Hannaford v The Royal Society for the Prevention of Cruelty to Animals, NSW

[2013] NSWSC 1708

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Hannaford v The Royal Society for the Prevention of Cruelty to Animals, NSW [2013] NSWSC 1708
Hearing dates:	23 July 2013, 4 September 2013, 7 November 2013
Decision date:	21 November 2013
Jurisdiction:	Common Law
Before:	Schmidt J
Decision:	The plaintiffs be given access which they seek to the disputed documents.
Catchwords:	PROCEDURE - notice of motion - legal professional privilege - documents - s 118, s 119 Evidence Act - whether documents disclosed - some documents not confidential - whether solicitor' and counsel independent - dominant purpose - waiver - waiver established - s 122 Evidence Act does not apply - orders EVIDENCE - privilege - legal professional privilege - privileged claimed under s 118 and s 119 of Evidence Act
Legislation Cited:	Civil Procedure Act 2005 Criminal Procedure Act 1986 Prevention of Cruelty to Animals Act 1979
Cases Cited:	Attorney General (NT) v Maurice [1986] HCA 80; 161 CLR 475 Akins v Abigroup Ltd [1998] NSWSC 254; (1998) 43 NSWLR 539 Australian Competition and Consumer Commission v Cadbury Schweppes Pty Ltd [2009] FCAFC 32 British American Tobacco Australia Services Limited v Sharon Y Eubanks for the United States of America; Nicholas Basil Cannar v Sharon Y Eubanks for the United States of America; British American Tobacco (Investments) Limited v Sharon Y Eubanks for the United States of America [2004] NSWCA 158; (2004) NSWLR 483 DSE (Holdings) Pty Limited v Intertan Inc [2003] FCA 1191; (2003) FCR 499 Dubbo City Council v Barrett [2003] NSWCA 267 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46 Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83 Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 Green v AMP Life [2005] NSWSC 95 Kennedy v Wallace [2004] FCAFC 337; (2004) 213 ALR 108 In the matter of Southland Coal Pty Ltd (rec & mgrs apptd)(in liq) [2006] NSWSC 899 Manly Council v Byrne [2004] NSWCA 123 Mann v Carnell [1999] HCA 66; 201 CLR 1 Poricanin v Australian Consolidated Industries Ltd [1979] 2 NSWLR 419 Rich v Harrington [2007] FCA 1987 Seven Network Ltd v News Ltd [2005] FCA 1551; (2005) 225 ALR 672 Sydney Airports Corporation Ltd v Singapore Airlines Ltd [2005] NSWCA 47 State of New South Wales v Jackson [2007] NSWCA 279 Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2008] NSWSC 1070 Waterford v The Commonwealth [1987] HCA 25; (1987) 163 CLR 54
Category:	Interlocutory applications
Parties:	Alan Varley Hannaford (First Plaintiff) Gregory James Gilbert (Second Plaintiff) The Royal Society for the Prevention of Cruelty to Animals, New South Wales trading as Royal Society for the Prevention of Cruelty to Animals (Defendant)
Representation:	Counsel: Ms BK Nolan with Mr JC Lee (Plaintiffs) Mr D Kelly (Defendant) Solicitors: Baker Deane & Nutt (Plaintiffs) Moray & Agnew (Defendant)
File Number(s):	2012/75021
Publication restriction:	None

Judgment

1. By a further amended summons filed on 25 June 2012 the plaintiffs, Mr Hannaford and Mr Gilbert, seek damages from the defendant, the Royal Society for the Prevention Of Cruelty To Animals ("RSPCA") for malicious prosecution. The proceedings arise out of prosecutions brought against them in 2005 under the Prevention of Cruelty to Animals Act 1979 ('the Act'), in respect of certain cattle claimed not to have been properly fed, as well as cattle claimed not to have been given necessary veterinary treatment.

1. The RSPCA is an approved charitable organisation for the purposes of s 34AA(1) of the Act, which permits it to bring proceedings for an offence under the Act. The defence it filed in July 2012 admits that it brought the 2005 proceedings and that they were withdrawn and dismissed in March 2006 by Pearce LCM, in the Bathurst Local Court. That it brought the proceedings in the knowledge that they had no reasonable prospects of success; that they were brought without reasonable and probable cause; that it was actuated by malice; and that the plaintiffs' reputations were injured is, however, in issue.

1. The RSPCA also pleaded:

"5 Further and in answer to the whole of the further amended statement of claim, if the plaintiffs have suffered loss or damage as alleged or at all, which is denied, such loss or damage was caused or contributed to by the plaintiffs' own negligence.

Particulars of contributory negligence

(a) failed to disclose to the defendant before 16 March 2006 information which when disclosed resulted in the defendant applying for leave to withdraw the Proceedings."

1. By motion filed in February 2013, the plaintiffs sought access to documents over which the RSPCA claimed privilege under s 118 and 119 of the Evidence Act 1995. They are the statutory embodiment of the common law legal professional privilege which lies in documents which are brought into existence for the purpose of submission to legal advisers for advice or for use in legal proceedings (discussed in Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 per Stephen, Mason and Murphy JJ at 688). This statutory scheme departs, however, from the common law in a number of ways.

1. The motion came before me for hearing in July. It was supported by an affidavit sworn by the plaintiffs' solicitor Ms Nadin on 31 January 2013, attached to which were various documents, including transcript of the proceedings in the Local Court, when the RSPCA called evidence from its solicitor Mr Wozniak and the plaintiffs were given access to his file.

1. The documents which the plaintiffs sought to have produced in these proceedings were identified in annexure C to the schedule to the motion. They included letters, memoranda and emails sent to and from RSPCA Inspectors and Mr Wozniak; between Mr Wozniak and the RSPCA's counsel, Mr O'Donnell; and between RSPCA Inspectors and Mr O'Donnell; as well as letters sent by RSPCA Inspectors to other inspectors and police; and notes taken by RSPCA Inspectors. Various documents were produced. The documents to which the RSPCA pressed privilege were identified in schedule B to an affidavit sworn by Mr O'Shannessy, now it's Chief Inspector.

1. It emerged at the hearing that an issue lay between the parties as to what had transpired in the Local Court in March 2006, when a costs order was made against the RSPCA, after the prosecution was withdrawn. In resisting the plaintiffs' costs application, the RSPCA had then called evidence from Mr Wozniak, who was cross-examined, before evidence was called from the plaintiffs' solicitor Mr Baker. Mr Wozniak was then also the President of the RSPCA's Board and its counsel, Mr O'Donnell, a member of its Board. Their independence was in issue in these proceedings.

1. In these proceedings the RSPCA submitted that what had occurred in the Local Court was that in resisting the plaintiffs' costs application, it had sought to establish that it had conducted a full and proper investigation and in order to make good that submission, had sought to tender certain documents which had never been served on the plaintiffs. It was when they were objected to, that it called Mr Wozniak to give evidence as to why the documents had not been served.

1. Mr Wozniak's explanation was that they had not been served because of representations which the plaintiffs had made to the RSPCA in March of 2006. In the course of his cross-examination he was asked about earlier representations made by the plaintiffs in September 2005. In order to answer those questions, without objection he referred to documents in his file. The plaintiffs then sought access to the file. That was resisted on the basis of legal professional privilege. That claim was rejected and Mr Wozniak was then cross-examined further, including in relation to counsel's advice to which he had referred. The tender of the documents on which the RSPCA sought to rely ultimately succeeded. The RSPCA then also tendered some of the documents about which Mr Wozniak had been cross-examined. The privilege claimed in these proceedings includes documents which it so tendered.

1. At the hearing it became apparent that the transcript did not fully reveal what had happened in the Local Court, particularly as to what access the plaintiffs had been given to Mr Wozniak's file. The parties were unable to agree about whether there had been a claim for privilege in relation to only one document, or to the documents generally in Mr Wozniak's file. This was an issue which had clearly not been appreciated prior to the hearing and could not then be resolved by the parties, because the RSPCA had no-one present in Court who could give the relevant instructions.

1. The factual issue lying between the parties appeared to be an important one for the resolution of the issues lying between the parties as to the privilege claim. I reserved my decision, subject to receiving a note from the parties as to this question. It then seemed a matter capable of fairly simple resolution, particularly having in mind the parties' obligations under the Civil Procedure Act 2005. While it was common ground that Inspector O'Shannessy, who had given affidavit evidence about the prosecution in these proceedings, had not been present at the Local Court hearing, the parties had all then been represented by solicitors and counsel.

1. Accordingly, what was in issue appeared to be a matter about which the parties' respective solicitors and counsel, all officers of the Court, could readily agree. They, too, had relevant obligations to the Court, as well as under the Civil Procedure Act.

1. The parties attempted to resolve the factual dispute which had come to light, without success. That difficulty appeared to me to be an important one, potentially having wider significance to the administration of justice than merely the resolution of the interlocutory question which had arisen to be resolved in these proceedings, between these parties.

1. I later gave the plaintiffs leave to re-open their case. They then led further evidence, which was finally not challenged by the RSPCA, as to the access they had been given to Mr Wozniak's file. Further submissions were then made by the parties, about that unchallenged evidence.

