Leigh-Mardon Pty Ltd v Titan Corporation Ltd

[1996] FCA 1039

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY  No VG 346 of 1993
GENERAL DIVISION

B E T W E E N :

LEIGH-MARDON PTY LTD  Applicant
A N D :
  TITAN CORPORATION LTD and OTHERS              Respondents

COURT:        NORTHROP J
PLACE:         MELBOURNE
DATE:           21 NOVEMBER 1996

REASONS FOR JUDGMENT

The particular question before the Court is whether the applicant has, by implication, waived its legal professional privilege with respect to a statement described as the statement of interview in regard to Mr Lindsay Baczyk, formerly the Division Manager, Communications and Systems Group, Leigh-Mardon Pty Limited.           That statement was made by a former employee of the applicant for the purposes of legal proceedings being conducted or proposed to be conducted between the applicant and the respondents. There is no doubt that it is a document of which the applicant has legal professional privilege.  It is also clear that there has been no express waiver of that privilege in this case.

It is remembered or must be remembered that at the same time as these civil proceedings are being conducted, investigations by police are taking place into issues of whether charges should be laid against any of the respondents or persons associated with the respondents arising from the sale of the business to the applicant. In a number of reasons for judgment on interlocutory issues in this matter the Court has referred to that issue. In the present case, I accept from the evidence in affidavits relied upon, that here the applicant gave a copy of this statement to the police as part of their obligation, as it is said, to assist the police in their investigations to determine whether criminal charges will be laid. It was to assist the police in their criminal investigations.  It was a document prepared by the applicant in preparation for, or to assist it in, legal proceedings. It was disclosed to the police for what appears to be a limited purpose.  The use to be made of it by the police is to assist them in their investigations into the criminal proceedings.  In those circumstances that, of itself, would not amount to a waiver, an implied waiver, but it has been argued that having regard to matters of fairness, as between the applicant and the respondents, this disclosure does amount to a waiver - an imputed waiver, for the purposes of compelling the production of this document to the respondents. 

A number of authorities were referred to in the course of submissions, the most recent being Goldberg v Ng (1996) 195 CLR 83, in particular at pages 95 and following. Of necessity, the decision of the High Court in the case of the Attorney-General for the Northern Territory v Maurice and Others (1986) 161 CLR 475 was considered. Reference was made also to other authorities which make it clear that the giving of the document for a limited purpose does not constitute waiver, but I must
decide this on the question of fairness.

I accept that the applicant had the obligation to assist the police in the police investigation. Even though it may be said, and was said in submissions, that there has been a degree of cooperation between the applicant and the police, this is a case where the cooperation is designed to assist the police in their criminal investigations.  It has also been said that on a proper analysis of Goldberg, the giving of the statement by Mr Goldberg to the Law Society officials, did result in a benefit to Mr Goldberg in regard to the separate proceedings existing between Mr and Mrs Ng and Mr Goldberg.  Because of that benefit it was only fair, having regard to all the circumstances as I have outlined, that there ought to be disclosure of the document which otherwise would have been subject to a legal professional privilege.

In my opinion there is no requirement of fairness, as explained in Goldberg's case, to require the production of the document in this case.  Put in other terms, I am not satisfied that there can be imputed any waiver arising from the fact of the applicant giving to police a document which otherwise is subject to the privilege for the purpose of allowing that document to be used by the police in their investigations. It was not given in any way to gain a benefit to the applicant in the proceedings currently before this Court.  It cannot be said that as a result of giving that document there is a question of fairness arising as between the applicant and respondents in the conduct of this proceeding.

Accordingly I have come to the view that this document is privileged and the privilege has not been waived. In those circumstances a formal order should be that the motion, notice of which is dated 18 November 1996, be refused, and that no order should be made on the notice to produce, dated 2 September 1996. 

I see no reason why costs should not follow the event in this case. I order that the respondents pay the applicant's costs of the notice to produce and of the motion. 

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment of the Honourable R M Northrop.

Associate:

Date: