Malay v Panoramic Resources Ltd
[2008] WASC 195
•16 SEPTEMBER 2008
MALAY -v- PANORAMIC RESOURCES LTD [2008] WASC 195
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASC 195 | |
| Case No: | CIV:1474/2008 | 28 AUGUST & 1 SEPTEMBER 2008 | |
| Coram: | NEWNES J | 16/09/08 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Order that document be produced for inspection | ||
| B | |||
| PDF Version |
| Parties: | MARIA MALAY PANORAMIC RESOURCES LTD PETER HAROLD |
Catchwords: | Practice and procedure Application by first defendant for production of document for inspection Claim of legal professional privilege by plaintiff Statement in letter from plaintiff's solicitors that pleaded case is same as contents of document Whether waiver of privilege Turns on own facts |
Legislation: | Nil |
Case References: | Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49 Mann v Carnell (1999) 201 CLR 1 Osland v Secretary to the Department of Justice [2008] HCA 37 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
PANORAMIC RESOURCES LTD
First Defendant
PETER HAROLD
Second Defendant
Catchwords:
Practice and procedure - Application by first defendant for production of document for inspection - Claim of legal professional privilege by plaintiff - Statement in letter from plaintiff's solicitors that pleaded case is same as contents of document - Whether waiver of privilege - Turns on own facts
Legislation:
Nil
(Page 2)
Result:
Order that document be produced for inspection
Category: B
Representation:
Counsel:
Plaintiff : Mr A Cameron
First Defendant : Mr M G Lundberg
Second Defendant : No appearance
Solicitors:
Plaintiff : Corser & Corser
First Defendant : Mallesons Stephen Jaques
Second Defendant : No appearance
Case(s) referred to in judgment(s):
Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49
Mann v Carnell (1999) 201 CLR 1
Osland v Secretary to the Department of Justice [2008] HCA 37
(Page 3)
1 NEWNES J: The plaintiff has commenced proceedings for defamation against the defendants in respect of an alleged telephone conversation between the second defendant and the plaintiff's sister, Ms Joan Malay. The first defendant has now applied for an order that the plaintiff produce for inspection a written record of the alleged telephone conversation made by Ms Joan Malay shortly after the conversation occurred. The plaintiff has objected to production of the document on the ground that it is the subject of legal professional privilege.
Background
2 On 5 May 2008, proceedings were issued against the defendants for defamation and malicious falsehood. The claim for malicious falsehood was subsequently abandoned.
3 A statement of claim was filed on 30 May 2008. It has since gone through a number of versions but the relevant part is substantially unchanged. In par 4, the plaintiff pleads (relevantly) as follows:
On Friday 22 February 2008, in the State of Western Australia, the defendants published to Joan Malay, the sister of the plaintiff, a defamatory statement regarding the plaintiff (the defamatory publication).
Particulars of defamatory publication
The defamatory publication was made by way of a telephone call from the second defendant to Joan Malay in which the following words or words to the effect of the following were stated:
[The words are then set out]
4 The plaintiff alleged that the words complained of were spoken by the second defendant on his own behalf and as agent of the first defendant, of which the second defendant is the managing director.
5 The first defendant's solicitors wrote to the plaintiff's solicitors on 9 June 2008 requesting a copy of a written record of the telephone conversation said to have been made by Ms Joan Malay, to which reference had been made in a letter of 2 April 2008. I should say that whether, or to what extent, the letter of 2 April 2008 was written on a 'without prejudice' basis was the subject of dispute between the parties. The letter was not expressed to be 'without prejudice', but that, of course, is not decisive. It is, however, unnecessary for present purposes to describe the contentious contents of the letter so the question can be put aside.
(Page 4)
6 The plaintiff's solicitors replied to the first defendant's solicitors on 14 July 2008, saying that the document would not be produced on the ground that it was subject to legal professional privilege. They said that they had been contacted by the plaintiff very soon after Ms Joan Malay's telephone conversation with the second defendant, in response to which certain specific advice was provided to the plaintiff and in consequence of which Ms Joan Malay made a written record of the contents of the telephone conversation. They went on to say:
We therefore reserve the plaintiff's rights in relation to that record. However, as has been asserted from the outset, the description of the content of the telephone call, as provided by Joan Malay within a short time of the call having been made, is as was set out in the letter this firm had sent prior to the action being commenced, and as pleaded.
