Commonwealth Bank of Australia v Cooke - [1999] QSC 13

IN THE SUPREME COURT
OF QUEENSLAND

No 3868 of 1996

Brisbane
[Commonwealth Bank of Australia v Cooke]
BETWEEN:

COMMONWEALTH BANK OF AUSTRALIA
  (ACN 123 123 124)
  Plaintiff
AND:
DR ROBERT JOHN COOKE
  Defendant

REASONS FOR JUDGMENT - WILLIAMS J
Judgment delivered 29 January 1999

CATCHWORDS: Legal professional privilege - copy of affidavit in possession of maker - privilege vested in defendant not waived.

Attorney-General (N.T.) V Maurice (1986) 161 CLR 475.
Hartogen Energy Limited v The Australian Gas Light Company (1992) 36 FCR 557.
Carbone v National Crime Authority (1994) 52 FCR 516.
Ritz Hotel Ltd v Charles of the Ritz Ltd (1988) 14 NSWLR 132
Newcastle Wallsend Coal Co Pty Ltd v Court of Coal Mines Regulations (1997) 42 NSWLR 351.

Counsel:McMurdo Q.C. for applicant.
Solicitor for respondent.
Clothier for defendant.

Solicitors:Minter Ellison for applicant.
Craig Ray & Associates for respondent.
James Conomos for defendant.

Hearing Date: 23 November 1998.
IN THE SUPREME COURT
OF QUEENSLAND

No 3868 of 1996

Brisbane
[Commonwealth Bank of Australia v Cooke]
BETWEEN:

COMMONWEALTH BANK OF AUSTRALIA
  (ACN 123 123 124)
  Plaintiff
AND:
DR ROBERT JOHN COOKE
  Defendant

