GOUGH & ORS. v City of Holdfast Bay (No 3) - [2014] SADC 73

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
GOUGH & ORS. v CITY OF HOLDFAST BAY (No 3)
[2014] SADC 73
Reasons for Decision of His Honour Judge Slattery
2 May 2014
PROCEDURE - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - PRODUCTION AND INSPECTION - GROUNDS FOR RESISTING PRODUCTION - LEGAL PROFESSIONAL PRIVILEGE - WAIVER OF PRIVILEGE
Objection made to questions asked in cross examination about advice given by solicitors to the plaintiffs - whether the evidence of one of the plaintiffs constitutes an implied waiver of the solicitor -client privilege belonging to the plaintiffs - whether it was necessary for the plaintiffs to make disclosure of the privileged communication under 6DCR 136(6)(b) - whether the defendant is to be permitted to cross examine a plaintiff witness on the receipt of the advice and the effect of the advice including reliance upon it.
Held:
1. There has been no implied waiver of the solicitor-client privilege belonging to the plaintiffs.
2. Plaintiffs were required to make disclosure of the existence of the advice from the solicitors.
3. Liberty to the defendant to further cross examine the plaintiff witness on the question of the existence of the advice, the extent to which the advice was relevant to the state of mind of the witness and on the issue of reliance.
District Court Civil Rules 6DCR 136(6)(d); Residential Parks Act 2007 s3, Form B, Form C, Part 2, Part 3, Part 7, Part 9 and Part 10; Trade Practices Act 1974 s52 ; Competition and Consumer Act 2010 Schedule 2, s18, s30(1)(b); Workers Compensation Act 1926 (NSW) s63, referred to.
Mann v Carnell (1999) 201 CLR 1, applied.
Commissioner of Taxation v Rio Tinto (2006) 151 FCR 341 , discussed.
Attorney General (NT) v Maurice (1986) 161 CLR 475 ; Goldberg v Ng (1995) 185 CLR 83 ; DSE (Holdings) Pty Ltd v Intertan Inc and Anor. (2003) 127 FCR 499; Thomason v Campbelltown Municipal Council (1939) 39 SRNSW 347; United States Surgical Corporation v Hospital Products International Pty Ltd. Unreported Supreme Court of New South Wales McKelland J 13 October 1981; Minter v Priest [1930] AC 558 ; Barilla v James (1964) 81 WN (NSW) (Part 1) 457; Southern Equities Corporation Pty Ltd (in liq.) v Arthur Andersen and Co. (1997) 70 SASR 166; Commonwealth v Tamwood Holdings Pty Ltd. [2002] WASC 107 ; Adelaide Steamship Co v Spalvins (1998) 81 FCR 360; South Australian Government Financing Authority v Bank of New Zealand (No. 2) [2002] SASC 10; Commissioner of Australian Federal Police v Propend Finance Pty Ltd. (1996-1997) 188 CLR 501 , considered.

GOUGH & ORS. v CITY OF HOLDFAST BAY (No 3)
[2014] SADC 73
JUDGE SLATTERY
My views: a summary

Objection was taken by Mr Tokely SC, counsel for the plaintiffs, to a question put by Mr Harris QC in cross examination of Ms Marilyn Pearson, one of the plaintiffs. Prior questions in cross examination put to Ms Pearson challenged the continuation of a particular belief that she allegedly held about her rights to live at the Brighton Caravan Park for as long as she wished. This was her pleaded case and was the case maintained by her in her evidence.
The questions in cross examination drew upon the existence of statements to the contrary made by the park owner (for the purposes of Residential Parks Act 2007) and recorded by Ms Pearson in her role as the minute secretary of a meeting of the Permanent Residents’ Committee of the Caravan Park at which the statements were made. Those statements were made over a period of time and in a number of contexts that were, to an extent, different because of the breadth of issues raised by Park management and about which the plaintiff residents had concerns.
One of the principal concerns of the plaintiff residents related to the introduction of a rule (hereinafter called the “20 year rule”) into the Park: that anyone purchasing a van and annex in the permanent area of the Park which was greater than 20 years old, could not on-sell that van but was required to replace it. The vans in the permanent area generally were greater than 20 years old and were also usually attached to a hard annex and other structures permanently affixed to the earth. These permanent structures were created with the consent of the management of the Park and, in most cases, after building permission had been obtained from the defendant Council.
The minutes made by Ms Pearson for the August 2011 meeting of the Permanent Residents’ Committee of the Park which was attended by many of the plaintiffs, record that the meeting resolved to obtain legal advice on the 20 year rule. When Ms Pearson was asked about the fact of that legal advice in the context of the challenge to her evidence about her failure to react in the meetings in March and June 2011 (and to reflect any reaction in the minutes that she prepared as minute secretary) to the assertions of management which were inconsistent with her pleaded beliefs (and so also, on the question of reliance) Ms Pearson volunteered that legal advice was taken on the 20 year rule and a number of other matters.
When Ms Pearson was asked in cross examination whether the topic of tenure (as a permanent resident) was a topic of the advice sought from the solicitors an objection was made that the question purported to elicit confidential information that was privileged. This was because, as it was asserted by Mr Tokely SC, merely attempting to elicit the topic of advice was tantamount to attempting to elicit privileged material. The defendant contended that what had occurred by Ms Pearson attempting to blunt the attack on her credit (that she did nothing despite management informing her that she did not necessarily enjoy the permanent status that she asserts) by referring (implicitly) to advice on this and other matters was an implied waiver of the privilege that attached to the advice of the solicitors to the plaintiffs.
On the question of implied waiver, the plaintiffs contend that as there was a range of issues in contention between the residents and management in the Caravan Park, it was not accurate to say, nor was it possible to contend, that there was any form of waiver because of the very general nature of the reference to the advice made by Ms Pearson (“…and a number of other matters…”). On the question of the disclosure of the advice, the plaintiffs contend that it was not necessary under 6DCR 136(6)(d) to make disclosure of it.
I make the following findings:-
1.   The plaintiffs are required to make disclosure of the advice of the solicitors in 2011 albeit that it would be expected that legal professional privilege is claimed in respect of the advice;
2.   The plaintiffs have not (yet) impliedly waived privilege in the advice received from the solicitor Gillam which was the subject of the evidence given by Ms Pearson;
3.   The question put in cross examination by Mr Harris QC at transcript 1423.23 is disallowed;
4.   The defendant is at liberty to cross examine Ms Pearson on the topic of the existence of the advice from solicitors, the extent to which the legal advice may have contributed to her state of mind and, generally, the issue of reliance concerning Ms Pearson;
5.   Subject to the responses of Ms Pearson to the questions put by the defendant on these issues, I give liberty to the defendant to re-agitate the question of waiver of privilege at any convenient time.
The case of the plaintiff: Ms Pearson
One of the plaintiffs, Ms Pearson currently occupies the dwelling situated on site B20 within what is known as Section B or the Permanent Residents’ Area of the Brighton Caravan Park.
