Shaw v Harris (No 1)
[1992] TASSC 69
•30 March 1992
Serial No A12/1992
List “A”
CITATION: Shaw v Harris (No 1) [1992] TASSC 69; A12/1992
PARTIES: SHAW
v
HARRIS
COURT: SUPREME COURT OF TASMANIA
FILE NO/S: 180/1989
DELIVERED ON: 30 March 1992
JUDGMENT OF: Wright J
CATCHWORDS:
Evidence – Fresh evidence – Application to re–open case after conclusion of evidence and addresses but before judgment – Principles to be applied.
Confidential documents obtained by opposing party – Admissibility in evidence – Discretion to admit – Conduct of parties.
Confidentiality and legal professional privilege compared – Waiver.
Practice and procedure – Affidavits – Contents of – Scandalous matter – RSC O 41, r13.
Judgment Number: A12/1992
Number of paragraphs: 26
Serial No 12/1992
List "A"
File No 180/1989
SHAW v HARRIS (No 1)
REASONS FOR JUDGMENT WRIGHT J
30 March 1992
This case was reserved for judgment after a trial in Launceston in December 1991. On 30 January 1992, the defendants filed an undated application seeking the following orders:
"1. That the trial of the matter be re–opened.
2.That leave be granted to call the first and second named plaintiffs for further cross–examination.
3.That leave be granted for the defendants to call additional witnesses in support of this fresh material that has become available.
4.That leave be granted for the defendants to call a witness that [sic] was not available during the hearing of the matter."
On 17 March 1992 the plaintiffs filed a cross–application seeking orders:
"1.That the defendants be restrained from using or relying on in any manner whatsoever in this action on [sic] the contents of Exhibit 'A' to the first named defendant's affidavit dated 30 January 1992 or any information derived from the same.
2.That the defendants deliver up any copies or extracts from Exhibit 'A' in their possession, custody or poer [sic] to the plaintiffs by Friday 27 March, 1992.
3. That Exhibit 'A' be released to the plaintiffs."
Due to the defendants changing their solicitors after 30 January 1992 and the plaintiffs' solicitors seeing a necessity to brief independent counsel in view of certain accusations contained in a supporting affidavit sworn and filed by the male defendant, it was not practicable to deal with either application until 23 March 1992.
That there is an inherent discretionary power vested in the court to allow a case to be re–opened for the purpose of taking further evidence is beyond dispute. (Schuster v. Sawtschenko (No 2), Serial No 10/1970, Chambers J; Betts v Whittingslowe (No 1) [1944] SASR 163). Such a discretion should be exercised sparingly however and the introduction of additional evidence should only be permitted:
(a) when it is so material that the interests of justice require it;
(b) when if believed it would most probably effect the result of the trial; and
(c)when it could not have been discovered by reasonable diligence prior to the conclusion of the trial.
(See Watson v Metropolitan (Perth) Passenger Transport Trust [1965] WAR 88, per Wolff CJ at p89 and Murray v Figge (1974) 4 ALR 612).
The defendants' application is most unusual in that it is based upon the defendants' acquisition of documents which originally formed part of the brief to counsel for the plaintiffs. The affidavits filed on behalf of the defendants show that the documents came into the male defendant's hands in the following circumstances. At the conclusion of the day's proceedings on 6 December 1991, Mr Philip Welch, who appeared at the trial as counsel for the defendants, gathered up a number of books, files and lever arch folders from the bar table of the Supreme Court and returned with them to his office at 109 Cameron Street, Launceston, where he put them on chairs and a filing cabinet. Thereafter, Mr Welch did not look at the lever arch folders until about 9 December 1991. On that day the male defendant request Mr Welch to make available to him the copy of the transcript in the proceedings. It was arranged that Mrs Harris would collect the transcript from Mr Welch's office.
