McCarthy v McIntyre

[1998] FCA 630

FEDERAL COURT OF AUSTRALIA

Evidence - ruling on claim for legal professional privilege - cross examination of witness - objection to question re discussion between witness and solicitor - whether information was privileged - whether privilege had been waived - whether unfair to allow party to call evidence from witness while claiming privilege for the discussion.

Evidence Act 1995 - s 119

Trade Practices Commission v Sterling (1978) 36 FLR 244 - cons.
Attorney-General for the Northern Territory v Maurice (1986) 161 CLR 475 - cons.

RONALD IAN MCCARTHY, MAXWELL MCCARTHY AND EDLAN NO. 54 PTY LIMITED V NEVILLE MCINTYRE, AURO ROMANO MCINTYRE, NEVITORO INVESTMENTS PTY LIMITED, ITALA BELINDA MCINTYRE AND CHERYL GAI MCINTYRE

NG 672 OF 1996

JUDGE:         BEAUMONT J.
PLACE:         SYDNEY
DATE:           2 APRIL 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 672  of   1996

BETWEEN:

RONALD IAN MCCARTHY
FIRST APPLICANT

MAXWELL MCCARTHY
SECOND APPLICANT

EDLAN NO. 54 PTY LIMITED
THIRD APPLICANT

AND:

NEVILLE MCINTYRE
FIRST RESPONDENT

AURO ROMANO MCINTYRE
SECOND RESPONDENT

NEVITORO INVESTMENTS PTY LIMITED
THIRD RESPONDENT

ITALA BELINDA MCINTYRE
FOURTH RESPONDENT

CHERYL GAI MCINTYRE
FIFTH RESPONDENT

JUDGE:

BEAUMONT J.

DATE OF RULING:

2 APRIL 1998

WHERE MADE:

SYDNEY

RULING:

1. Claim for legal professional privilege upheld.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 672 of 1996

BETWEEN:

RONALD IAN MCCARTHY
FIRST APPLICANT

MAXWELL MCCARTHY
SECOND APPLICANT

EDLAN NO. 54 PTY LIMITED
THIRD APPLICANT

AND:

NEVILLE MCINTYRE
FIRST RESPONDENT

AURO ROMANO MCINTYRE
SECOND RESPONDENT

NEVITORO INVESTMENTS PTY LIMITED
THIRD RESPONDENT

ITALA BELINDA MCINTYRE
FOURTH RESPONDENT

CHERYL GAI MCINTYRE
FIFTH RESPONDENT

JUDGE:

BEAUMONT J.

DATE:

2 APRIL 1998

PLACE:

SYDNEY

REASONS FOR RULING ON CLAIM FOR LEGAL PROFESSIONAL PRIVILEGE

BEAUMONT J:

In the course of cross-examination of a witness called on behalf of the respondents, counsel for the applicants asked the witness for information concerning the terms of any discussion had by the witness with the solicitor for the respondents in connection with a request made by the first respondent that the witness give evidence in these proceedings.  Counsel for the respondents objected to the question on the ground of legal professional privilege.

The claim for privilege is, it is submitted on behalf of the respondents, one that falls squarely within the principles of the general law and, in addition, satisfies the provisions of s 119 of the Evidence Act 1995 (“the Act”).

So far as concerns the general law, reliance is placed on behalf of the respondents upon the analysis made by Lockhart J in Trade Practices Commission v Sterling (1978) 36 FLR 244 (at 246). His Honour there identified legal professional privilege extending to several communications including the following:

“(e)Communications and documents passing between the party’s solicitor and a third party if they are made or prepared when litigation is anticipated or commenced, for the purposes of the litigation, with a view to obtaining advice as to it or evidence to be used in it or information which may result in the obtaining of such evidence...

(f)Communications passing between the party and a third person (who is not the agent of the solicitor to receive the communication from the party) if they are made with reference to litigation either anticipated or commenced, and at the request or suggestion of the party’s solicitor;  or, even without any such request or suggestion, they are made for the purpose of being put before the solicitor with the object of obtaining his advice or enabling him to prosecute or defend an action...”

By s 119(a) of the Act, it is provided that evidence is not to be adduced if, on objection by a client, a court finds that adducing the evidence would result in disclosure of, inter alia, a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made for the dominant purpose of the client being provided with professional legal services relating to, inter alia, an Australian proceeding.

In my opinion, the communication between the respondents’ solicitor and the witness in connection with the preparation of the witness for the giving of evidence in this proceeding is legally professionally privileged both under the general law and under the statute. 

As I followed the argument for the applicants, however, the existence of the claim was not really disputed on a prima facie basis.  But it is contended on behalf of the applicants that the claim has been waived or, in the language of Attorney-General for the Northern Territory v Maurice (1986) 161 CLR 475, it would be unfair to allow the respondents to call evidence from the witness and yet assert that the communication between the solicitor and the witness is privileged.

In my opinion, there has been no waiver, either express or imputed, arising from the conduct of the solicitor or of his clients.  Nor, in my view, is it unfair to allow the respondents to call this evidence and at the same time claim privilege in respect of the anterior communication between the solicitor and the witness. 

A number of matters were sought to be put to support the claim of waiver or unfairness in the argument of counsel for the applicants.  At one stage it was suggested that although the answer given by the witness might be properly the subject of a claim for privilege, the question was not.  But artificial fragmentation of the context of the answer, which could only be understood in the light of the question posed by the solicitor, should not be permitted.

It was further suggested on behalf of the applicants that the position is analogous to the situation where a statement of a witness is used for the purpose of refreshing the memory of the witness with the result that there may be a waiver of any claim for professional privilege in respect of that document (see TPC v TNT Management (1984) 56 ALR 647 (at 687)). Again, I see no analogy here. There is no question of the witness refreshing his memory with any of this material. The issue has arisen in the course of cross-examination.

In my opinion, the present claim for privilege should prima facie be upheld; there being no waiver or unfairness involved, I reject the question.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont

Associate:

Dated:             2 April 1998

Counsel for the Applicants:	Mr B Coles QC with Mr M Ashhurst
Solicitor for the Applicants:	Hunt Partners
Counsel for the Respondents:	Mr P Biscoe QC with Mr J Stephenson
Solicitor for the Respondents:	K A Garling
Date of Hearing:	2 April 1998
Date of Judgment:	2 April 1998