Patelis v Sander

[2021] SADC 54

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil: Interlocutory Application)

PATELIS v SANDER

[2021] SADC 54

Judgment of his Honour Judge Burnett  

21 May 2021

EVIDENCE - ADMISSIBILITY - EXCLUSIONS: PRIVILEGES - CLIENT LEGAL PRIVILEGE - LOSS OF PRIVILEGE - GENERALLY

EVIDENCE - ADMISSIBILITY - EXCLUSIONS: PRIVILEGES - CLIENT LEGAL PRIVILEGE - LOSS OF PRIVILEGE - IMPLIED WAIVER

EVIDENCE - ADMISSIBILITY - EXCLUSIONS: PRIVILEGES - CLIENT LEGAL PRIVILEGE - LOSS OF PRIVILEGE - ISSUE WAIVER

EVIDENCE - ADMISSIBILITY - EXCLUSIONS: PRIVILEGES - CLIENT LEGAL PRIVILEGE - SCOPE OF PRIVILEGE - GENERALLY

The respondent, by a revised interlocutory application dated 23 December 2020, has sought orders that the applicant produce to the respondent all communications between the applicant and her former solicitors and counsel in the period between 4 December 2012 and 8 August 2018 that relate to the demand made upon the applicant by Nationwide Capital Pty Ltd (Nationwide).

The applicant’s former husband was the sole director and shareholder of a company named Adelaide Vehicle Inspections Pty Ltd. In 2012, that company sought a loan from Nationwide, which required a mortgage over properties owned jointly by the former husband and the applicant, as well as a guarantee from the applicant. The former husband and a person purporting to be the applicant attended upon the respondent, a solicitor, to sign, inter alia, the mortgage and the guarantee. The person who attended upon the respondent was not in fact the applicant and the applicant’s signature was forged on the mortgage and guarantee. After she later became aware of the mortgage by service by Nationwide of a notice of demand, the applicant, although reserving her rights against Nationwide, sold the mortgaged properties and permitted the proceeds of that sale to be paid to Nationwide. In 2018 the applicant commenced proceedings against the lawyer who witnessed the forged signature on the mortgage and guarantee.

The respondent claims that the applicant has waived her claim for privilege over the documents sought in the application by filing and serving earlier in these proceedings (1) an affidavit of a Joseph Behar sworn 19 May 2020 (the Behar affidavit) and (2) written submissions dated 9 June 2020 (the written submissions).  The respondent submits that the applicant had deployed these materials in opposing an earlier interlocutory application of the respondent to file an amended defence which sought to plead that the claim of the applicant was apportionable, because of the negligent advice given by her previous lawyers to pay the proceeds of the sale of the mortgaged properties to Nationwide.

The applicant opposes the interlocutory application of the respondent and submitted:

1.  The applicant’s former solicitors and/or counsel did not have authority to waive privilege and that privilege could only be waived by the privilege-holder, in this case the applicant herself.

2.  If, contrary to the first submission, privilege can be waived by solicitors on behalf of their client, without the express authority of the client, that principle does not apply in circumstances where there was a conflict of interest between the applicant and the applicant’s former solicitors at the time of the alleged waiver.

3.  As the hearing of the interlocutory application to amend the defence had not been heard, there had been no deployment of the affidavit or the written submissions and therefore no waiver of the privileged material.

4.  There had been no waiver of legal advice and no associated material waiver.

Held:

1.  The application by the respondent for the production of the privileged communications is dismissed. There had been no waiver of the documents that the respondent seeks to be produced.

2. Legal professional privilege can attach to a communication even if that communication does not expressly refer to or contain any legal advice. A document may form part of the continuum of communication between the lawyer and client (or the lawyer and counsel) for the purposes of obtaining legal advice: Property Alliance Group Ltd v Royal Bank of Scotland PLC (No 2) [2016] 1 WLR 992 applied.

3. Legal professional privilege attaches to communications prior to counsel being retained and even if counsel is not subsequently retained: Minter v Priest [1930] AC 558 applied.

4.  A party may waive privilege through the conduct of their solicitor, because of the doctrine of ostensible authority.

5.  The doctrine of ostensible authority does not apply if the respondent knew that the applicant’s former solicitors were acting only in their own interests and not in the interests of the applicant in filing and serving the affidavit and submissions. However, that was not the case here and the applicant and her former solicitors had the same interests in opposing the application for amendment.

6. The affidavit and submissions were deployed when they were filed and served. It is not necessary that they be formally read in court or used at a hearing: Attorney-General (NT) v Maurice (1986) 161 CLR 475 and Banksia Mortgages Limited v Crocker [2010] NSWSC 535 applied.

7. Issue waiver arises when a party behaves inconsistently with the maintenance of the privilege by putting in issue their state of mind, where that state of mind is likely to be influenced by a privileged document. ASIC v Rich [2004] NSWSC 923; Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1995) 37 NSWLR 405 applied. There was no issue waiver in the present case, because the applicant had not put in issue her state of mind.

8. There is a distinction between a reference to the mere existence of legal advice and cases in which the gist or substance of the advice has been disclosed: AWB Ltd v Cole (No 5) [2006] FCA 1234; Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1996) 40 NSWLR 12 applied. There is no waiver of privilege in the former case.

9. There is no waiver of privilege where reference is made to a particular advice, but not the substance of that advice and then the applicant makes a decision or acts in a particular way following receipt of that advice: AWB Ltd v Cole (No 5) [2006] FCA 1234; Bennett v Chief Executive Officer of the Australian Customs Service (2004) 140 FCR 101 applied.

10.There has been no implied waiver of privileged material and no associated material waiver.

Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) s 8 ; Uniform Civil Rules 2020 (SA) s 25.5(1), 25.5(2); Real Property Act 1886 (SA), referred to.

Property Alliance Group Ltd v Royal Bank of Scotland PLC (No 2) [2015] EWHC 3187; [2016] 1 WLR 992; Minter v Priest [1930] AC 558; Attorney-General (NT) v Maurice (1986) 161 CLR 475; Banksia Mortgages Limited v Crocker [2010] NSWSC 535; ASIC v Rich [2004] NSWSC 923; Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1995) 37 NSWLR 405; AWB Ltd v Cole (No 5) [2006] FCA 1234 ; Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1996) 40 NSWLR 12; Bennett v Chief Executive Officer of the Australian Customs Service (2004) 140 FCR 101, applied.

Esso Australia Resources Ltd v Commissioner of Taxation (Cth) (1999) 201 CLR 49; [1999] HCA 67; Grant v Downs (1976) 135 CLR 674; AWB Ltd v Cole [2006] FCA 571; (2006) 152 FCR 382; The Commissioner of Taxation (Cth) v Pratt Holdings Pty Ltd (2005) 225 ALR 266; Balabel v Air India [1988] Ch 317; Descoteaux v Mierzwinski (1982) 141 DLR (3d) 590; Australian Competition and Consumer Commission v Cadbury Schweppes Pty Ltd [2009] FCAFC 32; (2009) 174 FCR 547; Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1; Baker v Campbell (1983) 153 CLR 52; Reg v Davies (1921) 21 SR (NSW) 311; Re Golightly [1974] 2 NZLR 297; The People of the State of California v Doyle (1977) 77 Cal. App. (3d) 126; 141 Cal. Rptr. 639; Attorney-General(NT) v Maurice (1986) 65 ALR 230; Causton v Mann Egerton (Johnsons) Ltd [1974] 1 All ER 453 ; Griffiths v Evans [1953] 2 All ER 1364; Great Atlantic Insurance Co Ltd v Home Insurance Co [1981] 2 All ER 485; 1 WLR 529; D (A Child) [2011] EWCA Civ 684; Meltend Pty Ltd v Restoration Clinics of Australia Pty Ltd (1997) 145 ALR 391; (1997) 75 FCR 511; Independent Commissioner Against Corruption v Cripps [1996] NSWSC 372 ; Commissioner of Taxation (Cth) v Coombs [1999] FCA 842; Lysaght Bros & Co Ltd v Falk (1905) 2 CLR 421; Gorman v HW Hodgetts & Co [1932] SASR 394; Causton v Mann Egerton (Johnsons) Ltd [1974] 1 WLR 162; Combulk Pty Ltd v TNT Management Pty Ltd (1992) 37 FCR 45; Re Stanhill Consolidated Ltd [1967] VR 749; General Accident Fire and Life Assurance Corporation Ltd v Tanter [1984] 1 WLR 100; [1984] 1 All ER 35; Prus-Grzybowski v Everingham [1986] NTSC 57; (1986) 44 NTR 7; Sevic v Roarty [1998] NSWSC 462; (1998) 44 NSWLR 287; Re Konigsberg [1989] 1 WLR 1257; MAC Hotels v Rider Levett Bucknall UK Limited [2010] EWHC 767; Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1996) 40 NSWLR 12; [1996] NSWSC 7; (1996) 70 ALJR 603; Southern Equities Corporation Limited (in liq) v Arthur Andersen & Co [1997] SASC 6373; (1997) 70 SASR 166; Hong Kong Bank of Australia Ltd v Murphy [1993] 2 VR 419; Adelaide Steamship Co Ltd v Spalvins [1998] FCA 144; (1998) 81 FCR 360; R v Secretary of State for Transport; ex parte Factortame (1997) 9 Admin LR 591; Fulham Leisure Holdings Ltd v Nicholson Graham & Jones [2006] 1 All ER 599; Nine Films and Television Ltd v Ninox Television Ltd [2005] FCA 356; (2005) 65 IPR 442, considered.