REASONS FOR JUDGMENT - WILLIAMS J
Judgment delivered 29 January 1999

The plaintiff in the action, Commonwealth Bank of Australia, has applied by summons for an order that the respondent, EWR Howard, produce for inspection and copying by the plaintiff’s solicitors his copy of an affidavit sworn by him in the action. The application is resisted by the respondent, and by the defendant in the action, Dr Cooke, on the ground that the affidavit in question is subject to a claim of legal professional privilege by the defendant.
The circumstances in which the affidavit in question came to be prepared and a copy provided to the respondent are as follows. The plaintiff’s action was commenced by specially endorsed writ issued 10 May 1996. The defendant entered an appearance on 20 May 1996. Then on 21 June 1996 the plaintiff filed a summons seeking summary judgment in the amount of $2,747,521 with interest and costs. The summons was initially returnable on 9 July 1996, but it was adjourned on a number of occasions. The hearing took place before Helman J on 12 and 19 September 1996. The defendant changed solicitors on 1 July 1996; from that date James Conomos was his solicitor on the record.
Conomos took instructions in July specifically in response to the plaintiff’s summary judgment application. On 13 August 1996 the solicitors for the plaintiff served eight affidavits on Conomos in support of the summary judgment application. Conomos then began preparing material in response. In consequence of instructions given by the defendant he contacted the respondent to ascertain whether he was willing to provide a statement dealing with events material to the plaintiff’s claim. The respondent agreed to do that and made an appointment to see Conomos.
I am satisfied that the communications between Conomos and the respondent were solely for the purpose of obtaining a proof of evidence from the respondent for use in connection with this litigation, and in particular with the defendant’s defence to the summary judgment application.
Against that background there were a number of meetings between Conomos and the respondent in August-September 1996 and a number of draft statements were then produced. The evidence establishes that Conomos converted those statements into an affidavit which was executed by the respondent on or about 9 September 1996. That affidavit was in a form capable of being used as part of the defence to the summary judgment application.
The affidavit of Conomos in this application contains the following paragraph:
“I provided Mr Howard with a copy of his affidavit for his records. This is in accordance with the practice, adopted by me, of sending witnesses or potential witnesses copies of any statements which they provide in connection with litigation. I certainly did not intend by this course to waive any privilege that existed in relation to the affidavit. I simply viewed the provision to Mr Howard of a copy of his affidavit as a normal part of the process of preparing a witness statement or affidavit and also as a courtesy to him.”
In his affidavit on this application the respondent states that he understood his discussions with Conomos “were to be dealt with on a confidential basis”. It appears that after he received the draft affidavit from Conomos he consulted his own solicitor, AC Ray, and certain amendments were made to the draft before it was sworn. Finally he says that he “understood that the Affidavit was sworn for the benefit of Dr Cooke and was to be used by him and his advisers as they saw fit.” The affidavit from AC Ray establishes that the copy of the affidavit provided by Conomos has been held by Ray on his file. It is that copy which the plaintiff seeks to have produced by this application.
Conomos provided a copy of the respondent’s affidavit to senior counsel who had been retained to act on the defendant’s behalf on the application for summary judgment. On 21 August 1996 Conomos wrote to the solicitors for the plaintiff enclosing by way of service an affidavit of his to be relied on by the defendant on the hearing of the summary judgment application. By that letter he foreshadowed the filing and service of two further affidavits, one by the defendant, and the other by EWR Howard. However, senior counsel for the defendant decided that it would not be necessary to rely on the respondent’s affidavit at the hearing of the plaintiff’s application for summary judgment and in consequence the affidavit in question was neither filed nor served.
Helman J refused to grant summary judgment, and the matter is now proceeding to trial. It would appear that legal representatives of the plaintiff have approached the respondent to provide them with a statement but he has declined. The respondent has indicated that he is prepared to give evidence on subpoena. On or about 2 June 1998 the solicitors for the plaintiff contacted Ray and asked for a copy of the affidavit. Ray declined to comply with that request until he had received instructions. Acting in pursuance of instructions received Ray maintained his refusal to provide the copy of the affidavit in question in his possession to the plaintiff’s solicitors. In consequence the plaintiff issued a Writ of Non-Party Discovery directed to the respondent seeking to have produced:
(1)the affidavit sworn by you ... in this writ action No 3868 of 1996;
(2)all drafts of the said affidavit;
(3)all correspondence, notes and memoranda of meetings and telephone attendances between you or persons on your behalf, with the Cooke Group or persons on its behalf, concerning the said affidavit;
(4)all documents relating to the facts, matters and circumstances the subject of the said affidavit.
The respondent declined to comply with the requirements of the Writ particularised above on the ground that the documents in question, in particular the copy affidavit, were the subject of a claim of legal professional privilege vested in the defendant. That claim was not accepted by the plaintiff’s legal advisers, hence this application. In a letter of 21 October 1998 the plaintiff’s solicitors asserted that the defendant had “waived any privilege in it by providing it to Mr Howard.”
The attitude maintained by the respondent during the hearing of the application was that he was prepared, and has at all times been prepared, to comply with his legal obligations and will comply with any order of the court made on this application. The respondent’s position is that the defendant has asserted that the copy of the affidavit in the possession of his solicitor is the subject of a valid claim of legal professional privilege vested in the defendant and it is for the court to determine the validity of that claim.
The following paragraph appears in the affidavit of Conomos:
“I am instructed by Dr Cooke and verily believe that he objects to the production of Mr Howard’s affidavit on the ground of legal professional privilege. I am also instructed by Dr Cooke and verily believe that at no stage has he waived privilege in Mr Howard’s affidavit.”
Brief mention need be made of certain correspondence which has been exchanged between the various solicitors. In a letter of 3 November 1996 Conomos informed Ray that the “defendant claims privilege to the statement/affidavit of Mr Howard on the basis that it was a statement prepared by his lawyer (the writer) in pending litigation. In the circumstances, my client requests that your client object to delivery of the document on the basis that it is privileged and that he is not capable of waiving that privilege.” On the same day Conomos wrote to the plaintiff’s solicitors saying, inter alia:
“The statement/affidavit of Mr Howard was prepared by this firm from information provided by Mr Howard at a time when my client was preparing to resist your client’s summary judgment application in 1996. The statement/affidavit of Mr Howard is therefore privileged on the basis that it was prepared on behalf of the defendant in pending proceedings.
Further, Dr Cooke does not waive the privilege in the statement/affidavit of Mr Howard.”
That letter went on to ask that the defendant be made a party to any application seeking an order for production against the respondent. The plaintiff’s solicitors replied intimating that they would not object to the defendant becoming a party to the application. In a letter of 10 November 1998 the solicitors for the plaintiff intimated to Conomos that, whilst they acknowledged that the defendant would claim privilege for any copies of the respondent’s affidavit in his possession, it was their view that the respondent’s copy of that affidavit was not privileged; the application was only directed to the copy in the respondent’s possession. Again it was asserted in that letter that any privilege in that copy affidavit was waived when it was provided to the respondent.
Grant v Downs (1976) 135 CLR 674 is clear authority for the proposition that legal professional privilege attaches to documents which are brought into existence for the sole purpose of being used in pending legal proceedings. Statements to similar effect are to be found in the subsequent decisions in Baker v Campbell (1983) 153 CLR 52 and Attorney-General for the Northern Territory v Maurice (1986) 161 CLR 475. Legislation applicable in the Federal and New South Wales jurisdictions now provides that it is sufficient if the “dominant purpose” for the creation of the document was its use in legal proceedings rather than the “sole purpose”, but the latter test still applies in Queensland. To that extent recent decisions in those other jurisdictions have only qualified relevance for Queensland.
In Nagan v Holloway (1996) 1 Qd R 607 I had occasion to collect the common law authorities establishing that a party is not bound to communicate evidence which he has obtained for use in litigation. I will not repeat here what is there said at p.609-611.
The starting point must be, in my view, that communications between the respondent and the solicitor for the defendant were the subject of legal professional privilege vested in the defendant, as would be any statements, affidavits, or copies thereof made by that solicitor based on such communications and intended for use in the pending legal proceedings. Indeed so much appears to be conceded by counsel for the plaintiff.
The person entitled to claim legal privilege is the party to the litigation in question, being the party for whose use the material in question came into existence. It is only the person entitled to make the claim of legal professional privilege who can waive it; it cannot be waived by that party’s legal representative (see, for example, per Gibbs CJ in Attorney-General for Northern Territory v Maurice at 480-1.).
As noted above the contention of the plaintiff is that the defendant has waived any right to claim privilege with respect to the copy affidavit in the respondent’s possession. There is no evidence here of express waiver. Nothing in the material suggests that the defendant ever had an actual intention to waive privilege in the copy affidavit now in the possession of the respondent’s solicitor.
If there be waiver it must be because waiver is to be implied from some conduct on the defendant’s part. Attorney-General v Maurice was concerned with implied waiver, and it is the leading case on the point.
The facts in Maurice were quite different from those which exist here. Speaking in the context of those facts the High Court held that whether waiver should be imputed depends on whether it would be unfair or misleading to allow a party to use material for a particular purpose and yet assert that it is privileged from production. Gibbs CJ said at 481: “... 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.” Mason and Brennan JJ said at 487: “An implied waiver occurs when, by reason of some conduct on the privilege holder’s part, it becomes unfair to maintain the privilege.”