Ms Pearson moved into site B20 in July 2008. She had previously been living in New South Wales. Ms Pearson investigated residing as a permanent resident at various caravan parks by email to the relevant offices of each park. She received a response from Patsy (O’Reilly) from Brighton Caravan Park stating that there were permanent residents at Brighton Caravan Park, and that there were two permanent sites currently available (B20 and B26) (the first pre-purchase conduct). Ms Pearson made arrangements to inspect the dwellings that existed on both sites, and, after doing so, became interested in purchasing the dwelling situated on site B20. She was told by the then owner, Ms Estelle Scott, that if Ms Pearson was interested in purchasing the dwelling, she would need to have an interview with Mr Birchmore, the park manager at the Caravan Park, before approval to purchase could be granted.
Ms Pearson subsequently attended the offices of Brighton Caravan Park and explained to Mr Birchmore that she was interested in purchasing the dwelling situated at site B20. Mr Birchmore told Ms Pearson that she would need to provide a police clearance certificate and, if she purchased the dwelling and commenced living at the Caravan Park, that there would be a six week trial period, after which she would be required to sign a lease that would need to be renewed each year. He said that if she paid her rent and kept her site clean and tidy, there would be nothing to worry about (the second pre-purchase conduct). Ms Pearson gave evidence that she does not recall being given any documents at this time, but that she had previously seen a copy of the park rules and was generally familiar with them.
At around that time, Ms Pearson negotiated and agreed with Ms Scott a purchase price of $48,000. After her meeting with Mr Birchmore and obtaining his approval, she paid a deposit on the dwelling on 9 June 2008 and, later, the remaining purchase price. Ms Pearson subsequently moved into site B20 in early July 2008 and has lived there since.
The Basic Assumption
The plaintiffs, in their statement of claim, plead that at all material times before 30 June 2007, those Plaintiffs who resided at the Permanent Residents’ Area conducted themselves and their dealings on the assumption (the ‘Basic Assumption’) that a person occupying a site was entitled to occupy that site for so long as:-
1.That site remained that person’s primary place of residence;
2.The person continued to pay rent in respect of the occupation of the site; and
3.The person complied with any rules imposed from time to time as part of the Park business.
The plaintiffs argue that this assumption was acquiesced in and encouraged by CHB, Ricklemore and Rick and Libby Birchmore and that the assumption arose from:-
1.The existence of the Permanent Residents’ Area, and the knowledge of CHB and Ricklemore of its existence;
2.The occupation by persons of sites in the Permanent Residents’ Area as outlined above;
3.The practice of permanently affixing dwellings and improvements, and the knowledge and permission of CHB and Ricklemore with respect to this practice;
4.The participation by occupants of the Permanent Residents’ Area in the development and continuation of a market in permanent dwellings, and the knowledge, permission and encouragement of CHB and Ricklemore of the development and continuation of the market;
5.The sharing of information within the community of occupants in the Permanent Residents’ Area regarding the dealings of each member of that community with RPM and CHB in relation to Brighton Caravan Park and the Park Business.
The Renewal Assumption
The RPA commenced operation on 5 November 2007. By reason of the commencement, Ricklemore required residents living in the park as permanent residents at 30 June 2007 to enter into written residential park site agreements as stipulated by s3 of the RPA, and required residents who began residing at the park as permanent residents after 30 June 2007 to enter into residential park site agreements after the expiry of a 6 week trial period.
The plaintiffs’ Statement of Claim contends that, despite clauses purporting to allow termination at the end of the term of the park site agreement, at all material times after 30 June 2007 each of the plaintiffs conducted themselves and their dealings on the assumptions that the Basic Assumption continued unchanged and subject to the conditions contained in the Basic Assumption, the residential park site agreements would be renewed. (the ‘Renewal Assumption’).
The plaintiffs argue that the Renewal Assumption arose from the existence of the factors that gave rise to the Basic Assumption together with:-
1.Representations made from time to time by Ricklemore and their directors and employees to persons including the plaintiffs to the effect that the requirement to enter into residential park agreements was merely a formality, that the true arrangement was that the Basic Assumption continued, and that the residential park agreements would be renewed at the expiry of each 12 month term;
2.The sharing within the community of information regarding those representations; and
3.The knowledge of CHB that persons including the Plaintiffs had made the Renewal Assumption together with CHB’s silence.
Post purchase representations
The plaintiffs argue that Ricklemore and CHB engaged in conduct post-purchase which conveyed representations to Ms Pearson in terms of the Basic Assumption and the Renewal Assumption. The first post-purchase conduct is the issuing of rent receipts by Ricklemore which describe the rent type as permanent and listed a departure date of 9 July 2018, which the plaintiffs contend is consistent with the Basic and Renewal Assumptions. The second post-purchase conduct was what was known as a ‘protocol’ in which residents of the B block area were required to make any enquiries of council in relation to the caravan park through Rick Birchmore, and not by contacting council directly. The third alleged post-purchase conduct was Ricklemore’s approval of Ms Pearson’s request to install a tropical roof on the dwelling. A fourth post-purchase conduct is pleaded but will be left to one side in these considerations.
The plaintiff contends that CHB is purporting to prevent each plaintiff from continuing to reside on the Park in accordance with the basic assumption and by purporting to terminate each tenancy agreement it is departing from the basis assumption and the renewal assumption. The plaintiffs contend that if CHB take those steps Ms Pearson will be without a home and will lose the price paid for the dwelling. This conduct is alleged to be unconscionable because it is unconscionable to depart from the assumption and an estoppel arises.
It is pleaded that at the time of purchase of dwellings, each plaintiff, including Ms Pearson, purchased their dwellings at Brighton Caravan Park, commenced and continued living at the Park as their primary place of residence, paid weekly rent on the site and continued to renew Residential Park Site Agreements on the basis of the Basic and Renewal Assumptions and pre- and post-purchase representations, in the belief that they had a right to occupy the site as long as they paid rent and complied with the rules. Some plaintiffs, including Ms Pearson, made improvements to their dwelling. It is further pleaded that the Birchmores, Ricklemore and CHB were aware that the purchase and continued occupation of dwellings was made on the basis of those assumptions.
Misleading and deceptive conduct
The plaintiffs further argue that the pre and post purchase representations were false and misleading representations concerning the nature of an interest in land made in connection with the possible grant of an interest in land contrary to s52 of the Trade Practices Act 1974 and s30(1)(b) to Schedule 2 of the Competition and Consumer Act 2010, and constituted misleading and deceptive conduct in trade or commerce contrary to s52 of the Trade Practices Act 1974 and s18 of Schedule 2 to the Competition and Consumer Act 2010.
It is pleaded that, in reliance on the Basic and Renewal Assumptions and the pre-purchase and post-purchase representations made by Ricklemore and CHB, Ms Pearson and the other plaintiffs, purchased their dwellings at Brighton Caravan Park, commenced and continued to live at the Park as their primary place of residence, signed Residential Park Site Agreements and renewed those agreements on a yearly basis, and paid rent weekly. Some plaintiffs, including Ms Pearson, made improvements to their dwellings. By reason of that reliance, Ms Pearson (and the other plaintiffs) have each suffered, and further or in the alternative is likely to suffer, loss and damage by having relied on the representations made by CHB and Ricklemore. The plaintiffs argue that at the end of their occupations of sites at the Brighton Caravan Park, they will lose the whole, or substantially the whole, of the amount paid for their dwellings (in Ms Pearson’s case, $48,000).
