Goldberg & Anor v Ng

[1995] HCATrans 218

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S20 of 1995

B e t w e e n -

HAROLD JOHN GOLDBERG and YONA GOLDBERG

Appellants

and

BERNARD NG, HANGO HOLDINGS PTY LIMITED  and CHERRY NG

Respondents

DEANE ACJ
DAWSON J
TOOHEY J
GAUDRON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 15 AUGUST 1995, AT 10.20 AM

Copyright in the High Court of Australia

MR M.L.D. EINFELD, QC:   May it please the Court, I appear with my learned friend, MR W.G. MUDDLE, for the appellants.  (instructed by Swaab & Associates)

MR G.C. LINDSAY, SC:   May it please the Court, I appear with MR R.C. NICHOLLS for the respondents.  (instructed by Freehill Hollingdale & Page)

DEANE ACJ:   Mr Einfeld.

MR EINFELD:   Your Honours, there are really three distinct principles which, in our submission, are relevant to the consideration of whether the appellants’ legal professional privilege held at first instance and on appeal to exist in the subject documents has been lost, as the majority below held that it had been.  Can I identify the three principles which we say call for consideration and then after a couple of preliminary remarks turn to them seriatim  The first is to be expressed in terms of whether there has been a loss of confidentiality in the privilege documents ‑ ‑ ‑

DEANE ACJ:   Mr Einfeld, if you could just pause for a minute?

MR EINFELD:   Yes, may it please, your Honour.

DEANE ACJ:   Thank you, Mr Einfeld.

MR EINFELD:   If the Court please.  The first of the three distinct considerations which, we submit, call for attention is the question of whether or not privilege has been lost by reason of there having been a loss of confidentiality in the privileged documents on the occasion on which they were handed by the appellant, Mr Goldberg, to the Law Society in the course of the latter’s investigation.  The second consideration is one which involves the question whether there has been a use of the documents in such a manner as would amount to a waiver by imputation of law, and the third consideration is the so-called doctrine of limited disclosure described in the United Kingdom cases as limited waiver or disclosure for a limited purpose.

It would be our submission, your Honours, that whether viewed in one or other or more than one, or indeed all of those terms, the privilege was not lost in this case.  Now, your Honours, no question arises in this appeal but that the documents were created for the sole purpose of the proceedings as was held to be the case at first instance and in the Court of Appeal.  It was accepted at trial moreover and in the Court of Appeal that there was no intentional waiver by Mr Goldberg when delivering the statements which he had prepared for his own solicitor for the purpose of civil proceedings, for that sole purpose, were handed to the Law Society, so that the question as we say to the extent it relates to waiver at all is one of imputed waiver.

DEANE ACJ:   Is it also common ground that the document contained material which was privileged under the clients’ legal professional privilege?  I notice there are statements to that effect.

MR EINFELD:   No, your Honour.  If there ever were any privilege which the erstwhile clients had, it ceased when they commenced civil proceedings against their erstwhile solicitors, my client and his wife.  It is well established, certainly in New South Wales, by a decision of the ‑ ‑ ‑

DEANE ACJ:   But it was not common ground that but for commencing the proceedings some of the material would have been protected.

MR EINFELD:   Certainly not.  There is no evidence at all to suggest that any of the material contained in the subject documentation was the subject of any privilege of the clients at any time.  There is a concession in evidence by Mr Goldberg that some of the material contained in his statements and draft brief to counsel and the like he learned by reason of his relationship as solicitor for the former clients but not in any way which suggested it was the subject of advice or otherwise prepared solely for purposes of litigation such as to attract privilege.  About that matter there is just no evidence.

DEANE ACJ:   Because that could be an important consideration, could it not, in that it would be surprising if a client whose legal professional privilege covered material which was being used by a solicitor for his own purposes could not ascertain precisely the extent and how it was being so used?

MR EINFELD:   There are two answers to that, your Honour, apart from the fact that the question does not arise in this case.

DEANE ACJ:   That is all I am concerned about.

MR EINFELD:   Yes.  If there ever were a privilege, which is not established anywhere on the evidence, although I think there was some assertions to the effect that there was in our learned friend’s written material, but if there ever were any such privilege, it was waived unquestionably when my client sued the solicitor.

DEANE ACJ:   Is your proposition this, that if privilege exists and the client sues the solicitor, the privilege is waived, not only for the purposes of those proceedings, but to enable the solicitor to use the privileged information for his own purposes?  That strikes me as quite extraordinary.

MR EINFELD:   No, we do not make that submission.

DEANE ACJ:   Well, then, that would be this case, would not it, if privilege existed?

MR EINFELD:   No, because firstly, as we say, there is no evidence that any of the material contained in the documentation was privileged.

DEANE ACJ:   I have got that point.

MR EINFELD:   Secondly, the question posed by your Honour might give rise to the consideration whether the clients were able to take some proceeding against the Law Society or for that matter against my client to enable it to see at most - I do not concede this is so, but at most to see what material had been provided to the Law Society and it may be that some proceeding could have been taken by way of restraining the use by the Law Society of that information or some proceeding to recover back from both the Law Society and my client the documents to the extent they contain such information.

It would not permit at all the issue of a subpoena in these civil proceedings for the purpose of having that material produced by the Law Society in these proceedings because if the object of the attempt to prevent use of any such privileged information were to retain the privilege of the clients in the material it would be an ulterior purpose to subpoena their production by the Law Society in these civil proceedings which the client had commenced against the solicitor by which commencement that privilege had been waived.

DEANE ACJ:   I follow the answers you give and I have delayed you unduly.

MR EINFELD:   As your Honour pleases.  Well then, your Honours, may we deal with the first of what we have identified as the three relevant considerations because the discussion particularly by those in the majority below has perhaps not identified the question of confidentiality as an important ingredient in the consideration of whether or not the privilege has been lost.  Both Justice Mahoney and Justice Clarke speak in terms of waiver, it would seem, based upon Maurice principles and we will return to that shortly.

Confidentiality, your Honours, we would submit, is a familiar enough concept, perhaps most commonly encountered in the context of confidential information cases.  In principle, we would submit that the considerations of confidentiality and loss of confidence are not dissimilar when considered in light of that area of the law and the application of those considerations in the present context. 

In our submission, where privileged documents are disclosed to a third party confidentiality will be sufficiently maintained if the third party has an obligation of confidence to the person providing or disclosing the privileged documents and if the documents do not pass into the public domain.  In other words, if one were to view the events of this case, namely Mr Goldberg’s production on request to an officer of the Law Society to assist it in its investigation - is viewed in the context as my friends in their written outline suggest in part, it ought, then the question will be whether the confidentiality regarded, as I will confirm in a moment, as a critical ingredient in the concept of legal professional privilege has been lost, and at the heart of our submissions on the aspect of this case is the proposition that provided that there remains an obligation of confidence that the party to whom the privileged documents are disclosed remains under a duty of confidence to the party providing the documents, there is no loss of confidentiality in the documents relevant to a consideration of legal professional privilege.

TOOHEY J:   Is the confidentiality said to arise here by virtue of the undertaking given by the Law Society?

MR EINFELD:   In part.  The confidentiality in the documents prepared by Mr Goldberg for the purposes of his litigation and given at the request of his own solicitors is maintained, we submit, when two things happened in this case:  firstly, Mr Goldberg himself, plainly intending that the confidence not be lost, that is, that there be no waiver, imposed a condition on their production of confidentiality and that condition was accepted by the recipient of the documents.  In other words, there was an agreement between the appellants and the Law Society that the Law Society could only have access to the documents provided they kept them confidential and that, we say, imposed an obligation of confidence upon them, one which would have been able to be restrained by injunction proceedings at the suit of Mr Goldberg had he so considered it appropriate.

TOOHEY J:   The way in which you put it, Mr Einfeld, that would arise whether or not the Law Society had responded at the time by giving an undertaking.  Is that the way we could see it?

MR EINFELD:   No, I did say, your Honour, that upon the imposition of the condition, the condition was accepted by the Law Society.

TOOHEY J:   That was really the matter I was seeking to clarify, whether the confidentiality was imposed by Mr Goldberg making the documents available on a confidential basis or whether it arose because the Law Society accepted the documents on that footing.

MR EINFELD:   Your Honour, there is authority for the former proposition, to which we will take your Honours shortly, to suggest that where, for example, the Trade Practices Commission imposed as a condition of providing transcripts of interviews to examinees, that was considered adequate for the purpose of preserving the confidentiality.  Elsewhere there is authority which suggests that it is the condition perhaps coupled with the acceptance of the condition that creates the duty of confidence but, your Honour, we would submit that the former is probably enough, but we do not need to go that far on the facts of this case certainly because of the response of the Law Society.  Indeed, as the evidence will show, Mr Goldberg was not merely intent to impose the condition, he required acceptance of that condition and the undertaking of the Law Society before the documents were handed over.

GUMMOW J:   Did the Law Society have any compulsive power under statute to require production and did that compulsive power overcome any privilege?

MR EINFELD: There was at the relevant time no direct compulsive power to require Mr Goldberg to produce the documents, but there was certainly a coercive element at the least implicit in section 35(2) of the Legal Profession Act 1987 as it then was. I say “as it then was” before the substantive revamping of the provisions in 1994 whereby in section 35(2) the Law Society Council was entitled to suspend or cancel a practising certificate of a solicitor where that solicitor failed to satisfy a request. In section 35(2)(c) the Law Society Council had that power where, being required by the Law Society Council to explain conduct, he failed to give an explanation satisfactory to the council.

I accept of course that that explanation could have been given in a variety of forms but, as your Honours will note in the passages of the evidence at trial accepted by the trial judge and by the Court of Appeal, Mr Goldberg himself did not take the documents to the Law Society with a view to providing them to the Law Society in order to defeat the complaint or anything of the kind.  What he did was that he went to the Law Society for an interview, he took the documents with him to assist him in his recollection and to assist him in gleaning the material that might be asked of him.  He informed the Law Society officer that he had such material with him.  Ms Shirvington said, “May I have access to those very documents”, being the privileged documents, to which the solicitor responded, “No, they’re privileged.  I’m concerned about maintaining the privilege”, and that gave rise to the conversation.

In other words, whilst there was no order or direction, your Honours, that those documents be handed over, nonetheless the solicitor says that he was conscious of the fact that there was a need to co‑operate with the society.  His evidence was, which was accepted below, that he wished to be full and frank in his discussions with the Law Society.  These documents would provide that full and frank information and he was happy to hand them over solely upon the assurance from the Law Society that they be kept confidential.

GUMMOW J:   Section 35 in the form you mentioned seems to have been repealed in 1993, is that right?

MR EINFELD:   I do not think so, your Honour.

GUMMOW J:   I have a reprint that is in force 1 July 1994; section 35 is quite different.

MR EINFELD:   No.  As I said to your Honour, at the relevant time the new amendments that came into effect on 1 July 1994 had not yet come into force.

GUMMOW J:   I know that.  I want to know what the relevant time is.

MR EINFELD:   It had not yet come into force.

GUMMOW J:   I realise that.  What is the relevant time, this section having been amended several times before it was repealed?

MR LINDSAY:   Your Honours, it was section 35.  The equivalent section now is section 37.

GUMMOW J:   Thank you.  Has that been relevantly changed since 1987?

MR EINFELD:   I am sorry, your Honour.  I think ‑ ‑ ‑

GUMMOW J:   Do not take time about it now, Mr Einfeld.

MR EINFELD:   Your Honour, in 1990 when these events took place, the division was as it appears in section 35 as I described it.  I am not sure which reprint your Honour has.  One of the reprints has both sections in it; both the old one and the new one.

GUMMOW J:   The reprint as at 1 July 1994.  Let us not take any more time about it.

MR EINFELD:   If your Honour pleases.  Treatment of the confidentiality element in the privilege is supported by a number of recent decisions at first instance to which we just wish to draw your Honours’ attention.  There are some passages in the cases which suggest that by imposing or receiving conditions or undertakings as to confidentiality, that will suffice to preserve the privilege.

Can we draw your Honours’ attention, firstly, to the decision of Mr Justice McLelland in Ritz Hotel Ltd v Charles of the Ritz Ltd (1988) 14 NSWLR 132. In proceedings which involved principally passing off questions and the like, his Honour dealt with, in the report of this case No 22, among a variety of interlocutory questions, the question of privilege attaching to communications with a witness, and on page 133F, his Honour said:

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.

Relevantly, and for our purpose, the Law Society, in this case a doctor:

Now, whether in the case of communications between a party or its representative on the one hand and a potential witness on the other, those communications can be said to be confidential so far as the potential witness is concerned, may be a nice question in many circumstances.

And then he discusses the question of whether the position of an independent witness is different from that of a retained witness.  If I can just pass by that discussion to page 134B:

The present case does not relate to an independent witness.  I would infer that Dr Tyler was engaged in a contractual sense by the plaintiff in a consultative capacity to provide the plaintiff with expert advice and expert evidence on technical matters relating to quality control -

et cetera.

It seems to me that that 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.

The distinction that I have sought to draw between disclosure by a person with no obligation of confidentiality to the party, on the one hand, and disclosure by a person having such an obligation on the other is, I think, borne out on analysis of such authorities as may be thought to bear on this subject which I will simply identify without detailed discussion:

Reference is then made to a number of the cases that dealt with inadvertent discovery of privileged material and the like and then to Baker v Campbell:

The rationale of privilege for communications between a party or its solicitor or representative and third parties in preparation for litigation is usefully analysed -

et cetera.  Now, your Honours, whilst the context of that discussion was that of a party and its retained or consulting expert in the same way that the cases have held that disclosure by a party to litigation to his own accountant or others for assistance in the conduct of litigation.  The import of the case, in our submission, is the emphasis placed upon the need for there to be extended beyond the party and his lawyers the obligation of confidentiality or relationship of confidentiality in order for the privilege to be maintained.

Consistently with that and the next authority to which we refer your Honours, it is our submission that provided that obligation of confidence exists in the person to whom the documents are disclosed, and provided, of course, the documents do not find their way into the public domain in the sense in which that concept is discussed in the confidential information cases, it is our submission that the privilege is maintained.

May we then direct the Court’s attention to a decision of Justice Heerey in the Federal Court in Trade Practices Commission v Ampol Petroleum (Victoria) Pty Ltd (1994) 52 FCR 578. Your Honours, this was one of those cases in which there had been conducted, under a provision of the Trade Practices Act, an examination of third parties for the purpose of determining whether or not proceedings might be brought as to retail price maintenance and the like.  The transcripts of the examination were given to the examinees, who were petrol station proprietors, and in proceedings commenced by the Trade Practices Commission Ampol subpoenaed the examinees to produce the transcripts.  Justice Heerey, at page 580, refers to an earlier decision at B apparently in the same litigation of Justice Olney to which we just wish to make short reference in which his Honour had said that the gathering of evidence pursuant to the section as not distinguishable from obtaining the witness statements for the purpose of litigation and therefore the documents were privileged.  His Honour then went on to say at D:

An analogous circumstance arose in the facts of Hartogen Energy Ltd (In liq) v Australian Gas Light Co(1992) 36 FCR 557 in which the liquidators of two companies, in the course of conducting investigations relevant to the liquidations were advised to interview persons with a view to examinations being conducted under s 541 of the Companies (New South Wales) Code.  The liquidators engaged senior counsel who conducted private and confidential interviews with a number of persons including a director of one of the companies.  The respondents sought access to a transcript of the interview.  A copy of the transcript had been supplied to the director through his solicitors for the purpose of making corrections.  In considering the question of whether the liquidators had waived their legal professional privilege in the transcript Gummow J 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 Attorney‑General (NT) v Maurice (1986) 161 CLR 475 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 -

we emphasise that description -

in a fashion which would make it unfair to allow the maintenance of their claim to 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.

His Honour accepted those submissions.  Justice Olney went on to say:

Although the facts are different in the present case, I think that the same principle is applicable.  The applicant has not used Spreen’s transcript in litigation nor has it been used in some other way to put it in the public domain so as to render it unfair to allow the claim to privilege to be maintained.”

I will turn to this concept of fairness and unfairness when I come to discuss the purported application below of Maurice to the facts of this case.  Justice Heerey went on at - if I can take your Honours past the discussion of the facts and the history of the matter down to the new paragraph just below F:

An essential element of legal professional privilege, as a defining condition both of its existence and its loss by waiver, is the protection of confidential communications.  The importance of this element, and its relevance to the issue of waiver -

is shown in the passage cited from Maurice.  I do not wish to necessarily reread that, your Honours will be well familiar with it; although at page 582B again reference is made in the sentence from the joint judgment in Maurice:

When the privilege applies, it enables the client to keep the communication from disclosure and interferes with the public’s ‘right to every man’s evidence’:

So there is again advertence to these dual concepts of keeping the communication from disclosure and it being released to the public domain.

Then may I pass by the further citations from Maurice appearing at D and E to the paragraph starting at F:

Whatever the appropriate categorisation, the protection afforded by this principle equally involves confidentiality:  Cross, loc cit, especially n 7.  Historically this principle was rooted in the adversarial nature of the common law system and was based not so much on the need for the client to communicate freely with his lawyer but “... the notion that for litigation to be conducted properly it was necessary that what the party or his solicitor gathered for the action should be kept from the other side ... the client and the lawyer (should be free) to make investigations without being required to divulge what was turned up”:

There was reference made to Mr Williams’ article and then reference made to 19th century authority and then at page 583C his Honour said:

Some mention needs to be made of recent developments in the law relating to confidential information as it applies to examinations under statute.  Legal professional privilege overlaps with that area of the law in that the element of confidentiality is common to both.

Then he deals with the question of compulsory examinations and their special circumstance in imposing “an obligation of confidentiality” and after making reference to Johns his Honour said at line E:

But such confidentiality can be lost by lawful unconditional disclosure.  In such event the “protective cloak of (confidentiality) is shed”.  Again, the law in this area mirrors legal professional privilege and the concept of waiver.

He then deals with this decision of Justice Jenkinson in Constantine where:

His Honour held that the TPC conducting an examination under s 155 can validly impose on the examinee a requirement that he hold confidential what transpired in the examination.

That is no doubt as a matter of statute:

“I hold that, if so directed by the Commission, the applicant is required by law to abstain, for a certain time, from disclosing information acquired by him and the evidence given by him during his examination under the notices to any person except a legal practitioner for the purpose -

et cetera.

Then may I turn to page 584 where his Honour at the top of the page suggested that:

the principles are those expounded by McLelland J in Ritz Hotel -

case and without repeating it, his Honour says:

The case shows how the concept of confidentiality is determinative.

He then deals with the facts and the citation from the judgment in Ritz Hotel and again repeats the passage at the foot of the page that I read to your Honours earlier from Justice McLelland’s judgment and then on page 585C says this:

I have read the authorities referred to by McLelland J and respectfully agree with his Honour’s construction of them.  In the present case the examinees are, or would be at trial, independent non‑expert witnesses.  As I have noted, 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 -

et cetera.  So Justice Heerey too is at pains to invoke the considerations in the Ritz Case of there remaining an obligation of confidentiality, absent which he concludes in the Ampol Case there would be no retention of the privilege.

Just over the page at 586 reference is again made to the Hartogen decision of Justice Gummow where his Honour says this case is to be distinguished from that case:

where the transcripts of the examination in question were made available to the witness for the specific purpose of checking and making corrections -

and that is one of the considerations that arises under the third head of the matters with which we wish to deal, namely, this notion of the doctrine of disclosure for a limited purpose dealt with in detail by the English and, more recently, Australian authorities.  Your Honours, in the present case, of course, these considerations were more than amply satisfied.  As we have said, the evidence disclosed that there was a request for a condition of confidentiality and an acceptance of it.