On 9 December Mr Welch was approached by his secretary, Miss Loosmore, who informed him that Mrs. Harris was in attendance at the office requesting the copy transcript. During the course of proceedings, Mr Welch had kept his copy of the transcript in grey lever arch folders. Miss Loosmore collected two such folders from Mr Welch's office and she then drew Mr Welch's attention to the existence of another grey lever arch folder on a chair in the office. The above facts were deposed to by Mr Welch in an affidavit sworn by him on 31 January 1992. He concludes his affidavit saying:
"I did not look closely at the grey lever arch folder and as it appeared to be a folder of the type in which the first named defendant had kept copy pleadings and other materials relevant to the action during the course of the proceedings, I gave that folder to my secretary for her to give to Mrs. Harris."
Miss Loosmore, in an affidavit sworn on the same day, verified Mr Welch's narration of events insofar as she had been involved in them. Other affidavits filed by the male defendant and Mr Timothy Dunk confirmed that the documents had been given to Mr Harris at his home at "Tahara House", Deloraine on 9 December and that the male defendant perused the contents of the third grey lever arch file after it was brought to his attention by Mr Dunk. None of the deponents was required for cross–examination and the plaintiffs did not seek to challenge the contents of the affidavits of Mr Welch, Miss Loosmore and Mr Dunk.
On the basis of the foregoing chronology of events, whilst it cannot be said that the documents came into the defendants' possession as the result of any illegal or deceitful conduct, equally it cannot be said that they were given the documents by the plaintiffs by mistake or that they acquired them as a consequence of carelessness on the part of the plaintiffs or their legal advisers. It can safely be assumed of course that Mr Welch did not deliberately take what he knew or believed to be part of his opponent's brief. Once Mr Harris had examined the contents of the grey lever arch file, it became clear that it contained (inter alia) correspondence between the plaintiffs and their solicitors, notes of the plaintiff's written instructions to his solicitors, and other confidential material of a like kind. The folder was marked as Exhibit "A" to the male defendant's affidavit.
Counsel are entitled to leave documents on the bar table during the course of a trial in the confident expectation that they will not be examined, copied or purloined by the opposing party or his counsel. On the other hand, the present circumstances will no doubt serve as a reminder to counsel that such a course has its dangers, and that confusion or error may result in confidential material falling into the wrong hands unless it is adequately secured or protected from disclosure.
The defendants' primary application is to re–open the trial so that the plaintiffs may be recalled for further cross–examination during which allegedly contradictory or inconsistent statements made by them in their communications with their legal advisers will be put to them to test their credit. No doubt it is expected that this process will also lay the foundation for tendering the brief documents in evidence by the defendants under the Evidence Act 1910, s.98, if the pre–conditions prescribed in that section were satisfied. The defendants also seek leave to re–open their case to call oral evidence from a witness who was not called at the trial. However, this part of the application must fail in limine. The nature of the evidence to be given by this witness (who was not named either in the application or during the course of the hearing before me) was apparently known to the defence prior to the trial. No proper steps were taken to secure his attendance at the trial, the defence case was closed without calling him or seeking an adjournment to do so, and the relevance of his evidence was not disclosed in any affidavit filed for the purpose of the present proceedings. It is clear that none of the tests propounded in Watson v Metropolitan (Perth) Passenger Transport Trust (supra) has been satisfied in respect of this part of the application which accordingly, must be refused.
The defendants have also several hurdles to surmount in respect of the material contained in the plaintiffs' brief. Whilst evidence of the kind now in question is usually not available to the opposing party, it is somewhat surprising to see from the multiplicity of cases the extent to which there has been debate over the years as to whether or not material of this kind may be used or relied upon by an opponent in litigation. Being mindful that once admitted into evidence, material of this kind may be utilised by the tribunal of fact for any appropriate purpose irrespective of its originally privileged or confidential status, the plaintiffs have objected to the admission of such evidence, even for the purpose of the defendants' present application before me.
In his article, Inadvertent Disclosure in Civil Proceedings (1991) 107 LQR, at p99, Dr ALE Newbold argues compellingly that in situations such as the present, a failure to distinguish between "legal professional privilege" and "confidentiality" has led to a widespread misunderstanding and misapplication of relevant principles in past decisions. As he says, the question of privilege arises when a third party seeks to compel a solicitor to disclose his client's communications, whereas the question of confidentiality, and the extent to which it will be protected by the courts, arises where such a communication, having been disclosed by the solicitor having control of it, another party seeks to use it for evidentiary purposes in the course of litigious proceedings. The learned author says (at p102):
"It is not sufficient to understand that there is a distinction between privilege and confidentiality. It must be recognised that the two doctrines apply in two separate and mutually exclusive situations. Once a document is in the hands of a third party privilege is irrelevant."
