Kang v Kwan and 2 Ors

[2001] NSWSC 697

CITATION:	Kang v Kwan & 2 Ors [2001] NSWSC 697 revised - 17/08/2001
CURRENT JURISDICTION:	Equity
FILE NUMBER(S):	SC 3510/99
HEARING DATE(S):	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.
LEGISLATION CITED:	Evidence Act s122, s133, s135 Supreme Court Act ss22 and 121 Supreme Court Rules Pt 9 r12
CASES CITED:	Hooker Corporation Ltd v Darling Harbour Authority (1987) 9 NSWLR 538
DECISION:	s125 of Evidence Act applicable.

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 — ex tempore

INTRODUCTION

1    Before delivering a judgment (“the second judgment”) required as a matter of urgency and which was to have been handed down earlier to-day, my Associate received a communication from the First Defendant’s counsel. That communication was to the effect that a matter needed to be drawn to the Court’s attention before that judgment was handed down, the implication being that it might affect the judgment.

2    I therefore heard both parties on the matter thus raised, which I set out below.

3    It is common ground that the following sequence of events occurred in relation to documents produced by Mr Stenberg which became PX6 and PX7.

(i) On 19 March 2001 Mr Stenberg through his firm wrote the following letter:

“The Subpoena Clerk,
Supreme Court of Australia
DX 829,
SYDNEY
Dear Sir/Madam,
RE: RE: WOOWIN & ANOR ats KANG
SUPREME COURT OF NEW SOUTH WALES 3510/1999
RETURN DATE 20TH MARCH, 2001
We refer to the Subpoena for Production and enclose documents from our file herein.
Please note that privilege may apply to some documents but because our former clients are out of the jurisdiction we are unable to obtain instructions.
Please deal with documents produced so as to protect any privilege of documents.
Yours faithfully
[signed]
MARK STENBERG
& ASSOCIATES
encl”

(ii) an order for access to both parties was made by 26 March 2001 by Senior Deputy Registrar Robinson.

(iii) the documents were then inspected by the solicitors for the First Defendant on 6 April 2001 (PX9 first letter). A claim for privilege was foreshadowed in relation to those documents now comprised in PX7 and it was noted that Mr Stenberg appeared to have produced his entire file.

(iv) the Plaintiff’s solicitor inspected the same documents on 10 April 2001 (except for PX7).

4    No submission is made by either party that the other party was aware of the letter of 19 March 2001 quoted above, until the First Defendant became aware of that letter to-day.

5    The First Defendant whilst disclaiming any application derivatively on behalf of the Second and Third Defendants whose privilege it would be if that privilege obtained, states that the First Defendant:

(a) is now for the first time aware of the claim for privilege potentially made by or on behalf of the Woowins via the letter of 19 March 2001, and

(b) whilst not making a claim for privilege itself on behalf of the Woowins, the First Defendant acts under a duty to draw the Court’s attention to that matter.

6 In addition, the First Defendant now formally takes objection to the admission of the documents in PX6. This is on the ground that, as the Court is now aware of the claim for privilege having been made, the Court must determine it. Importantly, the First Defendant does not seek to set aside the Senior Deputy Registrar’s earlier order. Rather it puts the matter this way. The Court should recognise the circumstances in which that order was made and while not setting the order aside should not admit the materials comprised in PX6 (or PX7). This is on the basis that this would be unfairly prejudicial to the First Defendant; see s135 of the Evidence Act.

7    Mrs Champion, on behalf of Schrader & Associates and Mr Davidson, seeks to withdraw her earlier concession that the documents comprised in PX6 are not now the subject of a claim for privilege to the extent that those documents are repeated in the documents she has identified as comprised within a claim for privilege on the part of the Woowins.

8    It is desirable that I deal with this application first noting that no criticism is made of any party by reason of this belated discovery of the letter of 19 March 2001.

RESOLUTION OF ISSUE

9    I have reached the conclusion that the First Defendant’s application should fail. I have similarly reached the conclusion that so far as the documents identified by Mrs Champion as the subject of her earlier concession are concerned, that concession may not be withdrawn. In saying that, I of course make no criticism of the course Mrs Champion has followed.

10    My reasons can be briefly stated more particularly as this judgment should be read in conjunction with the second judgment which I will now hand down at the same time as I finish oral delivery of this judgment.

11 The starting point is that an order has been made by an officer of this Court acting in a judicial capacity, being an order to which no challenge is made. Such an order, regular on its face, is a valid order of this Court and would be such until set aside. This is so even if made without power or irregularly, being an order of a superior court of record; see ss22 and 121 of the Supreme Court Act. That much is trite law.