Your Honours, at the risk of taking - and I hope not - a moment too long, it may be instructive if your Honours were to bring to mind again the circumstances in which the documentation was produced at a Law Society, and if I may just for a moment pause to direct your Honours’ attention to page 145 of the appeal book your Honours will see from the judgment of the President below the trial judge’s summary of the evidence given by Mr Goldberg which was accepted in whole, commencing at line 20, where his Honour had said that Mr Goldberg had prepared these papers for the purpose of the proceedings, took copies with him when he went to see the lady from the Law Society who appears to have been Ms Shirvington, his evidence is that the lady asked him what the papers were that he had with him, and he replied:

I do have papers in this file which are relevant to this matter” and the lady said” “Can we have a look at those?”  Mr Goldberg said, “I have brought them with me to refer if I need to.  I don’t have anything to him.  I’ve already been very full and frank with you because we have now stayed over three hours being asked questions and giving answers.  I don’t want anything in these papers, which induces the things like a statement to my solicitor, given to the Ngs or the company or their legal advisers because it’s my private confidential matter.”  VS said, “Well, we won’t give it to anybody else”.  VS said, “I would like to look through those documents” whereupon Mr Goldberg handed them to her saying “I want to retain my legal professional privilege in regard to these papers” to which she said “You do”.  He said: “Well in that case in order to be completely frank and free with you and so that it is clear that I have nothing to hind, you can have a look through them” ”

And as the President points out:

Ms Shirvington’s evidence was to the same effect.

The trial judge fully accepted that evidence:

There was, therefore, an express reservation of the appellant’s privilege and confidentiality.

His Honour goes on:

That condition was accepted by the Law Society through Ms Shirvington. 

He observes:

The proceedings now before this Court are, in one way, evidence of the Law Society’s attempt to make good its promise.

Because the Law Society itself resisted production of the documents.  The issue is whether disclosure waived the privilege, and if so, to what extent.  Now, your Honours, it is clear then, in our submission, that there was imposed upon the Law Society as a condition of receiving these conditions a condition of confidentiality, which the Law Society accepted.  Ergo, we submit, there can be no argument but that the Law Society remained under a duty of confidentiality to Mr Goldberg not to disclose the documents.

It is impermissible, in our submission, for the plaintiffs having commenced proceedings against the solicitors then to take the course of making a complaint to the Law Society, then when it becomes aware that the solicitor had produced to the Law Society material which was on any view held to be privileged for their production in the civil proceedings.  We will come to the question of fairness or unfairness about that shortly.  But, whatever may be said about the latter matter the fact is that by the steps that were taken the confidentiality in the documents was extended but one step in the same way as it would have been to Mr Goldberg’s accountants or expert witnesses or other parties whereby, for a very limited purpose and on one occasion only, the documents were disclosed, that was to assist the Law Society in its investigation.

I might just add in response to something that Justice Gummow said to me earlier, that whatever be the coercive powers of the Law Society, the fact is the solicitor on any view had a duty to co-operate in the course of the investigation under threat of consequences adverse to him.  That is not to say that he had a duty to deliver these documents but he had a duty to assist in the investigation of the complaint made against him and in doing so he was prepared to release the documents solely on that basis, and, therefore, what the advertisements used to call the “ring of confidence” in another context is maintained both to the solicitor and to the documents, in our submission, and as I said earlier that was an enforceable duty of confidentiality.

MR EINFELD:   Well, now if, therefore, the test for loss of privilege is one of confidentiality, it is our submission that the confidentiality was maintained, the privilege is not lost.  The argument below, however, proceeded substantially on the question of whether or not there was an imputed waiver by Mr Golberg in providing the documents to the Law Society in the terms of the decision of this Court in Attorney-General (Northern Territory) v Maurice and, of course, as your Honours know, Maurice was a case of use of documents in the course of the litigation itself in which the privilege was invoked.

Your Honours, the way in which their Honours in the majority dealt with this below was not necessarily consistent as between Mr Justice Mahoney and, on the other hand, Justice Clarke.  Justice Mahoney, your Honours, dealt with the matter by making reference to Maurice and the concept of unfairness expounded in Maurice but then appears to have proceeded by taking a concept of fairness and applying it, as it were, as its own consideration, in other words, devoid of  the considerations that motivated the result of Maurice in this Court.  Your Honours will know that in Maurice there were two governing conditions which gave rise to the result in the case.  The first of them was that there was use made, or intended to be made, by dint of a tender of the claim book prepared for the purpose of the claim in the proceedings themselves and the second governing condition was the potential for such use to create in the proceedings either an inaccurate perception of the disclosed communication or some other prejudice.

Your Honours will remember, no doubt, that the question there was, as has appeared in most of the cases on imputed waiver, whether or not the use of a document which might otherwise have been subject to privilege, would lead to a waiver of other material in the same document or the same group of documents or material upon which the tendered document ‑ the document which can be used in the proceedings ‑ from which it had been compiled.  The relevant reference to these, what I have called the governing conditions of Maurice, appears firstly in Attorney-General (Northern Territory) v Maurice (1986) 161 CLR 475 where, at page 481 in the judgment of the Chief Justice, his Honour said, at the top of the page:

There was of course no express waiver.....nothing to suggest that the claimants had any actual intention to waive privilege ‑

reference to the citation from Wigmore which makes reference to the elements of fairness and consistency and then, about point 5:

The decisions in which this question has been considered seem to me to be particular applications of the rule that in a case where there is no intentional waiver the question 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.

His Honour, from the passages that follow, clearly means “refer to or use the material in the proceedings”:

Thus, it has been held that the privilege in respect of a document is not waived by the mere reference to that document in pleadings.....although the position will be different if the document is reproduced in full in the pleading or affidavit.....These cases may be explained by saying that it is not unfair or misleading to refer to a document in a pleading or affidavit which is not put into evidence but that if the document is set out in full the privilege is waived.  A fortiori, of course, privilege in respect of materials used in drawing a pleading or an affidavit and not referred to there, would not lose their privilege because they had been used in that way.

Just stopping there, the debate below and, in essence, Justice Clarke in his decision focused upon the question of whether or not the production of these documents to the Law Society was in some, we would submit, unidentified way unfair to the plaintiffs in the litigation.  In Maurice unfairness was, of course, discussed within the context of the use of that material in the proceedings, coupled with the question whether there would be any prejudice to the plaintiffs by the use of part but not all of the privileged material, in particular, by creating some misleading or inaccurate perception of the disclosed communications.

In the proceedings below, Justice Mahoney, having made reference to Maurice at the commencement of his judgment, thereby appears to have disregarded, with respect, altogether those two paramount considerations and resolved this instant case by, again, with respect, a rather surprising observation that privilege would be held to be waived by imputation where the court felt constrained to come to the view that, to use the expression, it would be unfair in the circumstances for the privilege to be maintained.  What his Honour did, if I could just before I come back to the decision of Justice Gibbs, at page 171 of the appeal book is, having referred at the previous page at line 10 to Maurice, having referred to Dietrich and the like, then said at page 171, after some factual observations which we will submit were not borne out by the evidence; we will come to that later - said at about line 23 on the page:

I appreciate that the proceeding by the Society was different from the proceeding brought by the clients in the Equity Division.  But the genesis of the dispute was the same.  At least, it derived from the same general source.  I confess to a feeling of unfairness in such a use of the immunity.

TOOHEY J:   Mr Einfeld, what weight or what role did Justice Mahoney attribute to confidentiality?

MR EINFELD:   I am sorry, your Honour?

TOOHEY J:   What weight did Justice Mahoney give to confidentiality in his assessment of the situation?

MR EINFELD:   None in terms.  None in terms.

TOOHEY J:   You mean he dealt with the matter in terms of fairness or unfairness.

MR EINFELD:   Yes, and did so not in terms of the Maurice principle at all, but having, as he said, confessed to a feeling of unfairness, went on in the next paragraph to say that if Mr Goldberg did what he did in order to gain some advantage for himself, as he says at line 36 or 37:

to add force and authenticity to what he told the Society by virtue of the fact that the information was contained in the documents prepared for his solicitors -

no evidence of that whatsoever - not cross‑examined on it; no evidence of it - but if he did:

that would, I think, be a factor suggesting that what he did involved a conscious use of the fact of his solicitors’ involvement for his own benefit and accordingly that fairness required that privilege not be available.

So what his Honour did was to resort to general tenets of fairness as the ground for establishing a loss of the privilege which is the very thing that cases like Waterford v The Commonwealth and, more recently, Carter, decided earlier this year, constrain us from doing.  The very exercise on which Justice Mahoney embarked was the very balancing exercise of the right to a fair trial and the right for a party to have all relevant information disclosed with the right to the privilege on the other hand.  That is the very matter that has been examined by this Court in recent years and so authoritatively restated in recent times, that it is an exercise on which the Court cannot embark in the context of waiver of privilege.

TOOHEY J:   Without taking us to any particular passage, could I ask you the same question in regard to Mr Justice Clarke’s judgment?

MR EINFELD:   Yes.  His Honour dealt more fully with the judgments in Maurice and recognised that Maurice stood as authority for the two propositions that I have referred to, namely use of the document in the proceedings and prejudice, whether by creating an inaccurate perception of the content of a privileged communication or otherwise, then concluded that there was no evidence of prejudice or inducement of the plaintiff to conduct their litigation in any way, but nonetheless said, in effect, “To me the use by the solicitor of the privileged information to respond to a complaint to the Law Society made by the client was unfair”.

TOOHEY J:   Putting it that way, it would suggest that no role was accorded to confidentiality by Mr Justice Clarke.

MR EINFELD:   That is correct, your Honour.

DAWSON J:   And you say that the one proceeding is quite separate from the other.

MR EINFELD:   Absolutely.

DAWSON J:   And has nothing to do with it.

MR EINFELD:   It has nothing to do with it.  It was instigated by the plaintiff, not us.  We were responding, we submit under a duty to do so, to assist.

DAWSON J:   The fact that the respondents did not know the reason why their complaint was decided against them is irrelevant, you say?

MR EINFELD:   Utterly irrelevant.  We know that by dint of the privilege itself, the plaintiff is not going to have access to our proofs of evidence and briefs the counsel.  In that sense that unfairness always prevails in every case in which the privilege is invoked and found to exist where the documents are for the sole purpose, et cetera.  What unfairness was there ‑ ‑ ‑

DAWSON J:   The unfairness which they say existed was that the respondents did not know why their complaint was dealt with as it was.

MR EINFELD:   That cannot be real unfairness for the - it cannot be ‑ ‑ ‑

DAWSON J:   Well, that is the unfairness which is pointed to, is it not?

MR EINFELD:   Yes, by his Honour Justice Clarke, that is right.

DAWSON J:   By his Honour Justice Mahoney.

MR EINFELD:   And probably by Justice Mahoney as well.  Yes, I think so.  And neither can that satisfy any of the tests in Maurice nor, as I will come to submit in a moment once I have just gone back to Justice Gibbs’ decision  - the other statements in Maurice and I have got sidetracked from that by myself - but nor, will we submit, is there any warrant for extending in the debate about imputed waiver the Maurice preconditions or Maurice concepts, because once you do that, once you go beyond the use of the documents in proceedings in such a manner that creates a prejudice or misleading impression of the privilege communication, you are getting straight back into the debate of weighing, on the one hand, the need for the privilege for the purposes of Grant v Downs and Waterford and the other cases have told us it exists and, on the other hand, general dictates of fairness, fair trial and the like which is now an impermissible exercise once the privilege is established, and that is the warrant for not extending, as their Honours in the majority below appear sub silentio to have been doing, Maurice considerations beyond the scope which they expressed in Maurice appreciating, as we do, that Maurice may not have been intending to speak to other forms of imputed waiver but only those with which it dealt, but there is good warrant for confining it to that consideration.

DEANE ACJ:   Is there any authority on the question whether, in circumstances such as those which existed here, the Law Society and its officer owe a duty of procedural fairness to a complainant?

MR EINFELD:   Your Honour, there is in New South Wales where it has been held that there is no duty of natural justice or procedural fairness in the course of dealing with complaints, but I will have to extract the reference to it, your Honour.  I think it is a single judge, maybe a Court of Appeal, I think not, if I can find it.

DEANE ACJ:   If you cannot find it today, you could let us have it subsequently.

MR EINFELD:   Yes, if your Honour please.

DEANE ACJ:   Because if there were a duty of procedural fairness and one party not acting under compulsion saw fit to put in privileged documentation, one can see arguments for saying that vis-a-vis that other party legal professional privilege would be waived.

MR EINFELD:   No, your Honour, waived for the purpose and within the context of the Law Society investigation, not waived for the purpose of the conduct of the civil proceedings.

GUMMOW J:   What was the civil proceedings?

MR EINFELD:   The civil proceedings was a suit by the plaintiff for accounts in effect.  The plaintiff had alleged he paid money to the solicitor’s wife overseas, he said on account of his legal costs; the defendants say for totally unrelated purposes.  That is the critical question.  There was a cross‑claim then by my client’s solicitors for payment of their legal fees. I am sorry, have I answered what your Honour asked me?

GUMMOW J:   Yes.

MR EINFELD:   Can I just come back to your Honour the presiding judge.  The reason why there is no requirement for procedural fairness brought before the Law Society, it is a preliminary investigation.

DEANE ACJ:   What I said to you Mr Einfeld was that one can see arguments and I must confess you have not persuaded me that there are not any arguments.

MR EINFELD:   What I was about to say, your Honour, was that the question does not arise for this reason, that the investigative process of the Law Society will culminate in the advice to the complainant that the proceedings have been dismissed and there may be proceedings in administrative law that can be brought by the plaintiff complainant to address that.  Otherwise the matter gets referred to a tribunal at which there is, of course, a full hearing at which the complainant is heard consistently with Twist v Randwick Council and the other line of cases.

DEANE ACJ:   I follow what you say.  I would have thought there would be an argument that if it emerged that your client had used or taken advantage of the privileged documents with the result that there was a breach of procedural fairness as against the other party in those directly related proceedings, one might well have moved into the area discussed in Maurice.  I am not saying it is right.

MR EINFELD:   No, I understand.

DEANE ACJ:   All I put to you was I can see an argument.

MR EINFELD:   Yes, I appreciate that, your Honour.  We would respond by saying there is no argument available for two reasons in this case.  The first is there is no evidence that the documents were provided for the purpose of gaining an advantage or having the proceedings dismissed or any other purpose than to respond to the request by the officer to produce them.

DEANE ACJ:   For the purpose in getting an advantage in the proceedings involving the complaint against the solicitor.

MR EINFELD:   One may infer that in the ordinary course the production of privileged documents may have been for that purpose but when you look at the extract of the evidence to which we have just taken the Court, one has to even stretch that to a certain extent.  We do not even know, for example, whether the reason the complaint was dismissed had anything to do with these privileged documents.

DEANE ACJ:   I will not take time, but I read that as effectively saying, “I want to produce these things to you to just show how absolutely co‑operative and frank and honest I am”.  In ordinary language that is obtaining an advantage in the complaint proceedings.

MR EINFELD:   Your Honour, he was extensively cross-examined but it was never put to him that that was his purpose in the production of the documents and we would submit the passage extracted at page 145 indicates to the contrary, a reluctance to produce the documents.  He does not proffer them;  he says, “I have them here for my personal assistance, not to produce to the Society” whether expressly or explicitly to gain a particular result.  The Law Society says, “Well, can we look at those?”  He says “No”.  Then he says, at line 34 on the page, “I have brought them with me to refer if I need to, I don’t have anything to hide.  I’ve been here over three hours being interviewed;  I don’t want anything in them given”.  When we request, he responds by saying, “All right, you can have them, but only on conditions” and it is not as if he proffered them for some advantage or for some ultimate ulterior purpose.  But, be that as it may ‑ ‑ ‑

DEANE ACJ:   I do not want to argue, but what I was putting to you was if what was involved here in the complaint proceedings, which are obviously related, there were a breach of procedural fairness which had resulted from the situation in which your client said, “I will make these documents available to you, but only on condition that the other party doesn’t see them”, it seems to me that there is an argument that one moves into, the Maurice area, and it is for that reason that I asked you about whether there was a duty of procedural fairness.

MR EINFELD:   I understand that, your Honour.  As we say, we do not approach, in our submission, Maurice principles at all because the remedy is not in the civil proceedings at all but in the Law Society proceedings where the breach of procedural fairness could be redressed.  The proposition your Honour puts to me, with respect, has nothing to do with the exercise by my clients of their privilege in these proceedings because once you go beyond Maurice principles, that is use in the subject proceedings so as to cause prejudice in the subject proceedings, you get into the general area that I will come back to in a second, but more importantly, you do not broach that area because there is no prejudice to the plaintiff in the conduct of the civil proceedings by dint of production of the documents.

There may well be prejudice on your Honour’s hypothesis in the conduct of the related proceedings but not in the civil proceedings.  There is no authority, of which we are aware, that would suggest that you extend Maurice principles to enter into questions of fairness which, in a sense, becomes, once you remove yourself outside of the ambit of the subject proceedings, almost a question of moral consideration, it cannot, in Grant v Downs terms or Waterford v The Commonwealth terms, involve the question of whether or not there is a fair trial because the conduct of the civil trial is not affected ‑ certainly there is no evidence in this case of any impact upon the plaintiff’s conduct of the civil proceedings.  Indeed, in one of the authorities to which we will shortly come, Mr Justice Jordan, then Chief Justice in 1939 said, in a case called Thomason v The Council of the Municipality of Campbelltown that the guiding consideration ‑ I will come back to that ‑ is one of whether the conduct of the party asserting the privilege leads the other party to regulate its conduct of the proceedings in a particular way.

GUMMOW J:   Sir Frederick Jordan’s judgment has overtones of estoppel about it, I think.

MR EINFELD:   It has.  Some of the judgments, your Honour, do have overtones of estoppel.  Some ‑ one in particular to which I will come shortly ‑ in a very recent decision of Justice Lockhart ‑ seems to advert back to almost classic waiver terms where one enters into the debate of The Commonwealth v Verwayen of abandonments of rights in terms discussed by Justice Brennan and by Justice Dawson in Verwayen.  In the context of waiver of professional privilege, the case tended to shy away from a treatment of waiver strictu sensu in the classical terms.  Sir Frederick Jordan’s judgment in the two passages that are actually set out in Mr Justice Clarke’s judgment below has shades of estoppel about it, but at the same time, we submit, contains the distinct elements which are afflicted by Maurice and elsewhere, but may I come back to that because I was in the throes of just giving your Honours a reference to the passages in Attorney-General (Northern Territory) v Maurice itself. I was at page 481; I do not want to go through all these in detail because we have set them out in our written outline and at 482, his Honour referred, in the second line, to the circumstance of cross‑examination of a witness with respect to some material in a document and other cases of partial disclosure of privileged material, such as those discussed in Great Atlantic Insurance and his Honour at 482, point 5 said:

The same test must be applied in deciding whether the use in legal proceedings of one document impliedly waives privilege ‑

and the like.

Then at 487 to 488 Justices Mason and Brennan dealt with the question at about point 8 on the page where their Honours said:

The limiting effect of legal professional privilege on the availability of evidence otherwise relevant is confined, inter alia, by the doctrine of waiver.   A litigant can of course waive his privilege directly through intentionally disclosing protected material.  He can also lose that protection through a waiver by implication.  An implied waiver occurs when, by reason of some conduct on the privilege holder’s part, it becomes unfair to maintain the privilege.  The holder of the privilege should not be able to abuse it by using it to create an inaccurate perception of the protected communication.

Nothing like that happens here:

Professor Wigmore explains:

“[W]hen his conduct touches a certain point of disclosure, fairness requires that his privilege shall cease whether he intended that result or not.  He cannot be allowed, after disclosing as much as he pleases, to withhold the remainder.”