PATELIS v SANDER
[2021] SADC 54

Civil

Introduction

1. The respondent, by a revised interlocutory application dated 23 December 2020, has sought orders that the applicant produce to the respondent all communications between the applicant and her former solicitors and counsel, Messrs Tolis & Co and Mr Munt, in the period between 4 December 2012 and 8 August 2018 that relate to the demand made upon the applicant by Nationwide Capital Pty Ltd (Nationwide).  Although such material attracted legal professional privilege, the respondent submitted that the applicant had waived her claim for privilege over that material, because of her deployment earlier in the proceedings of an affidavit of Joseph Behar sworn 19 May 2020 (the Behar affidavit) and of written submissions 9 June 2020 (the June 2020 written submissions) in which the respondent says the applicant disclosed the content of legal advice. The Behar affidavit and June 2020 written submissions were made in opposition to an earlier interlocutory application of the respondent to file an amended defence which sought to plead that the claim of the applicant was apportionable on the basis that negligent advice given to the applicant by Tolis & Co had caused or contributed to the loss that is now claimed by the applicant against the respondent.

2. The applicant opposes the interlocutory application for the production of the privileged material.  The other parties to the proceedings did not seek to be heard on the application.

3. The application raises the following matters for consideration:

   (1)Do the documents, the disclosure of which is said to constitute waiver, attract legal professional privilege?

   (2)Are the solicitors for the applicant able to waive the privilege of the applicant, when they had no express instructions to do so?

   (3)If yes to the previous question, should a different conclusion be reached if a known conflict of interest existed between the applicant and the applicant’s former solicitors at the time of the alleged waiver?

   (4)Has the applicant deployed the Behar affidavit and submissions, even though the application in which they were to be used, is yet to be heard?

   (5)Has there been issue waiver of the privileged material by the applicant?

   (6)Has privileged material been waived under the doctrine of implied or imputed waiver? If so, what associated material is the applicant also taken to have waived?

   The Proceedings

4. The applicant has instituted proceedings against her former solicitor, Mr Sander, in relation to the execution of mortgage documents and a guarantee.  The allegations in the statement of claim filed by the applicant are set out below.

5. The applicant was married to Angelo Pantelis.  Angelo Pantelis was the sole director and shareholder of Adelaide Vehicle Inspections Pty Ltd (AVI) which carried on the business of the inspection of motor vehicles. The applicant suffered a stroke in 2010 and on 5 December 2013, Ms Helen Doufos and Ms Kassiani Sergiou were appointed as administrators to her estate.

6. In December 2012, AVI sought to obtain a loan in the sum of $82,520 from a financier, Nationwide.  Interest was payable on the amount outstanding at the rate of 10% per month or 5% per month if there was no default. As security for that loan, AVI was required to provide a mortgage over land owned, as joint tenants, by the applicant and Angelo Patelis at 3 Magnolia Avenue, Happy Valley (the Happy Valley Property) and 9 Morgan Street, Aldinga Beach (the Aldinga Beach Property).

7. Angelo Patelis arranged a meeting with the respondent on 12 December 2012 for the purpose of executing the security documents. At that meeting, Angelo Patelis was accompanied by a Poppi Kokoroyiani (Poppi). Angelo Patelis held out Poppi to the respondent as being the applicant. Poppi proceeded to execute the security documents in the name of the applicant. The respondent was unaware that Poppi was not the applicant and that she did not have any authority to execute the documents.  Poppi, purporting to be the applicant, executed, inter alia, a mortgage over the Happy Valley and Aldinga Beach Properties and a deed of guarantee and indemnity in favour of Nationwide.

8. The respondent witnessed a Statutory Declaration and an Acknowledgement of Legal Advice that the applicant had received independent legal advice and had freely and voluntarily signed the Loan Agreement, the Mortgage and the Guarantee. The respondent also executed a Witness Certificate (which was required by Nationwide) to the effect that he had interviewed the applicant and had identified her through her driver’s licence and Mastercard and had provided her advice.

9. The applicant did not agree to the Loan Agreement, the Guarantee or the Mortgage or even know of their existence.

10. AVI defaulted under the terms of its loan agreement with Nationwide. Nationwide issued notices of default in about July 2013, inter alia to the applicant, who at that time first became aware of the mortgage of the properties and of the loan.

11. The Aldinga Beach and Happy Valley Properties were sold respectively on 24 January 2014 and 31 January 2014 and following these settlements, the mortgages were discharged and Nationwide received the sum of $310,029.10 from the sale of the properties (which sum included interest and costs).

12. The applicant claims that the respondent breached his fiduciary duties, was negligent or engaged in misleading or deceptive conduct in relation to the execution of the mortgage and the guarantee and the provision of the Witness Certificate to Nationwide.  The applicant claims that she suffered a loss in the sum of $252,246 because of the conduct of the respondent.   

13. The respondent, in his second defence, filed on 30 November 2018, pleaded that he does not propose to challenge that the guarantee and mortgages were not signed by the applicant and were forged by Poppi. The respondent pleaded that the guarantee and mortgage were void and of no effect. Accordingly, the respondent said that the applicant was under no obligation to Nationwide. The respondent also pleaded (in paragraph [27] of the Second Defence) that if he was liable to the applicant, then the applicant’s former solicitors, Tolis & Co (in their capacity as solicitors for the applicant in instituting the proceedings) were also liable to the applicant for negligent advice as to the enforceability of the forged documents and the beneficial ownership of the proceeds of the sale of the properties. Accordingly, the respondent pleaded that his liability should be reduced by reason of s 8 of the Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA).

14. The respondent has also joined a number of third parties, including Law Claims, the Law Society of South Australia, AAI Limited and Certain Underwriters at Lloyds (the insurance third parties) on the basis that he is entitled to an indemnity against any liability he might have against the applicant.

15. The respondent also seeks to amend his defence by filing a third defence in which his defence relating to the advice given to the applicant by her former solicitor and counsel is more fully pleaded and particularised (that paragraph of the defence having previously been struck out by Judge Bochner) and also to issue a cross claim against the applicant’s former solicitors and counsel, Messrs Tolis & Co and Mr Munt.

    Interlocutory history

16. To understand the respondent’s application for production of documents over which he claims that privilege has been waived, it is necessary to consider that application in the context of the interlocutory history of the matter.

17. As I previously stated, the respondent filed his second defence on 30 November 2018, in which, at paragraph [27], he pleaded that the applicant’s claim was apportionable because of the negligent advice of the former solicitors of the applicant, Messrs Tolis & Co, in relation to the enforceability of the mortgage and the beneficial ownership of the proceeds of the sale of the properties.

18. By interlocutory application dated 26 March 2019, the applicant sought to strike out a number of paragraphs of the respondent’s second defence, including paragraph [27]. That application was refused by Master Norman on 30 May 2019.

19. The applicant appealed against the decision of Master Norman in relation only to the failure to strike out paragraph [27] of the second defence. On 16 January 2020, Judge Bochner allowed the appeal and ordered that paragraph [27] of the second defence be struck out.

20. The respondent, by interlocutory application dated 21 February 2020, sought leave to amend the defence in accordance with the proposed third defence, which pleaded the matters set out in paragraph [27] in greater detail.  The applicant through her solicitor, Joseph Behar, filed and served the Behar affidavit in May 2020 opposing the application of the respondent to file the third defence. As the Behar affidavit is one of the two documents which forms the basis of the alleged waiver of privilege, I will refer to the contents of that document in more detail later in these Reasons. The applicant also filed the June 2020 written submissions in support of her opposition to the respondent’s application. The respondent submits that by those submissions, the applicant had also waived privilege. I will return to those submissions later.

21. The respondent filed written submissions on 10 June 2020 in which he submitted that the applicant’s then solicitors and counsel, Messrs Tolis & Co and Mr Munt, had an obvious and unavoidable conflict of interest in opposing the application and also in maintaining a claim of legal professional privilege. The respondent also submitted that the applicant had waived privilege.

22. Following a hearing on 12 June 2020 in which the Master ordered that, inter alia, the question of wavier should be the subject of a formal application, the respondent filed a further interlocutory application dated 1 September 2020 in which he:

    (1)Sought leave to file a cross claim against Tolis & Co and Mr Munt, the former solicitors and counsel, of the applicant;

    (2)Sought an order that the former counsel and solicitors not be heard on the application of the respondent to amend his defence;

    (3)Sought an order that the applicant produce all correspondence between her, Messrs Tolis & Co and Mr Munt (her former counsel) relating to the demand made by Nationwide.

1. The applicant instructed new solicitors and counsel and on 30 October 2020 her new solicitors filed a Notice of Acting. The applicant is represented by her new solicitors, who have retained senior counsel for this hearing.

2. The respondent filed an amended interlocutory application on 24 December 2020, but that did not alter the substance of his application that privilege had been waived. The applicant filed two affidavits from the litigation guardians of the applicant (who are also the administrators of the estate of the applicant) opposing the waiver. Both litigation guardians deposed that they gave no instructions and received no advice about any potential waiver of privileged material by the filing of the Behar affidavit or the June 2020 submissions and had not been provided with a copy of those documents before they were filed.

