Edmunds & Ors v Pickering & Ors (No 2) No. Scgrg-88-2452 Judgment No. S283

[1999] SASC 283

[1999] SASC 283

EDMUNDS & ORS V PICKERING & ORS (No.2)

1. LANDER J.       This is a ruling on evidence.

2. The witness, Mr Coates, was a solicitor acting for the first defendant at the time of the impugned transaction.  His firm was also instructed to act in response to the plaintiffs' proceedings and has acted up until the present time.  The witness acted personally for a period of time in these proceedings but ceased to be the partner responsible much earlier than 1998. 

3. The transaction which is the subject of these proceedings occurred 17 years ago.  About six months ago the witness prepared his own statement largely based upon a file he created in 1982.  There is no doubt that the statement which he prepared would attract legal professional privilege.  The file upon which the statement was prepared would also be subject to legal professional privilege.  In this case however the legal professional privilege attaching to the file has been waived.  Mr Coates read his statement after it was created but not critically and not for the purpose of checking its accuracy.  About a week ago he was proofed by senior and junior counsel.  Counsel used the statement which he had prepared some six months or so ago to proof him. 

4. Mr Coates said in his evidence that some things which were read to him by counsel refreshed his memory.  He has not said in what way his memory has been refreshed and in particular he has not said whether his memory has been refreshed as to the matters which he included in his statement six months ago or as to the actual events 17 years ago. 

5. The plaintiffs' counsel has called for the document and claims to be entitled to inspect it without penalty, that is without being called upon, at least at this stage, to put the document into evidence 

6. As I have said, the document would be privileged.  In this case it was a document prepared by the defendants' solicitor for the purpose of legal proceedings.  It was a communication between the solicitor as a witness and counsel.

7. It was put by the plaintiffs’ counsel that if a witness has reference to any document, whether created by or for him or her, or not for the purpose of giving evidence, and that document refreshes the witness’s memory, opposing counsel may inspect that document without penalty. 

8. In this case I do not have to decide whether the rule is as wide as stated and whether it applies to any document of any kind, although I must say I doubt that proposition.   In this case, as I have said, the document was created by the witness.  I am prepared to accept that if a witness has had regard to his or her statement out of court, with the result that the witness's memory of the events about which the witness is giving evidence is refreshed, that the witness's statement, at least in so far as it has refreshed the witness's memory, and subject to considerations of legal professional privilege, may be subject to production to the opposition: Wodcock v Nichol (1976) 13 ALR 411 at 414.

9. Again, subject to the considerations to which I have referred, the opposition is entitled to inspect the document without penalty.  The opposition is also entitled to cross-examine on that part of the document which has been used to refresh memory.  In both cases, counsel calling for the document is not obliged, without more, to tender the document. 

10. If the document is not privileged then no objection can be taken to the production of the document which has been used to refresh memory on that ground.

11. If the document however is otherwise privileged the document will only become subject to compulsory production if the client has waived the privilege over the document. 

12. If there has been no express waiver, as in this case, and as in probably all cases of this kind, then the question to be determined is whether there has been an imputed waiver.  Whether that has been an imputed waiver depends upon notions of fairness: Attorney General (NT) v Maurice (1986) 161 CLR 475; Goldberg v Ng (1995) 185 CLR 83.

13. In Mancorp Pty Ltd v Baulderstone Pty Ltd (1991) 57 SASR at 87, Debelle J was called upon to consider similar but not identical circumstances. In that case, a witness said that he had refreshed his memory from his proof of evidence, a copy of which had been provided to him and a copy of which was in counsel's brief. In that case, opposing counsel claimed to be entitled to inspect the document because privilege had been waived by the handing of the statement to the witness 'for the purpose of refreshing his memory before he gave evidence'.

14. Debelle J said at p.94: 

    “To summarise, where a witness refreshes his memory from a non-privileged document either in the witness box or outside the court, cross-examining counsel is entitled to call for and inspect the document which is being used for that purpose.  Where a witness has refreshed his memory in the witness box from a privileged document, the law deems the privilege to have been waived.  It is against this background that the application to inspect a privileged document used out of court for the purpose of refreshing memory must be considered. 

15. Mr Bruce, relying on Trade Practices Commission v TNT Management Pty Ltd (1984) 56 ALR 647, contended that the handing of a statement to Mr Gianonne constituted the waiver. I do not think that the mere handing of the statement to the witness necessarily constitutes a waiver. The statement may have been handed to the witness in furtherance of the privilege. The witness might never be called upon to give evidence so that there is no disclosure of what is contained in the privileged document. Alternatively, the witness might be handed the statement but then puts it in the bottom drawer of his desk and never looks at it again. Nor do I think that the use of a statement to refresh memory by the witness necessarily constitutes waiver. The witness might not be called upon to give evidence. When a privileged document has been used to refresh memory, I do not think that there can be any waiver until the witness has given evidence.”

16. Debelle J apparently rejected the suggestion that waiver was constituted by the handing of the statement to the witness.  He also thought that the refreshing of memory did not, of itself, constitute a waiver.  It was the calling of the witness to give evidence which, in his Honour's opinion, amounted to the waiver. 

17. In those respects, I do not think his decision is entirely consistent with the reasoning of Franki J in Trade Practices Commission v TNT ManagementPty Ltd at 687. In that case Franki J relied upon the giving of the statement to the witness, the witness refreshing memory, and the witness giving evidence as constituting the waiver of privilege.

18. I do not, with respect, agree with Debelle J that the mere calling of a witness gives rise to a waiver of privilege.  If that were so, why would not the calling of any witness mean that the witness's statement which, to that point of time, was discoverable but not liable to inspection, because it was subject to legal professional privilege, immediately become liable to inspection?

19. If privilege has been waived in any case it must have been waived because fairness dictates the waiver.  Fairness would not dictate a waiver in the circumstances where a witness has simply been called to give evidence.

20. The mere fact that a witness has been given his or her statement would obviously not be enough to suggest that the client has thereby waived the privilege in his or her statement.  There may be circumstances where it was entirely consistent with a claim of legal professional privilege for a witness to be given a copy of his or her own statement, or indeed some other person's or other witnesses’ statement. 

21. The waiver must, if it arises, be because it would be unfair to allow a witness to give evidence with the aid of a document which has prompted the witness's memory without the opposing party being able to test whether the memory has been genuinely refreshed.  The unfairness is in allowing the witness who has been called to refresh the witness's memory from a document to which the opposition does not have access. 

22. In this case, the witness did not receive a copy of the statement, although the witness is a member of the firm acting for the defendant.  The statement was included in counsel's brief and was used, as I have said, for the purpose of proofing the witness.  The statement was only made a few months before today, but relates to events which occurred sixteen and a half years before that.  The witness did not read the statement for the purpose of refreshing his memory but was proofed by counsel by reference to the statement.  The witness has not said whether the proofing reminded him of his statement or the events. 

23. It is difficult to see how the proofing of a witness by reference to a previous statement could ever, within the concepts of the notion of fairness, constitute a waiver by the client of legal professional privilege.  If it was so, the statements of all witnesses and parties would become available to the opposition when any of those persons are proofed, with the result that a fundamental of the litigation system, namely legal professional privilege, would be lost. 

24. I am not satisfied that in the circumstances of this case a waiver has occurred.  Legal professional privilege is too important to be waived simply by counsel or a solicitor referring a witness or a party to a statement previously made by that person.  Such a proposition would make it impossible to properly proof a witness or indeed a party. 

25. In my opinion the call for this statement should be refused.