Then his Honour says:

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.....Hence, the implied waiver inquiry is at bottom focused on the fairness of imputing such a waiver.  On this principle, an American court refused to imply a waiver when the person entitled to the privilege, who had been subjected by court order to an exceptional accelerated discovery process, accidentally disclosed some protected communications.  Likewise, a waiver was not implied beyond actually disclosed material when the person entitled to the privilege, in a spirit of co‑operation, disclosed some confidential communications to opposing counsel, not to the court, and the partial disclosure did not prejudice the opposing litigant.

So, again, reference to the question of prejudice.  Then at 493 in a judgement of your Honour Justice Deane, top of the page - I should start at the bottom of the preceding page:

Waiver of legal professional privilege by imputation or implication of law is based on notions of fairness.  It occurs in circumstances where a person has used privileged material in such a way that it would be unfair for him to assert that legal professional privilege rendered him immune from procedures pursuant to which he would otherwise be compellable to produce or allow access to the material which he has elected to use to his own advantage.  Thus, ordinary notions of fairness require that an assertion of the effect of privileged material or disclosure of part of its contents in the course of proceedings -

we note “in the course of proceedings” -

before a court or quasi‑judicial tribunal be treated as a waiver of any right to resist scrutiny of the propriety of the use he has made of the material by reliance upon legal professional privilege.  There are, however, no considerations of fairness which require that compliance by a party with a procedural requirement that he prepare and make available a document setting forth the case which he proposes to make -

Remember that Justice Gibbs said that reference to the document in the pleadings or in an affidavit of itself will not involve a loss of privilege by imputed waiver if the use of documents for the purpose of preparing proceedings in the case or affidavit in the case or which are referred to in pleadings or evidence filed in the case itself or tendered in the case itself does not involve a waiver, how then use of the documents beyond the confines of the proceedings give rise to some prejudice in the opposing litigant in the litigation?  Bearing in mind that in this case, not only is there no evidence or finding of prejudice, his Honour Justice Clarke expressly held that there was no such prejudice and that the plaintiffs, naturally enough, had not relied upon the documents in any way.  So their conduct of the civil litigation was not in any way impacted upon by this disclosure.

And, finally, can I just give your Honours a reference to a passage at 497 in the judgment of Justice Dawson commencing at about point 7 or 8, again reference to the implication of waiver notwithstanding it was not intended and would not be fair to allow privilege to be waived in respect of portion of a document or a conversation without requiring disclosure of the rest.  And then across the page at 498 reference again to the passage in Wigmore:

The cases are not entirely consistent and perhaps what is fair by way of disclosure must ultimately depend upon the relevant circumstances.

Now, your Honours, as we say Maurice, in our submission, provides no support whatever for the submissions sought to be made here to the extent that they purport to rely upon Maurice and clearly enough once Justice Mahoney and Justice Clarke below made reference to Maurice and the considerations therein discussed their decisions, respectively, appear to found upon some general notion of unfairness quite outside the proceedings but, in any event, not really identified.

Even to the extent that Justice Mahoney felt it unfair that in some way the result of the investigation was procured by Mr Goldberg for his own advantage, notwithstanding the fact that there is no evidence to support that contention whatever - - -

GUMMOW J:   It would be odd, would it not - you use this expressison “proceedings” - it would be odd, would it not, if the result turned merely upon whether it matter No 1061 of 1994 or 1062 of 1994.  Is there not some concept involved of relationship between the proceedings, unrelated proceedings, some evaluative element in it, in the connection?

MR EINFELD:   At the threshold no, because once there is one is then testing the question on whether or not one ought to import a waiver in terms of it being unfair by reference to generalised notions of waiver that will vary infinitely according to the facts, ultimately for the purposes of determining whether or not there can be conducted a fair trial or there is any prejudice to the party seeking disclosure of the documents in the proceedings, because it is in these proceedings or proceedings number A, proceedings A, in which the privilege is invoked and in which it is sought to be overcome.

So, even if one were to assume related civil proceedings between the same parties at the least, at the least, one would have to find in proceedings A some unfairness qua the proceedings, the conduct of the proceedings, by a revelation of the documents in the other proceedings before one would be able to say that there should be waiver on the grounds of unfairness.  There may be a loss of the privilege because of the loss of confidentiality if, for example, the material were used in the other proceedings and read in open court or something of the kind.

It may even be, it may even be, that use of the documentation in the other proceedings which involved the disclosure to the plaintiffs in case A where the privilege was asserted by the defendant may mean that qua the plaintiff the confidentiality is no longer maintained.  We would submit not, but it might even be.  That has nothing to say about the facts of this case where there is just a total absence of any suggestion that the plaintiff suffers some unfairness in the conduct of the civil proceedings of any kind.

Now, your Honours, that is all I wanted to say about the passages from the judgments in Maurice, but it is our submission, as I foreshadowed earlier, that there is simply no room for the application of imputed waiver doctrine based on fairness considerations from disclosure of documents beyond facts of the kind considered in Maurice, that is the use of a document in proceedings such as will convey an inaccurate perception of the privilege documents or the privileged communications and some other conduct in the proceedings by using part of or adverting to privileged material so as to lead the other side to conduct or regulate its conduct in a particular way in the proceedings so as to suffer some prejudice.

TOOHEY J:   Well, put that way, Mr Einfeld, you do not appear to be arguing that confidentiality of itself is a bar to waiver.  You seem to let in the possibility that even where confidentiality exists, this limited notion of unfairness may operate to constitute waiver.  Is that the way that you are putting it?

MR EINFELD:   Conceptually that is so in the sense that we say that the doctrines are distinct.  One could maintain confidentiality theoretically.  Yet, I suppose, if one maintained confidentiality in documents B, C and D, yet used in the proceedings document A which either referred to B, C and D or was based upon them in Maurice concepts, it is conceivable that there might be by the use of document A, no longer therefore confidential, an imputed waiver of the privilege with respect to documents B, C and D even ‑ ‑ ‑

TOOHEY J:   Yes, but put that example to one side and just assume that we are only talking about one document.  If that document is made available to a third party on a condition of confidentiality, do you say that in no circumstances then can there be an imputed waiver, or do you say that there may be in a limited concept of unfairness?

MR EINFELD:   No.  It is our submission that - and provided confidentiality in the privileged document is maintained in the sense we have discussion - that there is no operation for the ambit of a document of imputed waiver on unfairness grounds within the confines of the doctrine as we say is and should be so confined, because once the confidentiality is maintained, there will be no use of it by the privilege holder in a manner causing prejudice to the other party without, in some way, using it so as to disclose its content.

TOOHEY J:   Yes, I understand the submission.

MR EINFELD:   Yours Honours, we have submitted that there is no room for application of imputed waiver on fairness considerations by reason of disclosure of documents beyond Maurice-type facts, because if one were to discard the two pre-conditions necessary to the decision in Maurice, use and prejudice in the litigation, the Court becomes necessarily engaged in the very balancing exercise which we foreshadowed shortly ago, this Court in Waterford declared to be impermissible.

May we just remind your Honours of what this Court said in Carter in June of this year.  It is Carter v Managing partner Northmore Hale Davey & Leake (1995) 129 ALR at 593. As your Honours will be aware, the argument there was whether the privilege ought be subject to an exception in the case of an accused person in criminal proceedings, and the question was, of course, the compellability of production of such documents in those kinds of proceedings, but the Court took the opportunity to re-state the principles of legal professional privilege. I do not want to read all the passages by any means, but we just ask your Honours to note the passage at 594 in the judgment of the Chief Justice commencing at line 29 as to the acceptance of the general rule that:

the legal professional privilege prevails over an obligation to produce documents on subpoena unless the privilege is excluded or cut down by a clear statutory provision.

The passage in Grant v Downs is extracted at page 595, and I only pause for a moment to draw your Honours’ attention to that part of the passage in the joint judgment commencing at line 10:

The existence of the privilege reflects, to the extent to which it is accorded, the paramountcy of this public interest over a more general public interest, that which requires that in the interests of a fair trial litigation should be conducted -

Your Honours, it is our submission that once you go beyond the questions that we have said are necessary for the operation of imputed privilege on fairness grounds by reason of disclosure of documents, you are entering into the debate about whether it would be fair; whether it would be proper in the interests of the conduct of a fair trial to permit the court to abrogate or remove the privilege which this passage reminds us has already been held to be a public interest subservient to the public interest in the non‑disclosure of confidential legal documents.  Then there is the passage from Attorney‑General v Maurice set out, and then may we turn to the passage at 596 where his Honour made reference to his judgment in Waterford.  Then proceeded, at line 15:

There is, of course, a public interest in having available all evidence relevant to the issues in litigation.  And that public interest encompasses the public interest in achieving fairness in the trial of a person charged with a criminal offence.  Although the public interest in having all relevant evidence available is, to an extent, defeated by the privilege, there is no occasion for the courts to undertake a balancing of public interests: the balance is already struck by the allowing of the privilege.  As Mason and Wilson JJ said in Waterford:

Legal professional privilege is itself the product of a balancing exercise between competing public interests whereby, subject to the well‑recognised crime or fraud exception the public interest in “the perfect administration of justice” is accorded paramountcy over the public interest that requires, in the interests of a fair trial, the admission in evidence of all relevant documentary evidence.  Given its application, no further balancing exercise is required.

Similar passages are cited elsewhere in the judgment in Carter. Can I just, before I put it away, draw your Honours’ attention to the passage in the judgment of Justice Deane at page 601 where your Honour cites an extract from the judgment of Justice Dawson in Attorney‑General (NT) v Kearney where his Honour said:

More importantly, one it [ie legal professional privilege] is claimed it is conclusive, provided that the relevant communication does not fall within the recognised exceptions.  It is not for the court to enter upon a balancing exercise as in the case of Crown privilege in order to determined where the public interest lies in the individual case.  It is established that as a matter of principle the public interest lies in preserving the confidentiality of those communications falling with the ambit of the doctrine.

In answer to what Justice Gummow put to me earlier, once one brings to account other proceedings or other kinds in order to see whether it is fair, having regard to the fact that you have shown a document or produced a document in some other proceedings, as to determine whether or not it is fair in the subject proceedings that the privilege should be maintained, in our respectful submission, one is entering into the very sort of exercise which the court injuncts us is impermissible.

That is why we say this question of loss of confidentiality is, on the facts of this case, really the only relevant consideration because you just do not have occasion to consider generalised questions of fairness on the facts of this kind of case.  Once privilege is established, we submit, there is no room for the argument that within the conduct of the proceedings the mere invocation of the privilege results in some generalised unfairness.  So that absent any prejudice from use of the document in the proceedings, there can be no relevant unfairness, in our submission.

As we pointed out earlier, there cannot be unfairness, as I think I said in answer to a question of Justice Dawson earlier, in the fact that the respondents in this case are left unaware of what is in the appellants’ proofs of evidence, albeit it they were produced to the Law Society, because that is the inevitable consequence of the application of the privilege itself and there is no additional unfairness to them by dint of their use extra the proceedings than there is - arises from the application of the privilege.  There is no inaccurate perception or anything of that kind and there is no regulation of their conduct in the sense used by Sir Frederick Jordan in Thomason.

May we then turn to the third consideration that has arisen in the cases as a basis for determining in this case as the President below held that there was disclosure for a single purpose on one occasion which, as he held, does not violate the application of the privilege in the subject proceedings.  It will be necessary to take your Honours just briefly to the passages from the cases, I think, so that one appreciates the context in which this Court came to deal with this question of limited disclosure both in the judgment of the President, a minority, a judgment by and away which appears to have been adopted by at least two or three single judges since the decision in the Court of Appeal in this case in preference to the majority view, but His Honour Justice Clarke also dealt with the English cases. 

The first of them is British Coal Corporation v Dennis Rye Limited (1988) 1 WLR 1113 which was a case in which the defendant had represented to the Coal Corporation work which it had done, what was said to be false invoices, as a result of which civil proceedings were commenced by the Coal Corporation against the building contractor and statements and reports prepared for the purpose of the civil proceedings were provided to the police on request to assist the police in their criminal investigations and in the course of the criminal proceedings some of the documents were produced to the defendants under the English Rules.

In the principal judgment Lord Justice Neill at page 117 describes the documents at letters C and D and records that the documents were, in fact, privileged and then deals with the question of waiver at page 1120H where his Lordship said:

I turn, therefore, to the second ground relied on by the plaintiff.  This ground, which may not have been as fully developed before the judge.....Legal professional privilege of the kind which is relied on in this case is a rule of evidence -

the view here ‑ ‑ ‑

GUMMOW J:   Is that right?

MR EINFELD:   No, it is not, not in Australia.  Here it is a fundamental common law right as Waterford and Grant v Downs and the other cases remind us:

which protects a party to civil litigation from being obliged to give discovery of documents which have come into existence for the dominant purpose -

also not right as a matter of the general law in Australia:

The documents with which we are concerned ‑ ‑ ‑

GUMMOW J:   Why are we being taken to this case in such detail if it rests on two false premises?

MR EINFELD:   On the relevant principle it is of great assistance.  Over the page:

So much is common ground.  The issue is whether this privilege has been waived or is otherwise no longer available to the plaintiff.  Thus it is said on behalf of the defendants that the privilege has been lost because these copy documents have come into their hands quite properly and in circumstances in which the plaintiff either gave its approval or acquiescence, or at any rate (in the case of the Category A documents) where the plaintiff ought to have foreseen that by making the documents available to the police copies might reach the defendants in accordance with the practice authorised by the Attorney‑General’s guidelines.  It is further argued that if the plaintiff had wished to preserve its privilege it should have declined to make any documents available in the criminal proceedings, except pursuant to an order of the court, and even then only on the basis that it expressly reserved its privilege.

In my opinion this part of the case can be dealt with quite shortly.  The documents, when they came into existence, were plainly protected by legal professional privilege of the kind to which I have referred. The privilege was a privilege from discovery in the action for which they were prepared, that is, the present action.  Has anything happened which has caused that privilege to be waived or otherwise lost?

In my judgment the answer to this question is plainly “No.”  Let it be assumed that all the documents have come into the possession of the defendants with the implied consent of the plaintiff and that it could be established that they would have supplied the Category B documents even without an order of the court.  Nevertheless it is clear that the plaintiff made the documents available for a limited purpose only, namely to assist in the conduct first of a criminal investigation and then of a criminal trial.  This action of the plaintiff, looked at objectively as it must be, cannot be construed as a waiver of any rights available to them in the present civil action for the purpose of which the privilege exists.

Then he goes on to deal with the inadvertent disclosure or discovery cases.  Can I just draw your Honours’ attention to the very last sentence on the page parenthetically:

Its action in regard to both the Category A and the Category B documents was in accordance with its duty to assist in the conduct of the criminal proceedings -

there is no legal duty upon the private civil litigant to assist in the conduct of the criminal proceedings, and what his Honour can only be referring to is that as a citizen in possession of documents of relevance; they would be produced to assist the authorities in upholding the law.  By analogy, we say we produced the documents to assist the Law Society in its investigation, if anything more than simply in response to a request -

and could not properly be construed as an express or implied waiver of its rights in its own civil litigation.  Indeed, it would in my view be contrary to public policy if the plaintiff’s action in making the documents available in the criminal proceedings had the effect of automatically removing the cloak of privilege which would otherwise be available to it in the civil litigation for which the cloak was designed.

In that judgment the other two judges of appeal concurred.  Your Honours, there was no condition of confidentiality imposed.  There may have been one implied perhaps, but this case founds upon what is said to be a disclosure for a limited purpose which cannot be held as a matter of policy to be inconsistent with the maintenance by the privilege holder of that privilege in the civil proceedings in which it was engaged.

The next case is Goldman v Hesper, also a judgment of the Court of Appeal, differently constituted, in the same volume, (1988) 1 WLR 1238, a case in which documents were produced on taxation of costs. The question was whether a party seeking taxation of its bill of costs and producing documents to the taxing officer thereby waived privilege in the documents such that the taxing officer was obliged to show them to the contesting party - put the other way, whether the contesting party was entitled to see the documents - the privilege in them, it was asserted, having been waived. In the principal judgment of Lord Justice Taylor at page 1244, his Lordship made reference to an earlier decision of Justice Hobhouse in Pamplin’s Case.  At line C:

Normally, where privilege exists it applies to protect disclosure not only to the opposing party, but also to the court.  So the rule clearly makes inroads into that general protection.  It follows that once a party puts forward privileged documents as part of his case for costs some measure of their privilege is temporarily and pro hac vice relaxed.  In most cases, as Hobhouse J observed in Pamplin’s case, no problem would arise on taxation about privilege.  However, when the problem does arise the taxing officer has the duty of being fair to both parties:  on the one hand, to maintain privilege so far as possible and not disclose the contents of a privileged document to the party unnecessarily;  on the other hand, he has to see that that party is treated fairly and given a proper opportunity to raise a bona fide challenge ‑

procedure on fairness considerations.

The contents of documents will almost always be irrelevant to considerations of taxation which are more concerned with time taken ‑

et cetera:

the approach adopted by Melford Stevenson J in the Hobbs case was too rigid and uncompromising.  There may be instances in which a taxing officer may need to disclose part, if not all.....He will no doubt use all his expertise ‑

et cetera.  The next paragraph:

It would not be practicable or helpful for this court to seek to lay down any firm criteria as to the circumstances in which such an extreme course may be necessary.  All will depend on the facts of the individual case.  One factor which may affect the course taken by the taxing officer may be whether the party is represented ‑

and then down to the sentence at H:

Although the approach suggested by Hobhouse J may only rarely be practicable, it too may in a proper case be a useful resort.  Any disclosure of privileged documents which does have to be made in the exercise of the taxing officer’s discretion would in my judgment be only for the purposes of the taxation.  That it is possible to waive privilege for a specific purpose and in a specific context only is well illustrated by the decision of this court in British Coal Corporation v Dennis Rye Ltd ‑

and then sets out the short facts and the passage from Lord Justice Neill that I mentioned earlier.  At page 1245C:

By the same token voluntary waiver or disclosure by a taxing officer on a taxation would not in my view prevent the owner of the document from reasserting his privilege in any subsequent context.

In our submission, that is to the same effect as before.  And the third of the United Kingdom cases to which we wish to make reference is Downey v Murray (1988) NI 600.  Another case in which privileged statements prepared by a litigant for the purpose of civil litigation was given to the police to assist in a police investigation, this time into a motor traffic accident. 

Justice Carswell at 602D deals with the question of whether the document was privileged and holds that it was, and then at page 604 deals with the present matter.  I by no means will read all of it, but at the top of the page says:

It was submitted by counsel for the defendant that the effect of sending a copy of the statement to the police was that the privilege was waived, and that that waiver was final and unconditional and could not be withdrawn.  Much of the argument centred round the decisions -

which his Honour held to have turned on different points, the facts I will not trouble your Honours with for a moment.  The English Court of Appeals dealt with it in British Coal Corporation, which he sets out on the remainder of the page, and then at 605 makes reference to Goldman v Hepser and then says:

I respectfully agree with the reasoning of the court in the two cases which I have just cited and propose to follow it.  When one applies it to the present case, the conclusion follows that the plaintiff’s solicitors were entitled to impose the condition upon their use of the copy statement which is expressed in Mr Hasson’s affidavit.

That is, the condition that they not be used for any other purpose than the police investigation:

The waiver of privilege was limited to the purposes specified by them, and when the police decided not to prosecute the defendant the privilege remained intact.  The defendant is accordingly not entitled to require the police to disclose the document to his advisers.

Now, your Honours, similar considerations have arisen, although slightly differently expressed, in one New Zealand case and a number of local cases.  When I say local, Australian cases.  Can I just quickly take your Honours to the passage in the judgment of Justice Henry sitting in the High Court in New Zealand in Harbour Inn Seafood’s v Switzerland General Insurance Company (1990) 2 NZLR 381, a case in which an insured suing its insurer produced privileged documents in the form of statements to his insurance broker for his inspection, and the question was whether that limited production waived the privilege. At 383, line 33, his Honour said:

It is clear that privilege can be waived.

He gave some examples in some other cases, the mistaken discovery case and the like, and at line 48 makes reference to Chandris Lines:

where Barker J held there had been a waiver of privilege claimed in respect of an analyst’s report where the party had publicly notified -

and we notice “publicly notified” -

the existence of the report and also publicly disclosed part of its contents.  Privilege was held to have been lost in respect of the whole report.

The critical question in the present case is somewhat different, being whether the disclosure to another person, namely Heath, is an effective waiver of privilege.  The privilege claimed here is from disclosure to the defendant and the question of a claim of privilege as against Heath is not presently in issue.

So in this case, we remind the Court there is no question of disclosure here as against the Law Society.  It is against the Ngs in the civil proceedings.  His Honour said:

In my judgment the fact of disclosure of a document when confined to a particular non-party does not necessarily constitute a waiver of privilege available to a party seeking production.  In principle, it seems to me that disclosure, for example by a plaintiff to an associate or confidant -

We submit that means party under a duty of confidence, or obligation of confidence -

unconnected with the proceeding of written legal advice on a claim against a defendant, in ordinary circumstances would not and should not constitute a waiver as against the defendant.

Reference is then made to the rules and having put aside the question of whether or not Heath was the agent of the other party  His Honour picks up the matter at line 25:

The restricted nature of the disclosure to Heath, which I infer was deliberate and not mistaken; was not in the circumstances of this case an effective disclosure to any person including the defendant other than Heath, and there has been no use made by the plaintiff of the documents -

in terms of Maurice principles -

The disclosure consequently does not operate as a waiver in favour of the defendant, and the privilege maintains.

I just want to come to some of the Australian cases.  The next matter we wish to take your Honours to is the decision of Mr Justice Giles in the Supreme Court of New South Wales in Woollahra Municipal Council v Westpac Banking Corporation (1992) 33 NSWLR 529 in which the Council sued the Bank to set aside some mortgages given over land, but also sued its former solicitors with respect to their preparation of those mortgages, and the relevant passage is at 536 of Justice Giles decision - this judgment preceding the decision of the Court of Appeal in the instant case, but following the judgement of Justice Young at first instance. At 536F his Honour records that:

the documents attracted the privilege as documents brought into existence for the sole purpose -

At G:

the principal argument was that the privilege had been impliedly waived in the manner considered in Attorney‑General for the Northern Territory v Maurice -

Then deals with Maurice for the next couple of pages.  Then may I pick up the argument at line F where reference is made to the judgment of the trial judge at first instance in the present case.  At page 538 F:

Abbott Tout then referred to the decision of Young J in Ng v Goldgerg, it seems for the proposition that a person entitled to claim legal professional privilege in relation to documents had to elect to maintain the privilege or to waive it, and by making the documents available to a third party had elected to waive it.

MR EINFELD:   Your Honours, at 538 Mr Justice Giles considers the judgment of Justice Young below in this case, deals with the facts, and then says, just below the letter G, the next sentence:

In that part of the judgment to which the solicitor referred, His Honour held that it did not matter what the officer of the Law Society said and that the solicitor’s election to waive the privilege had effect notwithstanding the assurance given to him.  It is necessary to look elsewhere in the judgment for his Honour’s decision that there had been a waiver, and his Honour so decided on the ground that the solicitor was in an adversary position as regards the client in the Law Society’s investigation and the principles of implied waiver in the interests of fairness applied.  It is evident the present is a quite different case, and I do not think that Ng v Goldberg assists.....because it must always be asked whether there has been a waiver, express or implied, constituting an election.

There may, of course, be implied waiver in the interest of fairness in a manner other than that considered in Attorney-General for the Northern Territory v Maurice.  That may occur, for example, where a party puts in issue in proceedings the nature of legal advice received -

as in Thomason -

or, more widely, the conduct of that party’s lawyers in carrying out their retainer.

In Benecke, that is where the erstwhile client sues the solicitors arising out of their relationship:

But disclosure to a third party - here, disclosure by the Council to the inspectors -

government‑appointed inspectors investigating the land dealings -

does not mean that fairness requires disclosure to anyone else with a reason for seeing the documents, other than in the general sense that it would be unfair for the person entitled to the privilege to assert it when the privilege had been lost by the disclosure.  The loss of the privilege would found the unfairness, not the other way around.

That suggests the argument which should have been put by Abbott Tout.  Although Abbott Tout did not take the matter further, in referring to Ng v Goldberg it did touch upon loss of the privilege by disclosure to a third party.  As was said in Ritz Hotel.....it is essential that the material for which the privilege is claimed by confidential so far as concerns the person from whom disclosure is sought.  If the material is published to all the world, it loses confidentiality and the privilege is lost:  the privilege is lost not by reason of implied waiver dictated by notions of fairness, but because of intentional disclosure of the protected material.  The Council intentionally disclosed protected material to the inspectors, not to all the world.  What degree of disclosure, and in what circumstances, is sufficient for the privilege to be lost in this way?

Not every disclosure to a third party is a waiver of the privilege.  Disclosure in accordance with a duty to disclose is not a waiver -

See British Coal and Bulk Materials -

inadvertent disclosure in the course of discovery is not a waiver.....although non-inadvertent discovery of a document for which privilege could have been claimed is a waiver.....Disclosure to an expert witness for the purposes of proceedings is not a waiver.....disclosure to a party’s accounting adviser in connection with proceedings is not a waiver.....In Harbour Inn.....in which it was held that disclosure to an insured’s broker was not a waiver, it was said that when confined to a particular non-party disclosure did not necessarily constitute waiver of privilege, that disclosure by a plaintiff to an associate or confidant unconnected with the proceedings of written legal advice on a claim against a defendant in ordinary circumstances would not and should not constitute a waiver as against the defendant, and that the restricted nature of the disclosure to the broker was not an effective disclosure to any other person and did not operate as a waiver.  In Bulk Materials.....disclosure by an insurer to its insured was not a waiver because of their common interest.

In Ng v Goldberg, Justice Young found assistance in Attorney‑General for the United Kingdom v Heinemann -

the Spycatcher case -

and in Westpac Banking v John Fairfax.....which were concerned with protection of confidential information and considered whether information once confidential had been noised abroad to such an extent that it could be regarded as being in the public domain.  It may be that this is not an analogous situation -

see Hartogen again -

but the particular circumstances and the whole of the particular circumstances must be considered to see whether the person entitled to the privilege has so acted that the confidentiality essential to the claim has been abandoned.  That does not mean that disclosure in confidence will always preserve the privilege, but terms of confidentiality may assist in doing so.

In other words, I suppose if BHP disclosed to all its shareholder or if a council disclosed to all its ratepayers advice received from its lawyers, then the mere imposition of a condition of confidentiality may not be enough because the document will have effectively been “noised abroad” or come into the public domain in the context in which confidentiality is discussed in the confidential information cases:

In the present case -

at page 540 D his Honour said:

the disclosure was confined to the inspectors, and the department’s response to the subpoena demonstrated no greater dissemination of the relevant documents than flowed from the fact that the inspectors were officers of the department.  The disclosure was required by the Council to be on terms of confidentiality, and there is nothing to suggest that the confidentiality was not respected.  While there may be a waiver even if the person entitled to the privilege, or the person to whom disclosure is made, purports to preserve it (eg, Ng v Goldberg), that the confined disclosure was on terms of confidentiality is relevant to whether or not there was a waiver, and although later in these reasons I suggest that an assurance of confidentiality could not properly be given by inspectors that does not detract from the Council’s endeavour to retain confidentiality.  Albeit intentional, the disclosure was under threat of compulsory process and for the purpose of enabling the inspectors to carry out their statutory duty.....I do not think that the provision of documents subject to legal professional privilege to the inspectors was a waiver of privilege.

The balance of the judgment deals with public interest immunity with which we need not trouble the Court. 

Justice Giles then revisited the same question or a similar question following the decision of the Court of Appeal in this case in Network Ten v Capital Television (1995) 16 ACSR 138, a case, your Honours, in which the defendant’s solicitor had given some advice which was shown by the recipient of the advice to a potential purchaser of shares and its banker of shares in the company upon a condition of confidentiality. The plaintiff sought again to subpoena the documents from the third party to whom they had been given and this time reference was made to the Court of Appeal’s decision.

After dealing with questions of relevance his Honour then dealt with the matter at page 141 under the heading “(b) Legal professional privilege.”:

The second question was whether legal professional privilege protected the letter of advice from access or inspection.  As I have said, it was not in dispute that the letter of advice initially attracted legal professional privilege in the hands of CTHL, and it was not suggested that the involvement of CTGL altered that position.  But it was disclosed to SC and ANZ.

If I can just pass over the next five lines.  They are all of a common interest.  At line 17:

If a Person entitled to claim legal professional privilege in relation to a document discloses the document to a third party having an interest sufficient for common interest privilege, the disclosure can not be a waiver of the privilege.  Beyond that, a person entitled to claim legal professional privilege in relation to a document does not inevitably waive, or inevitably completely waive, that privilege by disclosing it to a third party (see Woollahra Municipal Council v Westpac Banking Corporation).....and more recently Goldberg v Ng-

in the Court of Appeal:

I come later to the difference of view in that case over limited waiver or no waiver at all).  In each case, the disclosing party must be able to maintain his claim of privilege in the document in the hands of the third party:  were it not so the common interest privilege or the original privilege would be rendered nugatory.  But the two do not necessarily run together, because there may be non-waiving disclosure to a third party who does not have a common interest as that is understood.

Then he deals with common interest privilege again and turns to the present circumstance at page 144, your Honours.  At about point 7 of line 40:

It is therefore necessary to consider waiver by CT.  Was the disclosure to SC -

that is the potential shareholder -

and ANZ a waiver by CT of the legal professional privilege otherwise attaching to the letter of advice?  In Woollahra Municipal Council v Westpac Banking Corporation I held that the council had not waived legal professional privilege in making documents available to confined recipients, on terms of confidentiality and under threat of compulsory processes to enable the recipients to carry out their statutory duties.

Then refers to that case and then to the first instance decision in Ng v Goldberg at page 145 line 17 and then says at line 28:

What I there said must be taken subject to the decision of the Court of Appeal in Goldberg v Ng where there was further consideration of the effect of limited disclosure.

Then cites the passage from the judgment of Justice Kirby below where the president made reference to the English cases and the Irish case to which we have taken you and then at page 146 says in the first fresh paragraph at line 5:

The reasoning of Mahoney JA turned on unfairness if the relevant documents could be used to procure a result adverse to the opposite party but were not disclosed to them, something not arising in the notion of limited waiver accepted by Kirby P.  His Honour found it unnecessary to pursue the cases to which reference had been made in relation to waiver by disclosure to one or a limited group of persons.

Clarke JA also saw fairness as determinative, but considered in some detail its connection with waiver.  His Honour observed that, putting aside express waiver, the question was whether the conduct of the person claiming the privilege had been such that the law should impute a waiver.  Asking whether the conduct was inconsistent with the confidence preserved by the privilege was insufficient, and the privilege would be found to have been waived if:

... the party has so conducted himself or herself that the law imputes to that party an intention to waive the privilege and such imputation will occur when the party (or his or her agent) intentionally performs a deliberate act which renders it unfair to another party that the privilege be maintained.

It followed from his Honour’s view that loss of confidentiality in itself did not destroy the privilege, and also that his Honour took a different view of limited waiver from that taken by Kirby P.  After referring to the facts of and setting out a passage from British Coal Corporation v Dennis Rye Ltd(No 2) (1988) 1 WLR 1113; (1988) 3 All ER 816, his Honour said:

The actual finding in British Coal Corporation v Dennis Rye Ltd (No 2) was that the plaintiff’s actions in providing the documents to the prosecuting authorities and complying with the order of the trial judge did not constitute an express or implied waiver of its rights in its own civil litigation.  There was no express waiver and the court would not impute an intention to waive to the plaintiff.  Notwithstanding, the decision has been interpreted in later cases as authority in support of the proposition that a party may limit the extent of the waiver of its privilege -

references to Goldman and Downey:

With the greatest of respect to the learned judges who decided those cases I do not share their view.  In my opinion, British Coal Corporation v Dennis Rye Ltd (No 2) stands as authority for the proposition that the particular conduct of the plaintiff did not constitute a waiver of the privilege which the plaintiff enjoyed in the relevant documents and simply demonstrates the fact that there is no universal rule that the disclosure of documents produced for the sole purpose of seeking legal advice or litigation to a stranger to that litigation constitutes a waiver of the privilege in that document.
           ...
           The appellants have submitted that the documents were provided for a limited and specific purpose only, namely to assist the Law Society in the conduct of its investigation; and they were given explicitly upon condition -

of confidence.  They rely on British Coal and the cases that followed:

They also submit that there is no element of unfairness in permitting them to maintain their privilege.

There can be no question of express waiver in this case.  Goldberg was at pains to ensure that confidentiality in the material he had prepared for submission for legal advice was maintained.  The only question which does arise is whether the law should impute a waiver in all the circumstances.  Put another way; Do considerations of fairness require that the disclosure of the material to the Law Society be treated in law as a waiver of the privilege in favour of the respondent?

Then Justice Giles went on:

The result is the same whether it is said that the circumstances of the disclosure are such that there has only been a limited waiver or that the circumstances of the disclosure are such that considerations of fairness do not require the imputation of a waiver, and to that extent the divergence between the President and Clarke JA may be one of semantics rather than substance.  Whatever the description of the result and whatever the test, Goldberg v Ng underlines that there can be limited disclosure without relevant loss of legal professional privilege.

Your Honours, I just want to pick up that in so saying, Justice Giles is effectively applying the judgment of the President below rather than that of the judges in the majority.  I do not need to then deal with the factual matters.   His Honour then picks it up at line 22:

In the present case I do not think it matters which approach be taken.  The disclosure by CT was to a limited number of persons, on terms of confidentiality, and with emphasis both on confining the dissemination of the letter of advice and on regaining copies of the letter of advice once the purpose of the disclosure had been served.  Although I have held that there was not a common interest in those concerned, there was an evident purpose to be served by the disclosure, a purpose which accommodated the limited extent f the disclosure and a purpose the fulfilment of which caused and causes no unfairness to NTL.  While there was not the public duty mentioned in British Coal Corporation v Dennis Rye Ltd (No 2) or the prospect of compulsion mentioned in Woollahra Municipal Council v Westpac Banking Corporation, there must have been something approaching a commercial imperative in suitably informing SC and ANZ of the advice which CT had received.  If the correct approach be that there can be limited waiver without loss of the privilege.....in my opinion this is a case in which it should be held that there was a limited waiver; if the correct approach is that the law will not impute a waiver unless a party intentionally performs an act which renders it unfair to another party.....I do not think that it would in the circumstances be unfair -

Your Honours, we invoke those kinds of considerations as applicable to the facts of just this case.

Finally, of the recent cases can I refer your Honours to the unreported judgment of Mr Justice Lockhart in Optus Communications Pty Limited and Others v Telstra Corporation Limited, a decision of 27 April 1995 in which just briefly, your Honours, there was disclosure by Telstra to the Minister who was for the relevant purposes treated as a third party, arm’s length third party, of documents which contained legal advice received by Telstra.  His Honour at pages 8 and 9 of the unreported judgment outlines the submissions that were made to him.  At the foot of page 8:

Optus makes two principal submissions:  first, that none of the documents is a document to which legal professional privilege attaches in its own right, and secondly, that to the extent to which the documents convey legal advice received by Telstra, any privilege has been waived by disclosure of that material to the Commonwealth.  Both propositions are denied by Telstra.

He then deals with the first proposition about which we do not need to trouble the Court.  At page 13 he upholds the claim to privilege and refers to some of the documents.  Then at page 14, point 7:

It was not suggested in argument that the communications between Telstra and the Minister or the Department are to be regarded other than as communications between Telstra and a third person for the purposes of the law relating to third party communications.....I turn then to the question whether the legal professional privilege of Telstra has been impliedly waived.

First, there is no absolute rule that disclosure of legal advice to a third party necessarily constitutes a waiver of privilege in respect of that advice -

citing the Court of Appeal decision below -

Certain of the documents.....were produced on discovery inadvertently.

I need not trouble your Honours about that.  In the next paragraph:

Whether there is an implied waiver of legal professional privilege turns generally upon whether there has been some conduct, on the part of the party asserting privilege, that renders it unfair -

in Maurice terms -

The circumstances in which unfairness may arise will vary, but not uncommonly unfairness arises in circumstances where it is misleading or unfair to allow a party to refer to or use privileged material, and yet assert that the material itself (or material associated with it) is privileged from production.  The privilege may be waived, for example, if part of a document is read -

et cetera.  Then at page 16, second paragraph:

There are many cases where waiver of privilege occurs.  In the case of a document that is made available to a third party to litigation, but where the disclosure is made for a specific and limited purpose without elements of unfairness to the opponent, waiver is not lightly implied:  see British Coal ‑ ‑ ‑

TOOHEY J:   Mr Einfeld, these passages are simply repeating really what has been said already, are they not?

MR EINFELD:   Yes, your Honour.  I was leading to and will not go any further than the reference at the top of page 17, relying upon the decision of the Court of Appeal below where his Honour held that:

a party asserting privilege in respect of a document makes a limited disclosure.....that privilege and confidentiality will be maintained -

where the condition is accepted.  That is all I need to trouble your Honours about there.

The last case to which I wanted to take your Honours was the decision of Sir Frederick Jordan in Thomason (1939) SR (NSW) 347. I do not need to go through it in any detail. The relevant two paragraphs are at pages 355 and 357 extracted by Justice Clarke in the apperal book at page 187.

My only purpose in taking your Honours to the case itself is its treatment of the earlier English authorities that the Chief Justice affords in leading to the conclusions to which he comes at 345, where his Honour says:

I must say that in the absence of authority, I should have thought the point hardly capable of argument.  The mere fact that a person on some one occasion chooses to impart to another or others advice which he has received from his solicitor indicates no intention on his part to waive his rights to refuse on other occasions to disclose in evidence what that advice was, and supplies no sufficient reason for depriving him of a form of protection once the law has deemed it specially necessary to throw around communications between solicitor and client.

And then having dealt with the English decisions at page 356 and 357, the English decision, that is Minter v Priest - I will not take your Honours to the passages - but suggests that the rule which had been set up as the rule - contain the rule from which could be extracted the principle that a limited disclosure nonetheless constituted a waiver.  It says:

the rule.....from this authority may therefore well go no further than this, that if a communication made upon a privileged occasion is disclosed to a third party by a person who is entitled to the benefit of privilege, and the third party is led by the disclosure to regulate his conduct in relation to some matter which becomes relevant in subsequent litigation to which he is a party, the otherwise privileged party cannot on the ground of privilege refuse to give evidence as to the nature of the privileged communication if questioned on behalf of the third party.

It is true that does not purport to be an exhaustive statement of principle but, when one combines the two statements, starting with the latter, whereby, whilst there may be an argument that suggests that disclosure to the third party, if he regulates his conduct in relation to a matter relevant to litigation in which that third party is privy, then there may be a waiver qua him, but otherwise the privileged party cannot, on the ground of that disclosure, be held to have lost his privilege.  In the first statement, we would submit, is a most unequivocal statement supported so many years later ‑ 50 years later ‑ by the English cases and the other single judge, first instance decisions which follow the English cases, that

disclosure to a single party on a single occasion for purposes unconnected with litigation in no way involves a loss of disclosure so as to defeat the privilege in the subject proceedings;  no loss of confidentiality.

