Newman v Whittington

[2022] NSWSC 160

Supreme Court

New South Wales

Medium Neutral Citation:

Newman v Whittington [2022] NSWSC 160

Hearing dates:

On the papers

Date of orders:

24 February 2022

Decision date:

24 February 2022

Jurisdiction:

Common Law

Before:

Beech-Jones CJ at CL

Decision:

(1)   The defendant/cross‑claimant’s application for access to the document produced in answer to paragraph 4 of his notice to produce issued on 17 January 2022 be refused.

(2)   The defendant/cross‑claimant be granted access to the documents produced in answer to paragraphs 6, 11, 12, 13 and 14 of his notice to produce issued on 17 January 2022.

(3)   Each party’s costs of the dispute about access to documents produced in response to the defendant’s notice to produce dated 17 January 2022 be their costs in the cause.

Catchwords:

CLIENT LEGAL PRIVILEGE – defamation proceedings – waiver – no question of principle

Legislation Cited:

Evidence Act 1995 (NSW), ss 118, 122, 131A

Cases Cited:

DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499; [2003] FCA 384

Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303; [2013] HCA 46

Category:

Procedural rulings

Parties:

Jasmin Newman (Plaintiff)
Adam Whittington (Defendant)

Representation:

Counsel:
R Armitage (Plaintiff)
T Smart (Defendant)

Solicitors:
In person (Plaintiff)
In person (Defendant)

File Number(s):

2021/35572

Judgment

1. This judgment concerns a claim by the plaintiff, Jasmin Newman, to resist inspection of documents produced by her under a notice to produce issued by the defendant/cross claimant, Adam Whittington, on the basis that they are subject to client legal privilege. The substantive proceedings are being case managed by Sackar J. In order to not prejudice his Honour’s ability to hear the substantive proceedings, the dispute about privilege was referred to me. I have inspected the documents in dispute. By agreement with the parties the matter was determined on the papers and with the benefit of short written submissions.

2. Both parties sue each other in defamation. The pleadings are in a state of flux as, when the proceedings were commenced and for a significant period thereafter, both parties were self-represented. They each obtained legal representation in November 2021. It suffices to state that the alleged defamatory publications all concern the topic of the forced “rescue” or removal of children involved in either family law disputes or circumstances where they are said to be exposed to harm. In his cross claim, or at least proposed cross claim, Mr Whittington alleges, inter alia, that he is a founder of a charity known as “Project Rescue Children” and is involved in a company known as “Child Abduction Recovery International”. He alleges Ms Newman defamed him in a book she authored and published entitled “The Child Snatchers” and, in particular, in a chapter entitled “The Lebanon Debacle”. In her statement(s) of claim, Ms Newman contends that she is a “Family Dispute Resolution Practitioner” and that Mr Whittington defamed her in a series of “blogs” and social media postings between December 2019 and October 2021. Amongst the many imputations she pleads that Mr Whittington published concerning her, are the imputations that she is a “fraud” and “has for years attacked any women protecting their kids from paedophiles”.

3. On the day she filed her original statement of claim, namely 8 February 2021, Ms Newman also filed and served an affidavit. The affidavit includes a discussion about the events surrounding the publication of “The Child Snatchers” and the publications by Mr Whittington of which she complains. On 17 January 2022, Mr Whittington issued a notice to produce to Ms Newman seeking the production of various documents referred to in Ms Newman’s affidavit. In the end, this dispute concerns access to six documents referred to in Ms Newman’s affidavit which are sought by the notice to produce. Section 131A of the Evidence Act 1995 (NSW) operates to extend the operation of Division 1 of Part 3.10, which concerns client legal privilege, to various pre-trial disclosure requirements including notices to produce.

Paragraph 4: Prepublication advice

4. Paragraph 4 of the notice to produce seeks production and access to “the legal opinion referred to at [19] of the Affidavit of Jasmin Newman”. In that paragraph of her affidavit Ms Newman states:

“As this was very sensitive content matter involving complex family disputes, The Child Snatchers was screened by Jennifer Harris, LLB to ensure that I had not inadvertently defamed anyone. The manuscript was subsequently given legal opinion as being free of any defamatory imputations. I then gave the ‘green light’ to publish … the book through self-publishing agent, New Generation Publishing (UK).”

5. I have read the advice from Ms Harris. It is clearly privileged, being a confidential communication made between the client, Ms Newman, and a lawyer for the dominant purpose of the lawyer providing Ms Newman with legal advice (s 118). Nevertheless, Mr Whittington contends that privilege has been waived. Waiver is governed by s 122 which relevantly provides:

122 Loss of client legal privilege: consent and related matters

(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 the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120.

(3)   Without limiting subsection (2), a client or party is taken to have so acted if--

(a)   the client or party knowingly and voluntarily disclosed the substance of the evidence to another person, or

(b)   the substance of the evidence has been disclosed with the express or implied consent of the client or party.

...