1. Another difficulty then emerged. The RSPCA had invited inspection of the disputed documents which had been produced and marked MFI 1. As discussed by Austen J, for example, In the matter of Southland Coal Pty Ltd (rec & mgrs apptd)(in liq) [2006] NSWSC 899 at [14]:

"(k) Inspection by the court - The court has the power to inspect the document itself to determine a claim for privilege, especially where differing kinds of claim about the basis of privilege are made (Grant v Downs (976) 135 CLR 679 at 689; Hawksford v Hawksford [2005] NSWSC 796 at [21], per Campbell J). It should not be hesitant to exercise that power (Esso Australia Resources Ltd v FCT (1999) 201 CLR 49 at 70, per Gleeson CJ, Gaudron and Gummow JJ). That is especially the case where the judge hearing the application relating to privilege is not the trial judge."

1. It is also settled that while mere assertion that disclosure of a document may tend to reveal privileged material is inadequate to enliven the privilege, inferences from available material may resolve the question (see for example Allsop J's discussion in DSE (Holdings) Pty Limited v Intertan Inc [2003] FCA 1191; (2003) FCR 499).

1. That inspection revealed that the disputed documents did not seem all to have been produced to the Court. Some letters had been produced with their attachments, while others were not produced with attachments. Some documents were masked.

1. The matter was again relisted, with the result that it was then explained for the RSPCA that masked documents had been masked only for relevance and that in the cases where attachments were not produced, that was because in some cases the attachments had already been produced to the plaintiffs and no privilege was claimed in respect of them. Those documents had not, however, been identified. In other cases, privilege was claimed in the attachments, but they appeared elsewhere in the bundle. That, too, was not apparent from the evidence.

Sections 118 and 119 of the Evidence Act 1995

1. As discussed in Mann v Carnell [1999] HCA 66; 201 CLR 1, the ambit of the common law doctrine of legal professional privilege exceeds that of s 118 and s 119 and the circumstances in which such privilege may be lost under s 122 of the Evidence Act are not identical to the corresponding common law principles.

1. The operation of the Evidence Act in relation to the question of privilege and its waiver were recently discussed in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46, where it was explained:

"[30] According to its strict legal connotation, waiver is an intentional act done with knowledge whereby a person abandons a right (or privilege) by acting in a manner inconsistent with that right (or privilege)[Craine v Colonial Mutual Fire Insurance Co Ltd (1920) 28 CLR 305 at 326 ; [1920] HCA 64; Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641 at 658 ; [1937] HCA 58.]. It may be express or implied. In most cases concerning waiver, the area of dispute is whether it is to be implied. In some cases waiver will be imputed by the law [Goldberg v Ng (1995) 185 CLR 83 at 95-96 ; [1995] HCA 39.] with the consequence that a privilege is lost, even though that consequence was not intended by the party losing the privilege. The courts will impute an intention where the actions of a party are plainly inconsistent with the maintenance of the confidentiality which the privilege is intended to protect [Mann v Carnell (1999) 201 CLR 1 at 13 [29]; [1999] HCA 66].

[31] In Craine v Colonial Mutual Fire Insurance Co Ltd [(1920) 28 CLR 305 at 326.], it was explained that "'[w]aiver' is a doctrine of some arbitrariness introduced by the law to prevent a man in certain circumstances from taking up two inconsistent positions ... It is a conclusion of law when the necessary facts are established. It looks, however, chiefly to the conduct and position of the person who is said to have waived, in order to see whether he has 'approbated' so as to prevent him from 'reprobating'". In Mann v Carnell [(1999) 201 CLR 1 at 13 [29].], it was said that it is considerations of fairness which inform the court's view about an inconsistency which may be seen between the conduct of a party and the maintenance of confidentiality, though "not some overriding principle of fairness operating at large."

[32] Those considerations, articulated in relation to waiver at common law, apply with equal force in relation to the statutory question posed by s 122(2) of the Evidence Act, and made applicable by s 131A of that Act to the determination of a question of waiver of client legal privilege arising in the context of pre-trial discovery. That question is whether the client or party concerned "has acted in a way that is inconsistent with the client or party objecting to" the production of a document."

1. In determining a claim for privilege under either s 118 or s 119, the Court must first consider whether the evidence establishes that the communication or contents of a document in which such privilege is claimed and disclosure of which is sought to be prevented, satisfies the requirements of the section. In this case privilege was claimed under both sections. They provide:

"118 Legal advice

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:

(a) a confidential communication made between the client and a lawyer, or

(b) a confidential communication made between 2 or more lawyers acting for the client, or

(c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person,

for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.

119 Litigation

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:

(a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made, or

(b) the contents of a confidential document (whether delivered or not) that was prepared,

for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party."

1. The Court must thus determine firstly, whether it has been established that the production of the document would result in the 'disclosure' of the documents in question. Secondly, whether what would be disclosed is a confidential communication, or the contents of a confidential document must be considered. Those terms are defined in s 117 of the Evidence Act as:

"confidential communication means a communication made in such circumstances that, when it was made:

(a) the person who made it, or

(b) the person to whom it was made,

was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.

confidential document means a document prepared in such circumstances that, when it was prepared:

(a) the person who prepared it, or

(b) the person for whom it was prepared,

was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law."

1. These definitions are concerned with confidentiality at the time that the communications were made. In State of New South Wales v Jackson [2007] NSWCA 279 it was explained at [57] - [58]:

57 So it was said of litigation privilege in General Accident Assurance Company v Chrusz (1999) 180 DLR (4th) 241 at [24] that -

"It is not rooted, as is solicitor-client privilege, in the necessity of confidentiality in a relationship. It is a practicable means of assuring counsel what Sharpe calls a 'zone of privacy' and what is termed in the United States, protection of the solicitor's work product: See Hickman v Taylor, 329 US 495 (1946)."

58 But I do not think that this reasoning is available in order to find a confidential communication or a confidential document within the meaning of the definitions in s 117(1) of the Act. The rationale involves confidentiality, but it is confidentiality afforded by the privilege itself. The party's interest in keeping confidential the communication or document it received is not confidentiality because of an express or implied obligation on the party not to disclose the communication or document. It is confidentiality because of protection from compulsory disclosure by the party. The party can disclose the communication if it wishes; that will waive any privilege, but it is not prevented by any obligation of confidentiality."

1. Thirdly, the evidence must establish that the dominant purpose of the communication or document is that specified in the section relied on. As Giles JA observed at [36]:

"The privilege under s 118 is confined to client/lawyer dealings, by communications between client and lawyer or between lawyers or in preparation of documents by client or lawyer. The privilege under s 119 is not confined to client/lawyer dealings. The dealings may be by communications between client and lawyer or client and third party, or by unspecified preparation of documents. The control is in confidential communication or confidential document and the necessary dominant purpose."

1. The purpose for which a communication was made or a document created is a question of fact which must be determined objectively on all the evidence. The plaintiffs' case was that the RSPCA had not met that onus, because it had not led evidence about the dominant purpose for which the disputed documents were created.

1. If the privilege claimed is established, then consideration must be given to the question of whether it has been waived by the privilege holder. That is also a question of fact, which arises to be resolved in the context of the provisions of s 122 of the Evidence Act.

The disputed documents

1. The notice to produce required production of 'all documents, whether in draft, final form or otherwise, relating to or referring to the investigations, charges laid against the plaintiffs by the court attendance notices served on or about 29 March 2005, and ensuing prosecution of the plaintiffs'. Numerous documents were thereafter specifically identified, including, for example:

"q. All inspectors notes, files and reports;

r. All correspondence to and from legal practitioners in relation to or referring to the investigations, charges and prosecutions;

s. All legal opinions received from legal practitioners in respect of the investigations, charges and prosecutions;

t. All documents constituting Prosecution's solicitor's file"

1. The RSPCA tendered two affidavits sworn by Mr O'Shannessy, who identified the documents over which privilege was sought and the basis on which the claims for privilege were variously made. Neither he nor Ms Nadin were required for cross-examination.

The issues

1. There was no question that the documents were relevant to the issues lying between the parties in these proceedings. What was in issue was whether they were privileged at all and if they were, whether that privilege had been waived.

1. The plaintiffs contended that the independence of Mr Wozniak and Mr O'Donnell from the RSPCA had not been established; that the dominant purpose for the production of the documents in issue fell within either s 118 or s 119 of the Evidence Act had not been established; that the RSPCA had waived any privilege in the documents and that s 122 of the Evidence Act had no application in the circumstances.

Disclosure - What access did the plaintiffs have to Mr Wozniak's file?

1. Privilege having been claimed in the documents, the onus lies on the RSPCA to establish that it exists. The plaintiffs' case was that this onus had not been met. That must be determined on the evidence. As discussed in Kennedy v Wallace [2004] FCAFC 337; (2004) 213 ALR 108:

"12 Mr Kennedy's claim to legal professional privilege depends upon a positive finding about the purpose for which the two documents were brought into existence. The only evidence consisted of the assertions made by Mr Kennedy in his affidavits. Those assertions are conclusions that are not supported by any revealed reasoning process. Mr Kennedy gave no evidence as to the topics upon which he intended to consult Mr Hafner. He gave no evidence as to what he meant by "obtaining legal advice" in his affidavit of 1 March 2004.