The Residential Park Site Agreement
Ms Pearson signed a document entitled Residential Park Site Agreement - Fixed Term (“the Agreement”), initially for a period from 1 September 2008 until 30 June 2009. The document was in standard form and consisted of six pages. After 2007 all of the residents living in the B Block area of the Brighton Caravan Park (“Caravan Park”) were required to sign these agreements annually pursuant to the Residential Parks Act 2007 (RPA).
The Agreement contains the terms and conditions of the tenure of a resident in B Block. There are three particular terms that require emphasis. Clause 17 permits a park owner or a resident to terminate for breach. The clause reads as follows:-
“17. Termination for breach of agreement
By the park owner
The PARK OWNER may terminate this agreement by notice of termination given to the RESIDENT if the RESIDENT breaches a term of this agreement. The notice must be in writing in a form approved by the Commissioner specifying the breach and must inform the RESIDENT that if the breach is not remedied within a specified period (which must be a period of at least twenty eight (28) clear days from the date the notice is given) then this agreement is terminated by force of the notice.
By the resident
The RESIDENT may terminate this agreement by notice of termination given to the PARK OWNER if the PARK OWNER breaches a term of this agreement. The notice must be in writing in a form approved by the Commissioner specifying the breach and inform the PARK OWNER that if the breach is not remedies within a specified period (which must be a period of at least fourteen (14) clear days from the date the notice is given) then this agreement is terminated by force of the notice.”
For present purposes, the clause does not have an operation but its importance is that it gives to either party the right to terminate for breach and the form of notice of termination must be in that form approved by the Commissioner under the RPA.
Similarly, there is a right under clause 18 of the Agreement for a termination by either party for successive breaches. That clause reads as follows:-
“18. Termination for successive breaches
By the park owner
The PARK OWNER may terminate this agreement by notice in writing given to the RESIDENT if the RESIDENT has breached a term of this agreement and the RESIDENT has committed breaches of the same term on at least two (2) previous occasions and been given separate notices in respect of each of those breaches. A period of at least twenty eight (28) clear days notice must be given.
By the resident
The RESIDENT may terminate this agreement by notice in writing given to the PARK OWNER if the PARK OWNER has breached a term of this agreement and the PARK OWNER has committed breaches of the same term on at least two (2) previous occasions and been given separate notices in respect of each of those breaches. A period of at least fourteen (14) clear days notice must be given.”

It permits either party to terminate in the event that a same breach has occurred on at least two previous occasions (three breaches in total) and separate notices have been given in respect of each of those breaches. There is a 28 day notice period required. Again, this clause does not have application in this matter, but it clearly sets out the rights of both parties.
There is then a further termination clause namely clause 21. It reads as follows:-
“21. Termination at end of term
Either the PARK OWNER or the RESIDENT may terminate this agreement at the end of the term without specifying a ground of termination by giving the other not less than twenty eight (28) clear days’ written notice.”
This clause is important because either party may give to the other 28 days clear notice at the end of the term. No grounds for provision of this notice of termination are required. The evidence of Ms Pearson was that from the time she first signed the Agreements (and she has signed an Agreement for each year of tenancy at the Caravan Park), she read the terms of the Agreement and was aware of clauses 17, 18 and 21.
However, Ms Pearson gave evidence that despite the content of the Agreement that she read and signed, and despite the fact that, from the whole of her background, she had a clear understanding of the importance of reading and understanding written documents that she was signing, she had an understanding that because she lived in the permanent area of the Park, she could live in the Park permanently for as long as she desired.
Reliance
I have previously set out in these reasons, the relevant pleadings of Ms Pearson concerning the basis of her understanding about the permanency of her tenure of site B20 in the Caravan Park. Ms Pearson alleges that she was entitled to rely upon the whole of the factual background of the matter concerning what is alleged to be the basis assumption, the renewal assumption, the pre and post purchase representations and her reliance upon all of those matters generally. Ms Pearson has alleged that an equitable estoppel arises against the defendant which prevents the defendant denying the permanency of the tenure of Ms Pearson in the Caravan Park. Alternatively, Ms Pearson pleads reliance on the contravening conduct said to have been committed by the defendant or the defendant through its agent and that as a result of such reliance, Ms Pearson is entitled to remedy under various forms of legislation including the Trade Practices Act 1979 (TPA) insofar as it is relevant or the Competition and Consumer Act 2010 (CCA). The important aspect here, is that the state of mind of Ms Pearson is relevant having regard to the reliance case pleaded by her and that matter is strongly put in issue by the defendant. The question of this aspect of reliance is at the heart of the issues for determination by me.
The defendant’s challenge
In essence, the defendant challenges the plea of reliance and the whole issue of reliance. The defendant says, inter alia, that all of the objective evidence available to the Court gainsays any proposition of the reliance cases pleaded by Ms Pearson particularly when regard is had to the conduct as it actually occurred and as is reflected within the materials available to the Court. In that case, it will be necessary to closely examine that material in order to identify the objective factors that may be understood from that material.
Ms Pearson and the Brighton Caravan Park Permanent Residents’ Committee
Soon after Ms Pearson purchased site B20 from a Mr and Mrs Duguid, Ms Pearson attended meetings of the Brighton Caravan Park Permanent Residents’ Committee (“the Committee”). At the time she joined the Committee, she said the Committee was generally inactive and did not meet on a regular basis. The Committee was later revived and in the course of that revival, Ms Pearson took on a role as minute secretary. Until the time she left her role as minute secretary of the Committee, Ms Pearson prepared detailed minutes of all of the meetings of the Committee that occurred between 2008 and 2012. Ms Pearson brought to bear the whole of her experience having worked for the Nambucca Shire Council as a community services officer and a minute secretary to many committees, and as a secretary/administrative assistant in a number of legal firms in rural New South Wales to bear in the preparation and presentation of the minutes. Ms Pearson appears to be a very thorough and assiduous minute secretary.
The information supplied by management
The management of the Caravan Park adopted a method of disseminating information to residents by circulation of newsletters. Usually, newsletters were placed in the “pigeon holes” in the anteroom foyer of the Caravan Park office in which are situate a number of pigeon holes delineated alphabetically.
One such newsletter that was circulated was the February 2011 newsletter.[1] The relevant newsletter was in three parts. The first part identified power charge increases which are not relevant to these matters. The second related to new tenancy agreements and the third to alterations and new clauses in Caravan Park regulations. At all times, the Caravan Park operated under a series of regulations as promulgated by management. The regulations were amended from time to time and were essentially the rules of the Park by which the residents were required to live as required by management. These rules were separate from the terms of the Agreements.
[1] Exhibit P2 vol 4.1 tab 185 pages 1155-1156.
I will deal first with the topics of new tenancy agreements. The relevant paragraph of the newsletter reads as follows:-
“NEW TENANCY AGREEMENTS
Toward the end of March we will be offering residents with new agreements and such will only be offered to residents who maintain their sites in accordance with regulations. The few residents that will not be offered an extension must hold themselves responsible as they have ignored our repeated warnings. It is in the interest of those wanting to remain to comply with regulation 4 immediately.