Your Honours, for those reasons, it is our submission that, on the facts of this case, no doctrine of imputed waiver of the kind considered in Maurice has any application.  Secondly, that if one looks at the case in terms of disclosure leading to a loss of confidentiality, there is no loss of confidentiality in any relevant sense in this case.  Finally, if one looks at the case in terms of whether there is a production of a document to a third party for a limited purpose, the facts of this case fall amply within those considerations.

Despite the urgings of our learned friends in the written document, there is just no evidence below that this document was given to the Law Society with ulterior purposes in mind or in order to achieve any special advantage or disadvantage in order to procure, for example, the dismissal of the complaint.  The evidence is as we have pointed to it and the evidence in this case, in our submission, reveals no unfairness which is the critical question in terms of imputed waiver.  What is the unfairness in the conduct of this litigation which production to the Law Society can possibly have produced?

There is no suggestion, certainly in the written outline even now let alone in any of the judgments below, no suggestion that there can be any unfairness in the conduct of the civil case, of this case, by reason of anything the appellants may have done.  In those circumstances we respectively submit the appeal ought to be upheld.

GUMMOW J:   Now the orders you would seek, are they still sufficiently set out at page 196?

MR EINFELD:   Would your Honour just pardon me.  It is a question one ought always come prepared for and we looked at it some time ago.  Yes, your Honour.  If the Court please.

DEANE J:   Thank you, Mr Einfeld.  Yes, Mr Lindsay.

MR LINDSAY:   May it please the Court.  Your Honours, we would rely on the submissions made in our outline of submissions of 11 August.  At the heart of the respondents’ submissions are the following propositions:  first, the conduct of Mr Goldberg in producing documents to the Law Society must be judged against the purpose which legal professional privilege is intended to serve; secondly, the conduct of Mr Goldberg did not serve that purpose.  The Law Society was a stranger to the privilege claimed by Mr Goldberg; it was not in any sense a legal adviser to him.  The concept of confidentiality in this context must be related to the purpose of the confidence. 

Here the Law Society was a stranger to that purpose for which legal professional privilege protects confidence; the Law Society was a public body with public responsibilities, not a privy to Mr Goldberg’s personal position; thirdly, not only did Mr Goldberg’s conduct not serve the purpose of the privilege, it was fundamentally inconsistent with that purpose in two respects: first, it was a deliberate disclosure on two occasions, and one might add, a continuing disclosure in a sense that documents were left with the Law Society, to a stranger to the privilege for a purpose foreign to the privilege; secondly, it was conduct of an adversarial character against former clients, using for his own advantage information available to him, only because he had acted as the respondents’ solicitor for many years.

TOOHEY J:   Mr Lindsay, your list of topics includes under (C) no legal profession privilege attached to the subject documents.  Are we to read that literally or as meaning that any legal professional privilege was lost by reason of lack of confidentiality?

MR LINDSAY:   That part of the submissions deals with - there are two aspects in which confidentiality arises and of course ‑ ‑ ‑

TOOHEY J:   No, it was the first part of it.  I understood that the appeal was being argued on the footing that the documents were the subject of legal professional privilege.  The only question would have been had that privilege been lost.

MR LINDSAY:   We have a notice of contention which says that because of the relationship of solicitor and client that had existed between Mr Goldberg and the respondents there was no privilege attaching.  That part of the written submissions is directed to that notice of contention and those submissions.

TOOHEY J:   I must confess, having read the notice of contention, I did not understand it to go so far as to say that the documents did not of their very nature attract legal professional privilege, but is that what you are saying?

MR LINDSAY:   Yes, because they were documents which included information which was either privileged to the respondents or, alternatively, if one deals with it more broadly, confidential to the respondents, that information having become available to Mr Goldberg solely because he had acted as their solicitor.

TOOHEY J:   I do not want you to interrupt the flow of your argument, but can you just point to where in the notice of contention that matter is raised?

MR LINDSAY:   It appears at page 198.  It appears in grounds 2 and 3.

GUMMOW J:   That is fairly succinct.  Where do we find the third submission? 

TOOHEY J:   That seems to be put on some footing of confidentiality or, from your point of view, lack of confidentiality and I understand how that arises in the context of waiver, but you seem to be taking us back on one view to first base, namely, whether the documents ever attracted legal professional privilege in the first place.

MR LINDSAY:   That submission is intended to do that.  And the third submission - - -

GUMMOW J:   Is it 108?

MR LINDSAY:   It is at page 97.

GUMMOW J:   Page 97, is it?

MR LINDSAY:   Your Honour Justice Gummow is correct, there is a reflection of it at page 108, as well.

TOOHEY J:   Could I just ask you this, and I will not pursue this matter any further for the moment, but before the Court of Appeal was the matter argued on the footing that the first question, as it were, to be answered was whether legal professional privilege attached at all?

MR LINDSAY:   Yes, your Honour, there was a notice of contention in the Court of Appeal which was substantially the same as the notice of contention here, and the submissions put are substantially the same submission.

TOOHEY J:   How did the Court of Appeal deal with that?

MR LINDSAY:   They dodged it.  Your Honour, they assumed that there was material which was otherwise privileged and they dealt with the question of waiver, and they said that if it was otherwise privileged the privilege was waived.

GUMMOW J:   But the President would have had to deal with it?

MR LINDSAY:   Yes, the President did deal with it, and the President rejected the submission.

TOOHEY J:   For my purpose, that is enough so that I can understand the way in which your argument is going to run.

MR LINDSAY:   Yes, your Honour.  In relation to the availability of privilege, or privileged information, from the respondents, may I direct your Honours to the evidence in relation to that, and that appears in the appeal book ‑ ‑ ‑

GUMMOW J:    Just before you leave page 97, Mr Lindsay, what is set out there at line 20, looked at in another way, can be a matter going to unfairness, can it not, when looking at waiver?

MR LINDSAY:   Yes.  Similar considerations ‑ ‑ ‑

GUMMOW J:   Or implied waiver I should say.

MR LINDSAY:   Yes, similar considerations do arise in the context of waiver.

Your Honours, the evidence about the availability of what we would submit was privileged information - the evidence that we would submit establishes that there was privileged information, information privileged to the respondents, included in the material produced to the Law Society, appears centrally in the appeal book at page 46 between lines 25 and 45, culminating at line 45.  The material produced to the Law Society included information which was available to Mr Goldberg solely because he had acted as the solicitor for the respondents.  We know from earlier at page 42 that Mr Goldberg had acted as the solicitor for the respondents for about 15 years prior to mid 1989 when these questions arose.

TOOHEY J:   That must always be the case, must it not, if a solicitor is sued by his or her client and prepares material for the purposes of the litigation, that that material will include information which became available because of the relationship of solicitor and client?  Does that mean the solicitor must hand over the brief?

MR LINDSAY:   In our submission, the proper principles to govern such a situation would be those relating to public interest immunity.

TOOHEY J:   But if the solicitor prepares a statement to be handed to his solicitor for the purposes of the conduct of the litigation brought by the former client, does your argument go so far as to say that that proof of evidence must be handed over under discovery?

MR LINDSAY:   It would be our submission that in that context the principles of public interest immunity would be such to enable the documents in appropriate circumstances to be withheld.

TOOHEY J:   What is the public interest immunity?

MR LINDSAY:   The public interest immunity in that context would involve a balancing of the rights relating to obtaining legal representation.  The problem arises in this context and perhaps in no other context because of the multiple layer of relationships of lawyer and client.

GUMMOW J:   But it is always said that legal professional privilege is itself the outcome of such a balance ‑ ‑ ‑

MR LINDSAY:   Yes, and as a general proposition, we accept that and, indeed ‑ ‑ ‑

GUMMOW J:   You put it aside for this particular category, do you?

MR LINDSAY:   That is right, and that is because one is dealing at this particular level with confidences which are relative, and they are relative to the parties that are involved.  We would submit that the law can accommodate, in this particular context, the rights of the parties in the context of public interest immunity.

TOOHEY J:   But I am still not clear whether you are saying that the legal professional privilege that would otherwise exist, if you do concede that it otherwise exists, yields, because of the nature of the litigation between former client and solicitor or because the solicitor has handed over the material to the Law Society or whether it is some combination of those factors.

MR LINDSAY:   Well, there are two separate levels of submission.  The submission that we are dealing with at the moment under heading C in the outline of submissions deals with the position prior to any production of documents to the Law Society, and the submission is that, in that context, because of the - including in the material that we are examining information which was privileged or confidential to the clients, then the relationship between the solicitor and clients is not one such as to support a claim of privilege in the solicitor against the clients.

TOOHEY J:   And that is not, I take it, because of any public interest immunity, or is it, at that point?

MR LINDSAY:   No, at that point because the parties are, if you like, both privy to the question of the confidential relationship, we would submit that the question of privilege that we are dealing with is public interest immunity rather than legal professional privilege when we are examining the situation as between solicitor and client.  It may well be correct to describe the privilege as between the solicitor on the one hand or the client on the one hand and third parties as legal professional privilege but, when one is examining the relationship between the solicitor and client where both parties were privy to a relationship of confidence, it would be our submission that that can and should be accommodated in the law by reference to public interest immunity.

DAWSON J:   Is what you are saying the old way of saying it, that the privilege is the client’s privilege?

MR LINDSAY:   Ultimately, yes.

DAWSON J:   Of course, that is true, is it not, and the client may waive it or not, but not the solicitor’s privilege, you say.  I do not understand the reference to public interest immunity at all.  How does that arise?  Where is the public interest?

MR LINDSAY:   Your Honour, in relation to a dispute between solicitor and client where both, we would submit, are privy to the confidence ‑ ‑ ‑

DAWSON J:   But the privilege is only residing in one of them:  the client.  Is that not so?

MR LINDSAY:   Ultimately yes, that is so, but we have here the situation where those parties are in dispute and we submit that when one is examining that particular relationship and asking whether there was a degree of confidentiality sufficient to support a claim of legal professional privilege by the solicitor against the client, the answer to that must be “no” amongst other reasons.

DEANE ACJ:   Do you not have to distinguish though between the two stages?  I mean, documents or communications which were prepared or took place in pursuance of the solicitor/client relationship obviously cannot be privileged between them but when the solicitor/client relationship has finished and there are legal proceedings in train, documents which acquire their privileged nature by reason of having been prepared for the purpose of those subsequent legal proceedings have moved right outside the solicitor/client privilege and it is just not to the point to say, “Oh, but in terms of the existence of the privilege there is some material in them which was acquired pursuant to what happened and was protected by the privilege”.

MR LINDSAY:   The view that your Honour has put to me, in substance, is the view which was expressed by the trial judge Justice Young at page 112 of the ‑ ‑ ‑

DEANE ACJ:   Well, I am sorry.

MR LINDSAY:   And it is not without force but we would ‑ ‑ ‑

DEANE ACJ:   You are saying we should wait until Mr Einfeld puts it to us.

DAWSON J:   Are we talking about the privilege which arises in the solicitor as client because he has consulted a solicitor in the proceedings against him?

MR LINDSAY:   In this particular context, your Honour, we are dealing with competing claims of privilege.  On the one hand, the solicitor when he approaches his own lawyer must have some possibility of obtaining legal advice.  That much is, in our submission, accepted and proper.  By the same token there is a claim of legal professional privilege which the client has and in the situation where solicitor and client are at conflict, there are competing interests to be served and we would submit that those competing interests are best served in the context of public interest immunity.

TOOHEY J:   Can I just ask you this question to see how far the submission goes.  If consequent upon litigation between solicitor and former client the solicitor seeks legal advice, he is asked by his own solicitor to prepare a proof of evidence and in that proof of evidence recounts conversations between the solicitor and the former client, conversations which might be quite crucial, does your argument go so far as to say that under discovery in the litigation between former client and solicitor the solicitor must disclose that proof of evidence because it touches on matters which occurred while the relationship of solicitor and client existed?

MR LINDSAY:   Yes, subject to public interest immunity.

TOOHEY J:   Yes.  That is the only qualification you would admit?

MR LINDSAY:   Yes.

DEANE ACJ:   Mr Lindsay, how are we going as to time?

MR LINDSAY:   I would hope to finish within the hour.

DEANE ACJ:   In that case, we will adjourn now and Court will resume sitting at 2.00 pm.

AT 12.47 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.04 PM:

DEANE ACJ:   Yes, Mr Lindsay.

MR LINDSAY:   Thank you, your Honour.  May I move to the question of waiver.

TOOHEY J:   Just before you do, Mr Lindsay, could I, despite my promise just before lunch, take you back again to this question of public interest immunity?  It seems to me that it is one thing to say that in according legal professional privilege the standing which it has, the courts have looked at a range of questions, including questions that impinge on the public interest and have arrived at a concept of legal professional privilege.  It seems to me to be quite a different thing to say that once legal professional privilege is attracted by the nature of the material, that nevertheless it is still open to the court to consider whether that legal professional privilege is lost by reason of some concept of public interest.

MR LINDSAY:   Your Honour, that is not the way we put any of our submissions.  It is not the way we put the submission I was endeavouring to articulate before lunch.  The difference between what your Honour has put to me and the submission is that we would submit that the submissions under heading C arise and deal with the situation at the time privilege is created or not created.  So, those submissions do not deal with a situation where you have legal professional privilege attaching and then it is lost.

TOOHEY J:   Well, perhaps that was not the happiest choice of words, but it still seemed to me that what you were saying was that what might otherwise attract legal professional privilege may not do so because of some concept of public interest immunity.

MR LINDSAY:   That was not the way I intended, your Honour, to put it.  What the submission is, is that legal professional privilege would not be recognised because there were competing interests, there were parties who were the subject of the same confidential relationship.  In those circumstances the submission was there was no legal professional privilege which came into existence and that if there was to be as between the parties to that relationship some degree of privilege precluding discovery of documents, that privilege and the solution relating to it was to be found not in the law relating to legal professional privilege but in the law relating to public interest immunity.

TOOHEY J:   That comes fairly close to saying that public interest immunity can operate in this field so as to deprive material of the privilege that would otherwise attach to it by reason of legal professional privilege.

MR LINDSAY:   It may be I have come close to that.  That would not be the way we would put it, your Honour, but certainly there is a close relationship in that particular instance between what might otherwise be regarded as legal professional privilege and public interest immunity.

TOOHEY J:   At any rate, as you put it, it goes to the circumstances in which legal professional privilege may be held to exist or not to exist.

MR LINDSAY:   That is correct, yes, your Honour.  If I may for the rest of my submissions put all that to one side because those sorts of considerations do not arise in the context of waiver.  Contrary to my friend’s submissions, when we are dealing with a question of waiver there is, in our submission, no balancing exercise as such because we accept that in the context of legal professional privilege the existence or otherwise of the privilege itself weighs the balance.  Your Honours, our submissions are that, in our submission, the majority of the Court of Appeal were correct in holding that any privilege attaching to the documents produced to the society was waived by imputation of law and they were correct in applying Maurice in that respect.

In our submission, three headings or topics arise in that context and I will mention them briefly and then return to them if I may.  The first is the role of fairness in waiver.  The second is whether waiver is confined to disclosures in court proceedings and the third is whether Australian law should reflect the British cases to which my friend has referred and what may be the consequence of those cases if they are applied here. 

Going first, if I may, to the question of the role of fairness.  Contrary to the submissions of the appellants, the Court of Appeal did not base its finding of waiver simply on the basis that it would be fair to do so.  In our submission, critically, it was the conduct of Mr Goldberg which founded the waiver, first of all, in his deliberate and voluntary disclosures to the Law Society and, secondly, in the fact that those disclosures constituted an attack on the respondents.  Your Honours, Mr Goldberg chose to provide information to the Law Society in the form in which he did.  He was under no obligation to provide any information in that form.  He provided it in that form for his advantage.  In our submission, in analysing the judgments of the Court of Appeal - and I will come to the particular judgments in detail a little bit later - the Court of Appeal held that in the light of the conduct of Mr Goldberg, it would be unfair for Mr Goldberg to be able to maintain the claim of privilege but the focus is not the question of unfairness in itself and, at the outset, that is something that arises from the conduct of Mr Goldberg.

DEANE ACJ:   Mr Lindsay, in so far as we know what the identity of the relevant documents is, what is the best document from your point of view?

MR LINDSAY:   The documents that were produced?

DEANE ACJ:   Yes, to the Law Society.

MR LINDSAY:   I am not sure that I can answer that, your Honour.  First of all the documents were described in the affidavits that were sworn by Mr Goldberg as statements.  If one goes to the affidavits one will see that in about May of, I think it was, 1989, he produced a statement to the Law Society, then in about June he produced another statement to the Law Society.  In the evidence he gave orally he described the documents in a number of different ways but I think as including observations to counsel and the like.  I do not have at my fingertips the precise description that he gave but the exact character of the documents is not apparent to us.

DEANE ACJ:   Are we not in a bit of a problem area here, and I am not suggesting whose problem it is.  I mean, if one had more precision, say for example, the evidence of the officer of the Law Society was, “I said to him there is a grave complaint made against you by members of the Ng family.  This is the complaint, what do you say to it?”, and he said, “My answer to that complaint is all contained in this statement which I prepared for my counsel in the equity proceedings which I’ll give you if you undertake to treat it confidential”, and the answer was “Yes, here it is”, one would have thought your argument was as good as you could get in the general, factual context here.

The other side of it is that he has asked the question, he gives the answer, the officer of the Law Society says, “Well, I’d like to test that out.  Have you made any statements in those equity proceedings?”  He says, “Yes I have, but you can’t have them”.  The officer says, “If you don’t give them to me we have punitive powers which we’ll exercise against you.  If you give them to me I assure you nobody but I will see them”.  There your argument is not anything like as strong as it would be in the first set of circumstances.  Which way do these documents go and production go and so on in your submission, or do we just not know?

MR LINDSAY:   I may be able to provide some assistance but not complete assistance.  First of all, in this case there was no threat on the part of the officer of the Law Society as to the invocation of compulsory powers.  There was no element of that at all.  It was accepted below that there was a free choice on the part of Mr Goldberg and the way he chose to respond to the Law Society’s inquiry.

Secondly, it may be necessary in the light of the analysis that your Honour has put to me to distinguish between what was produced on the first occasion in May and then what was produced on the second occasion in June 1990.  The evidence in relation to the second occasion which appears at page 46 of the appeal book deals with a supplementary statement which was prepared by Mr Goldberg, he said, as a detailed response to allegations.

In relation to the earlier production in May ‑ perhaps I may need to check that precisely ‑ but my recollection is that in describing or identifying those documents, Mr Goldberg, described them as including instructions to counsel et cetera, and that appears at the bottom of page 36 at about line 55.  On each occasion ‑that is, the first and the second occasion ‑ there was a statement that was provided and that appears at page 36 between lines 35 and 40.  There is in the evidence no separate articulation or identification by category of the documents.

DEANE ACJ:   Which means we do not know.  For example, when you read a draft brief with some introductions, introduction of 60 pages, we do not know whether that consists, as one used to hope it would, of 50 pages of the law and 10 pages of analysis of the facts or it simply consists of a bundle of documents with the introduction in the middle of this document says “Our client”.

MR LINDSAY:   That is correct.  It is not an answer to your Honour’s inquiry but before Justice Young, his Honour inspected the documents.

DEANE ACJ:   I will stop interrupting you but just to make sure I understand, did the documents Justice Young inspected include the documents we are concerned with as well as the Law Society documents?  As I understand it, the documents we are concerned with were not in the possession of the Law Society but were handed back.

