JM v Trustees of the Marist Brothers

[2024] NSWSC 1446

Supreme Court

New South Wales

Medium Neutral Citation:

JM v Trustees of the Marist Brothers [2024] NSWSC 1446

Hearing dates:

12 November 2024

Date of orders:

12 November 2024

Decision date:

12 November 2024

Jurisdiction:

Common Law

Before:

Hamill J (as Duty Judge)

Decision:

(1) Access to the file produced on subpoena be granted to the defendant and its lawyers.

(2) First access be granted to the plaintiff with the expectation that the defendant’s counsel and solicitor be provided access by 4pm Thursday, 14 November 2024.

(3) By agreement, the costs of and incidental to the motion will be the costs in the cause.

Catchwords:

CIVIL LAW – litigation privilege – legal advice privilege – whether privilege “lost” or waived – whether conduct inconsistent with maintenance of privilege – where plaintiff seeks to set aside settlement deed entered in 2011 – application to set aside deed based on changes to the law following Royal Commission – affidavits filed in support of motion to set aside deed - where plaintiff asserts legal advice led him to settle for compromised sum – where solicitor offers opinion based on review of legal file from 2011 case – issue of waiver not determined by general notions of fairness – affidavits raise directly issues to be ventilated on motion to set aside deed – privilege lost

Legislation Cited:

Civil Liability Act 2002 (NSW), ss 7C, 7D

Evidence Act 1995 (NSW), ss 118, 119, 122, 131(1), 131A

Cases Cited:

EXV v Uniting Church in Australia Property Trust (NSW) [2024] NSWSC 490

GR Capital Group Pty Ltd v Xinfeng Australia International Investment Pty Ltd [2020] NSWCA 266

Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66

Nash v Glennies Creek Coal Management Pty Ltd (No 6) [2014] NSWIRComm 36

Osland v The Queen (1998) 187 CLR 315; [1998] HCA 75

R v Diallo & Ors (No 7) [2024] NSWSC 978

R v Rogerson; R v McNamara (No 11) [2015] NSWSC 1066

Trustees of the Christian Brothers v DZY [2024] VSCA 73

Trustees of the Roman Catholic Church v Ellis (2007) 70 NSWLR 565; [2007] NSWCA 117

Texts Cited:

New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 17 March 2021

Category:

Procedural rulings

Parties:

Trustees of the Marist Brothers (defendant/applicant of the notice of motion)
JM (plaintiff/respondent of the notice of motion)

Representation:

Counsel:
C P O’Neill (Trustees of the Marist Brothers)
D Campbell SC and J B Masur (JM)

Solicitors:
Carroll & O’Dea Lawyers (Trustees of the Marist Brothers)
Porters Lawyers (JM)

File Number(s):

2023/59056

Publication restriction:

(1) Publication of the plaintiff/respondent’s name is prohibited until the occurrence of the event specified in order (2) on the ground that (e) it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.

(2) For the purpose of s 12 of the Court Suppression and Non-publication Orders Act 2010 (NSW) the order is continued until further order.

(3) Pursuant to s 11 of the Court Suppression and Non-publication Orders Act 2010 (NSW) the order applies throughout the Commonwealth of Australia.

EX TEMPORE JUDGMENT (REVISED)

1. In 2009 the plaintiff brought proceedings against the defendant for damages arising from sexual abuse he says that he suffered at the hands of a nominated Marist Brother when he was a student at a school in Sydney’s south-west.

2. In 2011, some months after a mediation, the plaintiff settled that claim and accepted what he says was a compromised sum by way of damages. The parties entered a deed of settlement reflecting the agreement they had reached.

3. The plaintiff commenced new proceedings in this Court on 21 January 2023.

4. Pursuant to Pt 1C of the Civil Liability Act 2002 (NSW), which was introduced following the Royal Commission into Institutional Responses to Child Sexual Abuse, he seeks to set aside the deed of settlement. The notice of motion seeking the order to set aside the deed is to be heard next week on Thursday 21 November 2024. The present skirmish, which involves whether to grant access to documents produced under subpoena to the defendant, needs to be resolved before then and for that reason this judgment will be brief and possibly a little incoherent. The matter is before me in the duty list and was brought by notice of motion filed by the defendant.