The question here is essentially whether, notwithstanding that the defendant had no actual intention of waiving privilege with respect to the copy affidavit, the conduct of his solicitor in sending a copy to the respondent constituted an implied waiver of that privilege. The material does not disclose whether or not the defendant knew at the time that his solicitor was forwarding a copy to the respondent. The evidence discloses the solicitor’s state of mind at the time he sent the copy, but that is not determinative when it is remembered that it is the privilege holder’s conduct which is critical. For what it is worth, both the sender (the defendant’s solicitor) and the recipient (the respondent) believed and intended that their conduct would not affect the defendant’s claim to privilege with respect to the document.
Hill J was confronted with a similar question in Carbone v National Crime Authority (1994) 52 FCR 516, and he adopted a robust approach to the answer. He merely said at 529:
“In my view there is no substance in the argument that privilege attaching to witness statements is waived when a copy of those statements is given to the witness. The statement is given to the witness in circumstances of confidentiality and is part of the process of ensuring the accuracy of the statement. It would be nonsense at the one time to maintain that privilege exists in such a statement and on the other hand to assert its waiver once the statement is shown or given to the person who gave it.”
That passage was cited and relied on by Hedigan J in Murphy v FAI General Insurance Co Ltd (unreported, Supreme Court of Victoria, No 8049 of 1994, judgment to September 1997). There the copy of the transcript of an interview conducted instead of an examination pursuant to the provisions of the Corporations Law was sent to the person examined with a request that it be signed and then “please ... return the original to us retaining a copy”. In that case the principal argument addressed to Hedigan J was that the intention and arrangement to make a copy available constituted an additional purpose so that the “sole purpose” test was not satisfied. But that learned judge held that the approach adopted by Hill J applied also to that situation. Here the argument was limited to the issue of waiver.
A similar conclusion was reached by Gummow J in Hartogen Energy Limited v The Australian Gas Light Company (1992) 36 FCR 557. That case was concerned with transcripts of a confidential interview conducted instead of a formal examination under the provisions of the Companies Code. The liquidator’s solicitors supplied copies of the transcript to the person examined for his consideration and the making of corrections. At 568 his Honour said:
“There was no express waiver by the applicants of any legal professional privilege. Whether a waiver should be implied depends upon the principles discussed in Attorney-General (NT) v Maurice at 481, 487-488, 493, 497-498. Counsel for the applicants submits that the issue was whether the liquidators had either used the transcript in litigation or in some way otherwise put it into the public domain in a fashion which would make it unfair to allow the maintenance of their claimed privilege. He submitted that, as a matter of fairness, it could not be said that the liquidators had waived privilege in respect of the transcript by the taking of steps whereby copies were supplied, through his solicitors, to Mr Nicholls for his consideration and the making of corrections. I accept those submissions.”
It should also be noted that at 571 that learned judge said that “if a privileged document is in the hands of a third party that does not destroy the privilege, the question being whether the party entitled to the privilege has waived it.” That statement was cited with approval by Bainton J in Abigroup Ltd v Akins (1997) 42 NSWLR 623 at 632-3. There the judge went on to say: “There must be some intentional communication amounting to waiver or circumstances in which the law imputes or implies waiver.” Abigroup held that delivery of statements pursuant to court directions did not constitute waiver (see on appeal: (1998) 43 NSWLR 539 especially at 552-3).
However, counsel for the plaintiff contended that the authorities disallowed a claim for privilege made in respect of a copy of a witness statement in the hands of the witness, absent some particular circumstances under which the witness would be obliged to keep the contents confidential. He sought to distinguish Carbone on the ground that the witness statements there were not in the possession of the witness and further on the ground that the remarks quoted did not apply to all cases in which witnesses had been given copies of their statements. The argument for the plaintiff was largely based on observations of McLelland J in Ritz Hotel Ltd v Charles of the Ritz Ltd (1988) 14 NSWLR 132. Before examining that case in some detail it is worth restating some general propositions of law which are relevant.
There is no property in a witness. Either side to litigation can approach a person thought to be able to give relevant evidence as to the matters in dispute, and it is for that person to determine the extent to which he will co-operate in providing information prior to trial. There is no obligation on a person possessing information relevant to litigation to disclose it otherwise than in accordance with a direction of the court. No potential witness is obliged to give a statement prior to trial to the solicitor for any party to the litigation. If no statement is given the only course open to the parties to the litigation is to have that person called to the witness box, pursuant to a subpoena if necessary.
A potential witness may, of course, provide a statement to each side in the litigation. There is no obligation on the witness to do so; it is a matter of free choice. The potential witness may even inform, for example, the defendant’s solicitor what he in fact told the plaintiff’s solicitor; the mere fact that a potential witness has given a statement to one side does not mean that he is prevented from telling either the world at large or the other side what information he so provided. (See, for example, per French J in J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (WA Branch) (No.1) (1992) 38 FCR 452 at 457). Those propositions flow from the general principle that there is no property or confidentiality in the knowledge of an independent witness of matters relevant to an issue between the parties.