Dr Newbold's helpful and incisive analysis of the English decisions and the approach taken therein to problems of the present kind, whilst critical of the confusion demonstrated by some judges, comes to the conclusion that nonetheless the results achieved and the decisions given illustrate a consistent pattern of judicial recognition of an important underlying principle viz., that merely because a document may have been successfully withheld from disclosure to an opponent in litigation pursuant to a claim of legal professional privilege, there is no absolute rule preventing evidence of the contents of such a document being adduced by the party who has obtained the document or a copy or has been acquainted in some way with its contents. On the other hand, there is also general recognition that if, before it is so used for evidentiary purposes, the party whose document has been disclosed applies to the court for an injunctive order to compel the return of such document, and/or the destruction of copies or notes thereof, such an order will usually be made in the exercise of the court's equitable jurisdiction to prevent the unauthorised use of confidential material. The circumstances in which the original party lost the documents and the degree of turpitude, if any, on the part of the party acquiring them will be relevant to this exercise. More importantly however, such an order will only be made in respect of confidential documents, properly so called.
This principle can be traced back to Ashburton v Pape [1913] 2 Ch 469 and is usefully distilled in the words of Swinfen Eady LJ at p438:
"The principle upon which the Court of Chancery has acted for many years has been to restrain the publication of confidential information improperly or surreptitiously obtained or of information imparted in confidence which ought not to be divulged."
In Goddard v Nationwide Building Society [1986] 3 WLR 734 at p743, May LJ said:
"If a litigant has in his possession copies of documents to which legal professional privilege attaches he may nevertheless use such copies as secondary evidence in his litigation; however, if he has not yet used the documents in that way, the mere fact that he intends to do so is no answer to a claim against him by the person in whom the privilege is vested for delivery up of the copies and to restrain him from disclosing or making any use of any information contained in them."
Whilst the use of "privilege" terminology in this excerpt may be one to which Dr Newbold would object, the underlying principle is clear enough. This decision, and also dicta by Browne Wilkinson VC to similar effect in English and American Insurance Co Ltd v Herbert Smith [1988] FSR 232, were quoted with approval and applied by Rogers J. in Hooker Corporation Ltd v Darling Harbour Authority (1987) 9 NSWLR 538 and that decision in turn was relied upon by Kennedy J in Key International Drilling Co Ltd v TNT Bulk Ships [1989] WAR 280. As Kennedy J also recognised by reference to a number of English authorities, a party who has waived privilege (or perhaps more accurately) has abandoned the right to have the document treated as a confidential communication, cannot thereafter seek to limit or prevent its use in evidence. I see no reason to pursue the interesting argument mounted by Mr Evans of counsel for the plaintiffs to the effect that Calcraft v Guest (1898) 1 QB 759 is bad law and should not be followed in Australia in light of criticisms of the decision made by Brennan J in Baker v Campbell (1983) 49 ALR 385 and by the New Zealand Court of Appeal in R v Uljee [1982] 1 NZLR 561. The latter case however was concerned with the admissibility of evidence in a criminal trial of a conversation between an accused person and his solicitor which was overheard by a third person. In Baker v Campbell (supra) the issue was whether indisputably privileged documents could be seized under a search warrant issued under the Crimes Act 1914 (Cth), s10(b).
In the present case, Mr Chadwick of counsel for the defendant has sought to read his client's affidavit including the annexure Exhibit "A". As already indicated, Mr Evans objects to this course and asks me to make the orders set forth in his clients' application dated 17 March. Mr Chadwick submits that as his clients' application was first in time, and as there was no deceit or blameworthy conduct on the part of the defendants which caused the male defendant to acquire possession of the plaintiffs' documents, it is appropriate and in the public interest generally, that the material should be admitted into evidence. Mr Evans, on the other hand, says that until read into evidence the court has power to restrain the use of that material and in all the circumstances, it would be appropriate to make the orders which his client seeks forthwith.
I accept Mr Chadwick's submission that the plaintiff has no absolute right to such orders and that this case is somewhat unique in that it is not possible on the material available to clearly assign fault to any individual party or solicitor in causing the contents of the plaintiffs' brief to be divulged to the male defendant in the way that it was. It seems to me however, that until they are formally received into evidence the court not only has the power to prevent the plaintiffs' documents being deprived of their confidential character, but that it should normally exercise this power to achieve that result unless the interests of justice clearly call for a contrary conclusion, or the owner of the document has been guilty of disentitling conduct such as waiver, acquiescence or the like. In the present case, it was argued that there had been disentitling delay by the plaintiffs, but I reject that submission. Both applications were listed before me for hearing at the same time and there was no application that they should be considered separately. In any event, I would have regarded it as appropriate that they should be dealt with together. I think it would be wrong to dispose of the defendants' application, although filed first, before dealing with the plaintiffs' application if by doing so the plaintiff were to be deprived of his legitimate interest in keeping his communications with his solicitor and counsel confidential. In my view I should make the orders sought by the plaintiffs and, as an inevitable consequence, I should refuse the orders sought by the defendants.
I have of course perused the male defendant's affidavit and insofar as the contents of Exhibit "A" have been quoted in or reproduced in that affidavit, I am aware of the contents of that folder of documents. Having regard to the unusual circumstances of the defendants' application, I take the view that I should make some comments upon the material which it is sought to place before me, lest it be suggested that I have fallen into error in disposing of the defendants' application without considering the weight or substance of the disputed material.
In short, if the confidential material in Exhibit "A" should be admitted into evidence, a completely separate and distinct basis for refusing the defendants' application becomes apparent.
In the course of his argument, Mr Evans made submissions that, (i) the contents of the male defendant's affidavit were largely inadmissible, irrespective of their disclosure of confidential material, and (ii) in any event, if examined, the confidential material was not in conflict with the plaintiffs' evidence at the trial. Mr Evans submitted that the male defendant's affidavit contained inadmissible opinion, both as to the conduct of other persons and the construction of documents, and that it was argumentative and contained scandalous matter. Whether or not the affidavit in question was drawn by a solicitor acting for the defendants, I am unable to say. I would certainly hope that it was not. Equally, I would hope that it was not settled by counsel. I must say that it has the general appearance of having been prepared by the male defendant himself.
Mr Chadwick attempted to justify the contents of the affidavit on the basis that it put the plaintiffs on notice as to the allegations which would be made against them and that it also effectively particularised the material which is alleged to be inconsistent with the evidence at the trial. In my opinion the form and content of the affidavit cannot be supported on this basis. There is a right way and a wrong way of supplying your opponent with details of the allegations to be made and the claimed effect of such allegations. This was the wrong way. Indeed, much of the affidavit was more than just extravagant, it was outrageous, the more so as the male defendant himself is a practitioner of this Court. It contains explicit and generalised allegations of criminal misconduct against the plaintiffs and their legal representatives and it uses inflammatory and undisciplined language in the course of doing so. This is improper and in breach of RSC, O 41, r 13. It is inappropriate for me to illustrate my views by reference to the contents of the affidavit and to thus perpetuate this regrettable state of affairs. However, I identify paras 6, 7, 9, 20 and the penultimate sentence in para.21 as falling into this category. A portion of para 18 which also contained objectionable material of this kind, was ruled inadmissible at the hearing with the agreement of counsel for the defendants. I need hardly add that none of the accusations has been substantiated in any way whatsoever.
It was submitted that I should order the destruction of the offending affidavit, but it was agreed after discussion with counsel that an equally appropriate course may be to allow the affidavit to remain on the court file, but in a sealed envelope which is not to be opened without an order of the court. This is the course which I propose to take.
The other objections taken by Mr Evans in respect of individual portions of the affidavit are also sustained in my view. Rather than putting the affidavit aside and requiring a fresh affidavit in acceptable form to be filed, I think that in the circumstances it is much more satisfactory that I should simply ignore the objectionable and inadmissible material, and consider whatever substance remains for the purpose of resolving the remaining issues now before me. In essence the defendant claims, in paras 13 to 18 inclusive, that certain identified passages in the plaintiffs' instructions to their legal advisers contained in the brief, conflict with their sworn testimony at the trial. For the moment I will ignore the fact that such evidence as it is proposed to use upon the trial being re–opened, bears essentially upon the credit of the two plaintiffs, rather than any particular issue of fact in the trial. It seems to me that if substantial contradictions or inconsistencies can be demonstrated, this may have a bearing upon the outcome of proceedings, particularly if such matters are so significant as to rob the plaintiffs of the ability to discharge any relevant onus of proof. However, looking at the alleged inconsistencies or contradictions mentioned in the defendants' affidavit, I can at once make the following comments:
1Paragraph 13. None of the alleged contradictions has substance. Whether the male plaintiff, a layman, referred to the relevant clause in the contract of sale as a "nomination" provision, rather than an assignment, is immaterial to my interpretation of the true nature of the transaction, and furthermore, the claimed inconsistencies, even if established, would not be capable of undermining my acceptance of the plaintiff's evidence on this point. In short, I do not regard the material quoted in the affidavit as having the effect of establishing that the plaintiff has given two inconsistent versions of his involvement in or understanding of the transaction.
2Paragraph 14. The quoted passage from the brief is not inconsistent with the plaintiff's evidence at the trial. It is ludicrous to suggest otherwise. Indeed, I would regard it, if anything, as confirmatory of the plaintiff's oral testimony.
3Paragraph 15. There is no clear ambiguity or inconsistency in this. There is certainly nothing here which could cause me to reach a conclusion contrary to that which I have already reached as to the relevant course of events.
4Paragraphs 16, 17 and 18. This material relates to the plaintiff's motivation and course of conduct in dealing with Gatenby Reed and Wickham and his solicitor, Mr De Graaf. As will be shown by a perusal of the reasons for judgment in Shaw v Harris (No 2), to be delivered immediately after my present decision, I have already reached conclusions as adverse to the plaintiffs as the quoted material in the affidavit could justify in respect of these issues. To put the matter in this way makes it unnecessary for me to undertake a detailed comparison of the quoted material with the plaintiff's evidence given at the trial or to make a comparative evaluation to see whether such material can truly be regarded as inconsistent or contradictory.
It follows from what I have said that it would be impossible for the defendants' application to succeed on the merits, even if I were to admit the disputed material into evidence. Mr Chadwick made it completely clear that the brief material contained in Exhibit "A" was not claimed to contain any allegedly contradictory material other than that reproduced in the male defendant's affidavit. In making the assessments of the material which I have set out above, I have taken into account the argument that the cumulative effect of seemingly insignificant discrepancies may be enough to so undermine the reliability or credibility of a witness as to make his or her entire evidence on disputed issues suspect. Having looked at the matter in this way I can still assert that my evaluation of all witnesses would remain the same as it was at the time I prepared my draft reasons for judgment and before considering the material in support of the present application. It has been conceded by Mr Chadwick that if his clients' application to re–open the case is unsuccessful, he could not oppose an order directing the return of the brief material to the plaintiffs' solicitors and the consequential orders sought in the plaintiffs' application. On the basis of my findings and this concession, I can dispose of both applications forthwith.
Like Muirhead J in Murray v Figge (supra) I find that my views as to the credibility of the plaintiffs could in no way be affected by the material which the defendants seek to introduce. The defendants have failed to persuade me that I should permit the case to be re–opened. They have failed to persuade me that even if re–opened the evidence sought to be introduced would have any likely bearing upon the result and the plaintiffs have shown that in any event the confidential material should not be admitted into evidence and should be returned to them. I therefore propose to refuse the defendants' applications and to grant the orders sought by the plaintiffs. I also propose to delay the delivery of judgment upon the substantive issues in the litigation no longer and I will forthwith publish my reasons and make the appropriate final orders in the action.
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