Pegela Pty Ltd v AXA

[2003] VSC 511

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 2026 of 2002

PEGELA PTY LTD & ORS	Plaintiffs
v
AXA	Defendant

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JUDGE:	Redlich J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 November 2003 to 19 December 2003 (Completion of evidence only)
DATE OF RULING:	26 November 2003
CASE MAY BE CITED AS:	Pegela -v- AXA
MEDIUM NEUTRAL CITATION:	[2003] VSC 511

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RULING NO. 1

Legal professional privilege – Witness draft statements – Similarities of expression in different witness statements – Privilege not waived – No unfairness by party claiming privilege.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr P. Hayes Q.C. with Mr I. Stewart of Counsel	Madwicks Lawyers
For the Defendant	Mr R. Brett Q.C. with Mr G. Gleeson and Mr D. Bennett of Counsel	P.W. Turk & Associates

HIS HONOUR:

1. I think in the interests of the expedition of the trial I should give brief reasons now for my decisions to reject the Defendant’s call for drafts of the witness statement of Mr Tom Oates, which he acknowledged in his testimony had been prepared during the course of 2002 and 2003.

1. In resisting the call, the Plaintiffs submitted that I should reject the request because it was made during re-examination of Mr Tom Oates, and that the opportunity for such a call had well and truly passed, Mr Gleeson having concluded a substantial cross-examination of that witness.

1. Mr Gleeson acknowledged that the call was being made because the issue had been opened as a consequence of both Mr Oates' evidence and cross-examination, and because of the further supplementary statement of Scott Tyne which was provided to the court yesterday (and which is intended to be the subject of further evidence from Mr Tyne).  As a consequence of those developments, the call was made.  In my view, nothing turns on the fact that the request was made in the course of re-examination.

1. The Defendant seeks to justify the call for what appears, prima facie, to be a document which is privileged, claiming the Plaintiffs have waived privilege by virtue of the Plaintiffs foreshadowing their intention to recall Mr Tyne to give evidence in accordance with his further supplementary statement.

1. Secondly, the Defendant relies upon the fact that the Plaintiffs provided the Defendant with a copy of the original Verekers’ statement, which Mr Tom Oates said in his testimony had been prepared by him at a much earlier point of time, and which formed the basis of the statement in its present form.

1. It is clear that I should rule that the Defendant’s call should not be enforced.  I am not satisfied that the manner in which the issue has been raised sufficiently involves the content of any of the draft statements of Mr Tom Oates so as to support the argument that privilege has been waived in relation to those draft statements. 

1. In the judgment which I gave in Anderson v Holding Redlich & Ors,[1] on 7 August 2003, I referred at some length to the recent decision of the Court of Appeal in British and American Tobacco and Australia Services Ltd v Cowell.[2]  I will not repeat the passages that I there referred to.  Applying the principles set out in those passages, it is clear that the exploration of Mr Tom Oates' draft statements has fallen far short of supporting the contention that privilege has been waived in relation to those draft statements.  See DSE (Holdings) Pty Ltd v InterTAN Inc[3];  Telstra Corp Ltd & Anor v BT Australia Pty Ltd & Anor[4];  and Liquorland (Australia) Pty Ltd & Anor v Anghie & Ors.[5]

   [1][2003] VSC 303.

   [2][2002] VSCA 197 at paragraphs [124-130].

   [3][2003] FCA 384.

   [4][1998] FCA 901.

   [5][2003] VSC 73.

1. In essence, the Defendant says that fairness requires that it have access to such drafts, because the issue has been raised as to whether those drafts might explain similarities of expression in the statements of Mr Tom Oates and Mr Tyne, which formed part of each of those witnesses' evidence-in-chief.

1. I readily accept that access to those draft statements might well throw light on the strength or weakness of the Plaintiffs' explanation for why those similarities exist.  The fact that privileged information may resolve an issue of fact between the parties is an insufficient reason to regard privilege as having been waived.  In other words, legal professional privilege ought not to be treated as waived, merely because it is apparent from the issues that are being explored that such a document would throw light on the way one or the other party puts their position.  See British American Tobacco.[6]

   [6]Supra at paragraph [130].

1. Privilege will only be waived where the content of the privileged document has been unmistakably introduced into evidence by a party so as to make it unfair for that party to deny the other party access to the privileged document.  It is in this limited sense that fairness is relevant.  See Attorney-General v Maurice[7];  Hongkong Bank of Australia v Murphy[8];  Goldberg v Ng[9];  and Mann v Carnell.[10]  The refusal by a party to permit access to a privileged document which is concerned with facts in dispute does not constitute unfairness.

   [7](1986) 161 CLR 475.

   [8][1993] 2 VR 419.

   [9](1995) 185 CLR 83.

   [10](1999) 201 CLR 1.

1. For those less than perfect reasons, I rule that the Plaintiff is not obliged to respond to the call.  That is not to say anything about whether or not the Defendant may have a right to seek the material referred to in Mr Tyne's further supplementary statement.