However, the defendant’s side could not, for example, obtain from the plaintiff’s solicitor details of a statement provided to that solicitor by an independent witness (for example, an eye-witness to an accident). Whilst that material is not confidential and privileged in the witness, it is so privileged in the hands of the plaintiff’s solicitor if it was obtained for the purposes of litigation.
Different considerations may well apply where the witness is not independent but rather an expert consultant brought in to give advice on issues within his expertise to one party to the litigation. Once such an expert has been so engaged then a relationship of confidentiality exists which the expert cannot lawfully breach by proclaiming either to the world at large or to the other side what has passed between he and the solicitors (except, of course, where a specific rule of evidence or procedure takes away that privilege).
The reasoning of McClelland J in Ritz recognises and applies those principles. It is of critical importance in my view to appreciate the circumstances in which the ruling in that case was made.
It was a ruling given in the course of a trial. Dr Tyler was not a party; he was engaged by the plaintiff in a consultative capacity to provide the plaintiff with expert advice and evidence. He had, prior to trial, sworn an affidavit dealing with the technical matters within his expertise. That affidavit was put in evidence. Subsequently Dr Tyler was called to give oral testimony, and was under cross-examination when the problem arose. The learned trial judge in his ruling stated the question for consideration as follows:
“The question has arisen whether evidence intended to be elicited in cross- examination of the witness Dr Tyler, of communications between a representative of the plaintiff, Mr Olsen, on the one hand, and Dr Tyler, on the other, relating to the preparation of an affidavit which was subsequently sworn by Dr Tyler and read in the proceedings, is privileged as coming within the ambit of legal professional privilege, as claimed on behalf of the plaintiff.” (133).
McClelland J approached the answer to that question by reasoning from first principles; he went on:
“A recognised head of legal professional privilege embraces communications, passing between a party (or its representative) and a third person, if they are made with reference to pending litigation for the purpose of the preparation of the case of that party, including the preparation of material to be used in evidence in that case. Communications which took place between Dr Tyler and Mr Olsen relating to the preparation of Dr Tyler’s affidavit, fall into that class. It is significant, however, that the person in respect of whose disclosure of these communications privilege is claimed is not the plaintiff or its representative, but Dr Tyler. In my opinion the class of persons, disclosure by whom may properly be resisted under a claim of legal professional privilege is limited.
Subject to any question of waiver, it is quite clear that if, for instance, Mr Olsen were in the witness box he could not properly be asked over a claim of privilege about these very conversations because he was unquestionably in a position of confidence vis-a-vis the plaintiff and engaged on the plaintiff’s behalf in the preparation of its case. The same considerations do not necessarily apply where disclosure is being sought from someone who was not the party himself or his legal adviser or in any confidential relationship with the party or his legal adviser.
It seems to me to be an essential element in a claim for legal professional privilege that the material, disclosure of which is sought to be precluded is, so far as the person from whom disclosure is sought is concerned, confidential.” (133).
Some observations need to be made on thse passages. Firstly, his Honour was not concerned with whether or not the affidavit, prior to its being admitted in evidence, was privileged (whether in the hands of Olson or Tyler); inferentially he was saying that that affidavit would be privileged at least in the hands of the plaintiff and Olsen. Secondly, when he referred to “material” in the last sentence quoted, he was undoubtedly referring to oral communications between the plaintiff’s solicitor and the witness. In accordance with general principle nothing said by either the solicitor or an independent witness in that situation would be confidential in the hands of the witness absent some special circumstance.
McClelland J, on the facts of the case before him, held that Dr Tyler was not an independent witness but an expert retained in a consultative capacity to provide advice to a party. He went on in his reasons:
“It seems to me that the relationship between Dr Tyler and the plaintiff does create a relationship of confidentiality between them which removes Dr Tyler’s situation from that of the ordinary independent witness described above, and in my view the existence of that relationship of confidentiality between Dr Tyler and the plaintiff enables the plaintiff to extend the permissible ambit of protection from disclosure on the ground of legal professional privilege to disclosure by Dr Tyler as well as disclosure by the plaintiff itself or its solicitors or other representatives.
Accordingly it seems to me that for that reason, subject to any question of waiver, the claim for legal professional privilege should be upheld.”