13 The appellant's decision to base his claim for privilege in this way was attended with considerable risk since, as Lockhart J observed in National Crime Authority v S (1991) 29 FCR 203 at 211, it is not sufficient for a party merely to assert a claim for privilege nor will an affidavit asserting the purpose for which a document was brought into existence followed by a statement about the category of legal professional privilege to which the document is said to belong necessarily be sufficient. Moreover, in the leading case of Grant v Downs [1976] HCA 63; (1976) 135 CLR 674, Stephen, Mason and Murphy JJ warned against the erroneous view that the privilege is "necessarily or conclusively established by resort to any verbal formula or ritual" (at 689). In the same case, their Honours also observed that whatever the facts may be, it is always for the party claiming privilege to show that the documents for which the claim is made are in fact privileged."

1. Both s 18 and s 119 are concerned with 'disclosure' of confidential communications and documents.

1. Affidavit evidence was led from Ms Nadin and the plaintiffs as to what had occurred during the Local Court proceedings. Despite the RSPCA's earlier position that it did not agree with what the plaintiffs contended had happened during the Local Court hearing in 2006, these witnesses were finally not cross-examined. Nor did the RSPCA call evidence from either Mr Wozniak, Mr O'Donnell or anyone else present from the RSPCA at the 2006 hearing, to challenge their evidence. In the result in these circumstances their unchallenged evidence must be accepted (see Poricanin v Australian Consolidated Industries Ltd [1979] 2 NSWLR 419 at 426).

1. Ms Nadin said in her 3 September affidavit that she had had day-to-day carriage of the matter since the prosecution was brought against the plaintiffs in 2005. She instructed Mr Hennessey SC at the Local Court hearing in March 2006. The notes she kept during the hearing were annexed to the affidavit.

1. Ms Nadin recalled Mr Wozniak giving evidence and having his file with him in the witness box. During cross-examination, after an argument about privilege, his file was produced to the Court and Mr Hennessey was given access to it. She watched him go through the file for about 15 minutes, before he resumed his cross-examination. Amongst other things Ms Nadin's contemporaneous notes recorded 'Def allowed to inspect Prosecution file' and that questions were asked about certain documents.

1. Mr Hannaford, the first plaintiff, said in his 9 September affidavit that he was also present at the Local Court, sitting behind Mr Hennessey and Ms Nadin, with Mr Gilbert, the second plaintiff. During Mr Wozniak's cross-examination, he saw Mr Hennessey being given access to his file, which Mr Wozniak had with him in the witness box, after an argument about privilege was ruled on. His Honour did not leave the bench. After Mr Hennessey reviewed the file, he continued with Mr Wozniak's cross-examination, referring to documents which he took from the file. On a couple of occasions he went and stood beside Mr Wozniak, when he was questioning him about documents and then returned to the bar table.

1. Mr Gilbert said in his 9 September affidavit that he was present at the Local Court hearing as a co-accused, having been advised previously that the charges were to be withdrawn. He recollected that after legal argument, Mr Wozniak's file was given to Mr Hennessey, who was sitting at the bar table with Ms Nadin. Mr Hennessey inspected the file for some 10 minutes and then continued his cross-examination, during which he twice approached Mr Wozniak and showed him documents in the file.

1. In the result it cannot be doubted that at the hearing in the Local Court in 2006, after a claim for privilege was rejected by Pearce LCM, the plaintiffs were given access to Mr Wozniak's file and that he was then cross-examined by reference to its contents, as to the conduct of the prosecution.

1. The evidence that Mr Hennessey was given access to the entire file which Mr Wozniak had with him, was finally not challenged. Further, the RSPCA itself then tendered some of the documents he had been taken to. The resolution of the issues now lying between the parties must be approached on that basis.

1. As discussed by the Full Court of the Federal Court in Australian Competition and Consumer Commission v Cadbury Schweppes Pty Ltd [2009] FCAFC 32 at [42]:

"There have been other comments that indicate that the rationale of litigation privilege is to secure a fair trial within the adversarial process and to facilitate the common law mode of trial: see Southern Equities Corporation Ltd v West Australian Government Holdings Ltd (1993) 10 WAR 1 at 21 per Seaman J; Mitsubishi Electric Australia Pty Ltd v Victorian Workcover Authority (2002) 4 VR 332 at 336 per Batt JA; Wheeler v Le Marchant (1881) 17 Ch D 675 at 685 and AWB Ltd v Cole (2006) 152 FCR 382 at 424 at [158] per Young J. All formulations emphasise, in one way or another, that the communications made or materials to be protected are those which are made confidentially between the client and the legal representative or otherwise come into existence for the dominant purpose of the litigation, and which are to be kept away from the opposing party."

1. The evidence establishes that in the case of both the documents tendered and those in Mr Wozniak's file to which the plaintiffs were given access in the Local Court, production of the documents in these proceedings would not involve any 'disclosure'. As the result of decisions made by the RSPCA in order to resist the costs application in relation to the withdrawal of the prosecution, they were disclosed to the plaintiffs.

1. As discussed by Campbell J in Green v AMP Life [2005] NSWSC 95 at [17] - [18]:

"17 The test for client legal privilege under section 118 depends upon the Court making a decision about what would happen if the evidence were to be adduced. At the time the Court comes to make that decision, the evidence has not been adduced, and hence the Court's decision is an exercise in prediction. The consequence which triggers the existence of legal professional privilege is that if the adducing of the evidence "would result in disclosure of" certain communications or documents.

18 The notion of "disclosure" involves something becoming revealed which was previously hidden, or known which was not previously known. There can, it seems to me, be disclosure of a matter, even if not everything concerning that matter is disclosed. In the present case, it seems to me that allowing inspection of the material which is contained in the file, insofar as it consists of drafts of the policy and customer information brochure, would result in some information becoming available to the person who carries out the inspection, about the topics concerning which the assistance of Minter Ellison had been requested in the drafting of the documents. To that extent, it would result in disclosure of a confidential communication made between client and lawyer."

1. Barrett J came to a similar view in Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2008] NSWSC 1070. In order to meet the onus falling on the RSPCA to establish the privilege it claimed, an evidentiary basis for the claim had to be established by the RSPCA. In this respect that meant it had to establish that production of the documents would result in revealing something confidential to the plaintiffs, not previously known to them.

1. It follows from the undisputed evidence of Ms Nadin and the plaintiffs that giving the further access now sought to documents in the file which they have already seen in the Local Court proceedings or which the RSPCA itself then tendered, could not result in a 'disclosure'.

1. That, however, is not the end of the matter. As discussed in British American Tobacco Australia Services Limited v Sharon Y Eubanks for the United States of America; Nicholas Basil Cannar v Sharon Y Eubanks for the United States of America; British American Tobacco (Investments) Limited v Sharon Y Eubanks for the United States of America [2004] NSWCA 158; (2004) NSWLR 483 the effect of s 122 is that in some cases, despite disclosure, the privilege under s 118 or s 119 is not lost.

Some documents are not considered to be confidential

1. The RSPCA's case was that the notice to produce itself made it clear 'necessarily', that the only documents sought were documents relevant to the prosecution proceedings. That does not of itself, however, establish that the documents were either confidential, or prepared for the dominant purpose of either a lawyer providing the RSPCA with legal advice (s 118), or providing it with professional legal services relating to the prosecution (s 119). That has to be established by evidence.

1. The RSPCA relied on Mr O'Shannessy's unchallenged affidavit evidence to provide the evidentiary basis for its privilege claim. His evidence was not challenged. It must accordingly be accepted.

1. As to confidentiality however, Inspector O'Shannessy did not consider that all of the documents were confidential. Documents 18-21, 22 to 26, 27and 40 and 41 were not so described. Why that was so, was not explained. There was no evidence otherwise led to explain why he did not consider that these documents were not confidential, but others the subject of the privilege claim were. On the face of the documents some of them at least were prepared by a person who had 'an express or implied obligation not to disclose its contents, whether or not the obligation arises under law'.

1. Document 18 is a facsimile from counsel, Glen Porter to Mr Wozniak of 11 August 2005, with no attachment. Document 19 was the advice attached to that facsimile. Document 20 is advice from Mr O'Donnell of 11 September 2005 and Document 21 a letter from him. Document 22 is the brief sent to Mr O'Donnell. Documents 23, 24 are letters and facsimiles sent by Mr Wozniak to Mr O'Donnell. Document 27 is an undated file note from Mr Wozniak's file. Document 40 and 41 are notes made by Inspector Croker in November 2005 and March 2006.

1. Inspection of the documents revealed that in some cases attachments to these documents are documents which are plainly not privileged. That may explain why Inspector O'Shannessy did not consider the documents to which they were attached to be confidential. Why other documents are not so described is not apparent and was not addressed in submissions. Some of them, however, document 20 for example, were tendered by the RSPCA in the Local Court proceedings, a matter I will return to.

1. Whatever be the explanation, the fact is that Inspector O'Shannessy does not consider these documents to be confidential. On that evidence it is difficult to conclude that they are confidential documents or contain confidential communications, to which the privilege claimed under either s 118 or s 119 could attach.

Were Mr Wozniak and Mr O'Donnell independent?

1. The plaintiffs' case was that in considering the dominant purpose for which the various documents in issue were created, account had to be taken of the fact that Mr Wozniak and Mr O'Donnell were both officers of the RSPCA at the relevant time. Mr Wozniak was the President and Mr O'Donnell a Board member. In the result the RSPCA had to establish that the advice which they gave was independent legal advice and that communications made with them, was for the dominant purpose of either obtaining such advice, or conducting the proceedings, rather than for the purposes of the executive of the RSPCA.

