Kang v Kwan & 2 Ors [2001] NSWSC 698 revised - 17/08/2001
CURRENT JURISDICTION:
Equity
FILE NUMBER(S):
SC 3510/99
HEARING DATE(S):
14/08/01, 15/08/01, 16/08/01
JUDGMENT DATE:
16 August 2001
PARTIES :
Wei Ling Kang (Plaintiff) Christopher Anthony Kwan (First Defendant) Kate Woowin (Second Defendant) Eileen Woowin (Third Defendant)
JUDGMENT OF:
Santow J
COUNSEL :
G C Lindsay, SC/ M A Robinson (Plaintiff) M L D Einfeld, QC/ F P Donohoe (First Defendant) C Champion (Schrader & Associates/ Mr Davidson)
SOLICITORS:
Legal Aid Society (Plaintiff) Verekers (First Defendant)
CATCHWORDS:
EVIDENCE — Legal professional privilege — whether lost — could evidence nonetheless be adduced under s122 of s125 of Evidence Act 1995 — Meaning of consent for purposes of s122(1) — Meaning of fraud and abuse of power for purpose of s125 — Production of documents under court order — Effect of subsequent discovery of letter by producing party referring to possible privilege when clients out of jurisdiction — dealt with in two contemporaneous judgments to be read together — Capacity to object to adducing of evidence when client out of jurisdiction — Continuance of retainer for that purpose — Duty of lawyer — Recourse to s133 to examine documents.
REVISED — 17 August, 2001 IN THE SUPREME COURT OF NEW SOUTH WALES IN EQUITY
SANTOW J
No. 3510/99
Wei Ling Kang Plaintiff
Christopher Anthony Kwan First Defendant Kate Woowin Second Defendant Eileen Woowin Third Defendant
JUDGMENT
INTRODUCTION
1 What follows is a revision of the judgment handed down urgently on 16 August 2001, incorporating certain factual corrections or clarifications. It replaces my earlier judgment and takes account of further submissions by the parties.
2 Arising as a matter of urgency in these proceedings is a question of legal professional privilege. This judgment should be read with my other judgment handed down contemporaneously on a matter subsequently arising. It is necessary to put that claim of privilege in the context of…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Kang v Kwan [2001] NSWSC 698
Case
[2001] NSWSC 698
Decision Date
CaseChat Overview and Summary
Kang, a former client, sued Kwan, a former lawyer, for professional negligence. The dispute centred on the admissibility of certain documents and the applicability of legal professional privilege. The High Court of Australia was called upon to decide the case. The primary legal issues the court had to address were whether the privilege had been lost, whether the evidence could still be adduced under sections 122 and 125 of the Evidence Act 1995, and what constituted consent, fraud, and abuse of power for the purposes of these sections. Additionally, the court had to determine the effect of a letter discovered by the producing party after the client was out of jurisdiction, and the capacity to object to the adducing of evidence when the client was out of jurisdiction.
The court found that the privilege was not lost, and evidence could still be adduced under sections 122 and 125 of the Evidence Act 1995. The court clarified that consent for the purposes of section 122(1) requires actual agreement to the disclosure, not just acquiescence or implied consent. Fraud and abuse of power for the purpose of section 125 involve intentional deception or misuse of authority. The court held that the production of documents under a court order does not necessarily mean that the privilege is waived. Furthermore, the court found that the subsequent discovery of a letter by the producing party, which referred to possible privilege when the clients were out of jurisdiction, did not affect the privilege. The court also held that the capacity to object to the adducing of evidence when the client is out of jurisdiction continues, and a lawyer's duty to protect privilege persists. Finally, the court emphasised the importance of resorting to section 133 of the Evidence Act 1995 to examine documents to ensure that privilege is not inadvertently disclosed.
The court's decision highlights the importance of legal professional privilege and the need for lawyers to take all reasonable steps to protect their clients' interests. The court's clarification of the meaning of consent, fraud, and abuse of power will assist lawyers in advising their clients on the admissibility of evidence and the protection of privileged information. Additionally, the court's emphasis on the importance of examining documents under section 133 of the Evidence Act 1995 will help lawyers to avoid inadvertently disclosing privileged information.