MR LINDSAY:   No.  No, the documents we are concerned with were documents which were produced to the court by the Law Society and the documents that were handed over by Mr Goldberg to the Law Society on the two occasions were, in each case, copies of documents and the Law Society retained those so that when production was called for on the subpoena, the Law Society took those documents and produced them.  Some of the documents that were the subject of the subpoena, bundles other than, I think, bundle A, are not controversial but all the documents were produced by the Society.

Your Honours, the second question that we submit arises in the context of waiver in Maurice is whether waiver is confined to disclosures in court proceedings.  In our submission, waiver is not so confined particularly as legal professional privilege is not itself confined that way and, in our submission, there should be some mutuality between privilege and waiver in this respect.

We would also submit that if it was necessary for there to be some identity between the proceedings and the disclosure, that necessary identity is to be found here because although on the one hand we might take about separate proceedings, Law Society proceedings and court proceedings it is correct to say there was in substance the one dispute and directly so.  It may well be that that is an explanation for Mr Goldberg’s discovery of the Law Society’s letter of dismissal in the court proceedings.  Certainly, the Law Society itself in the correspondence with my instructing solicitors identified the documents, the subject of what has been described as a complaint, as being involved in the same dispute.

TOOHEY J:   Was there a formal complaint, Mr Lindsay?

MR LINDSAY:   There was a communication which was characterised by the Law Society in two separate ways.  There was a communication which was satisfying the obligation of both the respondents and their legal advisers to report to the Law Society.  That obligation arose in two contexts.  Under the provisions of the Legal Profession Act governing claims on the solicitors’ fidelity fund, section 80(7), anybody who was a claimant or a potential claimant on the fund had to notify the Law Society as soon as possible or as soon as practicable, there is some expression like that.

There was also an obligation under the Legal Profession Regulations, at that time it was clause 21, I think, which required any legal practitioner who had notice of an irregularity in a trust account to notify the President of the Law Society.  Bearing in mind those statutory obligations, a letter was written by my instructing solicitors to the Law Society dealing with the allegation of failure to account.  The Law Society dealt with that in two ways.  First of all it dealt with the communication as a complaint and, secondly, it dealt with the communication as notice of a prospective claim on the fidelity fund.

And the procedures which culminated in the letter of dismissal appear to have been procedures which focussed on the complaint aspect but the claim on the fidelity fund is one which is still open.

TOOHEY J:   Does the appeal book contain the document that you have categorised as a complaint?

MR LINDSAY:   The communication, it does.  My friend assists.  Page 71.

TOOHEY J:   Does the appeal book also contain the letter, the communication that you referred to from Mr Goldberg to the Law Society?

MR LINDSAY:   Not from Mr Goldberg to the Law Society.  There is no letter from Mr Goldberg to the Law Society.  However, the appeal book does include copies of the correspondence sent by the Law Society in substantially similar terms to Mr Goldberg and to the respondents’ solicitors referring to the dismissal of the complaint.  In terms of the appeal book, what appears between pages 71 and 83 of the appeal book is the correspondence between the respondents’ solicitors on the one hand and the Law Society on the other hand in relation to the proceedings of the Law Society which culminated in letters of 23 November 1990. 

The letter of 23 November 1990 addressed to the respondents’ solicitors appears at page 82.  The letter in substantially similar terms to Mr Goldberg was dated 26 November 1990 and a copy of that appears in the appeal book at page 89.  Now, that letter at page 89 was document No 1 in the appellants’ list of documents.  No other documentation relating to what transpired between the appellants on the one hand and the Law Society on the other hand was described in the list of documents or the subject of a claim of privilege.

TOOHEY J:   And neither specifically or by reference to some category?

MR LINDSAY:   In the correspondence with the Law Society, the letter that was sent by my instructing solicitors to the Law Society and which appears at page 71, is addressed to the Secretary of the Law Society and in terms of regulation 21, it ought to have been addressed to the President, but nothing would appear to turn on that.  Over the page at page 72, there was a holding letter which characterised the communication as a complaint.  Then the dichotomy between the procedures of the Law Society appears at page 73 where Mrs Shirvington alludes both to the fidelity fund and also to the Professional Discline Department’s inquiries.

That dichotomy becomes more apparent over the page at page 74 because the manager of the fidelity fund referred to section 80(7) and asked whether that was notice, and at page 75, the fidelity fund manager was requested to treat the initial communication as notice pursuant to section 80.  Thereafter, at page 76, Mrs Shirvington, dealing with the complaint aspect, indicated that documents had been sent off to Mr Goldberg.  For his part dealing with the fidelity fund at page 77, the manager of the fund put the claim on the fidelity fund on hold and indicated that the Society was presently investigating the matter as a complaint.

At page 78, again in the context of disciplinary complaints, Mrs Shirvington deals with the subject matter of the initial communication and the matters in dispute are identical when one looks at the Law Society proceedings on the one hand and other proceedings on the other hand.  The next thing that occurs really relates to attempts to serve process on Mr Goldberg and there was some difficulty - I put that neutrally - in relation to that.  At page 80, Mrs Shirvington said she was awaiting for a written response from Mr Goldberg.

At page 81 Mrs Shirvington advised the respondent’s solicitors that the matter was before the complaints committee and the next thing that happened is to be found in the letter of 23 November at page 82.  So that is pretty much the full history of it.  Your Honours, the other correspondence which appears in the appeal book appears at pages 51 through to 70 and what that correspondence does is demonstrate the course of the dispute developing between the parties, Mr Goldberg on the one hand and the respondents on the other hand; and it may be important at this point to recognise the course of that dispute because, in our submission, there is some artificiality in analysing questions of waiver in terms of who commenced the proceedings first and, therefore, waived privilege.

If one goes to page 55 after some initial and prefatory material relating to accounts, one sees at page 55 an assertion that Mr Goldberg had not accounted for the sum of, it says there $100,000, it was $100,100, and so there is a request for an accounting.  That elicits from Mr Goldberg a strong response by a letter dated 11 May 1989.  At page 56, and probably unnecessary and may be undesirable for me to read physically all of that material, but about line 20 on page 56 there is a denial of the allegation of failure to account and there is a claim that the debt runs the opposite way; there is no debt owed by Mr Goldberg to the respondents.  He says it runs the other way, they owe him money.  That letter is not entirely without colour but it concludes at page 59 at about lines 35 to 40 with the assertion of an entitlement to costs coupled with the denial of the allegations against Mr Goldberg.

What follows in the pages which follow is a series of correspondence in which the factual matters underlying Mr Goldberg’s denial of a failure to account are traversed.  I do not specifically take your Honours to them, but the submission that I would make arising from that correspondence is that the law of waiver has to have some form of mutuality about it and it cannot be the law, in my submission, that a solicitor might obtain a free kick against his clients simply by provoking the clients to sue him.  If the solicitor, as in this case, uses documents against his client, then equally he should be in the same position as the client might be so far as waiver is concerned.

Your Honours, that was the second of the three points that I foreshadowed.  The third point is whether Australian law should reflect the British cases of Dennis Rye, Goldman and Downey.

GUMMOW J:   But what proposition do you say the British cases stand for which should not be accepted?  How do you first characterise them in order to then reject them?

MR LINDSAY:   The difficulty with answering that is that my friend’s submissions based on them involve some inconsistency which has not been articulated.  My friend says that in dealing with waiver or limited waiver, one is not involved in a balancing exercise.  It would be our submission that when one goes to look at the three English cases, in fact that is what they do.  They deal with first of all ‑ ‑ ‑

GUMMOW J:   Does that mean you accept them?

MR LINDSAY:   In this branch of the argument, we do not.  The only area where I have consciously at least introduced some question of balancing is in relation to the submissions that were made before lunch, and that was in the context of public interest immunity.

GUMMOW J:   That is what I was wondering about.

MR LINDSAY:   However, what we do say is that if you apply the English cases, or at least adopt the law relating to English cases and you admit the possibility of a limited or conditional waiver as such, then the law cannot be indifferent to the identification of the limitation or condition, nor can it be indifferent to who is the person who is the arbiter of that limitation.  This case, in my submission, must be resolved against the appellants even if the British cases are a correct statement of the law because, when it is all said and done, what the appellants are endeavouring to do in this case is to say that it lies within the province of a privilege holder to impose a condition and to impose that condition on everybody including the courts.  In my submission, that cannot be right.

The way the British cases have dealt with it at that point is to assess in terms of competing public interests whether the limitation was ultimately in the public interest or not and they talk in terms of there being a pragmatic policy decision being made.

TOOHEY J:   Putting the matter that way, Mr Lindsay, are you putting fairness to one side, or is that somehow included in this weighing process that you speak of?

MR LINDSAY:   At the moment, I am addressing, really, the approach that appears to us to arise from the English cases.

TOOHEY J:   Yes, I did not want to suggest that it is your approach, but does fairness have a role to play in what you are putting to us at the moment as the approach of the English courts?

MR LINDSAY:   As I read the English cases, what they do is they deal with it in terms of policy and it may well be that, in weighing considerations of policy, they also weigh considerations of fairness.  I do not think, however, subject to correction, that that is the way they articulate it.  It may well be the fact that I do not think they articulate it that way.

TOOHEY J:   Does fairness have a part to play in the way in which you put your argument?

MR LINDSAY:   It does and, indeed, it was conceded by my friend below that fairness has a role to play and, in part, that explains the form of the reasons for judgment of Mr Justice Mahoney.  In our submission, the starting point really is to identify conduct of the privilege holder which would be productive of unfairness if privilege was maintained.  That, we submit, is what emerges as the test from Maurice and what we submit is that, that is the approach which was uniformly adopted by each of Justice Clarke, Justice Mahoney and Justice Young at first instance.  That is the way we would put it.

If I may go to those judgments, first of all, the judgment of Justice Clarke, one sees at page ‑ ‑ ‑

DEANE ACJ:   Before you do, could I just ask you to make things clear for me?  At page 71 you have what turns out to be the complaint against Mr Goldberg after the correspondence expands it and that included an originating process and an affidavit.  Is that right?

MR LINDSAY:   That is correct.

DEANE ACJ:   Do we have the originating process and the affidavit?

MR LINDSAY:   No.

DEANE ACJ:   Did the courts below?

MR LINDSAY:   I have to give a qualified answer to that and if I may do so with an explanation.  The way the two sets of proceedings developed, first of all, the subpoena was called upon.  The Law Society took an objection based on public interest immunity and that was decided first of all by the registrar, then Master McLachlan on review by the Law Society and then by Justice Powell on appeal from the master.  In the context of those proceedings, what the appellants did was simply to support the Law Society but play no role in the proceedings.  In the context of those proceedings relating to public interest immunity, by agreement, if I can put it that way, between the parties appearing before the court, reference was made to the affidavit material which was before the court, including the summons and the supporting affidavit.

GUMMOW J:   I do not follow this, Mr Lindsay.  The summons that is being spoken about at 71 is initiating process of an equity suit.

MR LINDSAY:   And an affidavit, I think, of Mr Ng.

DEANE ACJ:   A supporting affidavit?

MR LINDSAY:   Yes.

GUMMOW J:   Page 1, there is an amended statement of claim which refers to the joinder of two sets of proceedings.

MR LINDSAY:   Yes.

GUMMOW J:   Between the Ng family and Mr Goldberg.

MR LINDSAY:   Yes.  What happened was that the equity proceedings were commenced by summons.  There was some delay in serving that process on Mr Goldberg, and that is where one sees in the correspondence between my instructing solicitors and the Law Society in the middle of 1990 some assistance being sought in relation to service.  On 17 August as appears from page 1 of the appeal book proceedings were commenced by Mr Goldberg in which he sought to assert an entitlement to costs.

At a later time it became apparent that Mrs Goldberg was a necessary party in the proceedings because Mr Goldberg denied that he had received the $100,000 but he said that when documentation was shown to establish that $100,000 had been paid in Hong Kong the explanation that came forth from the appellant’s side of the record was that that was paid by Mr Ng to Mrs Goldberg for some jewellery, an account which is denied entirely by Mr Ng, so the proceedings were amended to include Mrs Goldberg as well as Mr Goldberg and then to draw all the threads together the proceedings were effectively consolidated and then pleadings were ordered and the pleadings appear in the appeal book, the affidavits do not, the historical explanation for that is that although the parties dealing with a question of public interest immunity prior to the Court of Appeal were content for reference to be made to the affidavits in the proceedings involving legal professional privilege, objection was taken to the affidavits being referred to.

DEANE ACJ:   Objection by whom?

MR LINDSAY:   By the appellants. 

TOOHEY J:   By the time the letter of 14 March 1990 the letter was written, the letter on page 71, or at the time that was written the proceedings, I take it, had not then been consolidated.

MR LINDSAY:   That is correct.

TOOHEY J:   And that letter is simply referring to the initial set of proceedings brought by the respondents against the appellant.

MR LINDSAY:   Yes, your Honour, the equity summons and one can see the dates at page 1 of the appeal book that are consistent with that.

GUMMOW J:   The solicitor’s common law proceeding eventually reappeared as the cross‑claim in the consolidated suit at page 20.

MR LINDSAY:   Yes, that is so.

DEANE ACJ:   Can I just really try and understand.  We have not got the initiating process and the affidavit referred to in the letter of 14 March before us.  No doubt about that.

MR LINDSAY:   Correct.

DEANE ACJ:   Is what you are saying that they were in evidence in associated proceedings; your client sought to rely on them in these proceedings; their relevance to these proceedings was raised by way of objection by the appellants?

MR LINDSAY:   That is correct.

DEANE ACJ:   What was the ruling on the objection?

MR LINDSAY:   The use that was sought to be made of them was to have them before the court so that the court could ascertain the nature of the dispute between the parties and they were not admitted or permitted for that purpose.  The correspondence which is reproduced in the appeal book at page 51 and following was placed before the court and served much the same sort of purpose.

DEANE ACJ:   But it does not, does it, because when one goes to page 82 the Law Society’s decision was:

As the matter is now presented the Committee was not satisfied that there was any evidence of professional misconduct -

Now, one would speculate on the factual material that is before us that the affidavit would have said there was a payment of 100,000 or 100,100 to Mr Goldberg, he has never accounted for it and he is refusing to account for it.

MR LINDSAY:   Yes, your Honour.

DEANE ACJ:   If there was an affidavit to that effect before the Law Society, the statement in 1 is simply wrong.  If they have an affidavit that 100,000 was paid to a solicitor who has refused to account for it, unless the point being taken is that the affidavit was not sworn for Law Society purposes, that is evidence of unsatisfactory professional conduct.

MR LINDSAY:   And the point that your Honour is putting to me was the subject of specific criticism by Justice Clarke towards the end of his judgment.  That same point was made.  In some ways these whole interlocutory proceedings arise because of the form of what occurred before the Law Society culminating in that curious letter.  Is it the case that there is some knock‑out point?

DEANE ACJ:   But all I am trying to understand is, is there material before us that indicates that the complaint made to the Law Society by reference to the enclosed affidavit included a complaint that $100,000-odd had been paid to a solicitor who was refusing to account for it?

MR LINDSAY:   Yes, your Honour.

DEANE ACJ:   Well now, where is the evidence that that is what the summons and the supporting affidavit indicate?

MR LINDSAY:   At page 78 there is a letter from the Law Society to the respondents’ solicitors and at line 30 the point is made:

that the matters in dispute in the proceedings are identical with the complaint/claim on the Fidelity Fund - - -

DEANE ACJ:   Well, that does not tell me anything, unless one assumes that the Law Society has gone beyond what is in the originating process in the affidavit and, somehow, ascertained what subsequently, or what has emerged in the pleadings.

MR LINDSAY:   Well, perhaps if I can deal with it this way again by reference to the correspondence:  there is a description of the summons at page 73.

DEANE ACJ:   Look, Mr Lindsay, perhaps I can short-circuit what is troubling me.

Mr Einfeld, is it common ground that the complaint with which the Law Society was asked to deal was a complaint that $100,000 or $100,100 had been paid to your client in his capacity as a solicitor and that he was refusing to account for it?

MR EINFELD:   Not at all.  That the complaint was to that effect?

DEANE ACJ:   Yes.

MR EINFELD:   Save for the fact that - I cannot tell, your Honour, whether the affidavit evidence in support of the summons asserted a payment of 100,000 to the solicitor or accepted that it was money paid to his wife overseas.  I think your Honour is right.  I had better just take some instructions on that, but ‑ ‑ ‑

DEANE ACJ:   Well, I am not really asking you to concede something that has not been common ground below.

MR EINFELD:   The short answer is that in both before Mr Justice Young and before the Court of Appeal, the question of what evidence was before the Law Society did not arise.  So there is no occasion for the ground being joined on that particular question.  We will dispute - and I will mention in reply - that their friends did tender or seek to tender before Justice Young at first instance the affidavit upon which they were going to rely which had been filed in support of the summons, because at page 35 of the appeal book you will see that a list of affidavits was marked for identification but affidavits were not tendered before him.  So I am not trying to avoid your Honour’s question.

We would accept, your Honour, that when the complaint was made - if a complaint had been and we think it was - we submit it was - to the Law Society, it was with respect to an assertion that credit had not been given for $100,000 said to be paid by former clients on account of their costs, and I think that answers your Honour’s question without going further into the detail.

DEANE ACJ:   Except it does still leave the query of the affidavit.

MR EINFELD:   Yes.

DEANE ACJ:   Because if there was an affidavit it is very hard to understand the Law Society statement there is no evidence of unsatisfactory.

MR EINFELD:   Unfortunately we do not know what was in the affidavit.  Undoubtedly there was one but what was in it I do not know.  I am sorry I cannot help your Honours more.

MR LINDSAY:   The position adopted by the Law Society, your Honour, does not come any easier to understand in the light of that information and it is that which was the subject of criticism by Justice Clarke at page 191 ‑ ‑ ‑

GUMMOW J:   All this grew out of the equity suit which went via pleadings on page 1.

MR LINDSAY:   Correct.

GUMMOW J:   It is in the court file .  This affidavit was in the court file.

MR LINDSAY:   Yes, and for our part we have no objection to the Court looking at that material but what it will demonstrate is that there was an allegation of failure to account in relation to the $100,000 and that was the heart of the matter.

DEANE ACJ:   Do you appreciate what is puzzling me and that is, if we ever reach unfairness and your primary case is that we do, in writing a judgment one of the first things would be either there was a complaint against the solicitor that $100,000 had been paid to him or to his wife on account of legal fees and he was refusing to acknowledge the payment.  Another starting sentence would be, “The complaint against the solicitor has not been clearly identified but we do know that the Law Society has expressly stated that there was no evidence at all to establish even unsatisfactory conduct.”  If the documents were used directly or indirectly to meet the first complaint, one can envisage one approach to fairness.  If the documents were used directly or indirectly to meet an unspecified complaint in respect of which there was no evidence at all, the result might be completely different.

MR LINDSAY:   Your Honours, it would be my submission that the correspondence of the Law Society makes it plain that the affidavit that was provided to the Law Society with that initial communication included the allegation of failure to account for the $100,000 and that has not been in issue below.  I do not understand it to be in issue now.  One sees that, for example, at page 78 line 30.

DEANE ACJ:   I accept that, if one knows what is in the summons and the affidavit.

MR LINDSAY:   One sees in this correspondence a summary of both the summons and the affidavit over the course of a few letters, and their essential feature has been incorporated in the pleadings at a later stage, but they assert the payment of the $100,000 for which there has been no accounting.  I do not understand there ever to have been any dispute about that.  The area of dispute on the facts came subsequently to that in terms of an alternative explanation for the payment.  I do not know whether that assists you entirely, your Honour, but on the material we would say that an appeal is there.