1. This case was submitted to be akin to that considered in Rich v Harrington [2007] FCA 1987 and Sydney Airports Corporation Ltd v Singapore Airlines Ltd [2005] NSWCA 47. It was submitted that it was not enough for the RSPCA to have asserted privilege as it did and not to have addressed the question of purpose, other than by the claims for privilege which the Inspector advanced in his affidavit. The evidence had failed to adequately address this topic and so the claim for privilege had to fail.

1. It seemed to me that these submissions had some force.

1. The purpose of legal professional privilege is for the administration of justice, that is, to encourage frank disclosure by clients to their lawyers (see Grant v Downs at p 685). This privilege was considered in Waterford v The Commonwealth [1987] HCA 25; (1987) 163 CLR 54 in the context of advice taken by Government from its employed solicitors, where Mason and Wilson JJ observed at [4]:

"[4] To our minds it is clearly in the public interest that those in government who bear the responsibility of making decisions should have free and ready confidential access to their legal advisers. Whether in any particular case the relationship is such as to give rise to the privilege will be a question of fact. It must be a professional relationship which secures to the advice an independent character notwithstanding the employment."

1. The RSPCA's case was that it was Inspector O'Shannessy's unchallenged evidence that it had retained Mr Wozniak and Mr O'Donnell to advise and represent it in the proceedings. While they were both members of the RSPCA's Board, it would be accepted that they had been retained to provide the RSPCA with legal services and had done so independently.

1. There was no issue that both Mr Wozniak and Mr O'Donnell are lawyers, as defined in s 117 of the Evidence Act. There was no evidence led, however, as to the structure of the RSPCA or the involvement of its Board in any decisions made in relation to the prosecution the subject of the Local Court proceedings.

1. Inspector O'Shannessy gave unchallenged evidence that at the time the prosecution was commenced, he was the RSPCA's Deputy Chief Inspector and that it was he who authorised Inspector Croker to commence the prosecution. Inspector O'Shannessy said that in that role and later, after he became Chief Inspector, he had supervised Inspector Croker, as well as other RSPCA employees involved in the proceedings. Inspector O'Shannessy did not, however, say that the decision to prosecute was his, or that it had been delegated to him by the RSPCA. The Court attendance notices described the prosecutor to be RSPCA Inspector Croker.

1. The RSPCA led no evidence as to what role its Board had in relation to the institution, pursuit and withdrawal of the prosecution, or the question of what involvement, if any, Mr Wozniak and Mr O'Donnell had in any decisions made by the Board about such matters. The RSPCA has admitted in its defence, however, that it brought the prosecution the subject of these proceedings.

1. Inspector O'Shannessy did not address Mr Wozniak's position in his evidence, other than inferentially. He deposed that the RSPCA had retained Smythe & Mallam to act as its solicitors. There is no suggestion however, that it was anyone other than Mr Wozniak who provided that service to the RSPCA. Inspector O'Shannessy said that in July 2005 it was Smythe & Mallam which sent a brief to Mr O'Donnell to advise and appear at the Local Court hearing.

1. Of itself that evidence does not address the question of whether any advice or services which Mr Wozniak and Mr O'Donnell gave the RSPCA had the necessary independence, in order for privilege under s 118 and s119 to arise. Mr Wozniak was cross examined in the Local Court as to whether he had made certain decisions and whether he or Mr O'Donnell had given certain advice, but the role of the Board in the relevant decisions was not explored.

1. The obvious witnesses who could have given evidence about these matters were Mr Wozniak and Mr O'Donnell, or perhaps other members of the Board. They were not called. As discussed in Manly Council v Byrne [2004] NSWCA 123 at [51]:

"Thus, if a witness is not called two different types of result might follow. The first is that the tribunal of fact might infer that the evidence of the absent witness, if called, would not have assisted the party who failed to call that witness. The second is that the tribunal of fact might draw with greater confidence any inference unfavourable to the party who failed to call the witness, if that witness seems to be in a position to cast light on whether that inference should properly be drawn."

1. The inference is, it follows, that their evidence would not have assisted the RSPCA's case. .

1. It is settled that in order for legal advice to be independent, there must be an element of professional independence and that in-house employed lawyers may have such independence. Whether that is so depends on the nature of the particular employment relationship (see Sydney Airports Corp Ltd v Singapore Airlines Ltd [2005] NSWCA 47 at [24)).

1. In the case of a partner of a legal and accounting firm, however, advice by a partner of the firm was found not to have the necessary independence in Rich v Harrington, where Branson J observed at [40]:

"... An independent legal adviser is one who can bring a disinterested mind to bear on the subject matter of the legal advice. In the words of Brennan J in Waterhouse, what is required is a legal adviser who is able to be "professionally detached" in giving the advice."

1. Her Honour referred to the approach of Graham J in Seven Network Ltd v News Ltd [2005] FCA 1551; (2005) 225 ALR 672 at [15] where his Honour said:

"In my opinion, an in-house lawyer will lack the requisite measure of independence if his advice is at risk of being compromised by virtue of the nature of his employment relationship with his employer. On the other hand, if the personal loyalties, duties and interests of the in-house lawyer do not influence the professional legal advice which he gives, the requirement for independence will be satisfied."

1. Her Honour considered that:

"[46] ....The requirement that the legal adviser be independent is principally concerned with the nature of the relationship between the client who claims client legal privilege and the legal adviser. The requirement that the communication be made for the dominant purpose of obtaining legal advice or to conduct or aid in the conduct of litigation in reasonable prospect is concerned with the object and subject matter of the communication. Each criterion must be satisfied before a claim for client legal privilege will succeed."

1. Her Honour considered the evidence led as to the nature of the relationship between the partnership and the partner providing the legal advice and legal services in question. She accepted that the partner occupied the office of general counsel which functioned as a separate functional unit within PWC, in a separate area, on the basis that professional legal advice and services were provided with the same level of objectivity as would be provided by external lawyers. The partners in that unit held no management or executive functions in the firm, but one was a member of a review committee and had fulfilled the role of secretary to the Board. They provided legal advice on all issues that touched the firm or required legal advice.

1. Her Honour concluded that the necessary independence did not exist, because:

"59 To answer the above question it is necessary to give consideration to the nature of Ms Rich's allegations and the significance that they might have for General Counsel and OGC generally. As mentioned above, they were made by one partner against other partners. It seems uncontroversial that they were of a kind capable of tarnishing the reputation of the firm of which OGC is a part. They cast aspersions of a personal, rather than a purely professional kind, on General Counsel's partners including those partners who comprised the leadership of her firm. General Counsel and the Deputy General Counsel were themselves likely respondents in the litigation in prospect. Because of its likely subject matter, that litigation, should it eventuate, could reasonably be expected to attract a high level of media interest of a relatively sensational kind. For these reasons I conclude that Ms Rich's allegations were by reason of their content inherently likely to engage the personal loyalties and the duties and interests of all partners of PWC - and probably many employees of the firm as well.

60 I therefore conclude that, having regard to the nature and significance of the allegations raised by Ms Rich in her letter of 2 July 2004, the relationship between OGC and the respondents was not such as to secure the advice of OGC concerning Ms Rich's allegations the objectively independent character necessary to support the respondents' claim of client legal privilege. OGC was not in a position to give professionally detached advice to the respondents concerning allegations of the character of those made by Ms Rich."

1. The position of Mr O'Donnell and Mr Wozniak is plainly not strictly analogous to that of either an employed solicitor or members of a partnership. They were members of the Board of the RSPCA which says in these proceedings that it instituted the prosecution brought against the plaintiffs in May 2005. They were also then both in private legal practice, but on Inspector O'Shannessy's evidence were not engaged to act for the RSPCA until July 2005. The inference is that before that engagement, as members of the RSPCA's Board, they must have had an involvement, at least in the RSPCA's decision to prosecute. Such an involvement cannot have given rise to any legal professional privilege in any advice or services which they then provided the RSPCA.

1. The question which must now be resolved is whether subsequently, when they were engaged to provide legal advice and services to the RSPCA in relation to the prosecution, they had the necessary independence for the privilege claimed to arise. That necessarily depends on the nature of their membership of its Board and what impact that had on their ordinary independence, as lawyers in private practice. Did their position on the Board of the charity which had instituted and was pursuing this prosecution, risk compromising the independence which they would unquestionably otherwise have had by virtue of their legal practice, if their advice and services were being provided to clients with whom they had no such relationship?

1. It is admitted in the defence that it was the RSPCA which brought the prosecution. Despite Inspector O'Shannessy's evidence that he authorised Inspector Croker to commence the proceedings and that he supervised him and other RSPCA employees involved in the proceedings, the Inspector was himself an employee of the RSPCA, presumably subject to the direction and control of its Board. Given Mr Wozniak and Mr O'Donnell's membership of that Board, which had determined to institute the proceedings, it seems to me that it cannot readily be concluded on the evidence that they had the necessary independence.

1. The evidence led about these matters is slight. The question has arisen for determination in a context where advice and legal services were being provided by Mr Wozniak and Mr O'Donnell in relation to criminal proceedings in which the RSPCA's conduct in relation to the prosecution it had brought was being challenged on the costs application. Section 214 of the Criminal Procedure Act 1986 provided in that regard:

"214 Limit on award of professional costs to accused person against prosecutor acting in public capacity

(1) Professional costs are not to be awarded in favour of an accused person in summary proceedings unless the court is satisfied as to any one or more of the following:

(a) that the investigation into the alleged offence was conducted in an unreasonable or improper manner,

(b) that the proceedings were initiated without reasonable cause or in bad faith or were conducted by the prosecutor in an improper manner,

(c) that the prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter of which it was aware or ought reasonably to have been aware and which suggested either that the accused person might not be guilty or that, for any other reason, the proceedings should not have been brought,

(d) that, because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award professional costs."

