French v City of Rockingham - [2009] WADC 73

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: FRENCH -v- CITY OF ROCKINGHAM & ORS [2009] WADC 73

CORAM: PRINCIPAL REGISTRAR GETHING

HEARD: 13 MAY 2009

DELIVERED : Delivered Extemporaneously on 13 MAY 2009 typed from tape and edited by the Principal Registrar

FILE NO/S: CIV 2088 of 2006

BETWEEN: BRIAN DUDLEY FRENCH
Plaintiff
AND
CITY OF ROCKINGHAM
First Defendant
THE YOUNG MEN'S CHRISTIAN ASSOCIATION OF PERTH (INC)
Second Defendant
THE YOUNG MEN'S CHRISTIAN ASSOCIATION OF PERTH (INC)
Third Party

Catchwords:

Evidence - Implied waiver of legal professional privilege

Legislation:

Nil

Result:

Privilege waived - Discovery of document ordered

Representation:

Counsel:

Plaintiff:     Mr D M Bruns
First Defendant              :     No appearance
Second Defendant         :     Mr G J Bostock
Third Party  :     Mr G J Bostock

Solicitors:

Plaintiff:     Separovic & Associates
First Defendant              :     John Eller
Second Defendant         :     Bostock & Ryan
Third Party  :     Bostock & Ryan

Case(s) referred to in judgment(s):

Attorney‑General (NT) v Maurice (1986) 161 CLR 475
Goldberg v Ng (1995) 185 CLR 83
Hoad v Nationwide News Pty Ltd (1998) 19 WAR 468
Osland v the Secretary to the Department of Justice (2008) 82 ALJR 1288

