Robertson v Robertson & Ors (Ruling No 2)

[2009] VSC 120

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 10039 of 2007

GRANT ANTHONY ROBERTSON	Plaintiff
v
BERNARD BRESLIN SPENCE ROBERTSON & ORS	Defendants

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JUDGE:	HARPER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 MARCH 2009
DATE OF RULING:	10 MARCH 2009
CASE MAY BE CITED AS:	ROBERTSON v ROBERTSON (Ruling No. 2)
MEDIUM NEUTRAL CITATION:	[2009] VSC 120

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PRACTICE AND PROCEDURE – Legal professional privilege – Joint privilege – Parties sought legal advice from senior counsel – Whether waiver of privilege – Effect of discovery of documents subject to privilege – Whether oral evidence of instructions given to counsel can be adduced – Whether any inconsistency between denial in defence and maintenance of the privilege - Mann v Carnell (1999) 201 CLR 1 applied.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M. Pearce SC with Mr R. Hay	Mills Oakley
For the Defendants	Mr D. Collins SC with Mr A. McClelland	Brian Ward & Partners

HIS HONOUR:

1. The plaintiff in this litigation seeks to prove a number of agreements which he asserts were made with his father.  Those agreements were at least generally speaking oral and to be implied.  At least, that is the way they are pleaded in the relevant statement of claim.  

1. In support of the proposition that the agreements upon which the plaintiff relies were made, the plaintiff seeks to adduce evidence from Mr George Beaumont of Queen's Counsel about instructions given to Mr Beaumont during the course of conferences which he, and on at least a number of occasions a junior barrister, had with the plaintiff and his father.  Those conferences are clearly subject to legal professional privilege.  The question is whether the defendants, or more particularly Mr Bernard Robertson, have or has waived that privilege.  It is contended on behalf of the plaintiff that such waiver has occurred.  The defendants resist that contention. 

1. As a general proposition, it is the law that waiver of legal professional privilege will occur if there is a relevant inconsistency between the conduct of the party claiming a privilege and the maintenance of that privilege.  The authority for that proposition is the High Court case of Mann v Carnell.[1]

   [1](1999) 201 CLR 1

1. The plaintiff submits that here such a relevant inconsistency has been made out.   There are two bases upon which the plaintiff seeks to support that proposition.  First, the plaintiff submits through Mr Pearce of Senior Counsel on the plaintiff's behalf that the defendants have partially disclosed the communications in question, and that it would be inconsistent were the entirety of those communications not now made known to the court.  Secondly, it is submitted that there is in issue in these proceedings the question whether the agreements upon which the plaintiff relies were in fact made.  The defendants have denied the creation of and the existence of those agreements.

1. Accordingly, the plaintiff submits, the defendants have put the existence of the agreements in issue;  and it follows that the plaintiff is by reason of that denial entitled in order to preserve consistency in the defendants' position, to put before the court the contents of the communications with Mr Beaumont.

1. It is true that the defendants have discovered each of a number of documents that form part of the body of documentation associated with the legal work done by Mr Beaumont for Mr Grant Robertson and his father.  I have been informed by the defendants that the tender of a number of those documents is not opposed.  They have not yet been tendered, but if the plaintiff seeks to tender them they will go into evidence.  What is opposed is the introduction of evidence about the instructions behind such of the documents as were prepared by Mr Beaumont, with or without the assistance of a junior barrister, and one or two other documents which form part of the matrix of facts against which Mr Beaumont received the instructions he did receive from each of Mr Bernard Robertson and Mr Grant Robertson, and the advice which he gave to them.

1. In my opinion, the discovery of the documents in question, even if followed by their tender, would not amount and does not amount to partial disclosure of material where an inconsistency would arise if the communications surrounding those documents were not disclosed to the court.  The documents will have a limited value as evidence.  I will not be in a position to infer from them that particular instructions were given in relation to their production, and they will be restricted in their effect to the four corners of the documents themselves.  In those circumstances, in my opinion there has been no partial disclosure of any communication between Mr Bernard Robertson and Mr Grant Robertson on the one hand, and Mr George Beaumont on the other.

1. The next question is whether the joinder of issue on the creation of the relevant agreements amounts to, or gives rise to, a situation where the defendants have placed themselves in a position from which it would be inconsistent for them to resist the disclosure to the court of the communications in question.  In my opinion, the mere denial of an allegation in a pleading, certainly in the circumstances of this case, does not amount to an inconsistency by reason of the issue which the denial necessarily raises.  The denial does not of itself, it seems to me, give rise to an inconsistency between the conduct of the defendants in making that denial and the maintenance of the privilege.

1. Put more accurately for the purposes of the present case, it seems to me that the denial does not say anything about any instructions or indeed any communications that may have passed from Mr Bernard Robertson or Mr Grant Robertson and Mr Beaumont, or in the other direction.  It merely puts the plaintiff to his proof in establishing that the agreements upon which he relies came into existence.  It does not otherwise give rise to any inconsistency, it seems to me, between the conduct involved in the denial and the maintenance of the privilege.

1. For those reasons, in my opinion the application to adduce evidence from Mr Beaumont about the communications he had with Mr Bernard Robertson and Mr Grant Robertson should be refused.

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