1. I cannot conclude from the evidence, limited as it is, that the RSPCA has met the onus which falls upon it to establish a basis for the privilege claimed. That would require evidence from which it could be firmly concluded that despite Mr Wozniak and Mr O'Donnell's membership of the Board of the charity which brought the prosecution, they nevertheless had the necessary, objective independence required to support the RSPCA's claim as to privilege. Given their position on the Board of the charity which brought the prosecution, that independence was not established by the evidence led.

1. Despite this conclusion I will deal with the other matters over which the parties joined issue.

Dominant purpose

1. Annexed to Chief Inspector O'Shannessy's affidavit was a schedule of the disputed documents, as to each of which he gave an explanation of the basis of the claim of privilege made in each case. For example, in his affidavit he described documents 1 to 10 in the schedule to be confidential letters and facsimiles he had prepared and sent to the RSPCA's solicitors 'in respect of the Local Court proceedings';

1. It must be accepted that without more, that cannot establish that the documents were prepared for the purpose specified in s 118, namely for the purpose of the RSPCA's lawyers providing it with legal advice. It follows that in respect of documents so described, privilege under s 118 was not established.

1. That the documents were provided for the purpose of the RSPCA being provided with professional legal services relating to the prosecution may, however, be inferred, given Inspector O'Shannessy unchallenged evidence, that they were letters and facsimiles sent to the RSPCA's solicitors in respect of the proceedings and from the documents themselves. The evidence suggests no other purpose for those communications being sent to Mr Wozniak. In the result the unchallenged evidence of the only purpose for these letters being sent to the RSPCA's solicitors is so that it can be provided with professional legal services in relation to the prosecution.

1. It follows that but for the conclusion which I reached as to the independence of Mr Wozniak, privilege under s 119 applies to these documents.

1. Documents 11-16, described to be confidential letters and facsimiles sent to Inspector O'Shannessy by the RSPCA's solicitors in relation to the proceedings and document 17, a confidential facsimile sent to counsel in respect of the proceedings, fall within the same category.

1. The same conclusion is not available in relation to documents 28 to 36.

1. Inspector O'Shannessy deposed that they were confidential correspondence he sent to and received from Inspector Croker in relation to 'ongoing investigations of matters in preparation for the hearing, pursuant to legal advice received and with a view to the RSPCA obtaining further legal advice'.

1. These documents do not fall within paragraphs (a) or (b) of s 118. They only fall within paragraph (c), if the evidence established that they were prepared for the dominant purpose of the RSPCA's lawyers providing it with legal advice, had they had the necessary independence. The evidence simply does not establish this.

1. The evidence discloses two purposes. The first, investigation into the subject of the prosecution and the second, obtaining legal advice in relation to what that ongoing investigation disclosed. In State of New South Wales v Jackson it was observed by Giles JA at [75] :

"Determining dominance calls for appreciation of competing purposes. They should be found in evidence rather than speculation. ..."

1. The evidence does not establish that the dominant purpose for the creation of these documents was for the RSPCA's lawyers providing it with legal advice. Nor can that be inferred from the documents themselves.

1. Document 37 was said to be a confidential email from Inspector Croker to Regional Team Leader Inspector Rose, described in the same way as documents 28 to 36. Document 38, a confidential email from Inspector Croker to a vet, was described in a similar way. The same conclusion must be reached in relation to these documents.

1. Document 39 was a confidential report Inspector O'Shaunnessy prepared and delivered to the RSPCA Board, in relation to advice received from its solicitors. In so far as that report disclosed that advice, it would appear to be privileged under s118, but for the conclusion which I reached in relation to Mr Wozniak's independence. An inspection of the document suggests, however, that it is a report to the Board as to the outcome of the proceedings, rather than as to any legal advice received. As such, it is not privileged.

1. Document 40 and 41 were Inspector Croker's notes. Document 40 referred to a telephone conversation which he had with the Chief Inspector and an email he had sent Inspector Croker, again, as part of the ongoing investigations of matters in preparation for the hearing and pursuant to legal advice received and with a view to receiving further advice. Again, this evidence does not disclose that the dominant purpose was for the RSPCA's lawyers providing it with legal advice.

1. Document 41 were notes of telephone conversations between Inspector Croker and the RSPCA's solicitors in respect of the proceedings. Again the only purpose disclosed by the evidence is a s 119 purpose. But for the conclusion I reached in relation to Mr Wozniak's independence, they would appear to be privileged.

Waiver

1. The onus lies on the plaintiffs to establish that any privilege lying in the disputed documents under s 118 or s 119 has been lost. They relied on the evidence which they and Ms Nadin gave as to what had transpired in the Local Court, when the RSPCA called Mr Wozniak to give evidence, to resist their costs' application.

The Local Court proceedings

1. The prosecution was terminated in favour of the plaintiffs on 27 March 2006, when Mr O'Donnell advised the Local Court that it no longer wished to proceed and sought leave to withdraw all of the charges. The plaintiffs then made an application under s 213 of the Criminal Procedure Act for an order that the RSPCA pay their professional costs. That order was opposed.

1. The costs application was governed by s 213 which permitted the Court to order that the prosecutor pay professional costs if the matter was dismissed or withdrawn, in the circumstances specified in s 214.

1. The RSPCA's position on the application was that the prosecution had been reasonably initiated, investigated and maintained. In support of their application the plaintiffs tendered the brief and other material which the RSPCA had served on them, without objection. The RSPCA then sought to tender additional material, which had not been served on the plaintiffs. That was objected to and so the RSPCA called evidence from Mr Wozniak, to explain why these documents had not been served.

1. That evidence necessarily disclosed the reasons for forensic decisions made by the RSPCA about the conduct of the prosecution. Mr Wozniak referred to his file in answering questions asked of him. That accorded with the provisions of s 32 of the Evidence Act, which permits a document to be used to revive a witness' memory about a fact or opinion. In that event, on the request of a party, with such directions as the Court thinks fit, so much of the document as relates to the proceeding is to be produced to that party (s 32(4)).

1. The RSPCA submitted that Mr Wozniak had only referred to his file because the plaintiffs' counsel had requested it. That does not seem to be to the point. Mr Wozniak had difficulty remembering what he was being asked about and was asked by counsel appearing for the plaintiffs, Mr Hennessey, whether he wished to refer to his file. He did so, without the RSPCA objecting.

1. When Mr Hennessey then sought access to the file, privilege was claimed by the RSPCA. The plaintiffs argued that privilege had been waived, given the evidence called from Mr Wozniak. After hearing the parties' submissions, the privilege claim was rejected.

1. The RSPCA submitted that access was not given to the plaintiffs as the result of a ruling that privilege had been waived, relying on Pearce LCM's reasons, which included that he could see no prejudice in the documents being made available. That ignores that access was given over the RSPCA's objection on the ground that the file was privileged. Even if the reasons given for the ruling made were not adequate, as the RSPCA submitted in these proceedings, the result was that the privilege claim failed. The fact that the ruling was not published in a written judgment, but was recorded in the transcript of the proceedings, does not alter that position.

1. Access was then given to the file and Mr Wozniak's cross-examination continued, by reference to various documents in his file. The disputed documents which the RSPCA sought to tender to resist the costs application were eventually received. The RSPCA then also tendered some of the documents Mr Wozniak had been cross-examined about. For their part the plaintiffs called evidence from their solicitor, Mr Baker.

1. The RSPCA also argued that the tender of those documents did not constitute any waiver of privilege, the tender being 'to avoid ambiguity for a particular and limited purpose', the plaintiffs' application for costs, after the documents had been the subject of cross-examination, but were not tendered by the plaintiffs. That submission itself, however, reveals that the tender was the result of a forensic decision made by the RSPCA, in its resistance of the plaintiffs' costs application. It is the consequences of that decision which must be resolved.

1. The submissions which the parties made about the costs application were not transcribed. Pearce LCM concluded, however, that the prosecution originally instituted was reasonable and that it had not then been conducted in bad faith, or in an improper manner, even though parts of the case were weak. Things changed in September, his Honour found, when the prosecution was put on notice that there was an issue in relation to identification of cattle and that the evidence of the witness on whom the prosecution rested, with whom the plaintiffs had certain lease arrangements, was open to questions of reliability and credit. Other information as to his behaviour towards police and the RSPCA then came to light, which clearly put his credibility in question.

1. His Honour noted that Mr Wozniak, who was experienced in the prosecution of these cases throughout NSW, came to feel that if the defence made a submission or representation, they would be favourably considered, with the clear implication that the matter would not proceed. After explaining the difficulties with the prosecution witness, his Honour said he was satisfied that his credibility and reliability, which eventually led to the RSPCA's decision to withdraw the prosecution, was in question from September. That was when counsel advised the RSPCA that without that witness, its case would not succeed and that the prosecution should be withdrawn.

1. In the result the RSPCA was ordered to pay part of the plaintiffs' costs, in relation to the period after September 2005. The sum was assessed to be $28,000.

1. Neither the rejection of the privilege claim, nor the costs order made against the RSPCA under s 213 of the Criminal Procedure Act, were appealed by the RSPCA.