If I may go to the judgment of Justice Clarke.  In analysing his Honour’s reasoning, in my submission, one starts at page 185 lines 43 to 50.  One sees that his Honour was articulating what he understood to be the test in Maurice and applying it in the earlier discussion and he considered Maurice at pages 179 through to 181. At page 179 line 8 or thereabouts has as the starting point Maurice with quotation from there, and then at the bottom of that page there is a discussion of imputation of waiver.  Then, over the page at page 180, again there is discussion of the concept of waiver focusing on conduct which, on the privilege holder’s part, which would make it unfair to the other party to maintain the privilege.  That point is made by reference to quotes from Maurice. 

Having set the scene in that way, over the page at page 181 at about lines 10 through to 30, his Honour then starts drawing the strings together, again the question of fairness having been considered against the background of conduct on the part of the privilege holder.  There is discussion of various cases culminating at page 184 in Justice Clarke’s summary of the general law relating to waiver.  At the bottom of the page the second point deals with conduct; so the focus is on conduct.  One gets to considerations of fairness that way, and in particular, one deals with an intentional performing of a deliberate act.  That is really the focus of the first step in Mr Justice Clarke’s reasoning.

Then at page 187 and following his Honour, having considered the English cases, at the bottom of the page says:

There can be no question of express waiver in this case.

At the top of page 188 he asks:

Do considerations of fairness require that the disclosure of the material to the Law Society be treated in law as a waiver -

and, again, the focus is the disclosure.  He then goes down to about line 33 and says:

For my part I have concluded that it would be unfair to permit Goldberg to maintain his privilege in the material.

The articulation of that refers to the normal course of Law Society proceedings.  Then at line 45:

Goldberg chose to respond to Ms Shirvington’s requests ‑ ‑ ‑

GUMMOW J:   We do not know, just going back to line 20, do we, Mr Lindsay:

The Law Society resolved, as a consequence of the information contained in the privileged material, to dismiss -

Do we know that?  Is that just based on page 78?

MR LINDSAY:   It is based on the correspondence and what we would submit ‑ ‑ ‑

GUMMOW J:   The letter at 78?

MR LINDSAY:   And, ultimately, in the course the correspondence.  What flows from that is ‑ ‑ ‑

GUMMOW J:   That seems to be talking about a narrower ‑ ‑ ‑

MR LINDSAY:   The sequence of events is not unimportant.  We would submit that the correspondence shows that what was put before the Law Society was the summons and the affidavit, the allegation of failing to account.  What happened then was that the solicitor came in on two occasions and spoke to the Law Society and provided this material which the Law Society retained.  Following upon that, we have the letters of 23 and 26 November.  Whichever way one looks at those two letters by the Law Society, they do not make sense in so far as they suggest there was no evidence.  But nevertheless that communication from the Law Society arose after the Law Society had the benefit of material from Mr Goldberg and he had declined to allow that material to be made available to the respondents.

TOOHEY J:   The waters are further muddied, perhaps, by the fact that that letter of 23 November, page 82 gives as one of the reasons for the decision that, as the matter is now presented.  What shift of ground if, indeed, there had been any shift of ground that had taken place, of course one cannot tell.

MR LINDSAY:   The correspondence from the Law Society on any view is just simply curious and yet, if it is taken at face value, lurking there is some complete answer to the equity proceedings.  Precisely what, who knows?  Thus it is that Justice Clarke at the bottom of page 188 says that by supplying information to the Law Society in the privileged form, Mr Goldberg acted to his advantage and to the disadvantage of the respondents and it is in that context where we have first of all the conduct, the disclosure, then Mr Goldberg acting to his advantage and acting to the disadvantage of the respondents.  It is in that context that Justice Clarke says that there was unfairness to the respondents in upholding the privilege.  One sees that particular view elaborated at the top of page 189, the first ten lines or so of that page.

What we do not have, in my submission, from Justice Clarke’s reasoning is simply a warm inner glow assessment of what the interests of fairness may require.  One is focusing on objective conduct.  In my submission, that is the substance too of the reasoning of Justice Mahoney and the starting point there is at page ‑ ‑ ‑

DEANE ACJ:   Mr Lindsay, before you leave Justice Clarke, can I trespass upon your patience just a little longer?  Is the situation this, that if your clients satisfied the Law Society that money had been paid to their solicitor or to someone on his behalf and not accounted for, they would have a good claim on the fidelity fund without having to go through litigation?

MR LINDSAY:   Yes, with this qualification.  The expression in the legislation is and was a dishonest failure to account on the part of the solicitor.  So that in this situation it would be our submission that if there was a failure to account it could not help but be dishonest so that there would be a good claim on the fidelity fund, yes.

DEANE ACJ:   So, what you are saying is in a situation where there were two available courses the Law Society said to you, “This course is closed off, pursue the alternative”, and you are now trying to get access to the material which was made available to the Law Society to close off one course and to set you on the other.

MR LINDSAY:   Yes, your Honour, that is correct, and the Law Society correspondence went so far as to - - -

DEANE ACJ:    I am not suggesting that is very favourable to you or anything, but I am just trying to understand.

MR LINDSAY:   No, but that is a correct characterisation of what has occurred subject to this additional factor which I have already mentioned, that the correspondence from the Law Society has this additional feature about it that in an unexplained way it suggests that there is a complete answer to the evidence of failure to account which was put before the Society.  So it is a closing off together with a degree of puzzlement that cannot be penetrated.

Your Honours, in the judgment of Justice Mahoney the starting point, we would submit, is at page 169 and at page 169 between lines 35 and 40 or thereabouts his Honour, in effect, adopts or accepts the conclusion of Justices Young and Clarke and he characterises again the question of waiver as something having occurred involving a waiver by Mr Goldberg and he then goes at line 40 to discuss legal professional privilege in terms of it being a privilege for a particular purpose.

Over the page at page 170 at lines 25 and following again his Honour agrees in effect with Justice Young and then says at about line 28:

What was done was a voluntary and considered disclosure of the material, in its privileged form, to the Society.

And it was a conscious or deliberate act even though there was the express reservation.  If one then goes to the bottom of that page one sees that in argument before the Court of Appeal it was not said that unfairness was irrelevant:

It was accepted that the matter is to be determined in this case by reference to whether, amongst other things, it would be “unfair” to allow the immunity in the present circumstances.

That being so, it may be that his Honour felt able to shorten his judgment.  At page 171, lines 13 through to 30, again Justice Mahoney elaborates the conduct of the solicitor, Mr Goldberg, and the advantage that he sought and his Honour correctly characterises what might be described as the Law Society proceedings and the equity proceedings as essentially the same dispute.  That having been done, his Honour concludes at the bottom of page 171 and over the page that in dealing with the question of fairness it was his view that it would be unfair to have the privilege continue.  Then it may be that a fuller understanding of the reasoning of Justice Mahoney requires some reference to the reasoning of Justice Young and the starting point in his Honour’s judgment appears in the appeal book at page 114, and at page 114 the passage that is relevant is really between lines 20 and the end of the page.  There his Honour at about line 30 speaks of there being:

a sufficient deployment of the material to operate to waive the privilege. 

He then provides a foundation for that observation in Maurice again with emphasis on the conduct on the privilege holder’s part.  Having introduced the topic at that point, the next passage appears at the bottom of page 115 and the relevant passage appears to be the last two paragraphs from about line 43 on page 115 over the page:

the disclosure of the material in this case to the Law Society is in a completely different category.  The Law Society was in no sense an officer of or privy to Mr Goldberg’s secrets.

Then he goes on:

In my view the situation in the instant case where a solicitor hands documents to his solicitor in a battle against the client is very much the same sort scenario as exists when the client goes to the Law Society or to the courts complaining against the solicitor.

He elaborates that point down to about line 15 and adopts a concept of mutuality in waiver, in practical terms at least.  Then at line 45 or thereabouts on page 116, he says that the attitude adopted by the solicitor, Mr Goldberg, to discovery in the equity proceedings, coupled with the disclosure of the Law Society, reinforces his view that privilege has been waived.  Then one goes to page 117 at about line 18 through to about line 32 on the following page, and in that passage, his Honour again deals with the conduct on the part of Mr Goldberg in handing material to the Law Society and he says that:

a party cannot protect himself against the legal consequences of an election by stating that he has done the act without prejudice or has otherwise protected himself -

Now, in essence, that is what Mr Goldberg has been seeking to do.  He produces the material to the Law Society in a deliberate and conscious way, but then seeks to limit the legal effect of that production in his own interests in circumstances where, on his submissions, nobody can challenge the imposition of the condition.  At page 118, Justice Young deals with the point about the confidentiality undertaking, if it be such ,on the part of the Law Society, and that finds some elaboration in the judgment of Justice Clarke dealing with exactly what was supposed to be the content of the undertaking as to confidentiality on the part of the Law Society.

The Law Society is a body which has public responsibilities.  The material was, on any view, provided by Mr Goldberg to answer the complaint or what was characterised as a complaint.  It is not suggested - it never has been suggested that the Law Society, if it decided to institute disciplinary proceedings, could not use that material.  That material would find its way into a public forum in the disciplinary proceedings.

So that when one focuses on what the degree of confidentiality was on this condition, it evaporates.  What it boils down to is that prior to a determination by the Law Society in relation to the complaint in relation to the fidelity fund claim, the respondents were not to be given an opportunity to see the material that was used against them.  We would submit that that deployment of material on the part of Mr Goldberg was sufficient to involve a waiver by imputation of law.

GUMMOW J:   You say Mr Goldberg was volunteering this material to the Law Society to help himself, as it were.

MR LINDSAY:   To assist himself, yes.

GUMMOW J:   Yes, but at 176, line 8, there is a statement out of an affidavit by the Law Society which rather supports what Mr Einfeld was saying as to general consciousness and awareness that the sword is hanging there under section 35.

MR LINDSAY:   At the risk of walking again into a procedural morass, that relates to the proceedings involving the public interest immunity claim.  In the legal professional privilege proceedings we did not have, for example, the opportunity to put questions to Mrs Shirvington.  What happened was in the public interest immunity proceedings the Law Society had the running and there was ‑ ‑ ‑

GUMMOW J:   They put on this affidavit in those proceedings, I understand that.

MR LINDSAY:   That is right.

GUMMOW J:   But it is accepted in the Court of Appeal judgment.  It just seems to put a different colour on things, that is all.  You say, Mr Goldberg was doing this period to help himself.  He was doing it, in a sense, with an air of compulsion about it which is what one might expect from knowledge of life and that is what 176, line 8, rather supports.

MR LINDSAY:   When one is dealing with a legal practitioner the precise nature of the duty or otherwise to co-operate with the Law Society is difficult to be precise about, but what is clear is that a duty to assist an investigation, assuming that to be the relevant duty, did not extend to providing material which was the subject of claim for privilege and there was no compulsion.  Ms Shirvington herself had no powers to compel the production of this material.  She was just an employee of the Law Society.  There were powers in the Law Society to appoint an investigator or to do a range of things but if there was privileged material, if there was a good claim of privilege on the part of Mr Goldberg, that claim could have been asserted.

What he did, albeit it with the reservation, was to take a deliberate decision to provide the material in this form, presumably because, as he said, there was nothing to hide and it was to his advantage to give that appearance.  And he did it not only once, he did it on two occasions.

TOOHEY J:   Justice Young seems to be influenced in part by the consideration that the defendants, that is the present appellants, were going to raise by way of answer to your clients’ claim that the matter had already been investigated by the Law Society, if you look at page 119, line 25, and for that reason - I am not suggesting for a moment that was the only consideration for the conclusion that we reached, but for the reason then it would be legitimate for the plaintiffs, as they were, to have access to the documents which the Law Society was in possession of.  It is very hard to see how the fact that the Law Society decided there was nothing worthy of complaint by the Society could bear upon a civil action between client and solicitor.

MR LINDSAY:   As was put in slightly different words by each of Justice Clarke and Justice Mahoney, the present respondents were denied the benefit of an objective investigation which they otherwise would have obtained in the ordinary course and there would have been documents which would have been discoverable arising from that.

TOOHEY J:   That is another facet of the matter, really, is it not?

MR LINDSAY:   Yes.  Part of the difficulty that we have here as well arises from what might otherwise not seem a great point.  Mr Goldberg, no doubt knowing who he was dealing with, thought there was sufficient advantage to be gained on his part to discover, as the first document in his list of documents, the Law Society’s dismissal of the complaint.  We are analysing these matters at a time prior to trial but one might imagine, without too much difficulty, some mileage being obtained at a trial from an illusion to there having been an identical complaint to the Law Society and a dismissal of it.  It may be that when one analyses that, it should not have any influence at all on a tribunal, but it may.

TOOHEY J:   I must say I am looking rather wistfully at the transcript of the special leave application when it all seemed like a nice question of law that was being served up to us and we seem to have become well and truly immersed in questions of fact.  That is, of course, not said by way of criticism, it is just simply the way things seem to have emerged.

DEANE ACJ:   Can I take that a little bit further?  That is, if you look at page 145, the extract from Justice Young’s judgment Mr Einfeld took us to is set out, what is there is Mr Goldberg’s evidence that the lady had asked him what the papers were that he had with him.  Mr Goldberg replied:

“I do have papers in this file which are relevant to this matter” and the lady said: “Can we have a look at those?”  Mr Goldberg said: “I have brought them with me to refer if I need to... I don’t have anything to hide.  I’ve already been very full and frank with you because we have now stayed over three hours being asked questions and giving answers.

And it is at that stage that he answers the request to provide the documents.  If you look at Mr Goldberg’s affidavit at page 32, the picture is in complete contrast to that in that there he says he produced the documents prepared for his own lawyers as he wished to be full and frank.  In other words, he used them as a testament of his fullness and frankness, “Here’s what I’ve told my own lawyers”.  Justice Young obviously accepted what is set out in his finding but Justice Mahoney would seem fairly clearly to have acted on the basis of what is set out in Mr Goldberg’s own affidavit.

MR LINDSAY:   In my submission, Justice Mahoney’s approach is not dependent on that.  What he does is ‑ ‑ ‑

DEANE ACJ:   What I have in mind is the paragraph that Mr Einfeld took us to,  page 171, line 30.

MR LINDSAY:   That is mentioned and discarded.

DEANE ACJ:   No:

If he did what he did in order, eg, to add force and authenticity to what he told the Society by virtue of the fact that the information was contained in the documents prepared for his solicitors, that would, I think, be a factor suggesting -

MR LINDSAY:   Then he says:

The court is asked to rule upon the matter without full knowledge of these circumstances.

He does not base his judgment on that.  What he does is deal with the objective fact that the documents were made available.

DEANE ACJ:   Which set of facts do you suggest we should go on:  paragraph 6 on page 32 or Justice Young’s findings at page 145?

MR LINDSAY:   Justice Young’s findings - I am not clear, and it may be a defect on my part, your Honour, that there is in truth a necessary inconsistency between the two versions.

DEANE ACJ:   Can I just try and make it clear.  At page 32 he says he has been told about a complaint; he has made an appointment; he goes to see the Law Society.  During the course of the interview he says:

I have a statement which was prepared solely for my case against Mr Ng.....On that basis and provided I retain legal professional privilege, I am prepared to give it to you, as I wish to be full and frank -

In other words, “Here’s my answer.  It’s the statement for my own solicitors.  I give it to you because I wish to be full and frank”.  At page 145 the picture is, “I’ve been answering questions for three hours.  I’ve told you everything.  Here you are; you’re asking for some documents which I happen to have with me.  I’ll let you have them provided I retain my privilege”.  There is all the world of difference in the colour of the two conversations.

MR LINDSAY:   Your Honour, there is no element of compulsion in this case.  There is no suggestion that Mr Goldberg was kept under control for some three hours and grilled.

DEANE ACJ:   Mr Lindsay, I will not take time any more, but all I am suggesting to you is there is a great difference between saying, “I have come to answer the complaint.  I have a full statement.  I am so prepared to be full and frank that I am prepared to give you that statement which is prepared for my solicitors”, and saying, “I have been here for three hours.  I have answered everything.  If you are really pressing for these documents you can have them provided my professional privilege is protected”.

MR LINDSAY:   Of those two situations I do not understand either the evidence or Justice Young really ultimately to characterise the matter in the second way.

DEANE ACJ:   That is the way I read the findings at page 145.

MR LINDSAY:   That would then be inconsistent with his Honour’s finding that what happened was a deliberate decision consciously taken, and that that is the only reading, in my submission, that one can put on the passages at the bottom of page 115, 116 of Justice Young’s decision, and also at pages 117 and 118.  It was accepted below that Mr Goldberg had a choice.  There was no suggestion of him in any way having been overborne, and even if that were the proper view of what occurred, that does not explain the second situation, the second production to the Law Society.  The second production to the Law Society, on any view, was simply a production not dissimilar to what is described in the affidavit at page 32.  One sees the second occasion dealt with in the affidavit at page 33.

GUMMOW J:   There is oral evidence at page 40, is not there, line 45?  The witness again says it in your cross-examination, I think, at line 50:

I simply took them with me to refer to if I had to the interview.....they were on the floor in case I needed them -

et cetera.

MR LINDSAY:   And at page 41 she says, “Can I have a look at them?”  There is nothing more than that and the relevant passage that gave rise to Justice Young’s - the quotation from Justice Young appears on pages 41 and 42, from about line 25 on page 41 through to the luncheon adjournment on page 42.

GUMMOW J:   Yes, but it looks as if his Honour might have preferred what was got out of the witness in cross-examination to what was at first blush in the affidavit.

MR LINDSAY:   That still deals with the first production.  It does not deal with the second production and one has, in relation to the second production, what appears at page 33, and then I think it is only at page 46 between lines - - -

GUMMOW J:    We were taken to page 46, but we had not been take to 40, though, this morning that was, I do not think.

MR LINDSAY:   That is probably correct, your Honour, and if one wishes to muddy the waters if we are examining the facts, at page 91, in another affidavit, Mr Goldberg says, at page 91:

Both statements were handed to the Law Society in order to answer the complaint made to the Law Society by the Plaintiffs and in response to an undertaking by Mrs Shirvington - - -

Now, the bottom line really is this:  Mr Goldberg chose - through a deliberate conscious act chose, not once, but twice, to provide the material.  And there is no element of compulsion in that at all, no element of overbearing.  Your Honours, I have strayed beyond my promise of an hour and I have - - -

DEANE ACJ:   You have been helped, Mr Lindsay.

MR LINDSAY:   I hope so.  Those are the submissions for the respondents, thank you.

DEANE ACJ:   Yes, Mr Einfeld?

MR EINFELD:   If your Honours please.  Whereas we have been drawn into more of a debate about factual matters than might have been at one stage contemplated, on the appellants’ submissions none of the factual nuances that have just been discussed will be determinative of the outcome of the case.  On our submission, whether one were, for example, to prefer the first version, that is, at page 32 of the appeal book, or the latter, cross‑examined by my learned friend out of the witness as to the more full details of what actually transpired, will not avail the respondents in the least. 

By the way, can I just draw your Honour the presiding judge’s attention to the fact that at page 32 of the appeal book the passage to which your Honour referred just a few minutes ago in Mr Goldberg’s affidavit is described as having been a passage occurring during the course of the interview rather than, as it were, an early offering of this material in support of a promise of fullness and frankness.  In the witness’ affidavit he deposes, “During the course of the interview I said to her these words” no doubt extracted for their relevance.  In the course of the oral evidence my friend was wont to extract from my client a much fuller detail of what happened which gives what his Honour the trial judge accepted as being truthful evidence and an accurate picture of what happened as did, we submit, at least the President in the Court of Appeal.

