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…
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- AGLC
- Patelis v Sander [2021] SADC 54
- Case
- [2021] SADC 54
- Decision Date
CaseChat Overview and Summary
The central legal issues revolved around whether the applicant had waived the privilege of the documents she sought to protect. The court had to consider whether the privilege had been waived by the conduct of the applicant or her former solicitors, whether the privilege had been lost due to the disclosure of the gist of the legal advice, and whether there was an implied waiver of privilege. The court also needed to determine the scope of legal professional privilege, including whether it applies to communications prior to the retention of counsel and if it extends to documents that do not explicitly refer to legal advice.
The court found that there had been no waiver of the privileged documents. It held that legal professional privilege can attach to communications even if they do not explicitly refer to legal advice and that it can apply to documents that form part of the continuum of communication between the lawyer and client. The court applied the principle from Property Alliance Group Ltd v Royal Bank of Scotland PLC (No 2) and Minter v Priest to affirm the broad scope of privilege. The doctrine of ostensible authority was considered, but the court found that the respondent did not know that the applicant’s former solicitors were acting solely in their own interests. The court also clarified that privilege can be waived through issue waiver and implied waiver, but neither applied in this case. The court found that the applicant had not put in issue her state of mind and had not impliedly waived the privilege.
In conclusion, the application by the respondent for the production of the privileged communications was dismissed. The court emphasised the broad scope of legal professional privilege, including its applicability to communications prior to the retention of counsel and documents that do not explicitly refer to legal advice. The court also detailed the circumstances under which privilege may be waived, reaffirming that there was no waiver in this instance.
Orders
Orders of the court
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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