We currently have a waiting list of about 10 persons wanting permanent occupancy.
To reiterate that the caravan park has no legal obligation to issue extensions of occupancy leases, the following is the very recent decision made by the presiding tribunal member at a meeting with the tribunal and caravan park staff and others.
·    Any disruptive behaviour will not be tolerated by the park in the future.
·    Residents must maintain a respectful attitude to other residents and to the park staff, who have the full support of management.
·    Fixed term agreements are subject to renewal and the park has the right to terminate any agreement and not renew the agreement by giving 28 days notice (see form C).
·    The park may also, in the future, serve a notice (form B) to terminate the tenancy for serious misconduct within the park, if there is good reasons to do so.”
The newsletter identifies that there is no legal obligation on management to issue extensions of occupancy leases. It then goes on to refer to information obtained from the Residential Tenancies Tribunal. It sets out that information in four bullet points. The first two bullet points are relevant because they relate to any potential misbehaviour by tenants and that residents are reminded that they must maintain a respectful attitude to other residents and to Park staff. There is then a further reminder that fixed term agreements (that is all of the existing Park tenancy agreements) are subject to renewal and the Park has the right to terminate on 28 days notice. Form C is referred to. This is Form C under the RPA. The fourth bullet point is in the same terms but in respect of termination for serious misconduct. Reference is made to Form B. Forms B and C are in evidence.[2]
[2] Exhibits D9 and D10.
The third aspect of the February 2011 newsletter refers to amendments to what was called clause 9. The newsletter reads as follows:-
“Clause 9: (change of ownership)
Restrictions to sale will apply on condition of the unit being sold and the site appearance. Other conditions will apply to units when they are older than 20 years.”
At first glance, it is difficult to know what is meant by the suggested amendment to clause 9. The other amendments in the document instruct on the actual changes to the wording of the Caravan Park regulations as they previously existed as at the end of January 2011. What is not set out in the reference to clause 9 is what restrictions there will be on the sale of caravans including the condition of the unit, its appearance and what other conditions would apply when they are older than 20 years. Ultimately this became known as the “20 year rule”. It took some time after February 2011 before the so-called “20 year rule” was properly explained to the residents. However, viewed objectively, there are two aspects of the newsletter that are of particular importance to residents. The first is the reminder of the relevant legal positions of the Park owners and residents, and the entitlement to terminate Agreements. The second is the restrictions on sale of sites and any other conditions that might apply to units that are older than 20 years. It is common between the parties that all of the relevant caravans owned by the residents are older than 20 years.
After the February 2011 newsletter, the Committee sought clarification of what was meant by the “20 year rule”. A meeting of the Committee took place on 15 March 2011 at the Park. Mr Birchmore was invited to attend and did attend as a guest. Ms Pearson took the minutes of the meeting.[3]
[3] Exhibit P2 vol 4.1 tab 189 pages 1171-1173.
At paragraph 3.2 and 3.3 on page 1173 of the exhibit, there is a record in the minutes of matters addressed by Mr Rick Birchmore. Prior to that time, there was a reference to Form J under the RPA which was an information notice under that Act.[4] The pertinent parts of the Form J in this respect are set out on page 5 of 8 of the document which sets out the types of agreements that exist under the RPA, the irrelevance of an expression such as “permanents” and notice periods for ending or terminating Agreements under the Act. Ms Pearson was familiar with the content of Form J because she printed it off from a website, read it and circulated two copies at this meeting. Item 3.3 of the minutes reads as follows:-
“3.3 Park newsletter and changes to Park regulations – Rick was invited to explain the changes to Park regulations as stated in the last newsletter. Rick explained that changes had been implemented to ensure purchasers did not assume they had a right to lifetime tenancy. Tenancy is offered on a 12 month lease and there are no guarantees that will be ongoing. The changes also identify unacceptable behaviour and that Park management is under no obligation to renew or extend a lease if the owner has broken the regulations.
Concern had been expressed by several residents at the wording of clause 9 (change of ownership). The clause had been brought in to ensure sites were kept to an acceptable standard. Residents doing the right thing and keeping their sites up to standard will be offered renewal of their lease.”
[4] Exhibit D8
It may be said that the only alterations as proposed in the February 2011 newsletter that related to conduct of the parties was clause 5 which required the residents to behave properly towards each other and otherwise, clause 9 related to changes of ownership of the particular caravans and the introduction of the 20 year rule. It is therefore noteworthy that Ms Pearson has recorded Mr Birchmore again informing residents, as he did in the newsletter, that they did not have a right to any lifetime tenancy, tenancy was offered on a 12 month lease basis and there were no guarantees that tenancies will be ongoing. Any renewals of leases will depend upon residents ensuring sites were kept to an acceptable standard.
Paragraph 3.3 of these minutes does not record any explanation being made by Mr Birchmore of the 20 year rule. There may have been an implicit assumption that all tenants understood what the 20 year rule was about at that time. Otherwise it is difficult to understand why, in light of the content of the newsletter and the concerns about the 20 year rule, that more was not said by Mr Birchmore about the 20 year rule and that such an explanation would have been recorded in the minutes which were disseminated to all members of B Block of the Park. There was insufficient in the minutes to be able to draw an inference, from the objective evidence, that all of the persons present at the meeting would have had a clear understanding of what clause 9 was actually about. An objective reading of those minutes would suggest that it was necessary for the parties to ensure they kept their sites up to an acceptable standard before they could expect a renewal of their leases.
After the March meeting, there was a further meeting of the Committee on 14 June 2011. Minutes were kept of that meeting. They were prepared by Ms Pearson as the minute secretary.[5] Mr Birchmore attended this meeting. Paragraph 2 of the minutes sets out a recitation of what was said by Mr Birchmore concerning clause 9 of the Park regulations. He explained that all permanent residents have the right to on-sell their caravans and annexes provided they are in good condition and had management approval. The purchasers of any of these vans which were more than 20 years old would not be able to sell their vans as part of the permanent site. The minutes then go on to record the disquiet expressed by those present concerning the rule particularly the discouragement of purchasers and the difficulty in selling properties. The response of Mr Birchmore was that the current residents could replace any vans greater than 20 years old with a new van but he also emphasised that the actual site itself, that is the land on which the caravan sits, does not make up any part of this sale because what is being sold is the caravan and annex. He also advised that the Park would be upgraded in the next few years. He said that management had no indication from the City of Holdfast Bay (“the Council”) as to when that was likely to be. The minutes also record that those present were then referred to a number of parts of the RPA 2007 namely Part 2, Part 3, Part 7, Part 9 and Part 10.
[5] Exhibit P2 vol 4.1 tab 195 pages 1180-1181.
Similar to his approach at the March meeting, at the June meeting Mr Birchmore again addressed renewals. The minute records:-
“2.3 lease renewals – most leases have been renewed for a further 12 months. Leases are offered for 12 months and management is under no obligation to renew leases each year.
2.3.1 upgrade of the Park. Rick said the Council committee dealing with the upgrade of the Park (of which he is now a member) has not met in the last 12 months. His gut feel is that no changes will take place within 3 years (Rick stresses that is only his gut feeling and he does not have anything to base it on).”