Mr Wozniak's evidence

1. The questions here in issue between the parties must be approached in a context where there can be no question that the result of the RSPCA's forensic decision to call evidence from Mr Wozniak in the Local Court as it did, was that any privilege which lay under either s 118 or s 119 of the Evidence Act in the matters about which he gave evidence was thereby waived. That decision involved no compulsion of law, to which s 122 could attach.

1. Mr Wozniak's evidence about the circumstances in which a decision was made not to serve the disputed documents, was finally that the RSPCA had received representations from the plaintiffs in September, which had led to further investigations, as the result of advice it had then received. It had invited further representations from the plaintiffs as a result, which Mr Wozniak anticipated would have led to the prosecution not being pressed and so a decision was made not to serve the further documents on which the RSPCA wished to rely on the question of costs. These representations when received in March were viewed favourably.

1. In his affidavit Inspector O'Shannessy did not suggest that the evidence called from Mr Wozniak about these matters was called without the RSPCA's approval. His evidence was that he had not authorised waiver of privilege in the documents in Mr Wozniak's file. His evidence did not deal with what had transpired in the Local Court, when the RSPCA had called evidence from Mr Wozniak. Inspector O'Shannessy, it was common ground, was not then present.

1. At the hearing in the Local Court, Mr O'Donnell explained in relation to the documents which the RSPCA had not served on the plaintiffs, but wished to rely on to resist the plaintiffs' costs application:

"Yes, can I tell your Honour that the balance of the documents that I'm seeking to place before you are documents which I'm instructed were not served on the accused person or persons I should say, your Honour the reason for that and evidence can be given of this if it's in contest is that my instructing solicitor and my learned friend's instructing solicitor were in what I am instructed to be the case fairly regular telephone contact and your Honour there was a significant degree of discussion about the making of representations. Your Honour my instructing solicitor did not serve this material until the representations were determined, they were determined in favour of the accused person and hence your Honour these documents were not served. Now that could be fatal were the matter to be before you as a defendant (sic) hearing but your on the costs application and specifically on the question of whether there has been a full and proper investigation I will tender them your Honour-."

1. Mr Hennessy responded:

"We object to that course sir these are documents on which we're entitled to assume they have no bearing on the matter as we understand it the documents upon which the prosecution intends to rely have to be served within a certain time frame of the hearing, the suggestion is that service was withheld because representations were humane (sic) well then a final letter and there were earlier - there was an earlier letter, but a final letter in relation to representations is dated here I have a copy of 16 March well that's what 14 or 15 days ago, now I mean by that time as we understand it the prosecutor - the time for service of those documents had expired and so the suggestion that they were withheld until consideration of our application was made with due respect my friend can hardly be correct, as I say the letter is dated that date, so we object to that course."

1. Mr Wozniak was then called. He gave evidence-in-chief that the plaintiffs' written representations were received on 16 March and that was why the documents sought to be tendered had not been served on the plaintiffs. He said that there had earlier been a number of telephone calls between he and Mr Baker, the plaintiffs' solicitor, about representations to be made to the prosecutor. They kept missing each other and when they spoke on 10 March, Mr Baker told him that the representations were on their way. Mr Wozniak said that he did not want to serve the documents then, because he didn't want to' throw more fuel on the fire'. The representations were received on 16 March.

1. The plaintiffs were entitled to challenge this evidence. Mr Wozniak was cross-examined as to what consideration had been given to the earlier representations they had made in September 2005. He could not remember. He was asked if he needed to refer to his file to answer the question. After referring to the file, without objection, he confirmed receipt of a letter of 9 September, which he said was sent to counsel that day. He said that the representations were sent to the RSPCA the same day and were dealt with in a couple of days.

1. At that point Mr Hennessey sought access to the file. That resulted in the following exchange:

"Q Might I have a look at your notes... (not transcribable)...

O'Donnell: Your Honour there maybe a claim for privilege as to some of those notes I'm not sure that they should be handed over until Mr Wozniak has an opportunity of inspecting them.

Witness: A. Well you can have a look I don't, I'm, I don't take notes, not a notetaker what I've got here is my memorandum to where it was sent off to, to counsel and sent off to the client - -

Hennessy: Yes.

Witness: A. - - then I've got counsel's reply back.

Hennessy: Q. Yes so you've got counsel's reply there?

A. Yes.

Hennessy: Q. Can we have a look at that?

A. Well I'd probably claim privilege over the reply.

O'Donnell: Your Honour there's clearly a claim for privilege.

Hennessy: The witness with respect has waived the claim for privilege.

Witness: A. Well I don't waive any claim for privilege your Honour.

His Honour: What's that?

Witness: A. I don't waive any claim for privilege, I don't your Honour. there's advice from counsel which was directed to my client which was passed onto the client."

1. The parties then addressed the question of whether or not privilege in the documents had been waived.

1. Mr Hennessy submitted that privilege had been waived, Mr Wozniak having been called to give evidence to explain why the documents on which the RSPCA wished to rely to resist the costs application had not been served. That involved some forensic assessment of the instructions given by the RSPCA, compared with submissions not yet received from the plaintiffs, but which were expected. Mr Wozniak had given evidence about the contents of his file and accordingly, the plaintiffs should not be inhibited in their cross-examination on its contents. Mr Wozniak's answer in cross-examination as to the representations made in September and his investigation of those representations had been that he had relied on counsel's advice. Mr Hennessy submitted:

"... Well I'm entitled to have a look at that very advice to see what in fact was said, the advice may well be excellent and it may in fact say go your hardest we've got a clear case here, now if that's so that would be against me, on the other hand if the advice says look be very careful here we've got some inherent weaknesses here that of course may be favourable to me. But one thing for sure is that this evidence and the evidence he is giving goes to resisting this application for costs and goes to these very matters."

1. Mr O'Donnell submitted that:

"... first there could never given what's emerged from this witness be a waiver of privilege. Your Honour the second thing is that this witness is called on a limited basis to explain the failure by the prosecuting authority to serve documents which are now sought to be tendered. Your Honour what's being done with respect to my friend is to broaden the scope of cross-examination to look at matters going back to September 2005, to try and get behind the decision to see what advice was given and what instructions were received your Honour that in my submission goes well beyond proper cross-examination of this witness and I would invite the Court to limit cross-examination to the issue on which the witness was called and to uphold a claim for privilege."

1. Having heard the parties his Honour observed that he was dealing with an application for costs to which s 214 applied. That required consideration of whether the prosecution was initiated without reasonable cause, or in bad faith, or was conducted by the prosecutor in an improper manner. That required consideration of the evidence which the prosecution had served. Thus the prosecution brief had been tendered without objection. The prosecution had sought to tender documents it had not served. In an attempt to explain why there had been no service, Mr Wozniak had been called to explain representations received in March and what was done in terms of other phone advice earlier received. He had also given evidence of earlier representations in September, when he considered them and sent them to counsel for advice. His Honour concluded that:

"... in the special circumstances of this case, and what I am being asked to determine the whole issue of the reasonableness of the representations or submissions by defence to the Crown and what happened to those whether they were reasonable whether they were accepted as throwing some light on the ultimate decision to withdraw the proceedings. I consider that the defence are entitled to inspect the advice given by counsel for the prosecution, so I rule that while I accept professional privilege that is claimed, is ordinarily upheld, but in the circumstances here, I see no prejudice to the defence or certainly to the prosecution, in that being made available. So I rule against you Mr O'Donnell"

1. Mr Hennessey was then given access to the file, which he inspected in the way that Ms Nadin and the plaintiffs gave evidence about.

1. Mr Hennesey was then given leave to approach Mr Wozniak who was then further cross-examined as to counsel's 11 September 2005 advice. He agreed that there was no reference there made to the representations of 9 September.

1. Mr Wozniak was cross-examined as to the details of counsel's advice in September, and the steps which were pursued as a result, including in relation to obtaining further advice from a Dr Wright. He agreed that no such document was subsequently served on the plaintiffs. He was also cross-examined about a further statement made by Inspector Croker and about the problems which the prosecution faced in relation to certain tests which had been undertaken and the evidence counsel suggested be obtained to deal with that problem, which he agreed had not been addressed. Mr Wozniak said that he had passed this advice on to the Chief Inspector, but that some matters had not been pursued.

1. Mr Wozniak was also cross-examined about his discussions with Mr Baker, the plaintiffs' solicitor and the representations which were then invited and what he told Mr Baker about the prospect of such representations being favourably received.

1. Mr Wozniak was also asked about his role with the RSPCA. He said that both he and Mr O'Donnell were members of the RSPCA board, but denied that he had given advice as to the prosecution's prospects of success. He also said that he was not involved in the decision to proceed. He had only referred the representations to counsel and the Inspector.

1. Mr O'Donnell then showed Mr Hennessey some further documents.

1. Mr Wozniak was then cross-examined as to what he knew of a witness Mr Pemberton, who he said he considered might not have been reliable, given information he had received some 3 to 4 weeks before submissions were received. He was also cross-examined about a memorandum of 10 March, relating to an incident in November 2005 and what Chief Inspector O'Shannessy and Inspector Ross then did to investigate, as well as an incident involving Mr Pemberton and Inspector Croker and the shooting of a wombat.

1. Mr Wozniak agreed that a further report had been obtained from a vet, and that a further statement had been obtained from the owner of the property leased by the plaintiffs. He said that there had also been an attempt by Inspector Croker to obtain further advice from the Rural Lands Protection Board, which had been unsuccessful.