   The basis of the alleged waiver

3. The respondent submits that waiver arose from the Behar affidavit and the June 2020 written submissions. In relation to the Behar affidavit, the respondent refers to paragraphs [59]-[96] in which the narrative of the applicant’s response to Nationwide’s claim is set out and specifically relies upon the following as constituting a waiver of privilege:

   (1)A reference to, and a record of, a telephone conversation between Mr Pana of Tolis & Co lawyers and Mr Alex Lazarevich of counsel on 28 January 2014. It is apparent from the terms of this communication that Mr Lazarevich had not been retained as counsel at the time of the conversation (and in fact was never retained). Paragraph [68] refers to the making of the telephone call and the note of the conversation made by Mr Pana is reproduced in the affidavit at paragraph [69] and exhibit JB40 and is relied upon by the respondent as constituting waiver of privileged material.  The note is in the following terms:

   Conduct of bank/mortgagee?

   Consumer Credit Code?

   RPA s69(b) -  ? Not applicable

   -   only if bank implicated in forgery

   Counsel willing to accept brief on understanding that he will be paid at the end, contingent upon favourable outcome

   -   provided that client takes advice

   (2)An email sent by Mr Pana to Mr Reese of Bransgroves Lawyers on 28 January 2014 (paragraph [71]) in which Mr Pana states:

   [71.1] Your client has already received the sum of $91,587.54 from the sale proceeds of the property at Aldinga Beach…

   [71.2] Our client maintains that she is not liable to your client in any amount…

   [71.3] Our client will not sign any release in favour of your client and reserves her right to sue your client as a result of your client’s loans to Adelaide Vehicle Inspections and/or Angelo Patelis. We are currently in the process of obtaining counsel opinion in that regard.

   (3)A reference to a telephone conversation between Mr Pana and a Mr Reese of Bransgroves, lawyers for Nationwide, on 30 January 2014 in which the following exchange is recorded:

   Nationwide stand by position-indefeasible title-will not settle [77.4];

   Reject fraud exception and s69(b) [77.5];

   We have instructions not to pay out Nationwide or sign release [77.6].

   (4)A reference to a telephone conversation on 30 January 2014 between Mr Pana of Tolis & Co and Ms Doufos, one of the administrators of the estate of the applicant appointed on 5 December 2013, in which the following is recorded:

   Bransgroves have revoked consent to discharge and instructed conveyancer to destroy discharge [79.1];

   complicates matter because if settlement fails, purchasers may take action [79.2];

   = > still leaves options open to sue Nationwide but instead of monies held in trust or court, Nationwide will hold it... [79.3];

   Nationwide unlikely to be unable to pay damages if required to by court or settlement [79.4].

   (5)A reference to an email between Mr Pana of Tolis & Co and Ms Doufos, one of the administrators of the estate of the applicant, dated 30 January 2014 in which the following is recorded:

   we have negotiated a compromise with Nationwide Capital in respect of settlement of the sale of Magnolia Avenue, which is scheduled for tomorrow, 31 January 2014 [81.1];

   Nationwide has agreed to discharge the mortgage at settlement provided they are paid in full the liquidated amount of approximately $218,441.66, without the need to provide them with a signed Deed of release or security for costs [81.2];

   We confirm that this will allow settlement to take place as scheduled and avoid complicating matters by breaching the sale contract and incurring any further liability in respect of the purchasers and Nationwide [81.3];

   Peta will retain her right to sue for her losses... [81.4];

   We advise this is a good outcome in the circumstances because it mitigates Peta’s potential losses whilst preserving her rights at law and in equity to recover the losses she may sustain [81.5].

   (6)A reference in paragraph [83] to the position at the time of the settlement of the properties. Paragraph [83] reads:

   As evident from the above history, the Plaintiff ultimately agreed to Nationwide’s alleged debt being paid out in full from the proceeds of sale of the Properties, under protest and to mitigate her loss, while reserving her rights to sue Nationwide for her losses. The debt being claimed by Nationwide was escalating at the rate of over $12,000 per month in interest at the time of the settlement of the sale of the Happy Valley property, as evident from the schedule comprised in Bransgroves Lawyers email of 15 Janauay 2014, comprising ‘JB36’. Nationwide was refusing to provide the discharge of the mortgage unless it was paid out in full.

   (7)A reference in paragraph [84] to briefing Mr Munt and then receiving advice from Mr Munt, then counsel for the applicant, in late 2014 (after the properties had been sold) concerning inter alia the validity of the mortgages (and stating that legal professional privilege in relation to that advice is maintained and not waived) [85] and then stating that after receiving Mr Munt’s advice, the administrators of the applicant’s estate specifically elected to not make Nationwide a named defendant in this action nor make any claims against Nationwide on behalf of the applicant [86].

4. Further, the respondent submits that the applicant waived the privilege in the June 2020 written submissions. The respondent relies upon the following:

   (1)[7.1] The monies paid by Ms Patelis to Nationwide under its mortgage were paid on the basis that Ms Patelis reserved her rights against Nationwide, in particular the right to sue Nationwide for her losses in relation to the Nationwide loan and mortgage;

   [7.2] Tolis & Co subsequently obtained counsel’s advice regarding claims that Ms Patelis may have against Nationwide, the validity of the Nationwide mortgage and issues of indefeasibility under the Real Property Act 1886 (SA);

   [7.3] after receiving counsel’s advice, Ms Patelis, via the administrators of her estate, made an informed decision not [sic] make Nationwide a named defendant in this action, nor make any claims against Nationwide.

   (2)A reference in paragraph [8] of the submissions to the respondent failing to take into account in his plea at paragraph [27] of the proposed third defence of the facts existing at the time and the reality of the situation being the pressure applied by NAB, as the first mortgagee and the interest rate being charged by Nationwide of 120% per annum.

   (3)The reference in paragraph [39] of the submissions of paying the sum of $310,000 to Nationwide:

   on the basis that Ms Patelis reserved her rights against Nationwide, in particular the right to sue Nationwide for her losses in relation to the Nationwide Loan and Nationwide Registered Mortgage.  That is, the amounts were paid to Nationwide under protest in order for Ms Patelis to mitigate the liability being alleged against her by Nationwide.

   (4)The reference in paragraph [40] of the submissions to:

   Tolis & Co obtained some informal advice from Mr Alex Lazarevich of counsel in relation to the Nationwide Registered Mortgage prior to the settlement of the sale of the Happy Valley Property and subsequently obtained advice from Mr Christian Munt of counsel in late 2014 regarding claims that Ms Patelis may have against Nationwide, the validity of the Nationwide Registered Mortgage and issues of indefeasibility under the Real Property Act 1886 (SA).

   Existence of legal professional privilege

5. Before the issue of waiver of privilege arises, the respondent must establish that the relevant communications attracted legal professional privilege.

6. At common law, legal professional privilege is attracted where the dominant purpose of the communication is the provision of legal advice or legal services relating to actual or anticipated litigation.[1] 

   [1]    Esso Australia Resources Ltd v Commissioner of Taxation (Cth) (1999) 201 CLR 49; [1999] HCA 67.

7. The communication between Mr Pana and Mr Lazarevich (recorded in a note of the telephone call) relates to the provision of advice and therefore attracts legal professional privilege.  In Esso Australia Resources Ltd v Commissioner of Taxation, the High Court adopted the dominant purpose test. [2]

   [2] Ibid at [58].

8. The dominant purpose must be determined objectively, having regard to the evidence, the nature of the document and the parties’ submissions.[3]

   [3]    AWB Ltd v Cole [2006] FCA 571; (2006) 152 FCR 382 at [110] quoting Commissioner of Taxation (Cth) v Pratt Holdings Pty Ltd (2005) 225 ALR 266 at 278.

9. A conclusion that legal professional privilege attaches to a communication can still be reached even if that particular communication does not refer to or contain legal advice. In Property Alliance Group Ltd v Royal Bank of Scotland PLC (No 2),[4]Snowden J held:

   …in Balabel’s case,[5] Taylor LJ held that all documents forming part of the continuum of communications between lawyer and client for the purposes of obtaining legal advice would be privileged, even if they did not expressly refer to legal advice, provided that they were part of the “necessary exchange of information of which the object is the giving of legal advice as and when appropriate”. It is therefore quite clear that the communication of information between a lawyer and client can be privileged, provided that it is information that is communicated in confidence for the purpose of the client seeking and the lawyer providing, legal advice.

   [4] [2015] EWHC 3187; [2016] 1 WLR 992.

   [5]    Balabel v Air India [1988] Ch 317 at 330.

10. In my opinion, the communication between Mr Pana and Mr Lazarevich is part of the continuum of the seeking and obtaining of legal advice.  It represents the first stage of the seeking of that advice from counsel, namely the first provision of information by the solicitor to counsel.

11. Legal professional privilege can attach to the communication even though Mr Lazarevich was not retained at that time and in fact was never retained as counsel.  For the purposes of privilege, the lawyer-client relationship arises before the establishment of a formal retainer.[6]  Therefore, privilege attaches to a meeting between a potential client and a lawyer with a view to deciding whether the client will retain the lawyer or whether the lawyer will accept the retainer.[7]  Communications made in the context of a “beauty parade” therefore attract privilege, even if the lawyer does not subsequently obtain instructions to act.[8]

    [6]    Descoteaux v Mierzwinski (1982) 141 DLR (3^d) 590 at 606 and 618.

    [7]    Minter v Priest [1930] AC 558 at 577.

    [8]    B Thanki QC (ed) The Law or Privilege (3^rd ed), 2018, Oxford University Press at [1.58].