Mr Birchmore then left the meeting. It is sufficient to say that this was a reiteration of the matters mentioned in the February 2011 newsletter and the matters stressed by Mr Birchmore at the March 2011 meeting of the Committee.
The next meeting of the Committee took place on 23 August 2011. Minutes were taken of the meeting and these minutes were prepared by Ms Pearson as the minute secretary.[6] Clause 5 of those minutes are in the following terms:-
“5.1 residents’ concerns
Clause
5.1.1 residents have become increasingly concerned about the restrictions clause 9 (now clause 14) is causing. People experiencing difficulties selling their vans as a result of the clause. They consider the clause as unfair and should be removed from the Park rules.
5.1.2 residents discussed a range of options and it was decided that we should take the following actions:
a) seek an opinion as to the legality of the clause;
b) the executive seek to meet with management to discuss options for removal of clause 14 and other issues.”
[6] Exhibit P2 vol 4.1 tab 201 pages 1189-1190.
A summary
The position reached is that notwithstanding the pleaded case of Ms Pearson and the evidence of Ms Pearson that, her belief was that from the moment she signed the first Agreement, she had an entitlement to stay in the Park as a permanent resident for as long as she wished, there is arguably objective evidence available of information being supplied by the management, at the least, throughout 2011 which was inconsistent with that belief. The issue for consideration here does not involve the question of what might have been the belief of Ms Pearson at the time that she executed the first Agreement after having agreed to purchase site B20 in B Block. The issue here is the question of the alleged continual reliance upon all of the matters pleaded relating to the right to remain as a permanent resident for as long as she wished, derived from her reliance upon the whole of the conduct of the defendant said to have been represented by Mr Birchmore and his company as the manager of the Park and, for the purposes of the RPA, the owner of the Park. Therefore, the question of reliance carries with it a question of the examination of what was in the mind of Ms Pearson at the relevant times from 2008 onwards. I will not canvass issues concerning the years 2008, 2009 or 2010 because they are not pertinent to the matters that I am required to decide here. What is relevant, is the question of the mental state and beliefs of Ms Pearson at the relevant times in 2011. It is about that topic upon which this matter revolves.
The transcript of evidence of Ms Pearson
On the topic of the state of mind of Ms Pearson and the question of reliance, Mr Harris QC in cross examination questioned Ms Pearson about the fact that she had received the February 2011 newsletter and that she then attended the March 2011 Committee meeting. She did so in her official capacity as minute secretary and she was the person who prepared the minutes of that meeting. She was then challenged about the fact that Mr Birchmore had made a statement in her presence that purchasers could not assume that they had a right to lifetime tenancy and that tenancy was offered on a 12 month leases basis and he also said there were no guarantees that tenancies would be ongoing. Mr Pearson agreed that nobody made any response to these assertions by Mr Birchmore at the meeting and that if someone had made such a response then a record would have been made in the minutes. In response to that assertion, Ms Pearson said nobody said anything at the meeting but there was some follow up after the meeting. It is necessary to set out in full the transcript of the questions.
Q. And so, in March 2011 Mr Birchmore made a statement in your presence that he didn’t want purchasers to assume they had a right to lifetime tenancy because tenancy is offered on a 12-month lease and there are no guarantees that will be ongoing. If anybody at this meeting had disputed that statement you would have made a note of that and recorded it in the minutes, wouldn’t you.
A. Yes, I would have.
Q. And so the fact that the minutes do not record any dissent or any demur from the statement I’ve just read out, we can confidently assume that no-one did dissent or offer any opposition to it.
A. No, there was follow-up after the meeting.
Q. And what did that take the form of.
A. Well, there were discussions that were held about what kind of action we could look at. We felt very much at that time that, you know, Rick was acting in a threatening way that wasn’t, you know, pleasant for any of us. And yes, and one of the options that we looked at that time over the next few months was getting legal advice.
Q. You looked at the option of legal advice on the validity of clause 9.
A. On clause 9 but there were other matters included in that.
Q. There is nothing in the minutes that says that. The minutes makes specific reference to get the validity of clause 9.
A. In amongst the background of asking for some legal advice about clause 9 was included several other issues – well that related – I mean everything seemed interrelated when you live as we do. So yes.
Q. Was that legal advice obtained.
A. We did get – I’m not sure exactly what he called it, but yes, we did get advice but we hadn’t met with the solicitor. It was just through a letter that was provided online.
Q. Online.
A. And they gave preliminary advice. I don’t know whether there is a name for it or not. But in the interim we had negotiated a solution to the problem with Rick.
Q. Who was the person that gave you advice.
A. His name was Charles Gillam and from Von Doussa Solicitors in Mt Barker.
Q. To whom did he give that advice, was it to you.
A. Well, I provided the letter on behalf of the residents; yes.
Q. So there is in existence a letter emanating from you seeking legal advice in relation to clause 9 to start with.
A. Yes.
Q. Correct; is that right.
A. Yes.

There has been no disclosure by the plaintiffs of the letter of instruction to Charles Gillam at Von Doussas Solicitors or of the fact of any advice received from Mr Gillam by the members of the Committee. Mr Tokely SC argued that under the Rules, namely 6DCR 136(6)(d), it was unnecessary to make disclosure of that document.
Rule 136(6)(d) reads as follows:-
“136—Obligation to disclose documents
(6)     The following documents need not be disclosed—
(a)     …
(b)     …
(c)     …
(d)     correspondence between a party and the party's lawyer or notes of oral communications between a party and the party's lawyer.”
I am unable to accept this submission of Mr Tokely SC. In my opinion, the relevant correspondence between the party and party’s lawyer as referred to therein would be what would be understood as the usual correspondence emanating between solicitor and client and between client and solicitor involved in the proceedings. In my opinion, it is plain that the Rule envisages that, where previous advice has been obtained from different solicitors than those solicitors acting in their relevant proceeding, as in this case, it is necessary to make disclosure of that document even having regard to the fact that privilege is claimed. I therefore am unable to accept the contention of the plaintiffs in that regard.
In his submissions, Mr Tokely SC informed the Court that the relevant documents do exist and the question for my consideration is whether they should be produced after they are disclosed by the plaintiffs. That is the matter for my consideration in this judgment.
The defendant’s contention
In summary, the defendant contends that there has been a form of implied waiver in the nature of an issue waiver because on a proper consideration of the circumstances, the plaintiffs have put into issue the very advice received by the solicitors. This is because, when the transcript is properly understood[7] the actions of Ms Pearson in attempting to deflect the attack upon her of a failure to react to information provided by Mr Birchmore which was, on the defendant’s case, plainly inconsistent with the belief allegedly held by Ms Pearson at the relevant time, she said that despite anything being said at the meeting, steps were taken to get legal advice. That is, Ms Pearson attempted to deflect the attack upon her credit (and the credit of other plaintiffs) by saying that (rather than react at the meeting) the plaintiffs met and made a decision to obtain legal advice on “clause 9 and other matters”. That is reflected in paragraph 5.1.2 (b) of exhibit P2 vol 4.1 tab 201 page 1190. Thus, according to the argument of the defendant, the plaintiffs have put in issue the very advice received by them because it is used as a protection to deflect the attack on their credit bearing in mind the objective evidence concerning the behavior of the plaintiffs (notwithstanding their pleaded case) as recorded by the minutes of the meetings attended by the plaintiffs, or some of them.