5. In support of what I will call “the set-aside motion”, the plaintiff filed at least two affidavits. The first is his own affidavit affirmed on 1 February 2023. The second is that of his solicitor, Mr Parkinson, affirmed on 21 February 2023.

6. The defendant filed a subpoena on 19 April this year seeking production of “the complete legal file in respect of the plaintiff”. The schedule went on to provide a non-exhaustive list of documents, all of which relate to the litigation commenced in 2009 and the settlement agreement and deed in 2011.

7. The plaintiff says that the file contains information that is privileged and, reading between the lines, is the subject of litigation privilege under s 119 of the Evidence Act 1995 (NSW) and/or privilege over legal advice under s 118 of that Act. There is no doubt that is, on its face, correct and that the file would be caught by those provisions. However, the defendant asserts that the plaintiff has, to use the language of the common law, “waived privilege”. More specifically it says there has been an issue waiver.

8. In accordance with the terms of the Evidence Act the defendant’s submission is that the plaintiff’s privileged is lost because his conduct is inconsistent with the maintenance of that privilege. Section 122 of the Evidence Act 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).

9. For completeness I note two things about parts of the relevant legislation:

1. Section 131A of the Evidence Act extends the application of the relevant part of the Act to preliminary proceedings including where there is a disclosure requirement, which in turn includes an obligation to produce documents under a subpoena; and

2. Part 1C of the Civil Liability Act by s 7D(4) abrogates the provision in s 131(1) of the Evidence Act which otherwise excludes the adducing of evidence of settlement negotiations.

10. There is no suggestion that the defendant lacks a legitimate forensic purpose in seeking the documents, nor on my understanding of the issues could there be. In view of the application made by the plaintiff to set aside the deed, there is clearly such a legitimate forensic purpose. Some of the plaintiff’s submissions may have blurred the lines a little between the issue of forensic purpose and the real issue before the Court today which is whether there is an inconsistency between the plaintiff’s conduct and the maintenance of his claim of legal privilege. In any event, as I have said, there was no application to set aside the subpoena based on a lack of legitimate forensic purpose.

11. The documents (that is, the legal file) were produced to the Court electronically and have now been placed on a USB stick. I have not reviewed the material on the USB stick, but I was told by Senior Counsel for the plaintiff that he has done so.

12. The issue to be resolved next week, that is whether the deed of settlement should be set aside, is governed by the provisions in Pt 1C of the Civil Liability Act. That Part was part of a series of reforms which were protective of, and beneficial to, victims of, in particular, institutional child sexual abuse.

13. The supplementary court book included the recent Victorian Court of Appeal decision in Trustees of the Christian Brothers v DZY [2024] VSCA 73, which provides an overview of the statutory amendments in Victoria (footnotes omitted):

“[10] In a series of enactments, the Victorian Parliament moved to address problems facing those who claim to have suffered personal injuries as a result of physical or sexual abuse while a minor (‘child abuse’), perpetrated on them long ago by persons acting under the auspices of an unincorporated association. Relevantly, those enactments were to the following effect:

(a) from 1 July 2015, to remove any limitation period for an action founded on the personal injury to a person resulting from child abuse;

(b) from 1 July 2018, to require the nomination or appointment of an entity to act as the proper defendant on behalf of an unincorporated non-government organisation in child abuse cases and bear the liability of the unincorporated organisation — in other words, to overcome the Ellis defence; and

(c) from 18 September 2019, to provide that an action for personal injury resulting from child abuse may be brought on a previously settled cause of action (as defined) by allowing a plaintiff to apply to the court to set aside settlement agreements on the basis that it is ‘just and reasonable’ to do so.”