1. Mr Wozniak recollected that he had discussed counsel's advice with him and the Chief Inspector, before the further representations of 16 March were received. Beforehand he had also had a number of telephone conversations with Mr Baker. He agreed that what he had then told Mr Baker could have given the impression that they would be considered favourably. He also said that he certainly invited him to make representations.

1. Mr Wozniak agreed that he was not just the RSPCA's solicitor, but also a member of its Board. He said, however that he did not make decisions about prosecutions. He denied that he had formed the view that this prosecution was likely to fail, before the final representations were received.

1. Mr Wozniak also said that the further information received in the second representation was critical, in his view. That included the issue of fences. He also said that he did not give the RSPCA any advice as to the likelihood of success or otherwise, by reference to the submission that the plaintiffs' cattle had year tags and that none of the cattle subject of any statement in the prosecution brief were so identified.

1. Mr Wozniak could not recall having ever given the RSPCA any advice as to the success or failure of this prosecution, before or after the representations were received. He agreed that if he had turned his mind to that question, that an element of the offence which had to be proven was that the cattle the subject of the charges were in the charge of the plaintiffs. He did not know whether the representations made, that it was not sufficient to enable a prosecution to succeed, to establish that there were a number of cattle on the same property as cattle owned by the defendants, had been accepted by the RSPCA. He said "these cattle in my view well for what it's worth may well have been in the care and control of' the plaintiffs".

1. Mr Wozniak agreed, however, that he knew that there was a need to establish a relationship between the cattle the subject of the charge and the plaintiffs and that there were no relevant identification tags. He said that the information received in the March representations that the fences between the property and the National Park were in a poor state, did not led him to conclude anything about the charges. He said that he was away when the letter was received and sent it off to counsel and the Chief Inspector and the decision was made, even before he saw it.

1. Mr Wozniak also explained that he had come to the view that Mr Pemberton was not a reliable witness. Mr Wozniak was cross-examined about a memorandum of 10 March 2006 from Inspector Rose to the Chief Inspector, relating to an incident which occurred on 15 November 2005. He was also cross-examined as to what he knew of Mr Pemberton's conduct, including in relation to abuse of Inspector Croker and the shooting of a wombat.

1. In re-examination, Mr Wozniak was asked to produce counsel's advice of 11 September, the 9 September representations, Inspector Rose's 10 March 2006 memo and counsel's memo of 16 March 2006. Those documents were tendered by the RSPCA, without objection.

1. The RSPCA then sought to tender the unserved documents, which were objected to. They were a statement made by Inspector Croker dealing with the issue of an attempt to contact the Rural Lands Protection Board, about which Mr Wozniak had been cross-examined, as well as a statement by Mr Pemberton, a statement by Dr Wright of 15 November 2005, a company search and a lease. Those documents were received.

Waiver established

1. It was the RSPCA which made a forensic decision to call evidence from Mr Wozniak, in order to resist the plaintiffs' costs application. That involved an express waiver of any privilege lying in the matter about which Mr Wozniak was called to give evidence, that is, why the documents which the RSPCA wanted to tender had not been served on the plaintiffs, as they ought to have been prior to the hearing, given its duty of disclosure as a prosecutor.

1. The RSPCA thereby wanted to resist the plaintiffs' case that it had not reasonably initiated, investigated or maintained the prosecution. The reasons they were not served, Mr Wozniak said was because of what he understood would result if the further representations which the RSPCA had invited from the plaintiffs were made. He gave evidence about the maintenance of the proceedings and how they came to be withdrawn.

1. The plaintiffs were entitled to test Mr Wozniak's evidence. On his evidence in cross-examination, the plaintiffs' March representations were invited as the result of further investigations conducted by the RSPCA after the plaintiffs' September representations were received and considered. He said that as the result of the September representations, counsel had advised that further investigations were required, if the prosecution was to succeed. Some, if not all of those investigations were then pursued, with the eventual result that further representations were invited from the plaintiffs which Mr Wozniak considered that the RSPCA would view favourably. The documents on which it wished to rely on the costs application were not served, in order that those negotiations not be jeopardised.

1. It is in that context that the question of waiver of privilege in the documents in the file to which Mr Wozniak referred in giving his evidence and to which the plaintiffs have already had access, now arises.

1. Chief Inspector O'Shannessy's evidence was that he had not expressly authorised waiver of the privilege which lay in the disputed documents. That evidence was not challenged, but does not deal with the result of the failure of the privilege claim in the Local Court proceedings. Even if waiver is not subjectively intended, it may be implied. As explained in Mann v Carnell [1999] HCA 66; 201 CLR 1 at [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 the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is "imputed by operation of law"[ eg Goldberg v Ng (1995) 185 CLR 83 at 95.]. This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege. Thus, in Benecke v National Australia Bank [(1993) 35 NSWLR 110.], the client was held to have waived privilege by giving evidence, in legal proceedings, concerning her instructions to a barrister in related proceedings, even though she apparently believed she could prevent the barrister from giving the barrister's version of those instructions. She did not subjectively intend to abandon the privilege. She may not even have turned her mind to the question. However, her intentional act was inconsistent with the maintenance of the confidentiality of the communication. What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large."

1. The 'principle of fairness operating at large' is a reference to the test described by in Attorney General (NT) v Maurice [1986] HCA 80; 161 CLR 475 and applied in Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83. As explained in Australian Competition and Consumer Commission v Cadbury Schweppes Pty Ltd [2009] FCAFC 32 at [101]:

" In the joint reasons in Osland [2008] HCA 37; 234 CLR 275, Gleeson CJ, Gummow, Heydon and Kiefel JJ confirmed that the judgment as to whether there is inconsistency (between the conduct of the privilege-holder and the confidentiality which the privilege is intended to protect) 'is to be made in the context and circumstances of the case, and in the light of any considerations of fairness arising from that context or those circumstances' (297 at [45]). Questions of waiver are matters of fact and degree (see Osland at [49])."

1. In the circumstances, the plaintiffs were plainly entitled to rely on the evidence called by the RSPCA from Mr Wozniak in the Local Court proceedings and the access which they were then given to his file, after the RSPCA's claim for privilege in that file failed, in order to establish waiver.

1. In Goldberg v Ng, it was observed by that:

"Imputed waiver

18. The circumstances in which a waiver of legal professional privilege will be imputed by operation of law cannot be precisely defined in advance. The most that can be done is to identify a number of general propositions. Necessarily, the basis of such an imputed waiver will be some act or omission of the persons entitled to the benefit of the privilege. Ordinarily, that act or omission will involve or relate to a limited actual or purported disclosure of the contents of the privileged material. When some such act or omission of the person entitled to the benefit of the privilege gives rise to a question of imputed waiver, the governing consideration is whether "fairness requires that his privilege shall cease whether he intended that result or not" (Wigmore on Evidence (McNaughton Rev 1961), vol 8, para 2327, quoted with approval by Gibbs CJ and by Mason and Brennan JJ in Attorney-General (NT) v Maurice (1986) 161 CLR 475 at 481, 488). That does not mean, however, that an imputed waiver must completely destroy the privilege. Like an express waiver, it can be limited so that it applies only in relation to particular persons, materials or purposes.

19. In Attorney-General (NT) v Maurice (1986) 161 CLR 475), it was accepted in all judgments that the question whether a limited disclosure gives rise to an implied or imputed waiver of legal professional privilege ultimately falls to be resolved by reference to the requirements of fairness in all the circumstances of the particular case. Thus, Gibbs CJ saw the decided cases as establishing that ((1986) 161 CLR 475 at 481; 69 ALR 31 at 34):

"... 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".

Mason and Brennan JJ explained the doctrine of implied or imputed waiver as follows ((1986) 161 CLR 475 at 487-8):

"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. 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.' (Wigmore, Evidence in Trials at Common Law (1961), vol 8, par 2327, p 636.)

In order to ensure that the opposing litigant is not misled by an inaccurate perception of the disclosed communication, fairness will usually require that waiver as to one part of a protected communication should result in waiver as to the rest of the communication on that subject-matter: see Great Atlantic Insurance Co v Home Insurance Co ([1981] 1 WLR 529; [1981] 2 All ER 485).

20. Hence, the implied waiver inquiry is at bottom focused on the fairness of imputing such a waiver."

Deane J wrote ((1986) 161 CLR 475 at 492-3; 69 ALR 31 at 42-3):

"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 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."

Dawson J wrote ((1986) 161 CLR 475 at 497-8; 69 ALR 31 at 497-8):

"... it is clear enough that an implied waiver may be

required by fairness notwithstanding that it was not intended. It would not be fair to allow privilege to be waived with respect to a portion of a document or a conversation without requiring disclosure of the rest of it, at least if the document or conversation dealt with the one subject-matter: see Burnell v British Transport Commission ([1956] 1 QB 187) and Great Atlantic Insurance Co v Home Insurance Co ([1981] 1 WLR 529 at 536; [1981] 2 All ER 485 at 490). So much may be obvious, but legal professional privilege is concerned with protecting the confidentiality of a relationship and if that confidentiality is abandoned by a particular disclosure it may be necessary in fairness, whether further disclosure was intended or not, to require disclosure extending beyond the particular communication: see Wigmore on Evidence (McNaughton rev 1961), vol VIII, par 2327. The cases are not entirely consistent and perhaps what is fair by way of disclosure must ultimately depend upon the relevant circumstances."

