McCabe v British American Tobacco Australia Services Ltd (No 4)
[2002] VSC 172
•15 May 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
No. 5288 of 2002
| ROLAH ANN McCABE | Plaintiff |
| v | |
| BRITISH AMERICAN TOBACCO AUSTRALIA SERVICES LIMITED | Defendant |
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JUDGE: | Byrne J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 29 April 2002, 7 May 2002 | |
DATE OF JUDGMENT: | 15 May 2002 | |
CASE MAY BE CITED AS: | McCabe v British American Tobacco Australia Services Ltd (No.4) | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 172 | |
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Practice and procedure – legal professional privilege – partial disclosure in proceeding – imputed waiver – limited waiver – fairness – whether waiver limited for use in same proceeding – consequence of waiver – whether confidentiality lost.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P. Gordon | Slater & Gordon |
| For the Defendant | Mr J.E. Middleton QC with Mr S.A. O’Meara | Clayton Utz |
HIS HONOUR:
On 7 May 2002 I determined an application brought by the plaintiff, Rolah Ann McCabe, seeking a declaration that 37 of the exhibits tendered in evidence in Proceeding No. 8121 of 2001 are no longer subject to the implied undertaking not to disclose them for any purpose other than in relation to that litigation[1]. I concluded that the documents were no longer subject to this undertaking so that, subject to any other applicable restraint, she and her legal advisers were at liberty to use the documents and their content for such lawful purpose as they see fit. I observed that, notwithstanding that much had been said about its claim to legal professional privilege in argument on behalf of the defendant, British American Tobacco Australia Services Ltd (“BATAS”), against the orders sought, no affirmative application for a restraining order on that basis had been made by it.
[1][2002] VSC 150.
Such an application has now been brought by amended summons filed on 8 May 2002, and it is to this application that I now turn. It should be noted at the outset that this BATAS application cannot be brought with respect to all of the 37 documents mentioned in Mrs McCabe’s application: 31 only were the subject of a claim for privilege. The parties were agreed that I should deal with this application on the oral and written material presented in support of Mrs McCabe’s earlier application. This was doubtless a convenient way to deal with the matter, but it does have the disadvantage, which has become apparent as I considered the material, that these submissions were directed to the earlier issues. I have had, therefore, to adapt them somewhat and in certain respects to infer from them the position which the parties might have adopted on the matters presently before me.
I address the application with respect to these 31 documents upon the basis that they were properly the subject of legal professional privilege, at least until 6 February 2002 when Eames J ruled that this privilege had been waived. The matters for my consideration may be summarised as follows:
(a)What is the effect of the waiver upon the right of Mrs McCabe to make use of the formerly privileged documents?
(b)If the privilege continues in a qualified form, notwithstanding the waiver, has it been lost by the reception of the documents into evidence?
In his reasons for judgment of 6 February 2002[2] Eames J addressed an argument that BATAS, by intentionally deploying in evidence certain privileged material, had waived its privilege attaching not only to that material but also to certain further material bearing on the same topic. In this sense, his Honour was concerned with the ambit of the waiver rather than with its effect.
[2][2002] VSC 112.
I commence my consideration of the first question by making some general and, I trust, non-controversial observations about the effect of a claim for privilege of whatever kind in civil litigation and the effect of its disallowance for waiver or for some other reason. This effect may vary depending upon the stage of the litigation at which the claim is raised or dealt with.
In civil litigation the party may claim the privilege as part of the interlocutory discovery process. In such process the party is required to identify the document in its affidavit or list but may make a claim that it is “privileged from production” to the party requiring discovery[3]. Likewise, where a party is served with a notice to produce under Rule 29.10, it is not required to produce the document where privilege is claimed. Where a claim for privilege is disallowed, for waiver or otherwise, the consequence is that the document must be produced to the party for inspection. The inspecting party would then be bound by the usual implied undertaking not to use the document or its content for any purpose other than in relation to the litigation.
[3]Rule 29.04(d). See also Rule 29.09.
A claim for privilege may also be made to prevent production to the Court upon subpoena[4] or upon notice to produce[5]. In any such case the person to whom the subpoena is addressed[6] or the party receiving the notice to produce[7] may object to production to the Court on the ground of privilege. Again, where this claim is disallowed the documents pass to the custody of the Court and are dealt with as the Court directs. Where a party is permitted to inspect the document so produced, the implied undertaking would again automatically arise unless the Court gave some other direction overriding it[8].
[4]See Rule 42.10(8) and following.
[5]Rule 35.09.
[6]National Employers’ Mutual General Association v Waind & Hill [1978] 1 NSWLR 372 at 382.
[7]Rule 35.08(2).
[8]As in United States Surgical Corporation v Hospital Products International Pty Ltd (unreported SC (NSW), McLelland J, 7 May 1982).
The third circumstance in which a claim for privilege may arise is at trial. A party is not permitted to tender in evidence a document which is in its possession over a successful claim for privilege. Where the claim for privilege is disallowed then the tender may proceed so that the document becomes part of the material upon which the Court acts.
I am concerned with this third circumstance. The documents have been inspected by those advising Mrs McCabe and they have been tendered and received in evidence at an open court hearing. I would suppose that, at the time of tender, counsel for BATAS maintained its claim for privilege. I have mentioned in my earlier judgment[9] that the tension between the rationale underlying the implied undertaking and the principle that justice be done in public may cause difficulties in the modern trial. Where the document in question is subject to a claim for privilege this introduces a further consideration.
[9][2002] VSC 150 at [18].
I have spoken of an open court hearing. The strike out application was argued over many days in open court. On 6 March 2002, after this hearing was concluded, Eames J, in order to protect the integrity of the jury panel, made an order pursuant to the Supreme Court Act 1986 s. 18(1)(c) prohibiting publication of the application until further order. This suppression order was lifted on 11 April 2002 after the jury verdict. I do not consider that this order affects the public nature of the hearing for my present purposes.
The privilege claimed here is legal professional privilege. This privilege is treated by the law with particular tenderness because it is a substantive general principle[10] whose rationale is the public interest in facilitating the application of the rule of law; it enables citizens to be assured of the confidence of their communications with their legal advisers[11]. This has led the courts to be cautious in concluding that the privilege has been abrogated[12] and reluctant to accept qualifications and exceptions to it[13]. But even this privilege may be waived[14].
[10]Goldberg v Ng (1995) 185 CLR 83 at 93.
[11]Grant v Downs (1976) 135 CLR 674; Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121.
[12]Attorney-General for Northern Territory v Maurice (1986) 161 CLR 475 at 491, per Deane J; General Mediterranean Holdings SA v Patel [2000] 1 WLR 272.
[13]Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121.
[14]See Mann v Carnell (1999) 201 CLR 1 at 13, per Gleeson CJ, Gaudron, Gummow & Callinan JJ.
What was contended for on behalf of BATAS was that the waiver in this case was not unqualified. It was put that the waiver made the documents available for a limited purpose within the earlier proceeding, namely for use in the application brought by Mrs McCabe to strike out the defence of BATAS for its abuse of the discovery process. Accordingly, if that proceeding should to trial, whether on the issue of damages or on all issues, the plaintiff could not deploy the documents in evidence. A fortiori, she might not use the documents or their content for some purpose unrelated to the earlier proceeding, such as the delivery of a copy to the ACCC or to the US Justice Department, as is now proposed. This was the submission put on behalf of BATAS before me. I have assumed that counsel for Mrs McCabe would have challenged this BATAS submission. Eames J, in his ruling on the waiver point on 6 February 2002, made no mention of such a limitation.
In this respect it is important to note that the 31 documents now in question were not produced by BATAS pursuant to an express waiver. The waiver in this case is an imputed or implied one[15]. It is a waiver which rises not from the intention of the party against whom it is asserted; it is imputed to that party by law as a matter of fairness arising from the fact that that party has used otherwise privileged material on the same topic in support of its case[16].
[15]To adopt the terminology of the High Court in Attorney-General for the Northern Territory v Maurice (1986) 161 CLR 475.
[16]General Accident Fire & Life Assurance Corp Ltd v Tanter [1984] 1 WLR 100 at 114, per Hobhouse J; Goldberg v Ng (1995) 185 CLR 83 at 96, per Deane, Dawson, Gaudron JJ; Mann v Carnell (1999) 201 CLR 1 at 13, per Gleeson CJ, Gaudron, Gummow & Callinan JJ.
The first question which falls for determination is whether a waiver may be limited, as counsel for BATAS contends, so that the privilege in other respects continues to protect the documents and their content. The alternative view for which Mrs McCabe might contend is that the privilege must be absolute: waiver totally destroys the privilege[17]. A convenient starting point for an examination of this topic is the decision in Re Stanhill Consolidated Limited[18]. The court was there concerned to construe s. 367 of the Companies Act 1961 which prohibited an inspector from requiring a legal practitioner to divulge privileged communications. The company as client of the solicitor had, by its liquidator, purported to waive the privilege. In refusing to compel the solicitor to answer, Menhennitt J considered the legal effect of express waiver. His Honour said this:
“The authorities appear to me to establish that a privileged communication is a communication passing on a privileged occasion, with certain exceptions, and that waiver of privilege does not produce the result that a privileged communication ceases to be in that category but merely affects certain consequences that would otherwise follow from the fact that the communication is privileged.”[19]
The authorities to which his Honour referred included the leading case of Minter v Priest[20] where the Lords pointed out that the waiver of professional privilege does not also, of itself, destroy the qualified privilege available under defamation law. The consequence of this analysis, that the waiver affects only the consequence of the privilege without destroying the privilege itself, means that, in the case of an express waiver, it may be possible for the holder of the privilege to release the document for a particular use which would otherwise be restrained by the privilege and, yet, otherwise maintain the remaining restraints.
[17]See J Auburn, Legal Professional Privilege: Law and Theory, Oxford, 2000, pp. 225-9.
[18][1967] VR 749.
[19][1967] VR 749 at 750. See also Commonwealth v Verwayen (1990) 170 CLR 394 at 406, per Mason CJ, albeit in a different context.
[20][1930] AC 558.
If correct, this analysis would mean that expressions such as “waiver destroys the privilege” or “upon waiver the privilege is lost”[21] must be understood to mean that it is not the privilege but rather the consequence of the privilege which is destroyed or lost wholly or in part.
[21]See, for example, Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 511 , per Brennan CJ and at 579, per Kirby J.
I was referred by counsel for BATAS to the Court of Appeal decision of Bourns Inc v Raychem Corp[22]. This was a case of waiver in the course of a taxation of costs. It is necessary, therefore, that I examine this case as well as other cases which have been decided in the same context. Goldman v Hesper[23] arose out of a dispute between domestic partners as to the ownership of a house. The trial judge determined the dispute and ordered Mr Goldman to pay one-half of the defendant’s costs. Upon taxation of these costs, the plaintiff sought to inspect the defendant’s solicitor’s file, which included privileged documents, in order to test the defendant’s bill of costs. The point at issue was whether the privilege should prevail over the right of the plaintiff, as a matter of natural justice, to see every document which his opponent relied upon before the taxing officer. Taylor LJ, speaking for the Court of Appeal[24], adopted what he described as a pragmatic approach. His Lordship observed that the rules of court required the taxing party to file the documents upon which it relies and went on to say this:
“Normally, where prejudice [privilege?] exists it applies to protect disclosure not only to the opposing party, but also to the court. So the rule clearly makes inroads into that general protection. It follows that once a party puts forward privileged documents as part of his case for costs some measure of their privilege is temporarily and pro hac vice relaxed. In most cases, as Hobhouse J observed, no problem would arise on taxation about privilege. However, when the problem does arise the taxing officer has the duty of being fair to both parties: on the one hand, to maintain privilege so far as possible and not disclose the contents of a privileged document to the paying party unnecessarily; on the other hand, he has to see that that party is treated fairly and given a proper opportunity to raise a bona fide challenge. The contents of documents will almost always be irrelevant to considerations of taxation, which are more concerned with time taken, the length of documents, the frequency of correspondence and other aspects reflecting on costs. In my judgment, the approach adopted by Stevenson J in Hobbs v Hobbs and Cousens [1959] 3 All ER 827, [1960] P 112 was too rigid and uncompromising. There may be instances in which taxing officers may need to disclose part, if not all, of the contents of a privileged document in striking the appropriate balance. He will no doubt use all his expertise and tact in seeking to avoid that situation wherever he can. I do not envisage it occurring, except very rarely. Of course it is always open to the claimant not to rely on privileged documents which he regards as peculiarly sensitive.”[25]
This contest between privilege and natural justice in such a proceeding will therefore be determined in favour of natural justice where a determination is necessary[26]
[22][1999] 3 All ER 154.
[23][1988] 1 WLR 1238.
[24]Lord Donaldson MR and Woolf LJ concurring.
[25][1988] 1 WLR 1238 at 1244.
[26]See also Giannarelli v Wraith (No. 2) (1999) 171 CLR 592.
For my purposes, the interest of this lies in his Lordship’s observation that it is possible to waive privilege for a specific purpose and in a specific context[27] and that “the voluntary waiver or disclosure by a taxing officer on a taxation would not in my view prevent the owner of the document from reasserting his privilege in any subsequent context”[28]. Bourns Inc v Raychem Corp[29] involved litigation in England between two US companies concerning certain patents. Bourns was successful and obtained an order for costs. At the same time the same parties were engaged in litigation in the United States. In the taxation of Bourns’ costs in the English proceeding a bill of costs were delivered together with certain otherwise privileged documents in support. Faced with Raychem’s proposal to use these documents in the US proceeding, Bourns sought and obtained an injunction preventing this. The Court of Appeal started from the proposition that the taxation of costs was an adversarial proceeding. Although discovery is not available in this proceeding the taxing officer has the power to order production of a document. The privileged documents were produced not only to the taxing officer but also to the other party. This production attracted the same implied undertaking as if they had been produced under a court order. The privilege, therefore, had been waived but only for the purpose of the taxation proceeding. Both the undertaking and the privilege, to the extent that it had not been waived, therefore remained in place. It does not appear to have been contended in this case that this position was affected by the fact that the documents had been read and used by the taxing officer in taxing the bill. The conclusion of the Court of Appeal was that the primary judge had been correct in restraining Raychem from using the documents in the United States proceeding.
[27]See British Coal Corporation v Dennis Rye Ltd (No. 2) [1988] 1 WLR 1113, to which I shall refer later.
[28][1988] 1 WLR 1238 at 1245.
[29][1999] 3 All ER 154.
Goldberg v Ng[30] arose from a dispute between a solicitor, Mr Goldberg, and his clients. This dispute provoked litigation in the Supreme Court of Victoria and a complaint of professional misconduct to the Law Society of New South Wales. In the course of addressing the professional misconduct complaint, the solicitor for Mr Goldberg provided the Law Society with certain documents after assuring it that they were confidential and that Mr Goldberg wished to retain his privilege with respect to them. These documents had been brought into existence in circumstances which gave rise to a privilege in Mr Goldberg. The Law Society dismissed the complaint but the litigation continued. The Ngs subpoenaed the Law Society to produce these documents in the litigation and they did so. The questions for the Court included whether the privilege in those documents had been waived by Mr Goldberg’s production of them to the Law Society.
[30](1995) 185 CLR 83.
The High Court concluded that there had been no express waiver by the production of the documents to the Law Society for they had been produced expressly on the limited basis that they would not be shown to anyone else[31]. Attention then shifted to the Ngs’ contention that there had been an imputed waiver by this production. The majority commenced their discussion of this topic as follows:
“The circumstances in which a waiver of legal professional privilege will be imputed by operation of law cannot be precisely defined in advance. The most that can be done is to identify a number of general propositions. Necessarily, the basis of such an imputed waiver will be some act or omission of the persons entitled to the benefit of the privilege. Ordinarily, that act or omission will involve or relate to a limited actual or purported disclosure of the contents of the privileged material. When some such act or omission of the person entitled to the benefit of the privilege gives rise to a question of imputed waiver, the governing consideration is whether ‘fairness requires that his privilege shall cease whether he intended that result or not’. That does not mean, however, that an imputed waiver must completely destroy the privilege. Like an express waiver, it can be limited so that it applies only in relation to particular persons, materials or purposes.”
Their Honours then turned to the circumstances of the case. They were not at all troubled by the fact that the production relied upon as constituting a waiver in the Supreme Court proceeding was made in a different proceeding, for the two were related[32]. In searching for the answer to the question as to where the requirements of fairness directed them, their Honours referred to the facts that the production to the Law Society was voluntary and made to protect Mr Goldberg’s own interest. On the other hand, his express reservation of confidentiality and privilege and the importance of the role of legal professional privilege both suggested that the waiver should be limited to the Law Society’s enquiry. On balance, the majority concluded that, nonetheless, the documents should be made available.
[31](1995) 185 CLR 83 at 95.
[32](1995) 185 CLR 83 at 98.
The importance of this case for my purposes is the emphasis placed by the majority upon the notion of fairness, not only for the determination of the question whether waiver should be imputed but also to the ambit of the waiver and to its effect, in the sense of whether it should be qualified in some way.
I come now to British Coal Corporation v Dennis Rye Ltd (No. 2)[33]. The corporation sued the defendant alleging fraud and negligence. The police, too, were looking into the question whether the defendant was guilty of criminal fraud. The corporation provided to the police certain documents which had been brought into existence in circumstances giving rise to its being entitled to legal professional privilege in respect of them. In the prosecution which followed the prosecutor provided these documents to the defence in accordance with the normal prosecutorial duty of disclosure. The accused was acquitted. The corporation then sought orders against the defendant that it deliver up these documents and not make use of their content in the civil litigation or otherwise. Orders made to this effect were upheld by the Court of Appeal on the basis that the corporation’s privilege had not been lost by production of the documents by the prosecution to the accused, a defendant in the civil proceeding. This is a case which depended upon express rather than implied or imputed waiver. The Court of Appeal construed the acts of the corporation in making the privileged documents available to the investigating or prosecuting authority as having been done for a limited purpose only, namely, to assist in the criminal investigation and the trial. The fact that the documents, as a consequence, found their way into the hands of the defendant did not cause the privilege to be lost any more than it would had this document come into their hands by inadvertence or chance[34].
[33](1988) 1 WLR 1113.
[34][1988] 1 WLR 1113 at 1121, per Neill LJ (Stocker and Dillon LJJ concurring).
These cases all point to the conclusion that the waiver of a document may be limited. The concept of an all or nothing legal professional privilege is not an attractive one for those whose task is to give effect to the privilege in the circumstances in which it may arise and to accommodate the demands of other competing principles. For my purposes, it is of no concern whether the possible limitation affects the consequences of the privilege or erodes the privilege itself. The analysis of Menhennitt J[35], which focuses on the consequences or effect of the privilege, is a well established and longstanding one. It reconciles the pragmatism and flexibility which is found in its application with the oft stated principle “once privileged always privileged[36]”. I will adopt this approach.
[35]In Re Stanhill Consolidated Limited [1967] VR 749.
[36]See for example Giannarelli v Wraith (No. 2) (1999) 171 CLR 592 at 601, per McHugh J.
I now return now to the circumstances of this case to determine where the requirements of fairness lead. I bear in mind in this regard that I am not concerned with some overriding principle of fairness operating at large, but rather with “the inconsistency which the courts, where necessary informed by considerations of fairness, perceive between the conduct of the client and the maintenance of the confidentiality”.[37]
[37]Mann v Carnell (1999) 201 CLR 1 at 13, per Gleeson CJ, Gaudron, Gummow and Callinan JJ.
The starting point must be the acts of express waiver which gave rise to the imputed waiver in question. The affidavit of Mr Maher of 29 January 2002 and the solicitors’ letters were “read in evidence” in open court as part of the material relied upon by BATAS in opposing the strike-out application. By so doing, BATAS intentionally waived its privilege with respect to them. It was not suggested before me that, when the waiver or waivers occurred upon the delivery or, at a later stage, upon the reception of the documents in evidence, this waiver was expressed to be in any way limited or qualified. No order was then made restraining the use which might have been made of these documents by Mrs McCabe or indeed any member of the public who may have been interested in them or their contents. I put to one side as not affecting this conclusion the fact of the suppression order made to protect the integrity of the jury panel. It is not suggested that the documents, the subject of this express waiver, might not now be used by Mrs McCabe or by those acting for her or by such member of the public for any lawful purpose.
The 31 documents the subject of this application lost their privilege because they dealt with the same issue which BATAS had opened up by its express waiver. The reason underlying the imputation of waiver for these documents is that a party ought not in fairness be permitted to open up those parts of privileged material which it chooses to disclose and, at the same time, maintain the confidentiality of the balance. The same principle requires that the same limitation or lack of limitation on the waiver should attach to this material as attaches to that which has been the subject of the express waiver. That this conclusion is required in ordinary fairness may be tested by the following hypothetical circumstance. Suppose a party to civil litigation were to introduce in evidence a favourable selection from its privileged material. Suppose further that this led to an imputed waiver of the privilege attaching to the remainder and that this, too, was produced and tendered in evidence. Would it be fair if the producing party, the other party and an interested member of the public who had inspected the exhibits should be permitted to use for its own purposes only those documents which the producing party had selected for its own purposes, and not those which were required to be produced and which were placed before the Court in order to redress the balance?
The answer may appear obvious from the terms of the question itself. In most, if not all, cases it will be in the negative. The imputed waiver will then have the same impact upon the consequences of the privilege attaching to the documents in question as had the express waiver upon that attaching to the documents to which it referred. This may not, however, always be the case because the principle of fairness must operate in this area in a pragmatic way. The effect of the imputed waiver may have to be tailored to achieve this objective.
The first mention of any limitation upon waiver to which I was referred was in the statement of senior counsel for BATAS on 5 February 2002 when the question of imputed waiver was being debated with respect to the documents of which BATAS was resisting production.
“I just put on record – it is not a matter which Your Honour need to consider today – that of course if there is a waiver in relation to these documents we would be submitting that it is waiver for the purposes of this application and this application only. Your Honour would be aware of the authorities only. Your Honour would be aware of the authorities in relation to that, but that is not a matter that needs to be dealt with today. It may never have to be dealt with but I don’t want to have it said that we waived anything further by anything that I have said here today. I think my learned friend accepts that so that solves that problem.”
I was told that the reference to “my learned friend” is a reference to an unrecorded nod of agreement by senior counsel for Mrs McCabe. I interpret this to refer to an assent on his part to the statement that the question of any limitation was not for decision on that day. In any event, the cases to which I have referred show that imputed waiver is not a matter of the intent of the party possessing the privilege; it is imputed to that party as a matter of fairness.[38] Any qualification expressed at that stage is therefore entirely beside the point.
[38]See Mann v Carnell (1999) 201 CLR 1 at 13, per Gleeson CJ, Gaudron, Gummow and Callinan JJ.
Accordingly, I conclude that the waiver affecting the privilege in respect of the 31 documents should have the same consequence as that affecting the privilege in respect of the earlier documents which gave rise to this imputed waiver. There is nothing in the material which causes me to conclude that I should treat the two sets of documents differently. When they, that is the documents in the two sets, were tendered in evidence, the same consequence again follows. For reasons which I set out in my judgment of 7 May 2000[39] the documents then became available to Mrs McCabe and her legal advisers and, indeed, to any interested member of the public, for such lawful purpose as they saw fit. This right was, of course, temporarily qualified by the suppression order made on 6 March 2002 and removed on 11 April 2002. This, then, is the effect of the waiver upon the right to make use of the formerly privileged documents.
[39][2000] VSC 150.
This disposes of the BATAS application. In their written submissions counsel for that party addressed a large number of matters in support of their contention that I should, as a matter of discretion, refuse to relieve Mrs McCabe and her legal advisers of their implied undertaking. These matters I have examined afresh in the light of the present application and I have concluded that none of them, other than those dealing with legal professional privilege which I have considered before, raises a legal or equitable right such as might found an order restraining the proposed use of the 31 documents.
I should mention, in conclusion, the short submission by counsel for Mrs McCabe in opposition to the present application. It was simply that, having been deployed in evidence in the strike-out application, the content of the documents was no longer confidential. No purpose, therefore, would be served in giving effect to any privilege or in restraining the use to which his client might make of them. In short, once confidentiality is gone, so too the privilege is lost.[40]
[40]Woollahra Municipal Council v Westpac Banking Corporation (1994) 33 NSWLR 529 at 539, per Giles J.
If by this submission it was contended that the content of the documents was in fact disclosed in the course of argument or in the judgment in the strike-out application, I am not confident that it is factually correct, at least for all of them. Certain of the documents were set out in full in the judgment of Eames J of 22 March 2002; in some cases passages were quoted and in others their content summarised. In the case of many of the documents, none of these occurred. For reasons set out in Harman’s case[41] the loss of privilege cannot depend upon such fortuitous circumstances. In any event, for such conclusion, it would be necessary to know something about the circumstances and extent of the publication. It is not every disclosure to a third party which destroys privilege.[42] Moreover, in this case, the disclosure arises not from any use of the documents by BATAS or an agent of BATAS, but by a hostile party, presumably over the protests of BATAS. I express no views upon the circumstances and extent of the disclosure which, in this or in any case, would have the consequence of destroying the privilege. It is sufficient that I conclude that, if the argument for the release of the documents in the present case based on lost confidentiality can succeed, it must do so by reason of a presumed publication which is the result of the tender of the documents in a hearing in open court.
[41]Harman v Secretary of State for the Home Department [1983] 1 AC 280.
[42]Woollahra Municipal Council v Westpac Banking Corporation (1994) 33 NSWLR 529 at 539-40, per Giles J.
The submission, therefore, may be taken to mean that the confidentiality has been lost upon the tender of the documents so that it is too late to retrieve that which is available to the public. I am reluctant to accept such a submission stated in this way. It is possible, for example, to withdraw a waiver already made[43]; it is possible to make a suppression order in respect of evidence which has already been given in open court. Given that Mrs McCabe has brought her application on 24 April 2002, I presume that neither she nor her legal advisers had previously used the documents or their content for any purpose other than the furtherance of her litigation. There is no evidence that any other person has had access to the exhibits except insofar as they have been dealt with in oral argument or in the judgments. There has been in place since 7 May 2002 my own interim order restraining disclosure. It would be possible to make an order of the kind sought by BATAS if good cause for it existed. I would therefore prefer to base my order on the question of principle rather than on impracticality.
[43]See Goldman v Hesper [1988] 1 WLR 1238 at 1240, per Taylor LJ, Lord Donaldson MR and Woolf LJ concurring.
I therefore propose that the application of BATAS be dismissed and that my interim injunctive order of 7 May 2002 be dissolved. I will hear counsel further on the terms of the orders to be made and upon costs.
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