Moran v Moran [No 9]

[2000] NSWSC 219

Reported Decision: (2000) Aust Torts Reports 81-558

New South Wales

Supreme Court

CITATION:	Moran v Moran [No 9] [2000] NSWSC 219 revised - 28/03/2000
CURRENT JURISDICTION:	Common Law Division
FILE NUMBER(S):	SC 20032/98; 21360/95
HEARING DATE(S):	31/1/2000 1-3/2/2000 7-11/2/2000 14-18/2/2000 21-25/2/2000 28-29/2/2000 1-3/3/2000 6-10/3/2000 13-18/3/2000 20-23/3/2000
JUDGMENT DATE:	23 March 2000
PARTIES :	Kristina Moran (Pl) Douglas John Moran (1D) Greta Richmond Moran (2D) Peter Moran (3D) Moran Health Care Group Pty Ltd (4D) Doug Moran Holdings Pty Ltd (5D)
JUDGMENT OF:	Kirby J

COUNSEL :	P Semmler QC/D E Baran (Pl) I Harrison SC/L McFee (Defs)
SOLICITORS:	Carroll & O'Dea (Pl) Clayton Utz (Defs)
CATCHWORDS:	Legal professional privilege - waiver - reviving or refreshing recollection
LEGISLATION CITED:	Evidence Act, 1995 - s122(2) and (6)
CASES CITED:	Newcastle Wallsend Coal Co Pty Ltd v Court of Coal Mines Regulation & Anor (1997) 42 NSWLR 351 MGICA (1992) Ltd v Kenny & Good Pty Ltd & Anor (No 2) (1996) 135 ALR 743 Arthur Henry Grundy & Anor v John Bertram Lewis & Ors [1998] 1537 FCA (14.9.98)
DECISION:	Refer para 20

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

KIRBY J

Thursday 23 March 2000

20032/96 - Kristina MORAN v Douglas J MORAN & Ors
21360/95 - Kristina MORAN v Douglas J MORAN & Ors

JUDGMENT [No. 9] - Re Mr Alder refreshing recollection

1   HIS HONOUR: Mr Alder was the Financial Controller for the Moran Health Care Group Pty Limited. He had the practice of making a note in respect of important telephone conversations and meetings. Entries would be made on one of the many files which he maintained in respect of various matters.

2   Mr Alder maintained a separate file in respect of Brendan Moran. It was a document known as a Communication Planner. It ran for six pages. The handwriting is small, and there are many entries. It covers a significant span of time. From time to time Mr Alder resorted to symbols and abbreviations. The notes, either because of Mr Alder’s handwriting, or because of his abbreviations, are not easy to read, and are sometimes obscure.

3   The solicitors for the defendants made a transcription of the notes. They asked Mr Alder to examine their transcription. That, no doubt, was a prudent and reasonable thing to do, given the nature of the document.

4   Mr Alder undertook that task. He was, for this purpose, provided with the Communication Planner and the transcription. He gave the following evidence on the Voir Dire: (T.1884)

“Q. Did you read the transcript for the purpose of reviving your memory?
A. It wasn’t for that purpose, it was for the purpose of accuracy.
Q. What did you use in order to satisfy yourself it was accurate?
A. I did look at the communication planner.
Q. From beginning to end?
A. I looked at bits and pieces of it. So overall probably yes, probably did.”

5   Mr Alder provided the following further evidence in answer to questions by Mr Semmler QC, appearing for the plaintiff: (T.1885)

“Q. So it was (a) complete transcript of those six pages, is that right?
A. That’s correct, yes.
Q. And you read that before you came to Court?
A. I read that, the draft they gave me, and I corrected that and sent it back to them and had a few conversations with them about it.”

6   Mr Alder, in the course of his work, had many dealings with the late Brendan Moran, both on the telephone and face to face. He made a record of many such conversations in the Communication Planner. Mr Alder, as Company Secretary, was also concerned with executing instructions from the Directors to commence proceedings against Brendan Moran (and his wife, Kristina) to recover an amount which the Directors maintained was a debt to Doug Moran Holdings Pty Limited. He, therefore, consulted solicitors and barristers for that purpose. Again, he made a record in his Communication Planner. His diary notes, therefore, included material in respect of which there is no claim for legal professional privilege, as well as material in respect of which there is such a claim. For convenience, a version of the Communication Planner has been produced, with certain sections blanked out where legal professional privilege is claimed (MFI 40). The original Communication Planner has also been marked (MFI 31).