21. The claim that there had been a waiver of legal professional privilege in Attorney-General (NT) v Maurice had been advanced before Maurice J, sitting as the Aboriginal Land Commissioner, in proceedings under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) relating to an Aboriginal land claim. The basis of the alleged waiver was the tender of a claim book at an earlier stage of the proceedings before Maurice J's predecessor as Aboriginal Land Commissioner. However, we do not read the judgments in that case as suggesting either that a claim for waiver of legal professional privilege made in a proceeding before a court or quasi-judicial tribunal must be based upon conduct occurring in that proceeding or, for that matter, upon conduct occurring in, or in anticipation of, any proceeding before a court or other tribunal. Be that as it may, we are firmly of the view that where two or more distinct proceedings or procedures are related in the sense that there is general correspondence between the parties and they arise out of either the same dispute or closely connected disputes, conduct in relation to one proceeding or procedure, whether anticipated or already commenced, can found an imputed waiver for the purposes of all proceedings and procedures. The two distinct proceedings between the Ngs and the Goldbergs in the Equity Division of the Supreme Court and the proceeding or procedure consequent upon Mr Ng's complaint to the Law Society against Mr Goldberg were all related proceedings or procedures in that sense. There was general correspondence between the parties and they arose out of the same dispute about the nature and effect of the payment of the $100,100 paid by Mr Ng to Mrs Goldberg in Hong Kong."

1. The critical question was considered to be whether Mr Goldberg's earlier disclosure of the privileged documents to the Law Society gave rise to a situation where ordinary notions of fairness required that he be precluded from asserting that those documents were protected from production for inspection by the Ngs, in the later proceedings between them.

1. It was observed at [29] that:

"Ordinarily, a party involved in a number of related proceedings or procedures will be able, in one proceeding or procedure, to take advantage of documents or other material which have been utilised by the other party in another of the related proceedings or procedures."

1. The two sets of proceedings both concerned the one dispute about a sum of $100,100. It was concluded that it would be unfair for Mr Goldberg to have waived privilege in relation to the documents in one set of proceedings where he wished to rely on them, but to have relied on the privilege in other proceedings, where it was Mr Ng who sought access to the documents. In the result it was concluded that there had been an imputed waiver by Mr Goldberg of legal professional privilege in the documents in question.

1. It seems to me that the same conclusion must be reached in this case. The imputed waiver was the result of the decision to call Mr Wozniak, in order to establish a basis for the tender of documents which the RSPCA wished to rely on, to establish that its investigation and conduct of the prosecution had not been of the kind the plaintiffs asserted. He was cross-examined as to what had occurred at the relevant time, which he said explained the decision not to serve the documents sought to be relied on. In that cross-examination he not only referred to his file, the RSPCA unsuccessfully claimed privilege, access was given to the file and the RSPCA eventually tendered some of the documents he had been cross-examined about.

1. In those circumstances, so far as these proceedings between the very same parties are concerned, the notions of fairness discussed in the authorities, of necessity mean that it must be concluded that any privilege which existed in the disputed documents has been waived.

1. This is not the result of the plaintiffs impermissibly seeking to force waiver, as the RSPCA argued, by putting its state of mind into issue in these proceedings, or in the Local Court proceedings. There the RSPCA actively defended the costs application, contending that the prosecution it had brought had been reasonably initiated, investigated and maintained. To support its case it led evidence from Mr Wozniak to explain why documents it wished to rely on to make good its defence of the costs application had not been served, as well as then tendering documents he had been cross examined on.

1. The RSPCA's final submission was that the Court should not itself consider whether, and in any event should not find, that privilege was waived in the Local Court, given the unreliability of the transcript as to what actually occurred and was said and given the circumstances in which Mr Wozniak was called.

1. This submission cannot be accepted. These are matters raised by the motion, the parties have joined issue over them and they must be resolved on the evidence which they have led.

1. Certainly the plaintiffs could not force the RSPCA to waive any privilege which it had. The question is whether the result of its own actions amounted to such a waiver. That has been amply demonstrated on the evidence.

Section 122 of the Evidence Act 1995

1. The RSPCA submitted that even if privilege had been waived, s 122(5) applied to the production given the plaintiffs in the Local Court. Section 122 provides:

"122 Loss of client legal privilege: consent and related matters

(1) This Division does not prevent the adducing of evidence given with the consent of the client or party concerned.

(2) Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120.

(3) Without limiting subsection (2), a client or party is taken to have so acted if:

(a) the client or party knowingly and voluntarily disclosed the substance of the evidence to another person, or

(b) the substance of the evidence has been disclosed with the express or implied consent of the client or party.

(4) The reference in subsection (3) (a) to a knowing and voluntary disclosure does not include a reference to a disclosure by a person who was, at the time of the disclosure, an employee or agent of the client or party, or of a lawyer of the client or party, unless the employee or agent was authorised by the client, party or lawyer to make the disclosure.

(5) A client or party is not taken to have acted in a manner inconsistent with the client or party objecting to the adducing of the evidence merely because:

(a) the substance of the evidence has been disclosed:

(i) in the course of making a confidential communication or preparing a confidential document, or

(ii) as a result of duress or deception, or

(iii) under compulsion of law, or

(iv) if the client or party is a body established by, or a person holding an office under, an Australian law-to the Minister, or the Minister of the Commonwealth, the State or Territory, administering the law, or part of the law, under which the body is established or the office is held, or

(b) of a disclosure by a client to another person if the disclosure concerns a matter in relation to which the same lawyer is providing, or is to provide, professional legal services to both the client and the other person, or

(c) of a disclosure to a person with whom the client or party had, at the time of the disclosure, a common interest relating to the proceeding or an anticipated or pending proceeding in an Australian court or a foreign court.

(6) This Division does not prevent the adducing of evidence of a document that a witness has used to try to revive the witness's memory about a fact or opinion or has used as mentioned in section 32 (Attempts to revive memory in court) or 33 (Evidence given by police officers)."

1. It is clear from s 122(6), that the section does not prevent the plaintiffs now having access to any documents to which Mr Wozniak referred in his file without objection during his evidence, to which s 32 applied. The documents which the RSPCA tendered in its own case in the Local Court, are documents to which s 122(2) clearly applies. That tender was the result of its own forensic decision, not any compulsion of law and so they do not fall within the s 122(5)(a)(iii) exception that the RSPCA relied on.

1. In DSE (Holdings) Pty Ltd v InterTAN Inc [2003] FCA 384; (2003) 127 FCR 499 at 519 [58], the test as to when an implied waiver arises was explained to be when "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 communication 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 partly by the forensic unfairness of allowing the claim to proceed without disclosure of the communication".

1. That is a test concerned with a party's conduct and its consequences. In the event of a dispute about either what the conduct was, or what the consequences of the conduct are, a court's determination resolving that controversy, by the conclusion that privilege in documents to which s 118 or s 119 applies has been impliedly waived, is a determination as to the result of decisions which the party has made. A decision that the conduct has resulted in an implied waiver of the privilege which attaches to the document, is not a decision the result of which is disclosure of the document to the other party 'under compulsion of law'.

1. Such disclosure is rather the result of the conduct in question and its legal consequences. It is the result of forensic decisions which the party itself has made. That is not disclosure with which s 122(5)(a)(iii) is concerned. That provision is rather concerned with situations such as when disclosure has resulted, for example, from a Court's order requiring experts' reports to be served on another party prior to hearing. In that event the disclosure is made under compulsion of law and s 122(5)(a)(iii) is engaged (see for example Akins v Abigroup Ltd [1998] NSWSC 254; (1998) 43 NSWLR 539 and Dubbo City Council v Barrett [2003] NSWCA 267).

1. In this case, the documents fall into three categories. The first is any documents to which s 32 applied. That is documents to which Mr Wozniak referred in giving his evidence, in order to revive his memory "about a fact or opinion". Their production resulted in a disclosure under compulsion of law, to which s 122(5)(a)(iii) would have applied, but for the provision made in s 122(6), because of what s 32(4) provides:

"(4) The court is, on the request of a party, to give such directions as the court thinks fit to ensure that so much of the document as relates to the proceeding is produced to that party."

1. But for the exemption in s 122(6), such production would not have involved any waiver of privilege, because it was a production under compulsion of law.

1. The second category is the balance of the documents in Mr Wozniak's file to which the plaintiffs were given access. Disclosure which results from a failed claim for privilege is not the result of a compulsion of law, even when the disclosure follows a court's resolution of a dispute as to whether or not there has been implied waiver of privilege in the document.

1. The third category is the documents which the RSPCA itself tendered in the Local Court. That involved no disclosure under compulsion of law, and so s 122(5)(a)(iii) did not apply.

Orders

1. For the reasons given, the RSPCA has not established the privilege which it claimed and, in any event, the plaintiffs established the waiver which they relied on.

1. Accordingly, the plaintiffs must be given the access which they seek to the disputed documents. I order that they have that access.

1. The usual order as to costs is that they follow the event, which means in this case that the RSPCA should bear the plaintiffs' costs of the motion. If the plaintiffs seek to press an order on a different basis as has been foreshadowed, I will hear the parties.

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Amendments

25 November 2013 - Additional name in counsel appearance

Amended paragraphs: Coversheet

Decision last updated: 25 November 2013