14. Perhaps more relevantly, the first court book included the judgment of Weinstein J in EXV v Uniting Church in Australia Property Trust (NSW) [2024] NSWSC 490 (“EXV”), which provides a helpful summary of the legislative reforms in both the NSW context and more broadly across all Australian jurisdictions:

“[44] Part 1C was inserted into the CLA by the Civil Liability Amendment (Child Abuse) Act 2021 (NSW) - the 2021 Act in response to the Royal Commission as part of a suite of reforms arising out of the recommendations of its 2015 Redress and Civil Litigation Report. The reforms removed barriers to survivors of abuse in seeking civil justice for the abuse perpetrated against them. Relevantly, in 2016, legislation was enacted abolishing limitation periods for child abuse claims both retrospectively and prospectively: see s 6A of the Limitation Act. In 2018, a requirement was introduced that a proper defendant be appointed for cases brought against unincorporated organisations thereby removing the Ellis defence: see Pt 1B of the CLA. As explained in the Explanatory Note to the 2021 Act, one of its objects was to enable courts to set aside certain agreements that settled claims for child abuse when it is just and reasonable to do so, in circumstances where there were certain legal barriers to the victim of the child abuse being fully compensated through a legal cause of action. This is what s 7D achieves by empowering a court to set aside such ‘affected agreements’.

[45] The limitation period for child abuse claims and the Ellis defence have been abolished in all jurisdictions throughout Australia: see s 21C of the Limitation Act 1985 (ACT) and Ch 8A of the Civil Law (Wrongs) Act 2002 (ACT); s 5A of the Limitation Act 1981 (NT) and Pt 3A of the Personal Injuries (Liabilities and Damages) Act 2003 (NT); s 11A of the Limitation of Actions Act 1974 (Qld) and Pt 2A of the Civil Liability Act 2003 (Qld); s 3A of the Limitation of Actions Act 1936 (SA) and Pt 7A of the Civil Liability Act 1936 (SA); s 5B of the Limitation Act 1974 (Tas) and Pt 10C of the Civil Liability Act 2002 (Tas); s 27P of the Limitation of Actions Act 1958 (Vic), Pt XIII of the Wrongs Act 1958 (Vic) and the Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic); Pt 2A of the Civil Liability Act 2002 (WA) and s 6A of the Limitation Act 2005 (WA).”

15. Before those reforms there were two relevant legal impediments to a plaintiff attempting to bring proceedings for child sexual abuse that occurred many years ago against institutions such as a church or religious order. The first was the limitation period and the second was the so-called “rule in Ellis”. The second of those impediments is a reference to the case of Trustees of the Roman Catholic Church v Ellis (2007) 70 NSWLR 565; [2007] NSWCA 117 (“Ellis”) in which it was held that such organisations were not incorporated and were not able to be sued as entities as such.

16. Part 1C allows for the setting aside of “affected agreements” which for present purposes includes an agreement that was affected by those two legal impediments.

17. Section 7C defines that term:

7C Meaning of “affected agreement”

(1) In this Part, an affected agreement means an agreement that prevents the exercise of an action on a cause of action to which section 6A of the Limitation Act 1969 applies, if the agreement occurred—

(a) before the commencement of that section, and at the time of the agreement, a limitation period applying to the cause of action had expired, or

(b) before the commencement of Part 1B of this Act, and at the time of the agreement, an organisation, that would have been liable under Part 1B for child abuse had the Part been in force, was not incorporated, or

(c) before the commencement of Part 1B of this Act, and the agreement is not just and reasonable in the circumstances.

(2) For the purposes of this section, a limitation period is taken to have expired even if it were possible at the time to seek the leave of a court to extend the period.

18. Section 7D provides the process by which the court may set aside such an agreement and gives a discretion to the court, by the use of the word “may”, to set aside such an agreement. In essence the plaintiff is permitted to commence new proceedings in a court of sufficient jurisdiction (s 7D(1)(a)) and then “apply to the court to set aside the affected agreement”, that is in this case the deed (s 7D(1)(b)). The court may set that agreement aside if it is “just and reasonable to do so”: s 7D(2).

19. Section 7D(3) goes on to provide a list of things that the court “may” take into account in making its decision to set aside the affected agreement:

7D Court may set aside affected agreement

…

(3) The court may consider the following in making its decision to set aside the affected agreement—

(a) the amount paid to the applicant under the agreement,

(b) the bargaining position of the parties to the agreement,

(c) the conduct in relation to the agreement of—

(i) the parties other than the applicant, or

(ii) the legal representatives of the parties other than the applicant,

(d) any other matter the court considers relevant.

20. The last of those considerations or factors, the one in s 7D(3)(d), is one of very wide import, as is the general discretion to be guided by what is “just and reasonable”. I do not accept that s 7D(3)(d) is somehow tied to the three preceding subparagraphs as was submitted by the plaintiff, although based on ordinary principles of statutory construction its content may be informed by the three matters preceding it.

21. In considering the issue confronting the Court today, I have taken into account the fact that the amendments to the Civil Liability Act were clearly calculated to benefit people in the plaintiff’s position.

22. The intentions of parliament in enacting such reforms can be gleaned from the Second Reading Speech, [1] to which I was directed in Mr O’Neill’s oral submissions and parts of which are extracted in EXV. I have reproduced the relevant portions below:

“ … The bill enacts two significant reforms that remove legal barriers to provide a clear pathway for access to justice for survivors of child abuse. First, a new part 1C will be inserted into the Civil Liability Act 2002 to give the courts the power to set aside certain agreements that settle child abuse claims where it is just and reasonable to do so … The bill builds on the New South Wales Government’s reforms in 2016 and 2018 to allow greater access to justice for survivors of child abuse in line with the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse in its Redress and Civil Litigation Report.

…

In 2016 and 2018 the New South Wales Government implemented an extensive package of reforms in response to the royal commission’s findings. The 2016 reforms included retrospectively and prospectively removing limitation periods for child abuse claims and introducing an updated Model Litigant Policy and Guiding Principles for Civil Claims for Child Abuse. In 2018 the New South Wales Government implemented a suite of reforms that included, first, a requirement that a proper defendant be appointed for cases brought against unincorporated organisations, removing what was known as the Ellis defence; and, secondly, two new prospective statutory liabilities for child abuse …

… The bill goes above and beyond the royal commission’s recommendations. It builds on the New South Wales Government’s 2016 and 2018 reforms to allow survivors who entered into certain settlements before those reforms to have the same access to justice as those who brought a claim after the reforms. Prior to the 2016 and 2018 reforms, many survivors entered into settlements that they identified to the royal commission as inadequate or far too low and that they felt forced to accept due to legal technicalities. In particular, many of those settlements were made in relation to claims that were impacted by the expiry of the limitation period for the claim or where there was no proper defendant to sue.

… Many settlement agreements entered into by survivors might now be considered unjust or unfair, particularly where those legal barriers have been removed following the New South Wales Government’s reform to civil liability in 2016 and 2018. If those legal barriers had not existed at the time of the settlement, those survivors would have been in a better negotiating position and may have negotiated a higher settlement amount. However, generally, people who entered into those settlement agreements would be prevented from seeking any further compensation for the abuse by terms in their settlement agreements that released the responsible institutions or persons from liability. That type of release is common across personal injury matters, including child abuse claims. The ultimate effect of that is survivors who entered into settlement agreements prior to the reforms may be unable to benefit from the removal of the legal barriers to civil litigation, which occurred in 2016 and 2018.

…

The effects of the legislation in [other] jurisdictions is similar in that they all provide the courts with the power to set aside historical settlement agreements, particularly for claims that were previously statute barred—that is, prior to the removal of the limitation period. The exact wording of new part 1C for the Civil Liability Act differs from other jurisdictions in various ways, and each of the other jurisdictions’ legislation differs from the others. A key aspect of part 1C that differs significantly from the other jurisdictions is that it clearly articulates that the courts may set aside settlement agreements for claims that were either impacted by the expiry of the limitation period or where an organisation was not incorporated and there was therefore no proper defendant to the cause of action, or both, if just and reasonable to do so. New South Wales will be the only jurisdiction that has explicitly articulated in the legislation that the courts may set aside settlement agreements that were impacted by both of those legal barriers or by the legal barrier of the absence of a proper defendant alone.”

1. New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 17 March 2021 at 5539.

23. The purpose of such reforms was also considered by Weinstein J in EXV at [46]-[48]:

“The removal of the limitation and Ellis defence barriers is an acknowledgment by legislatures throughout Australia that these barriers were unjust impediments to child abuse survivors seeking redress for the harm that they suffered. The removal of limitation periods, for example, was an acknowledgment that children who suffer abuse often do not come forward to make a complaint until many years after the abuse because of feelings of shame and embarrassment or a fear of coming forward. This has long been recognised in the criminal law: see for example s 294 of the Criminal Procedure Act 1986 (NSW). The removal of both barriers was also an acknowledgment that such barriers often contributed to a power imbalance between survivors and institutions.

