena which Ms Burrows had served and to which it had objected her having access, were privileged: s 118 Evidence Act 1995 (NSW).

2. That was because I was satisfied by the evidence and an inspection of the documents, that they were confidential communications between Ms Foord, the Society‘s Director, Professional Standards and a lawyer, made for the dominant purpose of giving the Council of the Law Society legal advice about resolutions which it came to consider about the suspension of Ms Burrow’s practicing certificate and appointment of a manager to her law practice. Those resolutions resulted in her initiating these proceedings and finally resolving part of them.

3. I also concluded that the Society’s production of the documents to the Court in answer to the subpoena had resulted in a waiver of its rights under s 468 of the Legal Profession Uniform Law 2014 (NSW).

4. These are the reasons for those conclusions.

Section 468 of the Legal Profession Uniform Law

5. The Law Society’s power to suspend a solicitor’s practicing certificate arises under s 77 of the Uniform Law. Its power to lift or vary such a suspension arises under s 78; its power to appoint a manager under s 334 and its right to terminate such an appointment, under s 340.

6. The subpoena relevantly required production of:

““A copy of all reports and correspondence between Ms Anne-Marie Foord, the President of the Law Society of New South Wales and the Council for the Law Society of New South Wales regarding Zali Burrows of the period 13 December 2017 to 31 January 2018” (paragraph 2 of the schedule to the subpoena).”

7. Ms Foord gave affidavit evidence that she had provided the documents produced to the Council for the predominant purpose of providing it with legal advice about the resolutions it should make about the suspension of Ms Burrows practicing certificate; the appointment of a manager to her practice; the lifting of that suspension; and the termination of the appointment of the manager. That advice was based on her interpretation of the applicable provisions of the Uniform Law.

8. The documents were produced to Court electronically, under cover of a letter which made no reference to s 468 of the Uniform Law, but rather advised:

“I am the solicitor on the record for the First Defendant in the above proceedings.

This afternoon the First Defendant produced to the Court documents responsive to a Subpoena to Produce, which was served on the First Defendant in the above proceedings on 6 February 2018.

The First Defendant objects to inspection of the documents on the basis that they are privileged. The First Defendant will provide further details on the basis for its privilege claim at the return of subpoena hearing on 13 February 2018.

9. The matter came before the Registrar on 13 February 2018. The record of the proceedings maintained on the file indicated:

“PRIVILEGE CLAIM NO ACCESS UNTIL FURTHER ORDER TO BE SUBSTANTIATE BY AFFIDAVIT AND SUBMISSIONS TO BE SERVED BY 14 FEBRUARY 2018, 4PM.”

10. The matter was listed before the duty judge together with a number of motions which had been listed for hearing. It was only in written submissions prepared for the hearing in respect of the privilege claim, that it was submitted that the Law Society:

“is not compellable to produce the Documents because of the statutory immunity under section 468 of the Legal Profession Uniform Law (NSW) (Uniform Law);”

11. Section 468 provides:

“468    Non-compellability of certain witnesses

(1)    A relevant person referred to in section 467 is not compellable in any legal proceedings (including proceedings before the designated tribunal for the purposes of Chapter 5) to give evidence or produce documents in respect of any matter in which the person was involved in the course of the administration of this Law.

(2)    Subsection (1) is subject to any exceptions provided by jurisdictional legislation, for example in connection with royal commissions.”

12. Section 467 provides:

“467    Protection from liability

(1)    No liability attaches to a relevant person for any act or omission done or omitted in good faith and in the exercise or purported exercise of functions under this Law, the Uniform Regulations or the Uniform Rules.

(2)    In this section—

relevant person means—

(a)    the Council or the Commissioner; or

(b)    a local regulatory authority; or

(c)    a committee of the Council or a local regulatory authority; or

(d)    a member of the Council, a local regulatory authority or a committee of either; or

(e)    a delegate of the Council, the Commissioner or a local regulatory authority; or

(f)    a person who is a member of the staff of, or acting at the direction of, any of the entities referred to in paragraphs (a) to (e).”

13. In Council of the New South Wales Bar Association v Archer (2008) 72 NSWLR 236; [2008] NSWCA 164, a predecessor to s 468, s 171R of the Legal Profession Act 1987 (NSW) arose for consideration. There the Bar Association had refused to produce documents to the Court in answer to a subpoena, relying on s 171R. In issue was whether there could be any implied waiver of that statutory right of the kind considered in Attorney General (Northern Territory) v Maurice (1986) 161 CLR 475; [1986] HCA 80, where there had been no actual intention to waive privilege. It was held that there could not.

14. It was also concluded that the protection provided by s 171R could be waived, by evidence being given or documents being produced voluntarily: at [38] and [44]. But other conduct could not give rise to implied waiver, so as to make evidence or production of documents compellable, although such conduct might give rise to questions of procedural fairness, which would then have to be dealt with: at [39]-[43].

15. In this case, unlike the position taken by the Bar Association in Archer, the Law Society did not object to the production of the documents to the Court in answer to the subpoena Ms Burrows had served, on the basis of s 468. Instead, as it was entitled to do, it produced them voluntarily to the Court, while objecting to Ms Burrows having access to the documents, given that they were privileged.

16. That course was entirely open to the Society, but in those circumstances, it is only the issue of Ms Burrows being given access to the documents, the claim of privilege which the Law Society raised having been advanced as it was, which arises to be determined by the Court, voluntary production having been given of the documents to the Court.

The documents were privileged under s118 of the Evidence Act

17. In her evidence Ms Foord revealed the circumstances in which the documents had been created.

18. Ms Foord was not required for cross-examination, but the case advanced for Ms Burrows was that in her position, undoubtedly she had particular duties to perform for the Law Society as its Director of Professional Standards. In those circumstances, it was possible that all that she had done for the Council in respect of the resolutions it had considered, fell within those duties, which involved administration and oversight of solicitors, rather than the provision of legal advice.

19. Accordingly, what Ms Foord had said in her affidavit could not be taken at face value. The documents had to be inspected, because that legal advice had not, in fact, been given could be apparent on the face of the documents themselves.

20. The Law Society had no objection to my inspection of the documents, although submitting that was not strictly required, given Ms Foord’s unchallenged evidence.

21. I concluded that in the circumstances, they should be inspected.

22. Having inspected the documents I was satisfied that there was no question but that Ms Foord’s evidence had to be accepted, with the result the conclusion that the documents were confidential communications between Ms Foord and the Council, made for the dominant purpose of giving it legal advice about the resolutions which it came to consider in relation to Ms Burrows.

23. In those circumstances, Ms Burrows was not entitled to have access to the documents, s 118 of the Evidence Act being engaged, as it was. And it was for these reasons, that Ms Burrows was refused access to the documents which had been produced to the Court.

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Decision last updated: 02 March 2018