7 An affidavit of Mr Jerome Frewen was filed on behalf of the plaintiff in opposition to the application. The affidavit was filed on the morning of the hearing on 1 September 2008. The relevant parts of the affidavit are not easy to follow, but it appears that, in late February 2008, the plaintiff was informed by Ms Joan Malay of the alleged telephone conversation with the second defendant and the plaintiff conveyed that to Mr Frewen. Mr Frewen advised her to seek legal advice and together they attended upon the plaintiff's current solicitor, Mr Bower. Mr Frewen says that Mr Bower informed them that it was very important to obtain a detailed and accurate statement from Ms Joan Malay as soon as possible to enable him to provide more definite advice. It appears that Mr Bower's initial advice was that the defendants could be liable for defamation of the plaintiff.
8 According to Mr Frewen, he and the plaintiff contacted Ms Joan Malay by telephone and asked her to provide a written, signed statement setting out the precise contents of the phone conversation she had with the second defendant. Shortly afterwards, Ms Joan Malay provided a written statement to the plaintiff and Mr Frewen and, on the plaintiff's instructions, Mr Frewen gave it to Mr Bower.
9 Mr Frewen says he had been informed by Mr Bower that Mr Bower has since had direct dealings with Ms Joan Malay and established that she had made and retained an accurate and reliable mental note of the content of the relevant telephone conversation.
10 Mr Frewen also says he has read the statement provided by Ms Joan Malay and that it contains what she says is the content of the telephone call she had with the second defendant, which is described in the
(Page 5)
- statement of claim in the action. Mr Frewen says it also contains a description by Ms Joan Malay of 'matters relating to the circumstances of the Malay family, how Ms Joan Malay reacted to what she had been told by [the second defendant], how she dealt with the assertions she made to him, and other matters'.
The first defendant's submissions
11 It was submitted on behalf of the first defendant that while it was doubtful that the record made by Ms Joan Malay was ever the subject of legal professional privilege, there was no doubt that the plaintiff had, by her conduct, waived any such privilege. The terms of the alleged telephone conversation are said to have been recorded in writing by Ms Joan Malay and have since been set out by the plaintiff in the letter before action of 2 April 2008 and in the statement of claim. In their letter of 14 July 2008, the plaintiff's solicitors have expressly represented that what is pleaded in the statement of claim accurately reproduces Ms Joan Malay's written record of the telephone call.
12 Counsel argued that in considering whether there has been an imputed waiver, the governing consideration is whether fairness, in the context and circumstances of the case, requires that the privilege cease to apply. In this case a failure to produce the written record made by Ms Joan Malay would preclude the first defendant from satisfying itself that what has been represented as an accurate reproduction of the content of that written record is in fact an accurate reproduction of it.
The plaintiff's submissions
13 Counsel for the plaintiff submitted that it was evident from the affidavit of Mr Frewen that Ms Joan Malay produced the record of the telephone conversation a short time after the conversation had occurred as a result of a request by the plaintiff's solicitor in order to enable him to provide legal advice to the plaintiff. The document was therefore the subject of legal professional privilege.
14 There had been no waiver of privilege. The letter of 2 April 2008 was written for the purpose of attempting to settle the dispute between the parties and was therefore on a 'without prejudice' basis. The first defendant could not rely on statements made in it. In any event, the correspondence from the plaintiff's solicitors discloses the substance of the telephone conversation, not the substance of the note of it made by Ms Joan Malay. Nor was the note referred to in the statement of claim, which pleads the substance of the telephone conversation rather than the
(Page 6)
- substance of any record of that telephone conversation. There has been no disclosure of the contents of Ms Joan Malay's note of the telephone conversation. Accordingly, there has been no waiver of privilege in the content of the note.