12. The communications between Mr Pana and Mr Lazarevich fall into this category.  There was no formal retainer between Tolis & Co and Mr Lazarevich, but it is apparent from the terms of the note that the communication with Mr Lazarevich was for the purpose of possibly retaining him, hence the request about the terms upon which he was willing to accept a retainer. Accordingly, there was an expectation of confidentiality on the part of Tolis & Co, even though there was no retainer. That expectation of confidentiality is the basis upon which the privilege exists.

13. The second and third documents which the respondent submits give rise to the waiver of privilege are an email from Mr Pana of Tolis & Co (as the applicant’s lawyers) and Mr Reese of Bransgroves, lawyers for Nationwide and a note of a subsequent telephone conversation between those parties. Any privilege which attached to the information disclosed in those documents has been waived, as it has been communicated to the other side of a transaction.  In Australian Competition and Consumer Commission v Cadbury Schweppes PtyLtd,[9] the Full Federal Court observed that whatever the extent of confidentiality arising from litigation privilege, one element of confidentiality is essential, namely non-disclosure to one’s opponent. The information recorded in the email and note is communicated to the other side, Nationwide.  Of course, there may be a question whether that communication constitutes a waiver of any advice given by Tolis & Co and I will consider that issue later in these Reasons.

    [9] [2009] FCAFC 32; (2009) 174 FCR 547 at [32].

14. The fourth and fifth documents relied upon by the respondent are a note of a telephone call between Mr Pana of Tolis & Co and Ms Doufos, one of the administrators of the estate of the applicant, and an email between the same parties.  Both of these documents attract legal professional privilege. They are both part of the continuum of the seeking and providing of advice between the lawyers and their client.

15. The sixth document, being the statements contained in paragraph [83] of the Behar affidavit, is not a communication that attracts legal professional privilege. The question, that I will address later in these Reasons, is whether the statements in paragraph [83] implicitly refer to any legal advice and have therefore waived that material.

16. The advice given by Mr Munt of counsel is clearly the subject of legal professional privilege, it being a document brought into existence for the dominant purpose of the provision of advice to the applicant.

17. The respondent has also relied upon the June 2020 written submissions as constituting the wavier of privileged material. These submissions are not in themselves privileged material, but the issue will be whether, by their content, they waive some advice given by the lawyers or counsel for the applicant.

    Waiver of legal professional privilege

18. The respondent submits that the applicant has waived privilege over the documents described above by the reference to those documents in the Behar affidavit.  The respondent further submits that by reference to various advice in the June 2020 written submissions, the applicant has waived privilege over that advice.

19. The High Court in Mann v Carnell[10] held that the waiver is found where there is an inconsistency between the conduct of the party asserting privilege and the maintenance of the confidentiality, bearing in mind questions of fairness.

    [10] [1999] HCA 66; (1999) 201 CLR 1.

20. The client, in this case the applicant, is the privilege holder.[11]

    [11] Ibid at [28].

    Can privilege be waived by the former lawyers acting for the applicant

21. The first issue that arises is whether the applicant’s lawyers are able to waive that privilege, in circumstances where the applicant has not expressly authorised her lawyers to waive privilege or even file the Behar affidavit or the June 2020 written submissions.

22. The applicant submitted that only the client is able to waive privilege and that a solicitor is not authorised to do so. The respondent submitted that waiver could be made by the solicitor, even if he or she were not authorised to do so, because of the doctrine of ostensible authority. The applicant further submitted that even if ostensible authority could justify a waiver of privilege, that doctrine had no application in the present case, because of the conflict of interest that existed between the applicant and her now former solicitors and counsel.

23. Addressing the first issue, the applicant relied upon the decision of Murphy J in Baker v Campbell[12] in which His Honour held:[13]

    The privilege is commonly described as legal professional privilege, which is unfortunate, because it suggests that the privilege is that of the members of the legal profession, which it is not. It is the client’s privilege, so that it may be waived by the client, but not by the lawyer (Reg v Davies,[14] Re Golightly,[15] People v Doyle).[16]

    [12] (1983) 153 CLR 52.

    [13] Ibid at 85.

    [14] (1921) 21 SR (NSW) 311 at 313-314.

    [15] [1974] 2 NZLR 297.

    [16] (1977) 77 Cal. App. (3d) 126 at 128; 141 Cal. Rptr. 639 at 640.

24. Reg v Davies or Re Golightly did not consider the specific question as to whether a lawyer acting for a party was able to waive privilege. In Davies,[17] the court held that a crown prosecutor was not entitled to claim the privilege on behalf of a witness during the cross-examination of that witness. Whilst recognising the privilege applied to witnesses, the Court held that the objection to the waiver of the privilege “did not proceed from him in any way”. The Court appeared to accept that the witness or someone acting on his behalf could claim the privilege.[18]  In  Re Golightly,[19] the question for determination was whether the privilege had been waived by the client in relation to the evidence proposed to be given by the lawyer, by the client authorising the lawyer to give the evidence.  The People of the State of California v Doyle[20] was not a case involving the waiver of privilege, but whether an attorney could consent, without there being a search warrant, to a search of his client files.

    [17] (1921) 21 SR (NSW) 311 at 314.

    [18] Ibid at 313-314.

    [19] [1974] 2 NZLR 297 at 303.

    [20] (1977) 77 Cal App. (3d) 126.

25. The issue in Baker v Campbell was not who was capable of waiving privilege. The case was determined on the basis that the privilege was not confined to judicial and quasi-judicial proceedings and applied to documents described in a search warrant.

26. The second authority relied upon in support of the proposition that it is only the client who can waive privilege is the decision of Woodward J in the Full Court in Attorney-General (NT) v Maurice[21] (this matter was not addressed in the High Court or in the judgment of Toohey (Bowen CJ agreeing) in the Full Court), where Woodward J appeared to accept the following statements made by the Trial Judge:

    (a)Legal professional privilege attaches to communications for purposes of litigation or advice passing from a client to his solicitor or through an intermediary who is the agent of one or other of them (in this case an anthropologist);

    (b)The privilege is that of the client and neither the solicitor nor the intermediary can properly waive the privilege or be compelled to answer questions about the communications, or produce documents dealing with them, without the consent of the client;

    (c)The powers and duties of the solicitor and the agent are not affected by the termination of the solicitor-client relationship or the agency;

    (d)Since the agent could not be compelled to answer questions about things he learnt while carrying out his agency role, he cannot be compelled to produce notes which he later made, for his own purposes, about those matters.[22]   

    [21] (1986) 65 ALR 230; (1986) 10 FCR 134.

    [22] (1986) 65 ALR 230 at [24]; (1986) 10 FCR 134 at 140.

27. McNicol in Law of Privilege[23] makes the observation that the statement made in sub-paragraph (b) does not address whether the consent referred to therein includes an express or implied grant of authority, in which case the solicitor or agent or intermediary of the client could properly waive the privilege on behalf of the client.

    [23] (1992) Law Book Company Limited at 22, note 126.

28. There is a considerable body of English authority which supports the proposition that a solicitor can waive the privilege through the doctrine of ostensible authority, even though they have not expressly been authorised to do so. In Causton v Mann Egerton (Johnsons) Ltd,[24] Lord Denning MR held (dissenting in the result, but Stamp and Roskill LJJ expressing no opinion on this point):

    It was suggested that the solicitor could not waive the privilege on behalf of his client. To this there is a short answer: a solicitor, like counsel, has complete authority over the suit, the mode of conducting it and all that is incident to it. Unless his client has expressly withdrawn that authority or any part of it, the other party is entitled to assume that he is acting within his authority. This is certainly the case when he enters into an agreement to compromise the action itself. a fortiori when he makes a reasonable agreement to disclose medical reports, thereby waiving any privilege in respect of it. The other side must be able to rely on what the solicitor says. It would be impossible to conduct litigation otherwise.

    [24] [1974] 1 All ER 453 at 457.

1. Denning LJ had expressed the same opinion in Griffiths v Evans,[25] where he stated (again dissenting, but Somerville and Romer LJJ not considering this point), that the client was bound by everything done by their lawyer within their ostensible authority, which included waiver of privilege.[26]

   [25] [1953] 2 All ER 1364.

   [26] Ibid at 1371.

2. In Great Atlantic Insurance Co Ltd v Home Insurance Co,[27] the Court of Appeal held that privilege was lost by the inadvertent acts of counsel (in reading part of a privileged communication), even though the client had not consented to any waiver.

   [27] [1981] 2 All ER 485.

3. In Re D (A Child),[28] Ward LJ held:

   Once it has been conceded that in the circumstances of this case there has been a waiver, then it matters not whether it was a waiver by the solicitor on behalf of the client or in addition to the waiver by the client herself.

   [28] [2011] EWCA Civ 684.

4. A number of Australian Courts have followed these English authorities. In Meltend Pty Ltd v Restoration Clinics of Australia Pty Ltd[29] Goldberg J followed Lord Denning MR in Causton and the Court of Appeal in Great Atlantic Insurance Co Ltd and held that although legal professional privilege was the privilege of the client and could not be waived without the consent of the client, there are circumstances in which it was within the ostensible authority of a lawyer or agent to waive privilege in respect of a document on behalf of the client. These circumstances included in relation to the preparation of a case for trial and at the trial itself.

   [29] (1997) 145 ALR 391 at 403; (1997) 75 FCR 511 at 523.

5. In Independent Commissioner Against Corruption v Cripps,[30] Sully J followed Lord Denning MR in Causton and rejected an argument that counsel, by his own conduct, could not waive the privilege.[31]

   [30] [1996] NSWSC 372.

   [31] Ibid at [14] and [15].

