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Fenwick v Wambo Coal Pty Ltd (No 2)

Fenwick v Wambo Coal Pty Ltd (No 2)

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Supreme Court

New South Wales

Medium Neutral Citation: Fenwick v Wambo Coal Pty Ltd (No. 2) [2011] NSWSC 353
Hearing dates: 11 to 15 April, 2011
Decision date: 15 April 2011
Jurisdiction: Equity Division
Before: White J
Decision:
Refer to paras [37] and [38]

Catchwords: EVIDENCE - client legal privilege - waiver of privilege - whether defendant knowingly and voluntarily disclosed the substance of the evidence within the meaning s 122(3) Evidence Act 1995 - disclosure of the conclusion and reasoning of advice disclosure of substance of the legal advice - whether substance disclosed under compulsion of law within the meaning of s 122(5) Evidence Act 1995 - where defendant disclosed substance of legal advice by giving discovery and producing document for inspection - defendant not under compulsion of law to disclose the substance of legal advice as could have claimed privilege - privilege waived by production for inspection on discovery
Legislation Cited: Evidence Act 1995
Cases Cited: Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1
Ampolex Limited v Perpetual Trustee Company Limited (Canberra) (1996) 40 NSWLR 12
Adelaide Steamship Company Ltd v Spalvins [1998] FCA 144; (1998) 81 FCR 360
BT Australasia Pty Ltd v State of New South Wales (No 7) [1998] FCA 294; (1998) 153 ALR 722
NRMA Ltd v Morgan (No 2) [1999] NSWSC 694
Southern Cross Airlines Holdings Ltd (in liq) v Arthur Andersen & Co (a firm) [1998] FCA 963; (1998) 84 FCR 472
SVI Systems Pty Ltd v Best & Less Pty Ltd [2000] FCA 1507
Singapore Airlines v Sydney Airports Corporation [2004] NSWSC 380
Osland v Secretary to the Dept of Justice [2008] HCA 37; (2008) 234 CLR 275
Bailey v Director General, Dept of Land and Water Conservation (2009) 74 NSWLR 333
Assistant Treasurer and Minister for Competition Policy and Consumer Affairs v Cathay Pacific Airways Ltd (2009) 179 FCR 323
AWB Limited v Cole [2006] FCA 571; (2006) 232 ALR 743
Green v AMP Life Ltd [2005] NSWSC 95
In the matter of Southland Coal Pty Ltd (recs and mgrs apptd) (in liq) [2006] NSWSC 899
Category: Interlocutory applications
Parties: Ronald Wayne Fenwick (Plaintiff)
Wambo Coal Pty Ltd (Defendant)
Representation: Counsel:
M J Heath (Plaintiff)
A R Spencer with C O Gleeson (Defendant)
Solicitors:
Sneddon & Partners (Plaintiff)
Maddocks Lawyers (Defendant)

File Number(s):

Judgment

HIS HONOUR : The plaintiff calls for the production of the documents referred to in paras 5(b), (c), (d), (f), (g) and (h) of the affidavit of Mr Peter Meades sworn 14 April 2011. All but one of the documents in question are described as confidential legal advice provided to the defendant by one or other of two firms of solicitors. The remaining document is a surveyor's report procured at the request of one of the solicitors for the dominant purpose of that solicitor providing legal advice.

The plaintiff does not contest the documents were the subject of client legal privilege under s 118 of the Evidence Act

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] NSWSC 353
Decision Date: 15 April 2011

CaseChat Overview and Summary

The case of Fenwick v Wambo Coal Pty Ltd (No 2) involved a dispute over the waiver of client legal privilege in the context of a disclosure of legal advice. The defendant, Wambo Coal Pty Ltd, was involved in a proceeding against the plaintiff, Fenwick. The central issue before the court was whether the defendant had knowingly and voluntarily disclosed the substance of the evidence, specifically the conclusion and reasoning of legal advice, in a manner that constituted a waiver of the privilege. Furthermore, the court had to determine whether the disclosure was made under the compulsion of law as per the Evidence Act 1995.

The court's task was to interpret the provisions of the Evidence Act 1995, specifically sections 122(3) and 122(5), to assess whether the defendant's actions amounted to a waiver of the privilege. The defendant had disclosed the substance of the legal advice by providing it for discovery and for inspection. The court needed to decide if this constituted a voluntary waiver of privilege and whether the disclosure fell under the exception provided by section 122(5) of the Act, which allows for disclosure when compelled by law. The court held that the defendant could have claimed privilege but chose not to, thus effectively waiving it by producing the document for inspection.

The court concluded that the defendant's actions amounted to a voluntary waiver of the privilege because they could have asserted the privilege but chose not to. The court found that the disclosure was not made under the compulsion of law since the defendant had the option to claim privilege and did not do so. Consequently, the privilege was waived by the defendant's decision to produce the document for inspection. The court's decision underscored the importance of the client's control over the privilege and the need for the client to actively assert it to prevent its waiver.

Orders