PRINCIPAL REGISTRAR GETHING: The application before me is an application by the second defendant for disclosure of a document referred to in an expert report from a W Jack Apgar dated 6 March 2009 ("Second Apgar Report").
It is not in issue between the parties that the document exists, that it is relevant, that it was originally privileged and that there has been no express waiver of privilege over the document. The key issue that arises is whether there has been an imputed or implied waiver of legal professional privilege.
The relevant portion of the Second Apgar Report is in the following terms:
"The comments about the quality of the pedestrian surface is consistent with my findings as presented in my report on the subject matter dated 14 March 2006. That is, the tile surface constitutes a particularly competent pedestrian surface for a wet area."
Mr Apgar was commenting on a report from Zedcon Scientific Services prepared by a Dr Armand Zurhaar which was provided to him by the plaintiff's solicitors.
Mr Apgar goes on to conclude:
"I do not agree with some of the statements in the Zedcon report. Clearly, the step rise height and the height and shape of the handrails do not comply with the requirements of the Building Code of Australia and Australian Standard AS1428.1 and in my opinion these deficiencies constitute a hazard.
There is nothing in the Zedcon report which would cause me to revise the findings of my report on the subject matter dated 14 March 2006."
It is Mr Apgar's report dated 14 March 2006 (which I will refer to as the "First Apgar Report") which the second defendant seeks access to.
The relevant law in relation to implied waiver is contained in the decision of the High Court in Osland v the Secretary to the Department of Justice (2008) 82 ALJR 1288. In the decision of Gleeson CJ, Gummow, Heydon and Kiefel JJ, their Honours state the following (par 45, footnotes omitted):
"Waiver of the kind presently in question is sometimes, described as implied waiver and sometimes as waiver "imputed by operation of law". It reflects a judgment that the conduct of the party entitled to the privilege is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. Such a judgment is to be made in the context and circumstances of the case and in the light of any considerations of fairness arising from that context or those circumstances."
It is instructive for present purposes to also refer to a passage from the decision of Kirby J (at paragraph 91 and 92) in the following terms:
"The issue of waiver arises in this appeal in relation to one document only, namely the joint advice. The question, to be decided by reference to the principle of imputed waiver, is whether, whatever the subjective intention of the Attorney‑General in publishing the press release upon which the appellant relies, the objective fact of that publication was incompatible with a continued insistence by the respondent on legal professional privilege, and made such insistence unwarranted and unfair in the circumstances.
Each of these words is important. 'Unwarranted' signifies a legal conclusion, namely that enough has been disclosed of the subject communication to evince conduct 'inconsistent with the maintenance of the confidentiality which the privilege is intended to protect'. Effectively, the client cannot have it both ways. It cannot provide part of the confidential information (inferentially that part which favours its position) to others whilst demanding that everything else (which may reveal that position in a different light) be treated as confidential. The use of the word 'unfair' does not mean that all that the decision maker has to do is weigh up the respective 'fairness' of the positions of the client and its opponent and decide the question of waiver according to such generalised considerations. But considerations of 'fairness' may be relevant to whether there is an inconsistency between the conduct said to amount to the waiver and the maintenance of the privilege."
It is also instructive to refer to the decision of the High Court in Attorney‑General (NT) v Maurice (1986) 161 CLR 475, in particular, the judgment of Mason and Brennan JJ (at page 488):
"In order to ensure that the opposing litigant is not misled by an inaccurate perception of the disclosed communication, fairness will usually require that waiver as to one part of a protected communication should result in waiver as to the rest of the communication on the subject matter."
The question of what constitutes fairness was considered by Steytler J (as his Honour was then) in Hoad v Nationwide News Pty Ltd (1998) 19 WAR 468. His Honour notes that none of the judges in the decision in Maurice (supra), nor the earlier High Court decision in Goldberg v Ng (1995) 185 CLR 83, had limited the test of unfairness to what is fair in the conduct of the trial (at 473). His Honour goes on to comment (at pages 474 to 475):
"It is not difficult to conceive of situations in which a party has, by disclosing a document which suggests what was the content of a privileged communication but declining to waive privilege in respect of the communication itself, created a relevant unfairness prior to a trial. So, for example, a partial disclosure of that kind (which might relate to an issue crucial to the whole conduct of the action) might set up some train of enquiry or preparation which is entirely misplaced. As Lindgren J has pointed out in Trade Practices Commission v CC Pty Ltd (No 4) (1995) 58 FCR 426 at 437 … the notions of 'interests of a fair trial' and of the 'fair disposition of a case' encompass 'an opening up of a trial on inquiry … which is part of the proper function of discovery': see also Meltend Pty Ltd v Restoration Clinics of Australia Pty Ltd (1997) 145 ALR 391 at 405. If the train of inquiry so opened up has the propensity to be misguided because of a partial waiver of privilege which creates a potentially misleading impression then the interests of a fair trial or the fair disposition of a case will be compromised. Moreover, as Phipson points out, a partial disclosure of that kind might result in an approach to settlement which would not have been adopted had the true or full nature of the privileged communication been made known."
Applying these principles to the circumstances of the present case, it seems to me that it would be unfair to the second defendant for the plaintiff to be able to rely on the Second Apgar Report without access to the First Apgar Report.
In coming to that conclusion, I place weight on the fact that the disclosure of the Second Apgar Report to the second defendant was entirely voluntary. Its existence falls into the type of case commented upon by Kirby J in the Osland (supra) case. That is, disclosure was calculated to bolster the plaintiff's case. It would have been open to the plaintiff to have requested a substituted report from Mr Apgar which was stand alone and didn’t refer to the report dated 14 March 2006.
I have also taken into account that Mr Apgar has provided a substance of evidence dated 14 March 2006 which the plaintiff has disclosed and which is on the court file. In my view, the disclosure of the substance is not sufficient to remedy any unfairness.
In determining the appropriate response to the unfairness, I gave thought to whether I should grant the plaintiff the opportunity to prepare a substituted report from Mr Apgar which was stand alone in the sense that the relevant portions of the First Apgar Report would be integrated into the subsequent report. However, in a sense, the cat is out of the bag. In my view, it is almost inevitable that at the trial of the action, the second defendant will want to cross‑examine Mr Apgar on the Second Apgar Report (dated 6 March 2009) and, in particular, on the nature and substance of the First Apgar Report (dated 14 March 2006).
Given that, it seems to me that it is not possible to remedy the unfairness by giving the plaintiff liberty to file effectively, a substituted report, which it would rely on at trial.
On that basis, I am satisfied that the legal professional privilege over the First Apgar Report has been waived by the conduct of the plaintiff in releasing the Second Apgar Report to the solicitors for the second defendant.
I will hear counsel as to the appropriate orders.