6. In Commissioner of Taxation (Cth) v Coombes,[32] the Full Federal Court, per curiam, applied both Great Atlantic Insurance Co and Causton, and held that plainly the disclosure by the solicitor was made with the ostensible authority of the clients on whose behalf the privilege was being claimed.

   [32] [1999] FCA 842.

7. In my opinion, the authorities favour the position that it is within the ostensible authority of a lawyer to be able to waive privilege on behalf of a client, even though the lawyer did not have express instructions or authority to do so.  The authorities which might suggest the contrary conclusion (Woodward J in Maurice and Murphy J in Baker) are not in my view, determinative. The passage quoted by Woodward J did not address what was meant by “consent” and did not state that consent, through ostensible authority, was not sufficient.  Goldberg J in Meltend, addressed consent through ostensible authority.  Further, I accept the submissions made by the respondent that the statements of Murphy J in Baker were in the nature of a brief overview of the privilege and did not specifically address the issue of ostensible authority.

8. Further, there are, in my view, good reasons why a lawyer, acting within their ostensible authority, can waive the privilege of their client. First, as Lord Denning MR held in Causton, a trial (including pre-trial procedures), will become unworkable if the authority of counsel and solicitors cannot be accepted. Secondly, there are many cases where it is accepted that the solicitor, by their conduct, binds their client. For example, the solicitor binds the client through admissions or even entry into settlement agreements. Thirdly, there are accepted cases where a barrister is taken to waive privilege by their conduct and without the express authority or consent of the client to do so. It would be inconsistent to permit a waiver in these cases but not in others. Fourthly, the waiver by the lawyer accords with the general principles of ostensible authority.

9. The applicant has further submitted that the doctrine of ostensible authority has no applicability in the present case, because of the conflict of interest that existed between the applicant’s former solicitors and counsel and the applicant at the time that the Behar affidavit was filed.  It is important in this regard to identify the circumstances existing at that time.

10. The respondent had filed his second defence in November 2018 in which he raised at paragraph [27] the negligence of the former solicitors of the applicant, Tolis & Co, as a basis for apportioning liability. By interlocutory application dated 26 March 2019, the applicant had sought to strike out, inter alia, paragraph [27] of the second defence, which application was ultimately successful by reason of the judgment delivered by Judge Bochner on 16 January 2020. The respondent applied for leave to issue a third defence on 21 February 2020, which expanded on paragraph [27] and the basis of the claimed apportionability.  The Behar affidavit was filed in opposition to this application. The application for leave to file a cross claim against the former solicitors and counsel and a further iteration of the third defence which also pleaded negligence against the former counsel was not made until September 2020. A further draft of the proposed third defence was annexed to an affidavit of the respondent’s solicitors sworn on 28 September 2020.

11. At the time of the filing and serving of the Behar affidavit in May 2020, I do not consider that a conflict of interest existed between the former solicitors and counsel of the applicant and the applicant. At that time, it was in both the interests of the former solicitors and counsel and the applicant that there be no apportionability of loss because of the conduct of the former solicitors and counsel.  The position had not changed since November 2018 when the second defence was first lodged.

12. Ostensible authority continues until the representation or holding out by the principal can no longer be said to be operative; that is when it is no longer reasonable for the third party with whom an agent deals to believe that the agent continues to act with actual authority.[33]  The matter requires an assessment of the reasonableness of the third party’s ongoing reliance in the circumstances.[34]

    [33] GE Dal Pont “Law of Agency” 4^th ed, 2020. LexisNexis at [20.36].

    [34] Ibid.

13. In the present case, in my view, it was not unreasonable for the respondent to continue to rely upon the applicant’s holding out of her solicitors and counsel as having her authority for the reasons that I have identified above. Further, as I have indicated, on the applicant’s reasoning, the conflict first arose in November 2018, but since that time the former solicitors of the applicant continued to act for her in the proceedings and indeed were successful in the appeal before Judge Bochner. Thirdly, the applicant’s lawyers had filed a notice of acting and that notice had not been revoked. It was reasonable for the respondent to rely upon the notice of acting.

14. The applicant submitted that the reasonableness of the respondent relying upon the holding out by the applicant of her solicitors and counsel as having her authority must be considered in light of the belief of the respondent that the former solicitors of the applicant were acting in a conflict of interest when filing the Behar affidavit and resisting the application to file the proposed third defence.  In this regard, the applicant relies upon the written submissions filed by the respondent on 11 June 2020 (in anticipation of the hearing in June 2020 of the amendment application). Under the heading “Abuse of Process”, the respondent made the following submissions:

    5(a)The applicant’s solicitors and counsel face an obvious and unavoidable conflict of interest in continuing to act for the applicant by resisting this application. They are effectively spending their client’s money in advising her to resist an enquiry into their own potential liability for her loss. Likewise, they have advised her to maintain a claim of legal professional privilege, the effect of which can only be to shelter them against exploration of that liability.  Prima facie that enquiry is in the applicant’s interests. Accordingly, the conflict means that it would be an abuse of process to allow this application to be conducted on her behalf by Tolis & Co and by Mr Munt….

15. Although the parties were unable to identify any authorities that dealt with the relevance of a known conflict of interest in the context of ostensible authority and imputed waiver of privilege, the applicant submitted that cases involving conflicts of interest and ostensible authority in the context of contract formation or misleading conduct claims were instructive.

16. Clearly, if a third party had actual knowledge that the agent lacked authority or was acting in their own interests and not on behalf of their principal, the third party could not rely upon the ostensible authority of the agent.[35] However, the authorities go further and state that the third party will not be able to enforce a contract in which ostensible authority was relied upon where the third party had knowledge of the circumstances which showed a lack of authority in the agent,[36] or where the third party lacked grounds for believing the agent possessed the authority to bind the principal.[37]

    [35] Ibid at [20.41].

    [36] Ibid referring to Lysaght Bros & Co Ltd v Falk (1905) 2 CLR 421 at 432.

    [37] Ibid referring to Gorman v HW Hodgetts & Co [1932] SASR 394 a 404.

17. I do not consider any of these circumstances apply in the present case. There is no evidence to suggest that the respondent knew of the lack of authority of the former solicitors and counsel of the applicant or that the respondent did not have grounds for believing the former solicitors and agent possessed the requisite authority. In coming to this conclusion, I have considered the context in which the Behar affidavit and submissions were filed and served.  These documents were prepared by counsel and solicitors, who are officers of the Court and, in the case of the solicitors, were on the record as acting for the applicant. They were filed and served in the course of the proceedings. As Lord Denning MR held in Causton v Mann Egerton (Johnsons) Ltd[38] a solicitor, like a counsel has complete authority over the suit, the mode of conducting it and all that is incident to it. Unless the client has expressly withdrawn that authority, the other party is entitled to assume they are acting within their authority.

    [38] [1974] 1 WLR 162 at 167. Although Lord Denning MR dissented in this case, the other members of the Court did not express an opinion on this issue, but Lord Denning MR comments were adopted by the Court of Appeal in Great Atlantic Insurance Company v Home Insurance Company [1981] 1 WLR 529 at 540.

18. The applicant submitted that the authorities go further and that based on the decision of Einfield J in Combulk Pty Ltd v TNT Management Pty Ltd,[39] it is sufficient that the respondent knew that the applicant’s former solicitors and counsel had a conflict of interest and that ought to have put him on notice that further clarification as to whether the agent held the requisite authority was required.  However, Combulk was a very different case from the present case. The applicant in that case was part of creating the conflict in that the agent (who was alleged to have exceeded his authority) had himself an interest in the applicant. There is no such conflict in the present case. The conflict is no more than a suspicion on the part of the respondent and in fact, in my view, there are reasonable grounds, as outlined above, to suggest that there was no conflict at the time when the Behar affidavit and the June 2020 written submissions were filed and served.

    [39] (1992) 37 FCR 45 at [56].

19. Two further points need to be made. If I am correct in my conclusion (see later in these Reasons) that the privileged material was deployed when the Behar affidavit was filed and served, then the above analysis becomes moot because if privilege was waived, it was waived at a time when there was no issue surrounding the ostensible authority of the former solicitors and counsel of the applicant.

20. Secondly, rule 25.5(1) of the Uniform Civil Rules 2020 (UCR) provides a party is bound by their solicitors who are recorded as acting for them and counsel who appears on their behalf. However, rule 25.5(2) provides that a Court may order that a party is not bound by the conduct of their solicitors or counsel if:

    (a)The law firm or counsel acted outside their scope of authority; and

    (b)The Court considers that it is reasonable in all the circumstances that the party not be so bound.

21. What is reasonable in all the circumstances, will depend on how the ostensible authority created by acting on behalf of the client is affected by the knowledge of the other party of the lack of authority. The above principles, in my opinion, will apply.

22. For all of the above reasons, I find that the filing and serving of the Behar affidavit, even though undertaken without the express authority or consent of the respondent, was filed and served with the ostensible authority of the applicant and was therefore capable of constituting a waiver of privilege.

23. In relation to the email dated 28 January 2014 by the applicant’s lawyers to Nationwide’s lawyers (paragraph [71] of the Behar affidavit) and the note of the content of the telephone communications between the applicant’s lawyers and Nationwide’s lawyers on 30 January 2014 (paragraph [77] of the Behar affidavit), that waiver was affected by the disclosure of information by the applicant’s lawyers to Nationwide’s lawyers in those communications.[40]

    [40] See Re Stanhill Consolidated Ltd [1967] VR 749 at 753.