12    There are, as the Plaintiff submits, a number of possible bases for the Registrar to have made the order she did. It is neither necessary or appropriate to enquire as to whether, for example, she made that order based on the premise that:

(i) the relevant documents or a number of them, had been the subject of earlier filing or submission in the District Court in relation to proceedings by Mr Stenberg to recover his fees from the Second and Third Defendants;

(ii) Pursuant to Pt 9 r12 Supreme Court Rules or more generally, the Woowins being parties to the present proceedings, and having initially filed a Defence therein, can be taken to be on notice of subsequent steps in the proceedings (an assumption that, though the Registrar would not have been presumably aware of these, is reinforced by the communications from the Plaintiff’s solicitors referred to in Ms Tibbey’s affidavit of 13 August 2001);

(iii) the letter of 19 March 2001 was certainly not in terms, a proper claim for privilege in that no identification has been made of particular documents in respect of which privilege is claimed. Indeed the “claim” is merely that “privilege may apply” [emphasis added], with further reference to the fact that the former clients were out of the jurisdiction, though again with the self-evident fact, apparent from the court file, that the Second and Third Defendants had filed a sworn Defence.

13    It is idle to speculate whether one or other of these considerations, none of them, or some other consideration actuated the Registrar. The simple fact is that an order was made permitting access to all parties and all parties took advantage of that access.

14    It might be contended that the situation is therefore analogous to the inadvertent disclosure by parties’ legal adviser of privileged documents to the other side. While it is true that here that disclosure was not by the First Defendant, it was in a real sense by the former legal adviser to the Second and Third Defendants with an inadequate request that the court determine what was privileged and somehow protect the privilege. The analogy is therefore imperfect but not inapt.

15    The principles applicable to such inadvertent disclosure are usefully summarised in “Cross on Evidence” (Butterworths, 1996) by J D Heydon at [25020] together with the relevant authorities, in particular Hooker Corporation Ltd v Darling Harbour Authority (1987) 9 NSWLR 538 at 544 per Rogers J. The analogy is particularly apposite in this respect. Where such an inadvertent disclosure occurs, while a Court may in its discretion give injunctive relief restraining the other party from using the documents so obtained inadvertently, this is where this arises prior to their use in actual court proceedings by being there adduced. Such relief will not ordinarily as a matter of discretion be allowed once they have been so used in Court, though that should not be stated as an invariable outcome.

16    Here, the materials in PX6, albeit inadvertently, were used not merely through the process of prior inspection. They were subsequently used in Court in actual submissions by the Plaintiff, accompanied by a detailed chronology drawing attention to the particular relevant parts of those materials.

17    Expressing the matter in terms of the Evidence Act, it cannot be doubted that s118 is no longer capable of operation as the relevant communications have ceased to be confidential. While that does not leave the Court bereft of the power to intervene and prevent the use of such materials in a proper case, that can only be on the basis that the interests of justice require this. In balancing the prejudice to the Woowins and the Plaintiff, I am satisfied that no injunction would be appropriate were one sought — and of course the Woowins are not here to seek it and no one seeks it on their behalf. They are of course aware of these proceedings even if they are not aware of the present stage reached. They have chosen to place themselves, if such they are, out of contact. Nor can I assume that they are necessarily totally out of contact more especially as the First Defendant is associated with the Second and Third as is clear from the matters dealt with in my second judgment. While I do not consider that amounts to consent, for the purposes of s122(1) of the Evidence Act, it is a discretionary matter I may take into account. This is in considering now to treat this evidence as inadmissible, though previously admitted, or otherwise restrain its use.

18 Similarly, if I am to consider the interests of justice as between the First Defendant and the Plaintiff, since the First Defendant is in no sense claiming the privilege for himself, nor indeed could he, the interests of justice clearly favour the Plaintiff. Nor do I consider that so doing is unfairly prejudicial to a party to these proceedings, namely the First Defendant, for purposes of s135 of the Evidence Act.

19 There is a further matter which is decisive even were I wrong in my earlier conclusions. Under s133 of the Evidence Act and in a context where I am considering all claims for privilege in the one set of proceedings in relation here to the Woowins, I may inspect the documents for the purpose of determining the question of the application of the privilege in the present case. Even were it the case that the documents comprised in PX6 and PX7 were the subject of an outstanding claim for privilege and have not lost their confidentiality, I am satisfied by my inspection that s125 of the Act does not prevent the adducing of that evidence. The reasons for that conclusion are dealt with in the second judgment.

20    I would reach that conclusion were I even to take the more artificial course of looking only at those documents as are comprised in PX6 and PX7 in answering the question whether those documents should enjoy the protection of s118, and whether s125 applied. However, I consider it artificial in circumstances where I am dealing with all questions of privilege together, to disregard the remaining documents produced as pertain to any claim for privilege by or on behalf of the Woowins, in order to determine whether there are reasonable grounds in terms of s125.

CONCLUSION

21    The First Defendant’s application to have the documents comprised in PX6 withdrawn from evidence is declined. I am satisfied that those no longer confidential documents are not the subject of legal professional privilege and that there should be no restraint as to their use in these proceedings in the circumstances.

22    So far as the concession of Mrs Champion being withdrawn is concerned, I decline to permit that withdrawal in the circumstances.

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Last Modified: 08/17/2001