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…

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.

Continue reading Moran v Moran [No 9]

Details

AGLC: Moran v Moran [No 9] [2000] NSWSC 219
Case: [2000] NSWSC 219
Decision Date: 23 March 2000

CaseChat Overview and Summary

The dispute in Moran v Moran [No 9] involved the parties' respective claims for costs in relation to property settlement proceedings. The court was required to determine whether the respondents had waived their entitlement to legal professional privilege in relation to certain documents. The Full Court of the Family Court of Australia was asked to review the decision of a single judge who had found that the respondents had waived their privilege.

The primary issue before the court was whether the respondents had waived their entitlement to legal professional privilege in relation to certain documents, which were said to have been used to refresh the recollection of one of the parties' legal representatives. The respondents argued that the privilege had not been waived, while the applicants contended that the privilege had been waived by the respondents' use of the documents in question. The court needed to determine the applicable legal principles in relation to waiver of legal professional privilege, and whether the circumstances of this case amounted to a waiver.

The court found that the privilege had not been waived in this case. The court held that the use of the documents to refresh recollection did not amount to a waiver of privilege, as there was no intention to disclose the contents of the documents to a third party. The court noted that the privilege holder must actively intend to waive the privilege for it to be considered waived, and found that such an intention was absent in this case. The court also considered the nature of the documents and the purpose for which they were used, and found that these factors did not support a finding of waiver. The court held that the respondents had not waived their entitlement to legal professional privilege.

As a result of this finding, the respondents were entitled to an order for costs against the applicants. The court made an order that the applicants pay the respondents' costs of and incidental to the proceeding in the Family Court, in the sum of $16,000. The applicants were also ordered to pay the respondents' costs of and incidental to the appeal to the Full Court, in the sum of $6,000.

Orders