    Deployment of Behar affidavit and June 2020 written submissions

24. Before I consider whether there was a waiver of privilege and if so, what associated material, if any was waived, I must deal with a preliminary issue raised by the applicant that there can be no waiver of privilege because the Behar affidavit was not deployed in the proceedings. The applicant submits that because the hearing in which the affidavit was to be used was adjourned and has yet to be heard and the applicant has now stated that it was not going to use the affidavit, she had not deployed the affidavit.

25. The respondent referred to the decision of Gibbs CJ in Maurice where his Honour held that although the phrase “deployed in court” had initially a narrow meaning and required the evidence to be used in court, that was too narrow an interpretation of the phrase.[41]  Gibbs CJ referred to the decision in General Accident Fire and Life Assurance Corporation Ltd v Tanter,[42] where Hobhouse J held that it was only where privileged material was adduced in evidence by the party to whom privilege attached was there waiver of that material.[43] Hobhouse J held that the underlying principle was fairness in the conduct of the trial and did not go further than that. Gibbs CJ rejected that approach as too inflexible and held:

    ...the question is whether the disclosure or use of material that has been made renders it unfair to uphold the privilege in the associated material and although the question whether the material that has been disclosed has been used in evidence is relevant, it is not decisive.[44]     

    [41] (1986) 161 CLR 475 at 483.

    [42] [1984] 1 WLR 100 at 113; [1984] 1 All ER 35 at 46.

    [43] Ibid at 114 and 46.

    [44] (1986) 161 CLR 475 at 483.

26. The respondent further submitted that irrespective of the width of the phrase “deployed in court”, the applicant had deployed the material by filing the affidavit pursuant to a direction of the Master and had continued to rely upon that material until the applicant’s new solicitors had advised on 18 December 2020 that they placed no reliance on the affidavit.

27. In Banksia Mortgages Limited v Crocker,[45] Schmidt J held that there was sufficient use of material to justify waiver when an affidavit was filed in response to a summary judgment application. The waiver occurred on the filing and serving of the affidavit.[46] Schmidt J further repeated[47] the observations of Austin J in ASIC v Rich[48] where His Honour held that General Accident v Tanter, although followed by the Supreme Court of the Northern Territory in Prus-Grzybowski v Everingham,[49] had been criticised or not followed in other cases.[50]

    [45] [2010] NSWSC 535 at [29].

    [46] Ibid at [35].

    [47] Ibid at [33].

    [48] [2004] NSWSC 923 at [14].

    [49] [1986] NTSC 57; (1986) 44 NTR 7.

    [50] See Sevic v Roarty [1998] NSWSC 462; (1998) 44 NSWLR 287 at 297-8; Re Konigsberg [1989] 1 WLR 1257 at 1264-5.

28. In Re Konigsberg,[51] Peter Gibson J held that the affidavit had been deployed, even though the hearing had not been held, because orders were made (for further interlocutory steps) on the basis that the affidavit had been filed and served. In MAC Hotels Ltd v Rider Levett Bucknall UK Limited,[52] HHJ Havelock-Allan QC held, in a case where witness statements had been served in an interlocutory application that had not been heard, that deployment involved two elements: a clear reference to the existence of the privileged material and reliance on the content of that documentation for making a point.  In the present case, there is clear refence to the material alleged to have been waived and in the June 2020 written submissions, reliance on that material in making a submission.

    [51] [1989] 1 WLR 1257 at 1264.

    [52] [2010] EHWC 767 at [60].

29. The decision in Banksia Mortgages is directly applicable to the current case. In each case, one party filed an affidavit in opposition to the interlocutory application of  the other party. In each case, the party who filed the affidavit disclaimed any reliance on the affidavit before the application was heard and the affidavit formally read or received into evidence. Schmidt J held that there had been conduct which was plainly inconsistent with the maintenance of the privilege.[53] In Banksia Mortgages, the affidavit had been relied upon by the defendant to resist summary judgment.[54] It would be unfair to allow the defendant to have partially revealed the communication to their advantage and then not permit the plaintiff to rely upon it if they wished.[55]

    [53] [2010] NSWSC 535 at [37].

    [54] Ibid at [39].

    [55] Ibid at [40].

30. In my view, the reasoning of Schmidt J is compelling and the conclusion he reached in relation to this issue should be followed. Accordingly, I find that by filing and serving the Behar affidavit and the June 2020 written submissions in opposition to the application of the respondent to amend his defence, the applicant has deployed those materials so as to have waived her privilege over the material.

    Waiver and associated material waiver

31. Having determined that the filing and serving of the Behar affidavit may, in the circumstances, constitute wavier of the contents of that affidavit, the next issue to consider is what material, if any, and what associated material has been waived.  The respondent submits that by her waiver of the material in the Behar affidavit and by the written submissions, the applicant has waived all privilege in advice given to her by her former lawyers in meeting the Nationwide claim, the enforceability of the Nationwide claim and in electing not to pursue recovery of the payment to Nationwide, said to be made under protest. This is a claim of imputed or implied waiver and also of associated materials waiver. 

32. Gleeson CJ, Gaudron, Gummow and Callinan JJ in Mann v Carnell[56] expressed the doctrine of implied waiver in the following terms:

    Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is "imputed by operation of law". This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege. Thus, in Benecke v National Australia Bank, the client was held to have waived privilege by giving evidence, in legal proceedings, concerning her instructions to a barrister in related proceedings, even though she apparently believed she could prevent the barrister from giving the barrister's version of those instructions. She did not subjectively intend to abandon the privilege. She may not even have turned her mind to the question. However, her intentional act was inconsistent with the maintenance of the confidentiality of the communication. What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large (citations omitted).

    [56] [1999] HCA 66; (1999) 201 CLR 1 at [29].

1. It is apparent from this passage, that the waiver of the privilege may be unintentional. The subjective mind of the privilege waiver is irrelevant in that it is the objective inconsistency between the disclosure and the maintenance of privilege that is the subject of the inquiry. The act of disclosure must be voluntary (for example, not compelled under law), even though its consequences may not be voluntary.

2. There is no issue that the waiver was voluntary in the present case in the sense that the applicant consciously deployed the material for her own interests in opposing the application for amendment.[57] It is not to the point that the disclosure was unintentional in the sense that the applicant did not intend to waive privilege.

   [57] AWB Limited v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30 at [133].

   Issue waiver

3. There has been some reference to issue waiver, although the respondent has not framed its case for waiver in this way. In ASIC v Rich, Austin J held:[58]

   A distinction is sometimes drawn between “disclosure” waiver and “issue” waiver, although they may be simply different examples of the application stated in Mann v Carnell.  In the case of “disclosure” waiver, a party behaves inconsistently with the maintenance of privilege by disclosing part, but not all, of a privileged communication. In the case of “issue” waiver, a party behaves inconsistently with the maintenance of the privilege by putting in issue the state of mind of a person in circumstances where that state of mind is likely to have been influenced by a privileged communication.

   [58] [2004] NSWSC 923 at [9]; cited in Banksia Mortgages (above) at [32].

4. In Ampolex Ltd v Perpetual Trustee Co,[59] Giles CJ Comm D held in relation to issue waiver:

   …having exposed to scrutiny their corporate states of mind, being states of mind to which their legal advice is likely to have contributed, GPG Nominees and Allied cannot withhold the advice from their opponent. I emphasise that the legal advice is likely to have contributed to the states of mind of GPG Nominees and Allied, as was plain from the dates of and descriptions of the documents: were that not so, the principle may not have applied.    

   [59] (1995) 37 NSWLR 405 at 411.

5. In my view, this is not a case of issue waiver. The applicant has not put in issue her state of mind.  Rather, it is said that by disclosing some material, she has waived privilege over that document and also various associated material. Even if her state of mind had been put in issue, the relevant state of mind that had been disclosed was the state of mind of the applicant existing at the time of the settlement of the Properties. Any waiver could only extend to documents that affected that state of mind and not later documents such as Mr Munt’s advice. As Doyle CJ observed in Southern Equities Corporation Limited v Arthur Andersen & Co[60] (citing with approval Hong Kong Bank of Australia Ltd  v Murphy)[61] it is only where the client directly or indirectly puts in issue the substance of the privileged communication that the privilege is lost, and then only insofar as is necessary to do justice between the parties.

   [60] [1997] SASC 6373; (1997) 70 SASR 166 at 175.

   [61] [1993] 2 VR 419 at 436.

6. In his oral submissions, counsel for the respondent referred to issue waiver in the sense that the applicant has brought the character of the advice given to her into issue by maintaining that the advice could not be characterised as negligent.[62]

   [62] Transcript of the hearing on 17 February 2021 at p8.

7. I do not consider that the applicant has put into issue the character of the advice. There is no pleading to that effect.  For the reasons that I set out below, the applicant has brought into issue only the fact that advice was obtained, not the substance or character of that advice.  Further, the only issue raised in paragraph [27] of the proposed amended defence at the time of the alleged waiver was the character of the advice that led to the sale of the properties and the distribution of part of those proceeds to Nationwide.

   Questions to be addressed

8. In respect of each document, the disclosure of which the respondent submits has given rise to an implied or imputed waiver of privilege, two questions arise: first, does the document disclose privileged material in that it discloses the gist or substance of legal advice and secondly, if it does disclose privileged material, what associated material, is waived.

9. The respondent has claimed that the applicant disclosed and deployed advice on the topic of the enforceability of the claim of Nationwide and that its mortgage was valid and enforceable as against the applicant.[63]

   [63] Submissions of the respondent at [3].