Your Honours, a number of matters I wish to deal with, each of them quickly.  My friend’s first submission concerned the notion that confidentiality must be related to the purpose for which the privilege attaches and, therefore, it would seem found some contention that one cannot extend the confidentiality, the subject of legal professional privilege, beyond mere solicitor and client.  Now, we know that that cannot be the law.  We know it is not the law because of the barrage of cases that make clear that revelation of a privileged document to one’s accountant or one’s witnesses or, in the English cases, others does not destroy the privilege.

There is no authority, certainly none cited by my learned friend and none of which we are aware, that would suggest that because the purpose of the privilege is to preserve the relationship of confidence to facilitate the administration of justice in the conduct of litigation, et cetera, therefore, one can never have a circumstance of the confidence extending to somebody other than the solicitor and the client.  The submission, we respectfully submit, fails in limine.  My friend then proceeded to make submissions to the effect that in some way, he suggested by resort to public interest doctrine, the ordinary legal professional privilege is impinged upon by the fact that in this particular case the litigation happens to be between erstwhile client and solicitor.  There are a number of reasons why that makes no difference whatever in this case.

The first is that there is not the slightest evidence in this case, any at all, that any material contained in the privilege documents was either confidential or privileged, and when my friend referred you to the passage in the appeal book at page 46, line 28, and read the passage for this proposition, that because the privilege material contained, included, his question says at page 46, information which was available to you solely because you had acted as the solicitor, to which there is an assent by the witness, the solicitor, that that gives rise it is said (a) to the conclusion that that information was confidential; may have been his address, may have been a whole host of facts, none of which were confidential, and (b) in some way privileged.

The submission, with the greatest respect, is illogical and does not follow from the evidence.  Moreover, no authority is cited for the proposition that the privilege is impinged upon or cut down by dint of the mere fact that the litigation in question happens to be between solicitor and client, and there is contrary athority.  In the Court of Appeal in New South Wales the present Chief Justice in Benecke v National Australia Bank - and we do not need to take your Honours to it, but if I could just give your Honour the references - in the principal judgment - I am sorry, my apologies.

The judgment of Justice Clarke in which the Chief Justice and Justice Sheller agreed, there is express authority for the proposition that when a client sues his solicitor, he thereby waives his privilege in such information that will emerge during the course of the litigation as is subject to that privilege. In particular, the passages are (1993) 35 NSWLR 110, in the passages at 116C and again at 116 to 117, and similar English authority in the Court of Appeal in ‑ ‑ ‑

DEANE ACJ:   Is this not a double-edged submission from your point of view in that you are ‑ ‑ ‑

MR EINFELD:   I hope not.

DEANE ACJ:    ‑ ‑ ‑ you are saying that because the client has sued the solicitor in equity, he has thereby waived his privilege in terms of associated proceedings.

MR EINFELD:   No, for the purpose of these proceedings.  It was my friend’s submission that the privilege in the documents ought, as a matter of policy, be read down to account for what was the client’s privilege in the course of the proceedings for which the defendant, Mr Goldberg, acted as solicitor in the original proceedings, and it is said that - at the threshold my friend said in answer to a question from Justice Toohey, not as an incident of waiver but in order to determine the scope of the privilege, it was submitted that in the ordinary course, the legal privilege which might pertain should be read down in some way because of the fact that the litigation happens to have been commenced by a client who had privilege in some, in this case, totally undescribed and unidentified communication, and we emphasise communication, not information, which is another falacy in my friend’s reasoning.

DEANE ACJ:   I follow what you say.

MR EINFELD:   And for that reason ‑ I am drawing attention to these cases because they demonstrate ‑ the other one is Lillicrap v Nalder & Son (1993) 1 WLR 94 where the Court of Appeal in England similarly held that, where the client sues his solicitor, he impliedly waives his claim to privilege and confidence in relation to all matters relevant to the proceedings and having done that, there is just no room whatever for reading, on public interest or any other ground, the privilege in some limited way.

Then in the course of debate, my friend has sought to draw a distinction between, on the one hand, what was called the false statement produced during the three-hour interview and then, on the other, the later statement.  Now, I merely give your Honours a reference to the appeal book at page 32 at line 45 where, in his affidavit, Mr Goldberg said at point 40 that he had agreed to supply a supplementary statement at the request of his solicitor for the purposes of the conduct of the litigation between himself and the Ngs and that subsequently he says, at page 33, he recalls a conversation similar to the one earlier referred to where he said to the lady at the Law Society:

I’ve also prepared this statement for my court proceedings.  I am prepared to provide it to you on the same basis ‑

that is, confidentiality ‑

as the previous one.

As we earlier submitted, the question of whether he did it voluntarily or deliberately or even for the purpose of achieving a dismissal of the complaint, even if that conclusion were to be inferred from the evidence, it has no impact whatsoever on any invocation of the privilege in these proceedings because, there is nothing which either involves a use of the material ‑ they have not attempted to use the material.  Justice Young was quite wrong to say that one might hypothesise that some advantage might be sought to be taken, or some use made in the proceedings, of the documentation.  How could it be?  How could we possibly tender, in these proceedings, our own statement made to our solicitor?  Not only could it not be contemplated but there is absolutely no evidence that it was going to happen or even now, remains to happen.  So, there is no use in the proceedings in the material and no impact upon the conduct of the proceedings by reason of it.

May I just respond to a matter your Honour that Justice Deane raised with my learned friend about the possibility that the continuing Law Society investigation may have produced a result, or the result of it may have produced the consequence, that the Ngs may have been motivated to proceed with their civil litigation rather than pursue another line, namely following up their rights under the fidelity fund legislation or something of the kind.

Firstly, absolutely no evidence whatsoever as to what might have happened had a complaint been pursued or a claim been pursued on the fidelity fund.  Absent some indication that that had even a remote prospect of success, we just do not know on the evidence below, and if my friend wants to invoke fairness it is for him to show on Maurice principles or some extension of them that this operated so as to persuade his clients to take a particular course which they otherwise might not have taken to regulate their conduct of this litigation or even pursue it as distinct from abandon it, no such questions of Mr Goldberg and certainly no evidence from the Ngs that, but for what they were told by the Law Society, they would have preferred to pursue a claim under the fidelity fund let alone some kind of evidence that such a claim had a prospect of success.

Moreover and most importantly the Ngs had available to them review proceedings,  So much appears from the Law Society’s letter, I think it was, at page 82 of the appeal book and the paragraph commencing at point 35.  The Law Society drew the attention of the respondents’ solicitors to the fact that the complainant, Mr Ng, had been informed of the existence of the legal profession conduct review panel which has the power to undertake a review of the Society’s treatment of the complaint.

If one is going to talk about fairness here, how can the Ngs on the one hand assert the maintenance of the proceedings let alone the maintenance of the privilege in them is unfair when they had available to them review proceeding in which they may well have been able to compel production of the documents.  One does not know.  It would have been for my friends to put on evidence that was not available to them or that if they had they would not have been able to look at these statements before they can come and say that the maintenance of the privilege in this case had any impact upon them whatever.

Your Honour Justice Toohey raised with my friend during the lengthy discursis about the correspondence extracted at the appeal book, none of which, we submit, has the slightest relevance to the argument at hand nor any impact upon it, but it is clear enough that the - I just wish to reaffirm that it is clear enough that the letter of complaint or letter written to the Law Society by the Ngs or their solicitors was treated as a complaint and for their perspective intended to be treated as a complaint because at page 77 so much is said by the Law Society at line 22 where the Ngs solicitors are informed that:

the matter is presently being investigated as a complaint by the Society’s Professional Conduct Department.  I will continue to liaise -

et cetera.  We just give your Honours that reference lest it be of assistance.

I just want to put at rest the suggestion that for the purpose of discovery in this case no reference was made to a claim for privilege during the discovery process of this material.  Your Honour Justice Toohey suggested to my learned friend, which he gladly embraced, the possibility that no such reference had been made either specifically or by category.

TOOHEY J:   No, not in relation to a claim of privilege.  The question was more broadly cast as to whether there had been discovery of documentation.

MR EINFELD:   In fact, at page 87 of the appeal book at line 25 is the usual form, desirable or otherwise is a matter of some debate among judges at first instance, and masters and the like, but is the usual form of discovery, that is, disclosure of memoranda, briefs to counsel and the like, for which privilege is claimed.  True it is that in this case, at first instance and on appeal, criticism is made, (a) the fact that some more explicit claim might have been able to be made in the discovery process; and secondly, criticism made of the processes by which the Law Society disposed of what was said to be the complaint.  Both of those matters may be deserving of criticism but they are determinative of no issue at all in this case.  We are either right, with the greatest of respect, that there was a loss of confidentiality, or as we submit, there was not; that there was an imputed waiver or there was not.  One cannot get it, as the President himself observed below, one cannot get it from the absence of any reference to the material on discovery because rather than being omitted, there was inclusion in the broadest description, of this material as the subject of a claim for privilege on discovery, but it would not matter for present purposes on the analysis we have proffered.

Your Honours, can I just deal with a couple of other matters quickly?  My friend asserted ‑ ‑ ‑

DEANE ACJ:   Mr Einfeld, how would it affect your argument if at the end of everything one were to reach the conclusion that waiver in circumstances such as this was not merely for the purpose of the individual proceedings but extended for the purposes of any associated proceedings in a broad sense?

MR EINFELD:   I have submitted earlier that that would run squarely into Waterford principles.

DEANE ACJ:   Yes, I understand your submission.

MR EINFELD:   The answer is:  one asks then, “What is the unfairness?”  The use is beyond the proceedings.  Any unfairness was in those other proceedings and the remedy is either by way of review to the review panel or administrative law proceedings on procedural fairness grounds to quash the result of the quasi‑judicial investigation because the complainant did not have access to the material or something of the kind.  Where is the unfairness in the proceeding in which the privilege is sought to be invoked?

DEANE ACJ:   The answer might be that if one reached the view that it applied in a particular set of associated proceedings, it would be unfair to enable one party to take advantage of the material in one of those associated proceedings, but yet insist on the privilege in another of the associated proceedings and that for practical purposes, in so far as unfairness was concerned, there is just no relevant distinction.  That might be an argument.

MR EINFELD:   Two answers.  In the context of the limited waiver cases which the President suggests are an exception to the general principles of waiver, there is always an advantage, I suppose, in a private litigant producing to the police copies of one’s statement in order to procure a prosecution and hopefully, no doubt, conviction of the other party to the private litigation - I appreciate that is a slightly different circumstance - yet it could not be suggested, in our submission, that the production of that material to a third party, albeit designed, let me assume, expressly to obtain an advantage in the civil proceedings by dint of the material being used or information being made available so as to procure the conviction of the accused in order to ensure there is little or no opposition in the civil proceedings so that he is committed to answers he has already given in criminal proceedings which might be used in civil proceedings or however, it could not be suggested in any such case, in our submission, that it would thereby be unfair to maintain the privilege in the civil proceedings.  I appreciate the fact that hitherto no such objection has been taken to not determining the matter.

DAWSON J:   But here in the proceedings before the Law Society they were in a strange form, but it may well be said that if fairness was to be given to your client in those proceedings in pursuing his complaint, he should have been shown the material which you say is privileged.

MR EINFELD:   The complainant should have been shown?  Yes.

DAWSON J:   Yes.  Now, he was not and he was not given an opportunity.

MR EINFELD:   That is not right because he had available to him review processes which may well have revealed ‑ ‑ ‑

DAWSON J:   No, in the proceedings which produced the result.  If it had been a question of appearances and the statement was produced, there were two statements produced, and the complainant said, “Well, I’d like to have a look at those because I can answer that,” privilege would have been waived, would it not?  If that had been done, if that fairness had been shown, then of course there would have been no privilege in relation to the civil proceedings because he would know what was in them.  So the unfairness runs through, if it is there at all.

MR EINFELD:   Your Honours, the first point is that all that assumes - and in some way the result of the Law Society investigation was a product of the information contained in the statements of which there is no evidence at all.  There was a three‑hour interview.  For all we know those determining the matter at the Law Society Council level may well have relied upon material that was produced orally by the solicitor in response to questions of the investigating officer.  One just does not know in this case but one ought not to make the assumption that Justice Clarke did.

DAWSON J:   The fair inference is, is it not, it was put in because it was relevant?

MR EINFELD:   No doubt about that.  He said, “I wanted to refer to it because it deals with that subject.”

DAWSON J:   And the fair inference was that it was found to be relevant in arriving at a result.

MR EINFELD:   It may have been relevant, but by no means is there any evidence that the material contained in it was persuasive in the slightest and one cannot infer from the fact that there was a three‑hour interview and two statements that what persuaded the Law Society to take the course it did was the two statements and not the material in the oral interview.  One does not know.

DAWSON J:   Perhaps so but surely, if the complainant were able to press his complaint, fairness would demand that he would have to see the material to see whether it was such that it aided him in the pursuit of his complaint and he was never given that opportunity.

MR EINFELD:   Your Honour, the problem with what your Honour puts to me is that, and with what your Honour Justice Deane - - -

DAWSON J:   I am just suggesting it as a - - -

MR EINFELD:   No, I understand that.  And what your Honour Justice Deane puts to me, the problem is this:   there will always be the unfairness in civil proceedings that the party seeking inspection of a document will not see the opposing party’s proofs of evidence and briefs to counsel and the like.  What is said now to constitute unfairness is the fact that the solicitor proffered the material to the investigating authority, the Law Society, on a condition of confidentiality.  There cannot be anything unfair at all about the fact that he gave it to the Law Society in confidence.  It would be surprising if a conscientious solicitor did not seek such assurance.

What is said to be unfair is the fact that he gave it to the Law Society yet invoked the privilege of the proceedings.  But invocation of the privilege in the proceedings cannot have imposed any undue unfairness on the other party because that is always the unfairness that pertains.  So what is suggested here is that by responding to a complaint made, by the way, after the proceedings were commenced, not before, so that the proceedings were commenced, the plaintiff then lodges a complaint with the Society and then subpoenas in the civil proceedings the material produced by the defendant to the civil proceedings, one might have thought there may be a degree of unfairness the other way in this process.

But what is said to be the additional factor of unfairness is what, the fact that we gave privileged documents to the Law Society in the circumstances outlined?  That cannot mean unfairness in itself.  The fact that we claim the privilege in the proceedings?  That cannot be an unfairness in itself because that is always there.  So, whereas there may have been a degree of unfairness in the Law Society proceeding - we do not concede that but let me assume for the sake of the argument - how can that impact upon the claim to privilege in the proceedings because the moment you step outside it and seek to give rise to a reflection in the proceedings of something that happened outside, what the court is then doing is saying, “Well, there is another interest and that is one of fairness.”

DAWSON J:   But it is as simple as this:  if he had waived his privilege in the Law Society proceedings and the complainants have been able to take advantage of that, there would be no privilege in the civil proceedings.

MR EINFELD:   But, your Honour, why does that make it unfair?

DAWSON J:   Simply because they did not have advantage of it and this was used against them in their complaint, if that is the right way of putting it.

MR EINFELD:   We do not know that but if we make that assumption.

DAWSON J:   Then, it seems to be all one-sided.  Had they been able to see and pursue the statement in the complaint proceedings, then there would be no question of privilege in the civil proceedings, would they?

MR EINFELD:   No doubt about that.  But if the law creates the privilege in the civil proceedings, which it does ‑ ‑ ‑

DAWSON J:   And they did waive the privilege, really in the complaint proceedings, in a sense, did they not?  You say it was a limited waiver, but they did waive it?

MR EINFELD:   No.  We say it was a maintenance of the confidentiality and, therefore, no waiver, but if any waiver, then limited disclosure in the sense discussed in the English cases.  I appreciate what your Honour is putting to me but it could never be a ground for determining that the claim to privilege in the civil proceedings could be unfair simply because if he had not maintained the confidentiality in the Law Society investigation, once disclosed, he would not have been able to maintain it in the civil proceedings.

By the way, that does not follow, of course.  On the basis of Goldman v Hesper, for example, the Court of Appeal in England decision in relation to taxation or, in fact, all of those cases, the principle is that once disclosed, disclosed for the limited purpose, you disclose for the purpose of the Law Society investigation but that does not waive the privilege in the later proceedings.  That is at the heart of the doctrine of legal professional privilege.

DEANE ACJ:   You are really diverting.  My question and Justice Dawson’s follow-up questions were expressly put to you on the assumption that you could not immunise one lot of proceedings from the other.  Your answers all proceed on the basis that you can.  What was put to you, and I think it has been dealt with in discussion, is assume that in some circumstances you do not immunise one set of proceedings from the other but you look at associated proceedings as being, in the circumstances, appropriate to be looked at together.  Now, I understand you say that one cannot do that, but it is only on the basis that that is not accepted that we were really putting this - - -

MR EINFELD:   On that assumption one would have to still satisfy the second limb of the Maurice test, namely, some prejudice in the conduct of the civil proceedings on those assumptions and there is just not the faintest of evidence here that that has happened.  The closest we have come in the course of the day to that possibility is your Honour’s suggestion that perhaps the Ngs were minded to pursue civil litigation because they were unable to pursue their fidelity fund remedy.  The fact the complaint was dismissed has nothing to do with the pursuit of the fidelity fund remedies but, in any event, even if it did, no evidence whatsoever to support that proposition on the facts of this case.  It is the failure of the disclosure in the ‑ let me assume for the purposes of this discussion now - unimmunised closely-related proceedings.  It is the failure for that use to have brought about some regulation of the plaintiffs’ conduct, of the respondents’ conduct, of the civil litigation or to cause any prejudice or to give rise to any misleading impression as to the contents of the privileged communications that produce the result no unfairness, even if one removes that immunisation.

My friend was wont to suggest, as Justice Mahoney had done, as appears at the passage he took you to in the appeal book, that we had conceded that fairness had a role to play in the argument.  So much is not the case.  One only needs to look at the judgment of the President, and if it were necessary, our submissions below; but the whole contention below was that this is not an occasion on which fairness arises for consideration for all the reasons that we have submitted here today.  That was the thrust of the submission below, as it is again.

In response to the debate that started to delve into the facts somewhat - and I do not want to lengthen the matter at all, but just a couple of short matters - firstly, if my friends are to demonstrate the unfairness they assert, then we would submit it was for them to point in the originating process or in the initial affidavits, be they relevant to anything in them which gives rise to conclusions of the kind discussed, and there is just no evidence about those matters.  To the extent they relate directly or indirectly to the result of the Law Society investigation or thereby to fairness, we submit of course, as we have done, that one does not get to fairness.  But if one does, we submit that the question of fairness is not too germane to the present question because, as we foreshadowed earlier, even if our intention

was totally designed to defeat the other process, whereas that may impact upon the merit or otherwise of the means by which the Law Society dealt with the matter, it has nothing to do with either the Ngs’ claims in these proceedings or the appellants’ cross‑claims.

Your Honours, I think the penultimate matter with which I wish to deal arises from - perhaps just subsidiary to what I just mentioned a moment ago, that not only is there no evidence about what might or might not have happened in relation to the fidelity fund or some such claim, but one can imagine that if the case had been fought on that basis at first instance, there might have been expected to be evidence able to be challenged about that and, of course, as we have said, there was not any.

Your Honours, we would submit that no basis has been put by our learned friends for rejecting as sound the notion of limited disclosure as adumbrated by the English cases and the subsequent Australian authorities to which we took your Honours this morning; that in terms of imputed waiver the appropriate approach is that reflected in the two passages in the judgment of Sir Frederick Jordan in the Thomason Case, neither of which has been controverted or put in doubt, in our respectful submission, by anything said by the respondents this afternoon.  If the Court pleases.

DEANE ACJ:   Thank you, Mr Einfeld.  The Court will consider its decision in this matter.

AT 4.11 PM THE MATTER WAS ADJOURNED