[7] T1422.
Mr Harris QC contended that there are two forms of waiver, implied or issue waiver. I am unable to accept that submission. In my opinion, issue waiver is well recognised to be a form of implied waiver.[8] However, it is not necessary here to do any more than identify whether or not there has been some form of express or implied waiver. There is no contention that there has been an express waiver. Therefore, it is necessary for me to decide whether or not there has been some form of implied waiver whether by issue waiver or otherwise. That question revolves around whether, in light of the statement by Ms Pearson that, when challenged about the credibility of her stated belief and the failure to react to what was said by Mr Birchmore, either in the minutes or otherwise, that the suggestion of legal advice being obtained brought into issue the fact of that legal advice and therefore created an issue waiver.
[8] Commissioner of Taxation v Rio Tinto (2006) 151 FCR 341 at [43].
Mr Tokely SC submitted that the focus of the defendant’s submissions on pages 1422-1423 of the transcript and the answers given by Ms Pearson to the questions of Mr Harris QC do not properly focus upon the true issues that were under discussion and about which Ms Pearson was being questioned.
I have already referred to the February 2011 newsletter and the fact that it covers three distinct matters which I have previously described in detail earlier in these reasons. In my opinion, it is unclear from the content of the February 2011 newsletter, precisely what is intended by the amendment to clause 9 (change of ownership) of the Caravan Park regulations. Mr Tokely SC submitted and I accept that the expression “other conditions will apply to units when they are older than 20 years” does not inform the Park tenants of what other conditions will apply, the terms of those conditions and how those conditions may affect the relevant tenants. This is important because most if not all of the tenants occupy caravans that were older than 20 years. There were already restrictions to sale applying on the condition of the unit being sold and the site appearance. It is not clear from the contents of the newsletter what particular restrictions, if any, may be added to the existing restrictions that were already in existence and familiar to the tenants.
That (third) announcement followed the second part of the newsletter concerning new tenancy agreements. The first part of this section of the newsletter referred to the fact the extensions of the tenancy arrangements will only be offered to residents who maintained their sites in accordance with the regulations. It goes on to say the following: “the few residents that will not be offered an extension must hold themselves responsible as they have ignored our repeated warnings. It is in the interest of those wanting to remain to comply with regulation four immediately.” It is therefore possible to suggest that the matters covered in the new clause 9 are in addition to or in some way different from regulation 4. However, that is not clear from the terms of the newsletter.
At the 15 March 2011 meeting of the Committee, attended by Mr Birchmore, the discussion at paragraph 3.3 does not specify or in any way record what the change may be. To that extent, there may have been an uncertainty which does not appear to have been clarified until the June 2011 meeting which records Mr Birchmore clearly specifying what is intended by the 20 year rule and his identification of the effect of it upon tenants generally.
On the submission of Mr Tokely SC, it is in that context that the whole of the evidence of Ms Pearson must be understood. And it is necessary to identify earlier evidence given by her prior to that evidence which is record at transcript 1422.
Mr Tokely SC refers to an exchange between Ms Pearson and Mr Harris QC in cross examination at transcript 1421 commencing at line 20 to line 38 in the following terms:-
Q. This refers to – heading is ‘Park newsletter and changes to park regulations’.
A. Yes.
Q. If I might touch on this for a moment. the minute records ‘Rick was invited to explain the changes to park regulations as stated in the last newsletter’. One of the changes to the park regulations in the last newsletter was the 20-year rule because that was in the February 2011 newsletter that we looked at a moment ago.
A. Yes.
Q. The minute goes on ‘Rick explained that changes had been implemented to ensure purchasers did not assume they had a right to a lifetime tenancy. Tenancy is offered on a 12-month lease and there are no guarantees that will be ongoing. The changes also identify unacceptable behaviour and that park management is under no obligation to renew or extend the lease if the owner has broken the regulations.
A. Yes.
Mr Tokely SC’s submission was that on a reading of paragraph 3.3 of the minutes of 15 March 2011, the meeting canvasses almost all of the issues in the three parts of the February 2011 newsletter. These include the actual wording of the notice given to the residents but also, according to the evidence of Ms Pearson, the behaviour of Mr Birchmore towards the tenants and especially the aggressive attitude that he took. Mr Tokely SC’s submission was that there are a host of matters under discussion by the tenants at this meeting concerning both the announcement of Mr Birchmore and his behaviour, and when it is understood that the discussions which led to the obtaining of the legal advice on those matters evolved over a period of several months after that time, and one would presume sometime after June 2011 when Mr Birchmore clarified the position, then the evidence may have a different emphasis. Ms Pearson agreed at transcript 1421.23-28, that the meeting of March 2011 invited Mr Birchmore to explain the changes to Park regulations as stated in the February newsletter. It does not confine those changes to the question of the 20 year rule but it may easily be inferred that was on the top of the list of priorities for members. However, it does not limit the questions that were raised about the announcements made by Mr Birchmore in the newsletter of February 2011.
Mr Tokely SC’s submission was that when the evidence is properly understood and canvassed in the way that he contends, the matters about which legal advice may have been obtained, and as referred to by Ms Pearson, range over a number of issues unconnected with the subject of the attack of Mr Harris QC for the defendant concerning the question of waiver.
I agree with the submission of Mr Tokely SC that it is not clear from the February 2011 newsletter what were the terms of the amendments to, at least, Part 9 of the regulations. Also, a fair reading of the minutes of the March 2011 meeting of the Committee at which Mr Birchmore attended, does not clarify that position. It was not really until the June meeting in 2011 that Mr Birchmore is recorded as giving some explanation of the operation of the 20 year rule. Ms Pearson’s evidence was that the decision of the residents to seek some legal advice about the changes to the Park regulations and, implicitly, the behaviour of Mr Birchmore in relation to what may be described as the unilateral way in which he was behaving, evolved over a series of months from February 2011. This is understandable and a final decision about obtaining legal advice about a number of matters may not have crystallised until, at the earliest, the June 2011 meeting when there is a record of an explanation having been given by Mr Birchmore about the 20 year rule.
A consideration of the authorities on waiver of privilege
As I have already identified, issue waiver is a form of implied waiver. In my view, the relevant authority that binds me is the decision of the High Court of Australia in Mann v Carnell.[9] At paragraph [29] of that judgment, the majority of the High Court said as follows, on the issue of implied waiver:-
“[29] Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which privilege is intended to protect… what brings about the [implied] waiver is the inconsistency, which the Courts were necessary informed by considerations of fairness, perceived, between the conduct of the client and the maintenance of the confidentiality; not some overriding principle of fairness operating at large.”
[9] (1999) 201 CLR 1.
In Commissioner of Taxation v Rio Tinto Limited,[10] the Full Court of the Federal Court pondered whether the High Court’s decision in Mann v Carnell worked any real change in governing principles because the majority did not suggest that the reformulated principle was intended to depart from previous authorities. However, it was clearly understood that prior to the decision in Mann v Carnell, the concept of implied waiver was linked with the question of the operation of a fairness principle.[11] It is not necessary to resolve that matter. A passing observation may be made that if there was no departure intended from previously stated principles, it is difficult to understand why the High Court gave leave in that particular case.