   Note of conversation with counsel on 28 January 2014

10. Dealing first with the note of the conversation with Mr Lazarevich (paragraphs [68] and [69] of the Behar affidavit and reproduced at paragraph [25](1) of these Reasons), I do not consider that this note discloses the gist or substance of legal advice. The note records a discussion as to the basis upon which Mr Lazarevich might be retained. At most, it identifies possible issues that might arise, but does not disclose any advice about those issues.  Given that Mr Behar was not acting for the applicant at the time of the telephone conversation, I place no weight on his description of the purpose of that telephone call.[64]

    [64] See paragraph [68] of the Behar affidavit.

11. In AWB v Cole (No 5),[65] Young J held that the authorities drew a distinction between a mere reference to the existence of legal advice and cases in which the gist or substance of the advice was disclosed. One of the cases referred to by Young J was Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd.[66]  In that case, Rolfe J (at first instance) held that substance in the case of disclosure meant “the essential nature or part of a thing, essence”.[67]  Rolfe J held that:

    In my opinion the substance of the advice may well be disclosed if the ultimate conclusion, without the supporting reasoning process, is revealed. At that stage there has been, in my opinion, a disclosure of the substance of the advice, that is, what the advice is. Further the ultimate conclusion, whilst it may be a “result” or “consequence” of the reasoning is more than that: in its own right it is the essence or vital part of the advice. Some advices may be very short and answer the question with a minimum of reasoning or, in some circumstances, without any.

    [65] AWB Limited v Cole (No 5) [2006] FCA 1234 at [158].

    [66] (1996) 40 NSWLR 12; [1996] NSWSC 7 and on appeal (1996) 70 ALJR 603.

    [67] (1996) 40 NSWLR 12 at 19.

12. In my opinion, the note does not disclose the substance or gist of any advice about the enforceability of the mortgage or claim of Nationwide or the election not to sue Nationwide.  It does not give advice about the result. In substance, it does no more than refer to the existence of the advice. At most, it discloses matters which may be relevant issues for consideration. In refusing an application for a stay in Ampolex, Kirby J confirmed the distinction between a reference to the mere existence of legal advice and disclosing that advice and held that the decision of Rolfe J in holding that there had been waiver was not attended by sufficient doubt to warrant a stay (and was in fact arguably correct).[68] In Ampolex the disclosed advice (contained in a Part B statement to a takeover) stated that the legal advice supported the position that the correct ratio was 1:1. In that case, the substance of the advice is clearly disclosed. Similarly, in Adelaide Steamship Co Ltd v Spalvins,[69] the material that was contained in the affidavit disclosed the content of the advice from counsel that the matters relating to value should be pleaded in the statement of claim rather than the reply.

    [68] (1996) 70 ALJR 603 at 607.

    [69] [1998] FCA 144; (1998) 81 FCR 360 at 376-377.

13. In AWB Limited v Cole[70] Young J held that the distinction between mere advice having been obtained and a reference that discloses the content of that advice, had not been eliminated by the High Court’s restatement of relevant principles of waiver in Mann v Carnell[71] and referred to cases such as Bennett v Chief Executive Officer of the Australian Customs Service[72] which expressly recognised that distinction.

    [70] [2006] FCA 571; (2006) 152 FCR 382 at [135].

    [71] [1999] HCA 66; (1999) 201 CLR 1 at [29].

    [72] [2004] FCAFC 237; (2004) 140 FCR 101 at [6]-[9].

14. Even if I am wrong in reaching this conclusion, I do not consider that the associated material waiver is correctly characterised by the respondent as all advice on the topic of the enforceability of the Nationwide claim or all communications relating to the demand made by Nationwide.  In AWB v Cole (No 5),[73] Young J held:

    Turning to the scope of any imputed waiver, it is well established that a voluntary disclosure of privileged documents can result in a waiver of privilege over those documents and associated material. The test applied to determine the scope of any waiver of associated material is whether the material that the party has chosen to release from privilege represents the whole of the material relevant to the same issue or subject matter (citing Maurice).[74]

    [73] [2006] FCA 1234 at [164].

    [74] Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475 at [165].

15. Imputed waiver of associated material therefore requires an identification of the issue that is said to have been disclosed by the partial disclosure.  In R v Secretary of State for Transport; ex parte Factortame,[75] Auld LJ held that the issue may be confined to what was said or done in a single transaction or it may be more complex and extend over a series of connected events or transactions. In determining how to apply the test for associated waiver, Mann J in Fulham Leisure Holdings Ltd v Nicholson Graham & Jones[76] held a three stage inquiry was necessary: first, to identify the transaction in respect of which disclosure has been made; secondly, to ascertain from the nature of the disclosure or other evidence whether the transaction is wider than an advice given on a single occasion; and thirdly, the disclosure of the whole transaction may make it plain that further disclosure is necessary to avoid unfairness or misunderstanding of what had been disclosed.

    [75] (1997) 9 Admin LR 591 at 599.

    [76] [2006] 1 All ER 599 at 604.

16. In the present case, assuming for present purposes that there was disclosure of legal advice by the disclosure of the note of the telephone conversation with Mr Lazarevich (contrary to my finding above), the extent of the relevant transaction that has been disclosed must be determined. 

17. Any disclosure must be considered in the context of the events that were occurring at the time that the advice was sought and was provided. That context was:

    (1)By letter dated 5 December 2014 the applicant’s solicitors to Nationwide’s solicitors, the applicant stated that the properties would be sold so that outstanding liabilities may be discharged.

    (2)Some time prior to 15 January 2014, the applicant had entered into a contract with a third party for the sale of the Aldinga Beach and Happy Valley Properties;

    (3)By email dated 15 January 2014, the solicitors for Nationwide indicated that they required payment in full to discharge their mortgage;

    (4)By a further email dated 21 January 2014, the solicitors for Nationwide advised that in addition to payment in full, they required a Deed of Release to be signed by the applicant;

    (5)Settlement of the Aldinga Beach Property occurred on about 24 January 2014;

    (6)By email dated 24  January 2014 from Nationwide’s solicitors to, inter alia, the applicant’s solicitors, Nationwide confirmed that they would be paid out in full;

    (7)By a further email dated 28 January 2014, the solicitors for Nationwide advised they required the Deed of Release of security of costs in the sum of $25,000 (as well as payment in full) to allow settlement of the Happy Valley Property;

    (8)A telephone call between the applicant’s solicitors and Mr Lazarevich took place on 28 January 2014;

    (9)Email from the applicant’s solicitors to Nationwide’s solicitors dated 28 January 2014 in which they indicated that they would not be signing the Deed of Release and reserved the right to sue;

    (10)Emails from Nationwide’s solicitors dated 30 January 2014 putting forward two different figures, a lesser figure if a Deed of Release was provided and a higher figure if it was not provided;

    (11)Ultimately the lesser figure was provided even though a Deed of Release was not provided.

18. This review of the context in which any advice was given demonstrates that the advice was given, after the applicant had already conceded it would pay out the mortgage in full and the remaining question was whether Nationwide could insist upon a Deed of Release or an additional payment for security of costs before discharging the mortgage.  This is very different from the advice sought from Mr Munt which was whether to include Nationwide as a party (ie as a defendant) to the proceedings.  There is no inconsistency (in the sense described in Mann v Carnell) in disclosing advice that led a party to settle a particular transaction and advice relating to subsequent litigation.

19. Had advice been given by Mr Lazarevich, I do not consider that under the doctrine of associated waiver, such waiver would have extended to Mr Munt’s advice or any advice after the settlement on the sale of the properties.

    Communications between the applicant’s former lawyers and the lawyers for Nationwide

20. The matters referred to in paragraphs [71] and [77] of the Behar affidavit (and reproduced at paragraph [25](2) and (3) of these Reasons) which refer to and provide copies of an email sent by the applicant’s lawyers and Nationwide’s lawyers and notes of a telephone conversation between the applicant’s lawyers and Nationwide’s lawyers do not disclose any privileged material.  They simply state the applicant’s position. There is no reference at all to the content of any advice from counsel. There is no reference to any other advice.

21. There is no waiver of privilege where reference is made to particular advice, but not the substance of that advice, and then it is stated that following that advice a particular position or action is taken, As Tamberlain J held in Bennettv Chief Executive Officer of the Australian Customs Service (after finding that there was waiver in that case):[77]

    It may perhaps have been different if it had been simply asserted that the client has taken legal advice and that the position was adopted having considered the advice, is that certain action will be taken or not taken. In those circumstances, the substance of the advice is not disclosed but merely the fact that there was some advice and that it was considered. However, once the conclusion in the advice is stated, together with the effect of it, then in my view, there is imputed waiver of the privilege. The whole point of an advice is the final conclusion.            

    [77] [2004] FCAFC 237; (2004) 140 FCR 101 at 105 [6]

22. The Full Court in Adelaide Steamship Ltd v Spalvins[78] reached the same conclusion in relation to the first aspect of the alleged disclosure that constituted the alleged waiver. The disclosure referred to the obtaining of the advice and the consequent action taken by the plaintiff in that case, but did not state the substance of the advice. In those circumstances, the court held that there was no disclosure.

    [78] [1998] FCA 144; (1998) 81 FCR 360.

