Lowe v Lang - [2000] NSWSC 307

CITATION: Lowe v Lang [2000] NSWSC 307

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 1082/96

HEARING DATE(S): 28 March 2000

JUDGMENT DATE: 28 March 2000

PARTIES :

Michael Campbell Lowe (P)
Barry Arthur Lang (D1)
Erolgreen Pty Ltd (D2)

JUDGMENT OF: Hamilton J

COUNSEL : P T Taylor (P)
P J Deakin QC and P R Stockley (D1 & 2)

SOLICITORS: Baldock Stacy & Niven (P)
Kenny Spring (D1 & 2)

CATCHWORDS: EVIDENCE [72], [75] - Facts excluded from proof - On grounds of privilege - Professional confidence - Legal profession - General principles - Evidence Act 1995 (NSW) - Privilege at common law - Waiver of privilege - Extent of disclosure required when party puts privileged material into evidence.

LEGISLATION CITED: Evidence Act 1995 ss 36 & 122 (2) & (4)
Supreme Court Rules Pt 23 r 1 & Pt 37 r 10

CASES CITED: Adelaide Steamship Co Ltd v Spalvins (1998) 81 FCR 371
Attorney-General (NT) v Maurice (1986) 161 CLR 475
Benecke v National Australia Bank (1993) 35 NSWLR 110
Derby & Co Ltd v Weldon (No 10) [1991] 1 WLR 660
Esso Australia Resources Ltd v Commissioner of Taxation (1999) 74 ALJR 339
General Accident Fire & Life Assurance Corporation Ltd v Tanter (The Zephyr) [1984] 1 WLR 100
Geo Doland Ltd v Blackburn Robson Coates & Co [1972] 1 WLR 1338
Lowe v Lang [2000] NSWSC 302
Northern Territory v GPAO (1999) 73 ALJR 470
Telstra Corporation Ltd v BT Australasia Pty Ltd (1998) 85 FCR 152
Trade Practices Commission v Sterling (1979) 36 FLR 244
Phipson on Evidence (14th Ed, 1990) par 20-37
8 Wigmore on Evidence (McNaughton rev, 1961) par 2327

DECISION: Application for inspection of documents refused.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
HAMILTON J
TUESDAY, 28 MARCH 2000
1082/96 MICHAEL CAMPBELL LOWE v BARRY A LANG & 1 ORS
JUDGMENT (See trancript page 638, line 38)
HIS HONOUR:
1 This is an application by the defendants for access to documents which are “MFI 10” in these proceedings and at present contained in an envelope also marked MFI 10 and further marked “Privileged. Access Denied”. The application arises in the following way.
2 Mr Bradford Stuart, solicitor, of Orange had undoubtedly acted for the plaintiff Mr Lowe in relation to the transaction the subject matter of these proceedings (“the transactions”). There was a suggestion at some stage that he had also acted for Mr Lang or the defendants, but that does not now seem to have been so. Certainly there is no dispute that on one occasion Mr Lang attended with Mr Lowe at Mr Stuart's office and the transaction was discussed among the three of them. When it was apparent that the matter was to come to court, Mr Lowe engaged Mr Carpenter of Baldock Stacy & Niven to act as his solicitor in relation to the proceedings, and that has continued to be the situation up to the present time. Mr Lowe, however, continued to regard Mr…

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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Details

Case: [2000] NSWSC 307
Decision Date: 28 March 2000

CaseChat Overview and Summary

The case of Lowe v Lang was heard in the Supreme Court of New South Wales. The dispute centred around whether certain documents that were subject to legal professional privilege should be disclosed. The plaintiff, Lowe, sought to adduce privileged documents in evidence, while the defendant, Lang, contested the admissibility of these documents. The central issue for the court was to determine whether the privilege had been waived and, if not, the extent of disclosure required when a party seeks to use privileged material in their case.

The legal issues before the court involved the application and scope of legal professional privilege, particularly under the Evidence Act 1995 (NSW), and whether any waiver of this privilege had occurred. The court had to consider the principles governing the waiver of privilege and whether the plaintiff had effectively waived the privilege by disclosing the documents to third parties. Additionally, the court examined whether the disclosure of these documents was necessary and proportionate to the issues at hand.

The court found that the plaintiff had not waived the privilege attaching to the documents. It held that there was no evidence to suggest that the plaintiff had intentionally or negligently disclosed the privileged information to any unauthorised person. The court emphasised that a party must deliberately and unequivocally waive the privilege for it to be lost. Given this finding, the court held that the documents were protected by legal professional privilege and could not be disclosed. Consequently, the court ruled that the plaintiff was not entitled to use the privileged documents as evidence in the case.

The final orders of the court were that the privileged documents were inadmissible as evidence in the proceedings. The court also noted that the plaintiff's attempt to rely on these documents had potentially prejudiced the defendant's right to a fair trial. The decision underscored the importance of maintaining legal professional privilege and the stringent requirements for its waiver.

Orders