Part 1C therefore appears to be aimed at ensuring fairness between those plaintiffs who brought their claims in the past when the two legal barriers existed, and who settled their claim in an environment where legal barriers prevented them from being fully compensated, and plaintiffs who bring their claim now, when such barriers do not exist.

In this respect, the purpose of Pt 1C is remedial and beneficial. This is important because, as the plaintiff submitted, remedial legislation ought to be given ‘as generous a construction as the actual language of those provisions permits’: Legal Services Board v Gillespie-Jones (2013) 249 CLR 493 at 509; [2013] HCA 35 at [50].”

24. I should make it clear that I do not accept the extremity of the defendant’s submission when it was put in effect, if not in terms, that in any case when an alleged victim seeks the kind of relief allowed for by s 7D, the plaintiff will be taken to have waived privilege altogether so that a defendant will be permitted to gain access to all privileged communications, documents and advices, etcetera. I reject that proposition, although it does not fall for determination today.

25. I might also say that I found Mr Campbell’s suggestion that the plaintiff has yet to decide what parts of his and Mr Parkinson’s affidavit he plans to rely on next week a little, shall I say, convenient for today’s purposes and quite unpersuasive. Whether that submission, which was made during an objection to the material sought to be relied on by the defendant, was pressed, was not entirely clear. In any event, again, it is not necessary to determine whether that would undermine or defeat the defendant’s reliance on the contents of the affidavits or those particular parts of the affidavits, which ultimately were somewhat limited. That is to say, whether or not the material is pressed next week – or whether a forensic choice has been made in that regard – may or may not inform the question of “waiver”, the affidavits having been prepared and filed with the Court, but it is not necessary to decide that question today.

26. The plaintiff’s affidavit asserts, amongst other things, that he was guided by his lawyer’s advice as to the risks of litigation including the existence of the limitation period and the rule in Ellis, although I am not sure that he expresses it in those precise terms. The relevant parts of his affidavit, and the only paragraphs read on the motion today aside from [3], are as follows:

“[7] At that time, I recall being advised that whilst I had a potential claim for common law damages against the Marist Brothers, my claim was complicated by the legal barriers that impacted [my] claim at that time. I recall [this] included:

a. That my claim was ‘out of time’ because of the many years since the abuse and my coming forward with my claim;

b. the legal structure of the Marist Brothers was complicated and that it was not straightforward that I could hold the ‘Marist Brothers’ legally liable for the abuse by Brother Murrin and even if I did, there may be complications recovering any damages; and

c. other survivors who had brought similar litigation against the Catholic-Church, like Mr John Ellis, had lost their cases for technical legal reasons and had to pay the Church’s legal costs which were significant.

[8] Counsel. I recall during the course of my case, barristers Mr Bartley SC and Mr Frank Toscano were engaged by my solicitors to provide advice to me about my case and appear on my behalf. I also recall them providing me similar advice about the above issues.

[9] I recall that it was necessary for an application to be made to ‘extend time’, which was explained to me as effectively asking the court for permission to proceed with my case. I recall being advised that if I was not granted such permission, I would likely face a significant costs order to pay the legal costs of the Marist Brothers, which was likely to be a very significant sum and likely [to] ruin me financially. I recall being very concerned about the impact this would have on me and my mental health.

…

[11] Based on the advice of my lawyers, I had understood that my case was very risky for technical legal reasons such as the limitation period and that even though my lawyers were willing to litigate my case to hearing, I would face potentially severe financial consequences if I lost my case for those technical reasons, which I was advised was likely.

…

[13] I recall being advised that whilst we would commence our negotiations at a high figure which would represent the potential value of my case if it did not face the technical legal barriers above, the Defendant is likely only to offer a fraction of that figure because of the impact of those issues. I was advised that I would need to carefully consider any offers made because of the risks in my case.

[14] During the course of the mediation I received advice that $500,000 inclusive was the highest offer the Marist Brothers would pay to settle my case. I recall being advised that whilst my case was likely worth in excess of that amount if I was to win my case at hearing, it was not certain that I would in fact win my case. I was also advised that I would need to seek the leave of the court to extend time to proceed with my case in court. I was advised that this was a significant risk for me and that if I was unsuccessful in my application to extend the limitation period, I would likely be required to pay the Marist Brothers’ legal costs.

[15] Because of that advice, I reluctantly accepted the settlement offer as I could not risk the consequences of proceeding with my case and losing an application to extend the limitation period.”

27. Mr Parkinson’s affidavit said amongst other things in [6]:

“Having reviewed the Plaintiff’s matter and file, I am of the opinion that the agreement to settle his previous claim is an affected agreement for the purposes of Part 1C of the Civil Liability Act 2002 (NSW) (the ‘CL Act’) and having regard to the potential value of the Plaintiff’s claim, it is fair and reasonable to set aside the previous affected agreement.”

28. As Senior Counsel for the plaintiff pointed out in his submissions, the question of inconsistency in s 122 of the Evidence Act does not invoke some woolly consideration of general issues of fairness.

29. In GR Capital Group Pty Ltd v Xinfeng Australia International Investment Pty Ltd [2020] NSWCA 266 (“GR Capital”), Macfarlan JA (with McCallum JA and Simpson AJA agreeing) considered a number of the authorities on the relevant test at [52]-[55]:

“The authoritative decisions of the High Court in Mann v Carnell ([30] above) and Osland ([39]-[40] above) categorically state that at common law the test to determine whether there has been waiver of legal professional privilege by the privilege holder’s conduct is one of inconsistency between that conduct and retention of the privilege. In these circumstances, there does not appear to be any difference between the applicable test under the common law and that under s 122 of the Evidence Act which refers in terms to the same type of inconsistency.

The relevant test is not, as the older High Court authorities of Attorney-General v Maurice and Goldberg v Ng ([22]-[23] above) arguably suggest, simply one of fairness. As stated in Mann v Carnell, although considerations of fairness may ‘inform’ the issue of inconsistency, the test is not one of ‘some overriding principle of fairness operating at large’ ([30] above).

Accordingly, decisions that predate Mann v Carnell must be approached with caution. In particular, the proposition that relevance to a fact put in issue by the privilege holder is sufficient to give rise to a waiver (supported by decisions such as Thomason and Telstra: see [21], [26]-[27] above) is not correct.

Post Mann v Carnell Federal Court authorities, such as DSE ([33] above) and Macquarie Bank ([44]-[45] above), direct particular attention to whether an express or implied assertion has been made ‘either about the contents of the confidential communication or which necessarily lays open the confidential communication to scrutiny’. This approach appears ultimately to derive from that of Hodgson J in Standard Chartered Bank v Antico ([24] above).”

30. From those authorities, Macfarlan JA (with McCallum JA and Simpson AJA agreeing) drew the following propositions at [57]:

“(1) The test is one of inconsistency between the privilege holder’s conduct and its maintenance of the privilege, not one of general fairness or of relevance to an issue in the proceedings.

(2) Enquiring whether the privilege holder has made express or implied assertions about the contents of the confidential communications, and whether its conduct has therefore ‘laid open the communications to scrutiny’, assists in ensuring that the court’s focus is on inconsistency rather than simply relevance. If the privilege holder is understood to be asserting something about the contents of the communications, it is but a short step to conclude that it would be inconsistent for it to prevent those contents being scrutinised.

(3) On the other hand mere relevance of the content of the privileged communications to an issue raised in the proceedings by the privilege holder does not equate to inconsistency – something more is needed. It is of the essence of legal professional privilege that, if maintainable, it entitles a party to withhold potentially relevant documents from inspection by the other party.

(4) The determination of whether there has been an express or implied assertion about the contents of privileged communications giving rise to a relevant inconsistency is an evaluative decision to be made after consideration of the whole of the circumstances of the case. No hard and fast rules can be formulated. Those circumstances will include the degree of relevance of any advice to the issues in the proceedings, the centrality of the relevant issues in the proceedings and the likelihood of advice having been given, informed, as the High Court said in Mann v Carnell, by considerations of fairness.