6. I do not consider that paragraph 19 of the affidavit amounts to a disclosure of the substance of the advice given to Ms Newman (s 122(3)(a)). Ms Newman only recounts the purpose for which the advice was sought and not the substance of the advice that was given. However, Counsel for Mr Whittington contended that a waiver arises from Ms Newman acting in a way that is inconsistent with the maintenance of any privilege over the advice (s 122(2)). In particular, he submitted that paragraph [19] of the affidavit justifies Ms Newman being cross‑examined about the advice to test her credit and that otherwise “it is directly relevant to [Mr Whittington’s] cross-claim, which sues for defamation in relation to ‘The Child Snatchers’ and pleads as aggravation that the plaintiff failed to do due diligence before publishing grave imputations in that book”. In his submissions in reply, he contended:

“… the plaintiff has plainly waived privilege over the Harris opinion. The fact that the plaintiff was not represented when she filed the affidavit does not prevent the plaintiff from reading the affidavit into evidence. That being so, the relevant inconsistency arises from the plaintiff having the benefit of being able to meet the defendant’s claim of aggravated damages with evidence that she received legal advice that the publication sued on by the defendant in his cross‑claim was ‘free of defamatory imputations’, but refusing to allow the defendant to see this advice to test it. Put differently, the plaintiff has ‘made an assertion as part of [her] case that puts the contents of the privileged schedule documents in issue, or necessarily lays them open to scrutiny, with the consequence that an inconsistency arises between the making of the assertion and the maintenance of the privilege’: Federal Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341 at [68].A similar conclusion applies to Mitry letter and Burke documents for the reasons identified in [9] of the defendant’s submissions dated 9 February 2022.

7. Both at common law and under s 122(2), the courts will impute an intention to a party to waive privilege where the actions of a party are plainly inconsistent with the maintenance of the confidentiality which the privilege is intended to protect (Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303; [2013] HCA 46 at [30] (French CJ, Kiefel, Bell, Gageler and Keane JJ); “Expense Reduction”). Such a consequence will follow “even though that consequence was not intended by the party losing the privilege” ([id]). In DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499; [2003] FCA 384 (“DSE”) Allsop J (as his Honour then was) observed that where a “party entitled to the privilege makes an assertion (express or implied), or brings a case, which is either about the contents of the confidential communication or which necessarily lays open the confidential communication to scrutiny and, by such conduct, an inconsistency arises between the act and the maintenance of the confidence, informed partly by the forensic unfairness of allowing the claim to proceed without disclosure of the communication” waiver of the privilege will be imputed (at [58]). However, such a waiver does not arise merely because a communication is relevant or from a party simply denying in a pleading an assertion about their state of mind, including that it was influenced by legal advice (DSE at [115] to [122]).

8. These principles require close attention to the manner in which Ms Newman has sought to deploy the above assertion in her affidavit. To this time, Ms Newman has only filed and served the affidavit. As noted, it was filed along with her initiating process. At the time she filed it, there was no cross‑claim from Mr Whittington. Paragraph 19 of the affidavit is part of a section entitled “Background” which provides a summary of events preceding the alleged defamatory publications about her by Mr Whittington that she complained of in her original statement of claim. Whatever Ms Newman’s purpose in filing and serving the affidavit, it did not involve its deployment to defeat some of the particulars of Mr Whittington’s claim for aggravated damages. The fact that it may now be relevant to that claim does not mean there has been a waiver. This position may alter should Ms Newman either seek to read the affidavit for that purpose or manifest an intention to do so. However, at present, there has not been a waiver.

Paragraphs 6, 11, 12,13 and 14: Communications with third parties

9. Paragraph 6 of the notice to produce sought production and then access to a document referred to in paragraph 29 of the affidavit, being a letter dated 9 June 2020 from Ms Newman’s then solicitor to the solicitors for a third party who claimed their client had been defamed by “The Child Snatchers”. The submissions on behalf of Ms Newman contend that the sending of the letter does not amount to any waiver of privilege over the contents of any legal advice given to her that may be revealed by the letter. In the alternative they sought access to the letter to redact any portions that revealed legal advice. With respect this is misconceived. As was submitted on behalf of Mr Whittington, privilege must be established before any question of waiver arises. For the letter itself to be privileged, it must be demonstrated that, amongst other things, it was a “confidential communication” (s 118). The letter was sent between lawyers acting for clients with opposing interests. There is no basis for concluding that the communication was “confidential”. It may be that the contents of the letter include a disclosure by Ms Newman’s lawyer of a confidential communication between himself and Ms Newman that falls within s 118. However, even if it did, if that was disclosed by her solicitor to a solicitor acting for another party with different interests then that would amount to a waiver under s 122(3)(b) without the necessity to address any further question of inconsistency. Having read the letter I note that one paragraph contains a statement by Ms Newman about her instructions which might arguably fall within s 118. However, for the reason just noted, even if it did, privilege was waived.

10. Paragraphs 11, 12, 13 and 14 of the notice to produce seek the production of correspondence referred to in the affidavit between Ms Newman and a solicitor acting for the charity “Project Rescue Children” between June 2020 and January 2021. The correspondence appears to have followed the issuing of a “concerns notice” by Ms Newman about statements allegedly made by Mr Whittington which she contended the charity was legally responsible for. For the reasons just given in relation to the document sought by paragraph 6 of the notice to produce, the claim to refuse access to these documents or redact them on the basis of privilege is wholly misconceived.

11. In terms of costs, given the respective parties’ success I will order that each party’s costs of this dispute be their costs in the cause.

12. Accordingly, the Court orders that:

1. The defendant/cross‑claimant’s application for access to the document produced in answer to paragraph 4 of his notice to produce issued on 17 January 2022 be refused.

2. The defendant/cross‑claimant be granted access to the documents produced in answer to paragraphs 6, 11, 12, 13 and 14 of his notice to produce issued on 17 January 2022.

3. Each party’s costs of the dispute about access to documents produced in response to the defendant’s notice to produce dated 17 January 2022 be their costs in the cause.

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Decision last updated: 24 February 2022