[10] [2006] 151 FCR 341 at [44].
[11] Attorney General (NT) v Maurice (1986) 161 CLR 475 at 483 per Gibbs CJ and at 489 per Mason and Brennan JJ; Goldberg v Ng (1995) 185 CLR 83 at 101-102.
As I am required to do, I have attempted to analyse the acts of Ms Pearson and what are said to be the omissions of Ms Pearson as the privilege holder. The question is whether there is an inconsistency with the maintenance of the privilege having regard to those acts or omissions. I am unable to obtain much assistance from other decided cases on the question of implied waiver because most turn on their peculiar facts. All of those relevant authorities are summarised by Allsop J in his Honour’s decision in DSE (Holdings) Pty Ltd v Intertan Inc and Anor. (DSE).[12] I refer in particular to his Honour’s summary of the relevant authorities from paragraphs [16] through to paragraph [113].
[12] (2003) 127 FCR 499.
In the DSE decision, Allsop J considered the Australian position commencing with the discussion of the decision of Jordan CJ in Thomason v Campbelltown Municipal Council.[13] Jordan CJ delivered the decision of the Full Court of the New South Wales Supreme Court. That case dealt with a question of alleged waiver of legal advice given to a widow of a deceased worker who, on behalf of herself and her infant daughter, sought to recover compensation following the death of her husband as a result of negligence of the husband’s employer. The defendant council defended the suit and pleaded s63 of the Workers Compensation Act 1926 (NSW) which provided for an election between proceeding by way of an application for determination under the relevant Act and proceeding independently of that Act for common law damages. Mrs Thomason had proceeded to claim common law damages despite the fact that, as was the case, she had received legal advice and had instituted proceedings under the Workers Compensation Act 1926 via what is called an application for determination. In that application, Mrs Thomason stated that she had received advice from a solicitor, Brady, about her rights under s63 of the Workers Compensation Act 1926, that the death of her husband was caused by negligence or wilful act of the employer, that she may take proceedings independently under the Act in respect of herself and dependants but that she did not desire to take proceedings independently of the Workers Compensation Act 1926 and sought to claim the benefits prescribed under the Act. Mrs Thomason signed the documents. The question for consideration was whether Mrs Thomason was barred by the operation of s63 of that Act by virtue of her election having received the legal advice from the solicitor Brady.
[13] (1939) 39 SRNSW 347.
Mrs Thomason was cross examined about the advice given by Brady and another solicitor concerning the operation of s63 of the Workers Compensation Act 1926. Brady was called by the defendant and was permitted to give evidence about the advice. A question was the necessity for Mrs Thomason to have a clear understanding of the operation of s63 of the Workers Compensation Act 1926 and the knowledge required for the election provided for under the Act. It was necessary to prove, according to High Court authority, that the action commenced in the Workers Compensation jurisdiction was instituted or continued “with knowledge of the existence of the common law right as an available or alternative”.[14]
[14] Thomason at 532.
Jordan CJ found (at pages 358-359) that an issue in the case was what advice Mrs Thomason had received from her legal advisers about her alternative right. Thus, the fact and nature of that advice became an issue in the case. His Honour decided that privilege could not be raised to prevent proof of that advice.
The decision of Jordan CJ in Thomason was further explained by McLelland J in United States Surgical Corporation v Hospital Products International Pty Ltd.[15] McLelland J said (at page 8546):-
“The defendant submits that the state of knowledge from time to time with the plaintiff and its legal advisers of the activities of the defendant relied upon to support the plaintiff’s claim to relief and the legal advice given to the plaintiff from time to time as to its rights in relation to those activities are matters in issue by virtue of the defence of laches pleaded by all defendants.”
[15] Unreported Supreme Court of New South Wales McKelland J 13 October 1981.
The defendants rely in this regard on what was said in the Thomason case at 358-359.
McLelland J then said (at pages 8546-8547):-
“Jordan CJ cannot have intended to lay down as a proposition of general application that whenever the making or contents of a privilege communication becomes an issue in proceedings, privilege cannot be successfully claimed for the purpose of those proceedings as this would be inconsistent with his Honour’s discussion (at 353 of the same judgment) of what was said by Lord Atkin in Minter v Priest [1930] AC 558 even if the proposition were limited to proceedings to which the person entitled to privilege was a party.
The key to the proper limits of the principle propounded by Jordan CJ is I think to be found in the judgment of Asprey J (with whose reasons on this aspect of the case Walsh J agreed) in Barilla v James (1964) 81 WN (NSW) (Part 1) 457. In that case the question arose whether the validity of a certificate given by a solicitor under the Landlord and Tenant Amendment Act could be challenged on the ground that the matter so certified did not occur.”
McLelland J then said (at page 8547):-
“In the Thomason case, the plaintiff was asserting a right to claim damages in a statutory context which rendered implicit in such an assertion that the plaintiff had not effectively exercised her option to take the alternative course, notwithstanding that on the pleadings, the onus of proving the effective exercise by the plaintiff of that option, and in an evidentiary sense the onus of proving the plaintiff’s knowledge of her legal rights, in each case rested on the defendant. So that it may be that the criterion that the otherwise privileged party must have himself raised the fact and nature of the advice as an issue in the case is too rigidly stated. Nevertheless, before the privilege can be said to have been lost on this principle, one must at least be able to identify some element or feature of the claim made, or the evidence adduced, by the party otherwise entitled to the privilege, which would render reliance on the privilege unjust.
There is in my opinion no such element or feature in the present case as things stand at the moment.”
Allsop J agreed with the distillation of the judgment of Jordan CJ in Thomason by McLelland J in United States Surgical Corporation. His Honour added that in light of the decision of the High Court in Mann v Carnell, the principle must be expressed in terms of inconsistency rather than injustice.
Allsop J summarised the position at paragraph [58] of his Honour’s judgment as follows concerning reliance cases:-
“[58]… It is sufficient to understand… that… (if) the party entitled to the privilege makes an assertion (express or implied) or brings a case which is either about the contents of the confidential information or which necessarily lays open the confidential communication to scrutiny and, by such conduct, an inconsistency arises between the act and the maintenance of the confidence, informed party by the forensic unfairness of allowing the claim to proceed without disclosure of the communication.”
I respectfully agree with his Honour’s expression of principle there set out. To the extent that the matters there set out are inconsistent with the decision of Duggan J in Pickering v Edmonds,[16] it is only necessary to say that in the Full Court of the Supreme Court of South Australia decision in Southern Equities Corporation Pty Ltd (in liq.) v Arthur Andersen and Co.[17] the majority of the Full Court of the Supreme Court of South Australia expressed their opinion more narrowly than did Duggan J in Pickering.[18]
[16] (1994) 63 SASR 357 at 362.
[17] (1997) 70 SASR 166.
[18] See Bleby J at 193.

After a long discussion of the relevant principles and the focus of the importance of the relevant act of the party holding the privilege,[19] Allsop J adopted with approval the judgment of Wheeler J in Commonwealth v Tamwood Holdings Pty Ltd.[20] Her Honour said as follows:-
[10]…On the other hand, a party may necessarily put its state of mind in issue in the proceedings by, for example, pleading reliance upon some representation or other or by seeking rectification of the contract for mistake; or a state of mind may be put in issue by some evidentiary assertion which is clearly relevant to the issues between the parties. In these latter types of case, fairness clearly requires the waiver of the privilege in relation to legal advice which may have contributed to that state of mind. It is to be noted, however, that it is the conduct of the party who possesses the privilege which is capable of waiving it. It is not apparently open to another party to litigation to force waiver of a party's legal professional privilege by making assertions about, or seeking to put in issue, that party's state of mind.”[21]
[19] Viz South Australian Government Financing Authority v Bank of New Zealand (No. 2) [2002] SASC 10.
[20] [2002] WASC 107 at [10].
[21] At [121].
His Honour, Allsop J, then summarised the position as follows:-
“[122] It is not a matter of looking at unfairness upon the pleadings as filed. The reasons of the majority in Telstra must be read in light of the issue before it – a positive pleading of reliance by BT, being the moving party to the suit. It was not a case based on a mere denial of an assertion. The substance of the matter here is that the applicant is raising an issue about its, and the respondents’, state and states of mind. In joining issue with that assertion the respondents are not undertaking (yet) any act inconsistent with the maintenance of the privilege and there is no unfairness (yet) in any sense in that maintenance. It may be that in due course the respondents take steps in seeking to vindicate themselves which do raise such inconsistency or unfairness. None exists now.”
In argument I was also referred to the decision of the Full Court of the Federal Court in Commissioner of Taxation v Rio Tinto Limited.[22] I refer in particular to the discussion of the Full Court from paragraphs [48] through [51] and paragraph [53]-[54]. I was taken to these passages in detail by Mr Harris QC during argument. I have taken all of those matters into account in making my decision. I refer in particular to paragraph [52] of the judgment of the Full Court which reads as follows:-
“[52] These authorities show that, where issue or implied waiver is made out, the privilege holder has expressly or impliedly made an assertion about the contents of an otherwise privileged communication for the purpose of mounting a case or substantiating a defence. Where the privilege holder has put the contents of the otherwise privileged communication in issue, such an act can be regarded as inconsistent with the confidentiality that would otherwise pertain to the communication.” (My emphasis).
[22] (2006) 151 FCR 341.
The same sentiments were expressed by the Full Federal Court at paragraph [54] when referring to and comparing the decisions in Spalvins[23] and the High Court decision in Mann v Carnell.[24] It is therefore necessary to determine whether Ms Pearson’s conduct is inconsistent with the continued confidentiality of the communication between her and the solicitor Gillam on the basis that she has put in issue of the character of the contents of that communication in pursuing a right or claim or that she has created a situation where another party must reasonably do so by way of defence.[25]
[23] Adelaide Steamship Co v Spalvins (1998) 81 FCR 360.
[24] Supra.
[25] Commissioner of Taxation v Rio Tinto Limited at [54].
In the view that I have formed in this matter, I am not satisfied of two matters. The first is that I am not satisfied that there is yet evidence before the Court sufficient for me to say that the legal advice referred to by Ms Pearson in her evidence has contributed to the state of mind which she pleads in her Statement of Claim. Consistent with the approach of Allsop J in the DSE case, I am not (yet) satisfied that the assertion by Ms Pearson of privilege is an act inconsistent with the maintenance of the privilege and that there is any unfairness (yet) in any sense in that maintenance. That is because I have not yet heard evidence about whether or not the legal advice received by Ms Pearson may have contributed to the state of mind of Ms Pearson concerning her belief about her “permanence” and her entitlement as a permanent resident of the Caravan Park. Consistent with the approach in Wheeler J in Commonwealth v Tamwood Holdings Pty Ltd[26] the question still to be considered is whether fairness clearly requires the waiver of the privilege in relation to the legal advice which has contributed to Ms Pearson’s state of mind. It would have been necessary, in those circumstances, for Ms Pearson to have put that state of mind in issue by some evidentiary assertion which is clearly relevant to the issues between the parties. That has not yet occurred.
[26] (2002) WASC 107 at [10].
The second matter is that Mr Harris QC has not yet had the opportunity to put a question to Ms Pearson concerning the fact of the advice and whether, reliance upon that advice, is clearly relevant to an issue between the parties. Mr Harris QC must have the opportunity to formulate his questions in a manner anticipated by the judgment of her Honour Wheeler J in Commonwealth v Tamwood Holdings as approved by Allsop J in the DSE case. In my opinion, the objection of Mr Tokely SC to the questions put by Mr Harris QC at transcript 1423, whether the letter or letters to the solicitor seeks legal advice in relation to the position of permanent residents and their tenure falls away in the event that Mr Harris QC reformulates his questions in a manner as anticipated by the judgment of her Honour Wheeler J and the judgment of Allsop J. In those circumstances, I uphold the objection of Mr Tokely SC to the question put by Mr Harris QC at transcript 1423.23-25 but I give leave to Mr Harris QC to reformulate the questions in a manner which will ventilate the issue pursued by Mr Harris QC and to allow him to identify whether there is any act inconsistent with the maintenance of the privilege and whether there is any unfairness in any sense in that maintenance (DSE at [122]).
For the sake of completeness, I mention that in relation to the question of Mr Harris QC at transcript 1432.23, and its impermissibility, reliance was placed upon the decision of the High Court in Commissioner of Australian Federal Police v Propend Finance Pty Ltd.[27] At page 569 Gummow J said the following:-
“It also is significant, as Beaumont J emphasised in the present case… that the privilege extends to any document prepared by a lawyer or client from which there might be inferred the nature of the advice sought or given. Examples include communications between the various legal advisers of the client, draft pleadings, draft correspondence with the client or the other party, and bills of costs.”
[27] (1996-1997) 188 CLR 501 and in particular at 569.
The contention of Mr Tokely SC was that, properly read, Gummow J was there establishing limits on enquiries about privileged material which prevent questions being asked in the circumstances of this case, about the fact of the privileged material and in respect of which a claim for privilege has been made. I am unable to accept the contention of Mr Tokely SC. This is because in the Propend case, the question for consideration was a claim for legal professional privilege in respect of copies of documents the originals of which were not privileged. The Court held, by a majority, that privilege attached to copy documents provided to a lawyer if that copy was made solely for the purpose of obtaining legal advice or was solely for use in legal proceedings. It follows that in the Court (now) making a decision about, for example copy documents, it would be necessary to receive evidence from the solicitor and from the client about the fact that the copy of the document was made for the dominant purpose of obtaining legal advice or for use in legal proceedings where the original document was not privileged. In my opinion, Gummow J was not purporting to establish any particular principle but rather was discussing whether privilege attaches to documents. The issue before me involves the next step in the consideration of the question of alleged waiver of the privilege. Further, in my opinion, to identify a topic of legal advice, does not identify the nature of the advice sought or given. In my opinion that is a different question, however in light of my earlier comments, it is not necessary to finally decide that issue.