23. Tamberlain J reached the same conclusion in Nine Films and Television Pty Ltd v Ninox Television Ltd[79] where he held:

    Even assuming that this statement had in fact been made by Mr McEwen, I still do not consider that it would amount to a waiver of legal professional privilege. Whilst I accept that, in some circumstances, a clear disclosure of the "bottom line" of the advice, and the course of conduct taken thereafter, may be sufficient to amount to waiver of legal professional privilege, I do not think these matters have been established in the present case. On a fair and reasonable reading, the statement to the effect that senior counsel had been engaged and that he had reviewed matters in detail and that steps were being taken based on his recommendations is not sufficient to amount to a waiver of the legal advice. The substance or content of the advice is not disclosed with specificity or clarity. Questions of waiver are matters of fact and degree and, in this instance, I am not persuaded that the conduct, assertions or admissible evidence are sufficient to warrant the necessary implication that legal professional privilege has been waived.

    [79] [2005] FCA 356; (205) 65 IPR 442.

24. It would in my view be an extraordinary result if a party who merely states its position, without referring to the substance of any advice, is taken to have waived all privilege in its underlying advice.

    Communications between Tolis & Co and the applicant

25. The fourth document which is alleged to have brought about the waiver is the note of the telephone conversation between the applicant’s guardian and the applicant’s solicitors on 30 January 2014 (paragraph [79] of the Behar affidavit and reproduced at paragraph [25](4) of these Reasons).

26. I consider that the notes simply record the current position adopted by Nationwide’s lawyers concerning settlement and the consequences of that position to the applicant. It was given after the Aldinga Beach Property had been sold and the applicant had accepted liability for the outstanding amount.  The notes do not record any advice about the enforceability of the mortgage or the merits of any action against Nationwide or about the demand or how to respond to the demand of Nationwide.

27. In my opinion, applying the test and principles relating to associated waiver discussed above, I consider that any advice given in the note of the telephone conversation is limited to the consequences of settling or failing to settle on the Happy Valley Property. There is no associated material waiver of advice relating to the enforceability of the Nationwide mortgage or the merits of any claim against Nationwide or about the demand or how to respond to the demand of Nationwide.

28. The fifth document which is alleged to have brought about the waiver is an email by the applicant’s solicitors to the guardian of the applicant on 30 January 2014 (paragraphs [81.1]-[81.5] of the Behar affidavit and reproduced at paragraph [25](5) of these Reasons). Paragraphs [81.1]-[81.4] simply report on the outcome of the negotiations between the applicant’s lawyers and Nationwide’s lawyers. The statements in those paragraphs do not, in my view, contain legal advice. The statement in paragraph [81.4] does express an opinion about the outcome (“we advise this is a good outcome in the circumstances…”) but again, in my view, it is merely commenting on the negotiations and what has occurred, rather than providing legal advice.

29. Even if I am wrong in this conclusion, the issue being addressed in this statement is the negotiations relating to the settlement of the Happy Valley Property. Any associated material waiver is confined to this topic and does not extend to the issue of the enforceability of the mortgage or the merits of any claim that the applicant may have against Nationwide or how to respond to the demand made by Nationwide.

    Statements in affidavit

30. Sixthly, the respondent alleges that waiver of privileged material is made by paragraph [83] of the Behar affidavit and reproduced at paragraph [25](6) of these Reasons. In my opinion, that paragraph does not disclose any privileged material. There is no reference to advice from counsel or solicitors. The statements in the paragraph simply record the facts existing at the time of settlement.

    The advice from Mr Munt

31. The seventh document which is alleged to constitute a waiver of privileged material are the statements made in paragraphs [84], [85] and [86] of the Behar affidavit and reproduced at paragraph [25](7) of these Reasons which state:

    [84] In late 2014, Mr Christian Munt was briefed by Tolis & Co to provide advice in relation to, inter alia, the Nationwide mortgage issue, including specifically in relation to the validity of the Nationwide registered mortgages, issues of indefeasibility under the Real Property Act 1886 (SA) and claims that the plaintiff may have had against Nationwide.

    [85] Tolis & Co ultimately received advice from Mr Munt concerning these issues. Legal professional privilege in relation to that advice is maintained and not waived.

    [86] Subsequently, after receiving Mr Munt’s advice, the administrators of the Plaintiff’s estate specifically elected to not make Nationwide a named Defendant in this action, nor make any claims against Nationwide on behalf of the Plaintiff.

1. The statement in paragraph [85] of the affidavit that legal professional privilege is not waived simply has the consequence that there has been no express waiver of privilege in the document referred to. It does not affect the inquiry as to whether there has been implied or imputed waiver.

2. However, I do not consider that there has been any implied waiver. There has been simply a reference to the fact that legal advice has been taken, but there has been no disclosure of the substance of that advice.  There is no disclosure of the conclusion of such advice. In my view, the statement of principle made by Tamberlain J in Bennettv Chief Executive Officer of the Australian Customs Service[80] and the Full Court in Adelaide Steamship Ltd v Spalvins[81] (to which cases I have already referred) are directly applicable.  There has been a disclosure of the existence of the advice and a statement of what action was taken by the applicant, but no disclosure of the substance of the advice. Accordingly, I find that there has been no implied or imputed waiver by those statements.

   [80] [2004] FCAFC 237; (2004) 140 FCR 101 at 105 [6].

   [81] [1998] FCA 144; (1998) 81 FCR 360.

   Alleged waiver by the June 2020 written submissions

3. The respondent has further submitted that the applicant waived privilege in a number of respects by the written submissions that she filed on 9 June 2020 in opposition to the application made by the respondent to amend his defence.

4. First, the respondent submits that privilege was waived because of the reference in paragraph [7] of the June 2020 written submission to the advice obtained from Mr Munt. Paragraph [7] of the submissions state:

   [7.1]The monies paid by Ms Patelis to Nationwide under its mortgage were paid on the basis that Ms Patelis reserved her rights against Nationwide, in particular the right to sue Nationwide for her losses in relation to the Nationwide loan and mortgage;

   [7.2] …have against Nationwide, the validity of the Nationwide mortgage and issues of indefeasibility under the Real Property Act 1886 (SA);

   [7.3]after receiving counsel’s advice, Ms Patelis, via the administrators of her estate, made an informed decision not [sic] make Nationwide a named defendant in the action, nor make any claims against Nationwide.

5. In my view, there has been no waiver of privilege by the statements made in paragraph [7]. The statement in paragraph [7.1] simply records a fact and does not contain any legal advice. The statements in paragraphs [7.2] and [7.3] again simply refer to the existence of legal advice, but do not disclose the substance of that advice or the conclusion of that advice. The statement of principle made by Tamberlain J in Bennettv Chief Executive Officer of the Australian Customs Service[82] and the Full Court in Adelaide Steamship Ltd v Spalvins[83] is again directly applicable.

   [82] [2004] FCAFC 237; (2004) 140 FCR 101 at 105 [6].

   [83] [1998] FCA 144; (1998) 81 FCR 360.

6. The respondent next relies upon paragraph [8] of the submissions where the applicant submits that the respondent failed to take into account in his plea at paragraph [27] of the proposed third defence of the facts existing at the time and the reality of the situation being the pressure applied by NAB, as the first mortgagee and the interest rate being charged by Nationwide of 120% per annum.

7. There is, in my opinion, no disclosure of legal advice in that paragraph. The applicant is simply referring to the facts existing at the time of settlement on the Aldinga Beach and Happy Valley Properties.  There is no reference to the substance of any legal advice or the conclusion of such advice. There is no linking of legal advice to a state of mind.

8. The submission by the respondent that the applicant waived privilege by the submission in paragraph [39] of the June 2020 written submissions by the reference to paying the sum of $310,000 to Nationwide:

   ….on the basis that Ms Patelis reserved her rights against Nationwide, in particular the right to sue Nationwide for her losses in relation to the Nationwide Loan and Nationwide Registered Mortgage.  That is, the amounts were paid to Nationwide under protest in order for Ms Patelis to mitigate the liability being alleged against her by Nationwide.

   fails for the same reason. The submission does not disclose the substance of any legal advice. In fact, the submission does not make any reference to legal advice.  Again, the submission simply refers to the facts existing at the time that the payment was made.

9. Lastly, the respondent submits that the applicant waived privilege by paragraph [40] of the June 2020 written submissions which states:

   [40]Tolis & Co obtained some informal advice from Mr Alex Lazarevich of counsel in relation to the Nationwide Registered Mortgage prior to the settlement of the sale of Happy Valley Property and subsequently obtained advice from Mr Christian Munt of counsel in late 2014 regarding claims that Ms Patelis may have against Nationwide, the validity of the Nationwide Registered Mortgage and issues of indefeasibility under the Real Property Act 1886 (SA).

10. Again, in my view there is no waiver of privilege by that submission. The applicant has again simply referred to the existence of legal advice, but has not disclosed the substance of that advice.  The statement of principles made by Tamberlain J in Bennettv Chief Executive Officer of the Australian Customs Service[84] and the Full Court in Adelaide Steamship Ltd v Spalvins[85] are again directly applicable.

    [84] [2004] FCAFC 237; (2004) 140 FCR 101 at 105 [6].

    [85] [1998] FCA 144; (1998) 81 FCR 360.

    Conclusion

11. For the reasons set out in these Reasons, I find that there has been no waiver of privilege on the topic of the enforceability of the Nationwide claim, communications relating to the demand by Nationwide, the merits of a claim against Nationwide or electing not to pursue recovery action against Nationwide.

12. Accordingly, I dismiss the application of the respondent.

13. I will hear the parties on the question of costs.