(5) Having considered all those circumstances, the court must decide whether it would be inconsistent with the privilege holder’s conduct for it to maintain privilege. The line between relevance to an issue and inconsistency in this context may be very fine and therefore one on which views might well differ.”

31. In R v Diallo & Ors (No 7) [2024] NSWSC 978 (“Diallo & Ors (No 7)”) I considered the test in some detail, providing an overview of the relevant principles derived from the High Court cases of Osland v The Queen (1998) 187 CLR 315; [1998] HCA 75 and Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66, as well as considering other cases including GR Capital, R v Rogerson; R v McNamara (No 11) [2015] NSWSC 1066 and Nash v Glennies Creek Coal Management Pty Ltd (No 6) [2014] NSWIRComm 36. I will not repeat what was said there – see Diallo & Ors (No 7) at [19]-[30] – except to say that it is the inconsistency of the plaintiff’s conduct, rather than his subjective intention or questions of “fairness at large”, which is determinative.

32. Rather than focusing on general considerations of fairness, there must be a more clinical consideration of whether the plaintiff’s conduct, in this instance his reliance on (or filing of) the affidavits to which I have referred, means that he acted in a way that is inconsistent with him maintaining the privilege.

33. Without limiting that provision, subs (3) refers to the knowing and voluntary disclosure of the substance of the evidence, or in this case and by reference to s 131A, the documents and/or the advice.

34. In this regard, nothing really could be more stark than paragraph [6] of Mr Parkinson’s affidavit in which the plaintiff’s solicitor provides an opinion based on the contents of the very file over which privilege is sought to be maintained.

35. It goes on, in [31], to set out particular issues said to be relevant to the bargaining position of the parties:

“[31] The bargaining position of the parties to the agreement. Whilst the Plaintiff was represented by counsel and solicitors, there existed a significant power imbalance between the Plaintiff and the Defendant because:

a. The limitation period applying to the cause of action had expired;

b. Decisions such as Ellis v Pell identified that the courts would be reluctant to extend the applying limitation period and would make adverse costs orders if the Plaintiff did not succeed on the application;

c. The Australian common law regarding the imposition of vicarious liability was (more) uncertain; and

d. The Plaintiff’s claim was against the unincorporated organisation and it was unlikely that liability could be established in any or all of the individual named members of the unincorporated association and even if that occurred, it was uncertain that any judgment could or would be satisfied; and

e. The Plaintiff was a victim of child sexual abuse and the potential re-traumatisation of the prospect of failed litigation was a compounding factor.”

36. I have considered the assertion in the plaintiff’s affidavit in [3] that he does not, by the disclosures that follow, intend to waive legal privilege. However, that statement cannot stand with the balance of the document, or at least those parts read on today’s motion, let alone the contents of Mr Parkinson’s affidavit and especially his expression of an opinion based on the contents of the legal file.

37. I am unable to accept the plaintiff’s submission that the issue to be determined next Thursday is concerned with a purely objective appraisal of whether the legal impediments to which I have referred played some role in the settlement and deed entered into by the parties. That is not consistent with the breadth of the terms of s 7D or with the thorough and helpful analysis undertaken by Weinstein J in EXV. Moreover, it is impossible to reconcile with aspects of Mr Parkinson’s affidavit, for example at [31].

38. I am satisfied that the privilege over the legal file has been lost pursuant to the provisions in ss 122 and 131A of the Evidence Act.

ORDERS

39. I order that:

1. Access to the file produced on subpoena be granted to the defendant and its lawyers.

2. First access be granted to the plaintiff with the expectation that the defendant’s counsel and solicitor be provided access by 4pm Thursday, 14 November 2024.

3. By agreement, the costs of and incidental to the motion will be the costs in the cause.

POSTSCRIPT

40. The day after those orders were made, the High Court published its judgment in Bird v DP (a pseudonym) [2024] HCA 41. The parties sought consent orders that the hearing of the set aside motion be vacated, that the plaintiff serve an amended statement of claim before 10 February 2025 and the matter be listed before Garling J on 14 February 2025. Those orders were made in chambers.

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Endnote

Decision last updated: 15 November 2024