7   Mr Alder was called as a witness for the defendants. When giving evidence in chief he was asked only about those matters in respect of which there is no claim for legal professional privilege. From time to time he was taken to his Communication Planner to refresh his recollection. The entries which he was invited to read were entries in respect of which there is no claim for legal professional privilege. Mr Alder has been cross examined by Mr Semmler QC, appearing for the plaintiff. His cross examination, to this point, has been confined to those events in respect of which there is no claim for legal professional privilege.

8   Mr Semmler QC, on behalf of his client, seeks access to the entire document. The issue is whether, Mr Alder having read the entire document before giving evidence, legal professional privilege has been waived in respect of material which might otherwise attract that privilege.

9 Section 122 of the Evidence Act is, relevantly, in these terms:

“s122(1) This Division does not prevent the adducing of evidence given with the consent of the client or party concerned.
(2) Subject to subsection (5), this Division does not prevent the adducing of evidence if a client or party has knowingly and voluntarily disclosed to another person the substance of the evidence and the disclosure was not made:
(a) in the course of making a confidential communication or preparing a confidential document; or
(b) as a result of duress or deception; or
(c) under compulsion of law; or
(d) if the client or party is a body established by, or a person holding office under, an Australian law-to the Minister, or the Minister of the State or Territory, administering the law, or the part of the law, under which the body is established or the office is held.
…
(6) This Division does not prevent the adducing of evidence of a document that a witness has used to try to revive the witness’ memory about a fact or opinion or has used as mentioned in section 32 (attempts to revive memory in court) or 33 (evidence given by police officers).”

Disclosure Under s122(2)?

10   Here, the Communication Planner is the company’s document. Although it was maintained by Mr Alder when he was an employee of the Group, he surrendered the document upon his retirement, and it has remained in the custody of the company. The transcription was provided to Mr Alder to check. He was obliged to return it, and did so. I infer that he was not permitted to retain a copy, and did not do so.

11   In Newcastle Wallsend Coal Co Pty Ltd v Court of Coal Mines Regulation & Anor ((1997) 42 NSWLR 351), Powell JA made the following comment, which is apposite in the present context: (at 389)

“With respect to those who may be of another view, it seems to me that the mere fact that each record of interview was sent to the person interviewed, or his legal personal representative, solely for the purpose of being checked and, if need be, corrected and then returned to Mr Hickey, the person interviewed, or his legal personal representative, not being entitled to retain a copy of the record of interview, does not amount to a knowing and voluntary disclosure for the purposes of s122(2) of the Evidence Act 1995. It follows, in my view, that, but for the matters to which I will next refer, each of the records of interview prepared by Mr Hickey was and remains privileged from disclosure.”

12 Subject to s122(6), which I will consider shortly, the privilege attaching to the document has not, in these circumstances, been waived.

Reviving the Witness’ Memory (s122(6))

13 At common law the test was framed in terms of “refreshing a witness’ memory”. Section 122(6) employs the phrase “reviving a witness’ memory”. Nothing turns on this difference. The report of the Australian Law Reform Commission (Report No. 26 (interim) Evidence, Vol 1 para 614) makes it clear that the Statute is seeking to reproduce the common law (although using a phrase which they believed to be more apt) (see Lindgren J, MGICA (1992) Ltd v Kenny & Good Pty Ltd & Anor (No 2) ((1996) 135 ALR 743) at 749).

14   In MGICA, an expert had prepared a draft report. He read that report, together with other material, in preparation for his giving evidence. In these circumstances, Lindgren J said this: (at 748)

“In my view, the authorities show that the interests of fairness prima facie require that legal professional privilege be treated as lost where a witness, including an expert witness, has refreshed his or her memory for the purpose of giving evidence by reading a document to which the privilege attaches, and is called to give evidence by the party benefited by the privilege. The reason is that an important aspect of the fair treatment of the interests of the other party is that that party have adequate opportunity to test the witness’ evidence by comparing with the document the evidence which the witness gives.”