Finally his Honour held that privilege had not been waived by the tendering in evidence of the affidavit of Dr Tyler. In that regard he said: “It seems to be that it could not amount to waiver of the privilege in question; otherwise the fact that any witnesses is called to give evidence in the case by a party would amount to a waiver of all previous communications between that party or its solicitor and that witness, even in respect of disclosure by the solicitor himself; I do not believe that to be the law. In my view the reading of the affidavit or its use in the proceedings does not constitute a waiver of the privilege.” (134-5).
Whilst the judgment of McClelland J is important because it emphasises that the focus must be on the position of the person from whom disclosure is sought, it does not support the proposition that a copy affidavit, subject to a valid claim of privilege by a party, can always be obtained from that maker who happens to be in possession of a copy. As Gummow J observed in the passage quoted above, in that situation the question is whether the party entitled to the privilege has waived it.
Counsel for the plaintiff also relied heavily on the reasoning of Heerey J in Trade Practices Commission v Ampol Petroleum (Victoria) Pty Ltd (1994) 53 FCR 578. The Trade Practices Commission (TPC) conducted examinations of some persons under s.155 of the Trade Practices Act 1974. It gave copies of the transcripts to the examinees. Subsequently the TPC commenced a proceeding in the Federal Court alleging breaches of the Act by the respondents. Subpoenas were issued by the respondents requiring the examinees to produce the copies in their possession of the transcripts of their examinations. On an earlier application in the action Olney J had upheld the claim of the TPC for legal professional privilege with respect to the originals of those transcripts in its possession. That position was accepted by Heerey J for purposes of his decision. However, on appeal from Heerey J the Full Court of the Federal Court held that s.155 examinations did not give rise to legal professional privilege vesting in the TPC; (1994) 54 FCR 316. As there was no privilege attaching to the original transcripts in the possession of the TPC there was no basis for any derivative privilege attaching to the copies of the transcripts in the hands of the examinees. The members of the Full Court did not comment on the reasoning of Heerey J which is of relevance for present purposes.
Heerey J’s approach was based on the proposition that the original transcripts were privileged, but copies had been given unconditionally to the examinees. In those circumstances he concluded that the principles to be applied were those expounded by McClelland J in Ritz. After quoting extensively from that decision Heerey J concluded that the examinees were “independent non-expert witnesses”, and therefore to be distinguished from Dr Tyler. He went on:
“... there is no basis for finding that there has been any attempt to impose an obligation of confidentiality on them or any acceptance by them of such an obligation - either at the stage of the examination itself or when the transcripts were handed over. The handing over did not, on the evidence before me, constitute any part of the examination process itself, such as might occur when a transcript is provided to an examinee or his solicitor for checking as to accuracy.
...
I conclude that the TPC’s claim for privilege fails because (i) ..., (ii) in the absence of any obligation of confidentiality on the examinees no privilege of the TPC could attach to copies of the transcripts in their possession, and (iii) in any event by giving the transcripts to the examinees without imposing any condition on their use the TPC has waived any privilege it might have had.” (585-6).
His Honour expressly distinguished Hartogen by saying that it was a different situation where transcripts were made available to the witness for the specific purpose of checking and making corrections.
I have real difficulty in seeing any distinction between the situation where a copy of the privileged document is given to the maker to check its accuracy, and the situation where the copy is given to the maker as a record of what he provided on the privileged occasion. But in any event I would hold that here there was no intention of waiving privilege when the copy was given to the respondent, and that the solicitors conduct in the circumstances of this case did not constitute any waiver of the privilege vested in the defendant. Whilst I am not disposed to agree with the reasoning of Heerey J, it is sufficient for present purposes to say that on the facts this case is distinguishable from the situation considered by him.
Counsel for the plaintiff also referred to passages in the judgment of the Court of Appeal in Newcastle Wallsend Coal Co Pty Ltd v Court of Coal Mines Regulation (1997) 42 NSWLR 351. For present purposes it is not necessary to set out the complex background facts to the particular passages of relevance in the judgment of Powell JA (with whom Meagher JA agreed). Suffice it to say that statements were taken by the solicitor for a coal company shortly after some deaths had been occasioned by an accident in the mine. The statements were taken from (inter alia) staff members who held responsible positions under the various laws regulating the conduct of the mining industry. The questions fell to be considered primarily with respect to ss.118, 119, and 122 of the Evidence Act 1995 (NSW), which dealt with legal professional privilege. The critical passage in the judgment for present purposes is that which appears at p. 389:
“... it seems to me that the mere fact that each record of interview was sent to the person interviewed, or his legal personal representative, solely for the purpose of being checked and, if need, be corrected and then returned to Mr Hickey, the person interviewed, or his legal personal representative, not being entitled to retain a copy of the record of interview, does not amount to a knowing and voluntary disclosure for the purposes of s.122(2) of the Evidence Act 1995. It follows, in my view, that but for the matters to which I will next refer, each of the records of interview prepared by Mr Hickey was and remains privileged from disclosure.”
There is specific reference in that passage to the fact that the makers of the statements were not entitled to retain a copy. Where that was the case it is, in my view, much easier to draw the conclusion that legal professional privilege has not been waived. But where the maker of the statement retains a copy that will not necessarily mean, in my view, that privilege is waived; that position has to be evaluated as indicated by Gummow J in Hartogen and Bainton J in Abigroup. I do not regard that passage from the judgment of Powell J as contradicting that approach.
Powell J went on in his reasons as follows:
“However, as the coal company, in no longer prosecuting its claim for privilege in respect of the record of the interview with Mr MacLean seems to recognise, the privilege which formerly attached to that record of interview has been lost by reason of the facts:
(1)that the copy of that record of interview which was later provided to Mr MacLean was provided to him for his own purposes and was not made subject to any condition as to non-disclosure; and
(2)as is clear from the extract from the transcript of the evidence given by Mr MacLean in the course of the investigation by Staunton A-DCJ, Mr MacLean used that record of interview for the purpose of refreshing his recollection before giving evidence ... . ”
There was, it would appear, fairly clear evidence distinguishing MacLean’s position from the remainder. There was a basis on which a finding could be made that the statement was provided to him for his own purposes. In the factual situation there that was not surprising; he almost certainly would want to rely on it in his own defence to allegations likely to be made in the inquiry. It is also significant that there was no specific litigation in progress at the time the statement was made, contrary to the position here. It is also interesting that the learned judge conjoined the two particulars. It is not necessary for present purpose to determine whether one alone would have been sufficient. However, it seems to me that once a witness under cross-examination has admitted to refreshing memory from the statement different considerations may arise.
In the course of argument some reference was made to the unreported decision of the Court of Appeal in Grosvenor Hill (Queensland) v Interchase Corporation Limited (No. 9424 of 1996, judgment delivered 19 December 1997). In the course of that judgment reference is made to what Pincus JA described as witness’ document privilege, but there is nothing therein which, in my view, impacts on the specific point for determination in this case. There is nothing therein, however, which is contrary to my approach.
Here the affidavit in question was prepared for use in pending litigation, and it is in the course of that very litigation that production of the copy is sought. The defendant, the defendant’s solicitor, and the respondent all believed at all material times that the copy affidavit was privileged, and I am not satisfied on the material before me that the plaintiff has established a waiver of privilege. Applying the Maurice test there is no unfairness in permitting the defendant to maintain a claim of privilege with respect to the material in the possession of the respondent. The copy affidavit was not given to the respondent for his own purposes; the document was prepared for use by the defendant in the litigation and the copy in the respondent’s possession was subject to the privilege which attached to the original. It is important to bear in mind the observation of Mason J in Baker v Campbell at 75: “It is one thing to say that the privacy or secrecy of lawyer-client communications made in aid of litigation, especially in aid of the litigation in which the privileges claimed, shall prevail over an obligation to produce or disclose all materials relevant to the issues in the litigation. To take but one example: to compel the parties to disclose such communications made in the conduct of that litigation would be unfair to them, hamper the preparation of their cases and protract the determination of the litigation.” Those remarks are very apposite to the position here.
Given all that I have said I conclude that there has been no waiver of legal professional privilege with respect to the copy affidavit the subject of the application.
The summons should be dismissed with costs. The applicant/plaintiff should pay the costs of and incidental to the summons of both the respondent Howard and the defendant Cooke.