Disposition of the application
15 Legal professional privilege attaches to confidential communications where the dominant purpose of the communication is for submission to legal advisers for advice or for use in legal proceedings: Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49. That privilege, where it applies, attaches to communications, not pieces of paper: Esso Australia [36]. It is therefore necessary to focus attention on the communication contained within and made by the document rather than upon the document constituting or recording the communication.
16 It is clear that a person who would otherwise be entitled to the benefit of legal professional privilege may waive it. It is inconsistency between the conduct of the client and the maintenance of the confidentiality of communications between lawyer and client that legal professional privilege exists to protect, which effects a waiver of the privilege: Mann v Carnell (1999) 201 CLR 1 [28]. Where a waiver is not intended, what brings about the waiver is not some overriding principle of fairness operating at large, but the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive in the context and circumstances of the case, between the conduct of the client and maintenance of the confidentiality: Mann v Carnell [29], Osland v Secretary to the Department of Justice [2008] HCA 37 [45].
17 The written statement as to the content of the telephone conversation made by Ms Joan Malay was a document which came into existence for the purpose of communicating information, namely Ms Joan Malay's version of the telephone conversation, to the plaintiff's solicitor to enable the plaintiff to obtain legal advice. It is on that basis that the claim for legal professional privilege is apparently advanced.
18 It is unnecessary to consider the first defendant's contention that no privilege attaches in the circumstances. The matter was argued substantially on the basis of whether or not there had been a waiver of any privilege which might attach. The application can be resolved on that basis.
(Page 7)
19 In the course of argument, counsel for the plaintiff sought to make a good deal of a distinction between, on the one hand, reliance on what was actually said in the telephone conversation and, on the other hand, reliance on what was contained in the record of the conversation made by Ms Joan Malay. He argued that in both the correspondence and the statement of claim, reliance was placed by the plaintiff on what was actually said in the telephone conversation and not on what was contained in Ms Joan Malay's record of it. I do not think that distinction is made out.
20 In the present case, what was communicated to the plaintiff's solicitor by the document in question was Ms Joan Malay's version of the telephone conversation with the second defendant.
21 In their letter of 14 July 2008, the plaintiff's solicitors, having asserted that the document is privileged, then go on to say:
However, … the description of the content of the telephone call, as provided by Joan Malay within a short time of the call having been made, is … as pleaded.
22 There is therefore a positive assertion on behalf of the plaintiff that the statement of claim accurately sets out Ms Joan Malay's version of the telephone conversation as she communicated it to the plaintiff's solicitors; that is, the plaintiff asserts that the information for which privilege is claimed is the same as the plea in the statement of claim as to the contents of the telephone conversation.
23 In the circumstances, in my view it would be inconsistent for the plaintiff, and unfair to the first defendant to allow the plaintiff, to rely on legal professional privilege as a basis for refusing to permit the first defendant to inspect the written statement made by Ms Joan Malay as to the contents of the telephone conversation. The plaintiff cannot, on the one hand, assert that she has a near contemporaneous written record of the telephone conversation in the same terms as the plea in the statement of claim and, on the other, refuse to produce it for inspection by the first defendant and thereby deny the first defendant the opportunity to satisfy itself that that is in fact the case. In my view, any privilege that existed in respect of it has been waived.
24 In Mr Frewen's affidavit, the plaintiff raised for the first time (on the morning of the hearing on 1 September 2008) the objection that the document also contained other information prepared by Ms Joan Malay at the request of the plaintiff's solicitor. As I have mentioned, that was said to consist of a description by Ms Joan Malay of matters relating to the
(Page 8)
- circumstances of the Malay family, how Ms Joan Malay reacted to what she had been told by the second defendant, how she dealt with the assertions she made to him, and other matters.
25 Given the late notice of the existence of that material, counsel for the first defendant did not press for it to be available for inspection for the time being, but sought to reserve the first defendant's position as to whether there has been a waiver of legal professional privilege in the whole document. I accept that that can be left for another time, should the first defendant wish to pursue it.
Conclusion
26 In my view, the plaintiff has waived any entitlement she may have had to legal professional privilege in respect of the written statement as to the contents of the telephone conversation made by Ms Joan Malay and I would order the plaintiff to produce it for inspection. The balance of the document can be covered over for the purposes of the inspection.
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