15 Should Mr Alder, having undertaken the process of comparing the solicitor’s transcription of his notes with the notes themselves, and having been called as a witness by the defendants, be taken to have revived his recollection for the purposes of giving evidence? Section 122(6), in my view, contains an important qualifying phrase. The Division dealing with privilege (Pt 3, Div 10) does not prevent the adducing of evidence of a document used by a witness to revive his or her memory about a fact or opinion. The fact or opinion must relate to the evidence which the witness gives, or is able to give. The touchstone is fairness. Where a witness has given evidence about a fact or opinion, and has refreshed his or her recollection from a document relevant to that fact or opinion, the document used to refresh the witness’ recollection should be made available to the cross examining Counsel upon request. It would be unfair were it otherwise.

16   In Arthur Henry Grundy & Anor v John Bertram Lewis & Ors (unreported, [1998] 1537 FCA (14.9.98)) Cooper J said this: (at p4)

“In my opinion, s122(6) enables evidence to be adduced of a document although the contents are subject to client legal privilege, where for the purposes of giving evidence of the fact, the witness has referred to the document prior to giving the evidence to try to revive the witness’ memory of the fact. The sub-section does not apply generally to all documents to which recourse is had for the purpose of the litigation or for the framing of the case advanced.”

17   In MIGCA (1992) Ltd v Kenny & Good Pty Ltd (supra) the material, otherwise privileged, which the expert had consulted, related to the subject matter, and to the evidence, which the witness had given. Lindgren J said this: (at p 749)

“The expert has given evidence that he used his draft report by reading it through, admittedly with other documents, for the purpose of refreshing his memory in preparing to give oral evidence. Mr Davies has put, in his usual persuasive manner, that this evidence is consistent with a minimal refreshment of memory from the draft reports. This is true, but it is also possible that the witness relied heavily on them. The witness’ evidence does not distinguish in this respect between the draft reports and the other documents which he read. It is reasonable to think that a convenient, and perhaps the most obvious, direct and effective means of refreshment of memory of an expert witness would be for him to read a report in the form in which he had drafted it and in which he had stated his evidence and opinion on an issue, rather than, for example, to re-read documents which he had read prior to the writing of that draft report.
In my opinion, on the evidence, fairness to the applicant requires, rather than denies, that I should hold that the privilege has been lost in accordance with the prima facie position to which I referred.”

18   In Newcastle Wallsend Coal Co Pty Ltd v Court of Coal Mines Regulation, the position was similar. A document had been used by a witness to refresh his recollection in respect of the evidence he gave. Powell JA identified the relevant facts in the following passage: (at 389/90)

“However, as the coal company, in no longer prosecuting its claim for privilege in respect of the record of the interview with Mr MacLean seems to recognise, the privilege which formerly attached to that record of interview has been lost by reason of the facts:
(1) that the copy of that record of interview which was later provided to Mr MacLean was provided to him for his own purposes and was not made subject to any condition as to non-disclosure; and
(2) as is clear from the extract from the transcript of the evidence given by Mr MacLean in the course of the investigation by Staunton A-DCJ, Mr MacLean used that record of interview for the purpose of refreshing his recollection before giving evidence before Staunton A-DCJ (s122(6)).”

19   Here, it seems to me the position is quite different. There is nothing in the material, which is the subject of the claim for privilege, which has been used by Mr Alder to revive his memory about a fact or opinion which has been the subject of his evidence. The remaining entries in the Planner relate to different events, which were not the subject of his evidence. No evidence was given by Mr Alder concerning such events because, plainly, they related to his dealings with solicitors in the context of litigation which was then in contemplation or undertaken. The material, therefore, was privileged. I see no unfairness to the plaintiff, in the circumstances, in perpetuating that privilege.

20 I therefore hold that the balance of the document (being that part of the Communication Planner of Mr Alder in respect of which there is a claim for legal professional privilege) has not been used to revive Mr Alder’s memory about a fact or opinion for the purposes of s122(6).

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Last Modified: 09/25/2000