Fogg v Kane Constructions (NSW) Pty Limited; Fogg v Les Quatre Musketeers Pty Ltd (t/as Plastamasta South Coast) (No. 3)
[2014] NSWSC 1821
•05 February 2014
Supreme Court
New South Wales
Medium Neutral Citation: Fogg v Kane Constructions (NSW) Pty Limited and Anor; Fogg v Les Quatre Musketeers Pty Ltd (t/as Plastamasta South Coast) (No. 3) [2014] NSWSC 1821 Hearing dates: 5 February 2014 Decision date: 05 February 2014 Jurisdiction: Common Law Before: Johnson J Decision: The claim of client legal privilege with respect to the statements which are MFI 32 and MFI 35 is upheld.
Catchwords: EVIDENCE - damages claim for personal injury - claim for client legal privilege concerning earlier statements of witness - whether privilege waived - claim for privilege upheld Legislation Cited: Evidence Act 1995 Cases Cited: Hannaford v Royal Society for the Prevention of Cruelty to Animals (NSW) [2013] NSWSC 1708
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management & Marketing Pty Ltd [2013] HCA 46; 250 CLR 303Texts Cited: --- Category: Procedural and other rulings Parties: Arthur Brent Fogg (Plaintiff)
Kane Constructions (NSW) Pty Limited (First Defendant in 2011/316330)
Hutchison Construction Services Pty Limited (Second Defendant in 2011/316330)
Les Quatre Musketeers Pty Ltd (t/as Plastamasta South Coast) (Defendant in 2012/241074)Representation: Counsel:
Mr HJ Marshall SC; Mr GJ Smith (Plaintiff)
Mr RJ Cheney SC (Kane Constructions (NSW) Pty Limited)
Mr NJ Polin (Hutchison Construction Services Pty Limited)
Mr PA Rickard (Les Quatre Musketeers Pty Ltd (t/as Plastamasta South Coast))
Solicitors:
Lough & Wells (Plaintiff)
Lee & Lyons Lawyers (Kane Constructions (NSW) Pty Limited)
Moray & Agnew (Hutchison Construction Services Pty Limited)
Goldbergs Lawyers (Les Quatre Musketeers Pty Ltd (t/as Plastamasta South Coast))
File Number(s): 2011/316330; 2012/241074 Publication restriction: Nil
Judgment
JOHNSON J: The Defendant, Hutchison Construction Services Pty Limited ("Hutchison"), has called as a witness in its case, Gary Brownlee. Tendered in chief were statements of Mr Brownlee dated 14 August 2012 (Exhibit 18) and 24 May 2013 (Exhibit 17).
In the course of cross-examination of Mr Brownlee, a call was made by Mr Marshall SC for the Plaintiff, for any other statements that Mr Brownlee may have made. This call was made yesterday, the eighth day of the case.
There is reference in paragraph 30 of Mr Brownlee's statement of 14 August 2012, to the fact that he had made earlier statements. However, it would seem that no interlocutory step had been taken by the Plaintiff to obtain those statements prior to yesterday. Thus, the issue arose yesterday in cross-examination.
Mr Polin, counsel for Hutchison, provided to the Court in answer to the call a statement of Mr Brownlee dated 14 September 2012 (MFI 32). This morning, a further statement of Mr Brownlee dated 20 July 2012 (MFI 35) has been provided to the Court.
A claim of client legal privilege has been made with respect to both statements.
An affidavit of Shaun Jackson sworn 5 February 2014 has been read in support of that claim. That affidavit refers in terms to the statement dated 20 July 2012 (MFI 35). Mr Polin has informed the Court, and it is accepted, that the affidavit may be taken to extend as well to the statement of 14 September 2012 (MFI 32).
I have perused the form and structure of MFI 32 and MFI 35. I have not read their contents. As the tribunal of fact in this matter, I have determined not to do that unless and until they came before the Court in evidence.
Mr Marshall SC accepts that, on the face of it, MFI 32 and MFI 35 are caught by client legal privilege by operation of s.119 Evidence Act 1995. I accept that that is the position demonstrated by the evidence.
The question then arises as to whether client legal privilege has been lost by waiver, by operation of s.122 Evidence Act 1995, as a result of any steps identified in the evidence.
It will be immediately apparent that the order of statements taken from Mr Brownlee involves:
(a) a statement of 20 July 2012 (MFI 35) for which a claim of privilege is made - that statement clearly has not been served for the purpose of the proceedings;
(b) a statement of 14 August 2012 (Exhibit 18) which was served and has been tendered;
(c) a statement of 12 September 2012 (MFI 32) as to which a claim is made and which has clearly not been served; and
(d) a statement of 24 May 2013 (Exhibit 17) which has been served.
Mr Brownlee has been cross-examined by Mr Marshall SC concerning the series of statements, some of which, of course, Mr Marshall SC has and some clearly he does not have.
The effect of the evidence is that Mr Brownlee did not look at MFI 32 or MFI 35 for the purpose of assisting his recollection in the process of the taking of any other statements and (in particular) those which are in evidence, nor for the purpose of giving evidence in these proceedings, as he has done over the last two days.
Accordingly, there is no evidence of actual refreshing of memory by Mr Brownlee by use of MFI 32 and MFI 35.
The argument which is put, in support of the claim of waiver, is that the evidence of Mr Brownlee has involved a process of being asked to recall these events, apparently on a number of occasions between July and September 2012, and that there was a type of cumulative refreshing of his memory, so that the next time he was spoken to, his memory was better because he had been asked about the events before. Now that state of affairs, it seems to me, may have some logic to it, but I am far from convinced that it has anything to do with the concept of waiver under s.122 or the relevant common law principles which continue to operate in the application of s.122.
It is necessary for the Plaintiff to establish that privilege has been waived: Hannaford v Royal Society for the Prevention of Cruelty to Animals (NSW) [2013] NSWSC 1708 at [90]. Waiver can arise either expressly or by imputation. In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management & Marketing Pty Ltd [2013] HCA 46; 250 CLR 303 at 315-316 [30]-[32], French CJ, Kiefel, Bell, Gageler and Keane JJ summarised the relevant principles with respect to waiver, noting that common law principles are available as well in the construction of s.122.
The real question is whether it can be said that two inconsistent positions have been adopted in a manner which involves a type of approbation and reprobation.
It does not seem to me that that is the position disclosed in the evidence. If there had been actual refreshing of memory by Mr Brownlee by means of the documents, MFI 32 and MFI 35, the position would have been different. However, in my view, the evidence falls far short of demonstrating any refreshing of memory in a manner which gives rise to a finding of the adoption of inconsistent positions.
Accordingly, I do not accept that there has been waiver, and I uphold the claim of client legal privilege with respect to the statements which are MFI 32 and MFI 35.
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Decision last updated: 19 December 2014
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