Payne v Laver Pty Ltd - [2000] TASSC 38

[2000] TASSC 38

CITATION: Payne v Laver Pty Ltd & Others [2000] TASSC 38

PARTIES:  PAYNE, John Colin Roy
  v
  LAVER PTY LTD

VERDOUW, Karen Jane
VERDOUW, Eric
VERDOUW, Mark William
VERDOUW, Tracy Adelle
WITBREUK, Jeff
WITBREUK, Christina

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  303/1997
DELIVERED ON:  6 April 2000
DELIVERED AT:  Hobart
HEARING DATE:  3 - 7, 11 - 14 April 2000
JUDGMENT OF:  Cox CJ

CATCHWORDS:

Evidence - Facts excluded from proof - On grounds of privilege - Professional confidence - Legal profession - Waiver of privilege - Production for inspection of proof of evidence used to refresh witness's memory - Whether inconsistent with maintenance of the privilege.

Mann v Carnell (1999) 168 ALR 86; Mather v Morgan [1971] Tas SR 192; Mancorp Pty Ltd v Baulderstone Pty Ltd (t/as Baulderstone Hornibrook) (1991) 57 SASR 87; Trade Practices Commission v TNT Management Pty Ltd and Others (1984) 56 ALR 647, referred to.
Aust Dig Evidence [75]

REPRESENTATION:

Counsel:
           Plaintiff:  R J Phillips, T Levis
           First Defendant:  D J Gunson
           Second Defendant:  R J Lyon
Solicitors:
           Plaintiff:  Phillips Taglieri
           First Defendant:  Gunson Pickard & Hann
           Second Defendant:  Page Seager

Judgment Number: [2000] TASSC 38
Number of paragraphs: 6

Serial No 38/2000
File No 303/1997

JOHN COLIN ROY PAYNE v LAVER PTY LTD,
KAREN JANE VERDOUW, ERIC VERDOUW, MARK WILLIAM VERDOUW, TRACY ADELLE VERDOUW, JEFF WITBREUK and CHRISTINA WITBREUK

REASONS FOR JUDGMENT COX CJ

(DELIVERED ORALLY) 6 April 2000

The plaintiff, having acknowledged in cross-examination that prior to giving evidence he had refreshed his memory by reference to (inter alia) a document described as his proof of evidence, I have been asked to rule whether or not counsel for the first-named defendant, having called for the production of that document, may inspect it without penalty. I have taken evidence on the voire dire as to its nature, provenance and use. In the first place it can be observed that it is clearly a privileged document. Secondly, it is a document which physically came into existence on 29 February 2000. I infer that it is a compilation of instructions taken from the witness at an unknown time or times from about the date the writ was issued, or shortly before, and that it was first prepared by counsel for the plaintiff, or by one of his colleagues. As typed, it was not, in the witness’s view, wholly accurate and he made some notes upon it, from which it appears a further document, for the assistance of counsel and part of his brief, was prepared. The witness has not seen the latter document.

Between the 29 February 2000 and last weekend, the trial having started on Monday of this week, he looked at it again and the witness acknowledges that it has refreshed his memory in respect of some parts of his evidence. He acknowledges that there may have been some details which he had forgotten which came back to his mind…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] TASSC 38
Decision Date: 6 April 2000

CaseChat Overview and Summary

The case of Payne v Laver Pty Ltd involved the plaintiff, John Colin Roy Payne, suing Laver Pty Ltd and several individuals, including Karen Jane Verdouw, Eric Verdouw, Mark William Verdouw, Tracy Adelle Verdouw, Jeff Witbreuk, and Christina Witbreuk. The dispute arose from an action related to professional negligence and was heard in the Supreme Court of Tasmania. The central legal issue was whether the plaintiff's privilege over a document used to refresh his memory before giving evidence had been waived, thereby allowing the defendant's counsel to inspect the document.

The court considered whether the privilege had been waived by the plaintiff's use of the document to refresh his memory. The High Court's decision in Mann v Carnell highlighted that waiver occurs when there is inconsistency between the client's conduct and the maintenance of confidentiality. The court also examined whether fairness to the opposing party necessitated the waiver. In the present case, the document was not intended to refresh memory but to confirm instructions and correct any misunderstandings. The plaintiff had not intentionally or expressly waived the privilege, and the court found no implied waiver, concluding that the plaintiff's use of the document did not constitute unfairness to the defendants. The document's production would be unfair to the plaintiff, and the failure to produce it did not unduly prejudice the defendants.

In conclusion, the court ruled that the privilege had not been waived, and the defendant's counsel was not entitled to inspect the document. The court's decision was based on the specific circumstances of the case, where the document was not primarily intended for refreshing memory and no unfairness to the defendants resulted from withholding the document. The ruling underscored the importance of examining each case individually to determine whether privilege has been waived, considering both the nature of the document and the implications for fairness between the parties.

Orders