Legal Services Commission v JHW

The Legal Services Commission (LSC) appealed an order made by a judge of the Supreme Court of South Australia, which allowed the inspection of certain documents previously held to be protected by legal professional privilege. The dispute arose when the solicitor for Mr T, a 14-year-old jointly charged with Mr W for murder, provided statements to the Director of Public Prosecutions (DPP) detailing Mr T's account of the events and implicating Mr W. Mr W's solicitor subsequently subpoenaed these documents and Mr T's file, and sought to inspect them. The LSC opposed this inspection on the grounds of legal professional privilege, but the judge found that privilege had been waived in relation to specific documents and ordered their inspection.

The appeal to the Full Court of the Supreme Court of South Australia raised two primary issues. Firstly, the competence of the LSC's appeal against the judge's order, particularly in light of its status as a third party to the original proceedings. Secondly, the correctness of the judge's order allowing inspection, including whether the judge erred in inspecting the privileged material to determine waiver, whether a partial waiver of privilege was correctly imputed, and whether there was an inconsistency between the disclosure of material and the subsequent assertion of privilege.

The Full Court held that the appeal was competent, reasoning that an appeal under section 50 of the Supreme Court Act 1935 (SA) is available to a person who is not a party to proceedings but against whom an order is made and whose rights are impeached. The Court further held that the judge erred in allowing inspection of the privileged material to determine the issue of waiver, stating that the judge did not possess the power to inspect such material for that purpose. The Court found no inconsistency between Mr T's disclosure to the DPP and his subsequent insistence on privilege, as the disclosed material was merely Mr T's version of events and not a communication rendered incomplete by a recipient's lack of knowledge. Consequently, the appeal was allowed, and the order for inspection was set aside.