MARGARET SPALDING v RADIO CANBERRA PTY LIMITED
[2009] ACTSC 26 (24 March 2009)
LEGAL PROFESSIONAL PRIVILEGE – waiver – to refresh or revive memory out of court – cross examination – production of proof of evidence – fairness
Civil Law (Wrongs) Act 2002 (ACT), ss 135, 136
Evidence Act 1995 (Cth), ss 34, 35, 118, 119 and 122
Evidence Act 2001 (Tas), s 34
Court Procedures Rules 2006 (ACT), rr 601, 606(1)(g), 605(3), 621(2)(c), (e)
Uniform Civil Procedure Rules 2005 (NSW), r 1.9
Desiatnik R J, Legal Professional Privilege in Australia (2nd ed, LexisNexis Butterworths, 2005)
Jackson v John Fairfax and Sons Ltd & Anor [1981] 1 NSWLR 36
Esso Australia Resources Limited v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49
Northern Territory of Australia v GPAO and Ors (1999) 196 CLR 553
Mann v Carnell (1999) 201 CLR 1
Australian Securities and Investment Commission v Vines [2003] NSWSC 1005
Carter v The Managing Partner, Northmore Hale Davey & Leake and Ors (1995) 183 CLR 121
Re Stanhill Consolidated Ltd [1967] VR 749
Attorney-General for the Northern Territory v Maurice& Ors (1986) 161 CLR 475
Mancorp Pty Ltd v Baulderstone Pty Ltd (t/as Baulderstone Hornibrook) (1991) 57 SASR 87
MGICA (1992) Limited v Kenny & Good Pty Limited and Anor (1996) 61 FCR 236
Trade Practices Commission v TNT Management Pty Ltd & Ors (1984) 56 ALR 647
Great Atlantic Insurance Co v Home Insurance Co [1981] 1 WLR 529; [1981] 2 All ER 485
General Accident Fire and Life Assurance Corp Ltd v Tanter, Zephyr, The [1984] 1 WLR 100; [1984] 1 All ER 35
Instant Colour Pty Ltd and Ors v Canon Australia Pty Ltd and Anor (FCA, WAG 93 of 1991, Nicholson J, 30 October 1995, unreported)
AAT Case 11,934 (1997) 36 ATR 1048
Grundy and Anor v Lewis & Ors [1998] FCA 1537
Edmunds v Pickering [1999] SASC 283
Lowe v Lang [2000] NSWSC 309
Moran v Moran (No 9) [2000] NSWSC 219
Payne v Laver Pty Ltd [2000] TASSC 38
Hackett v Rochow [2000] ACTSC 96
Tasmanian Seafoods Pty Ltd v McQueen and Anor (2004) 12 Tas R 436
Curlex Manufacturing Pty Limited v Carlingford Australia General Insurance Ltd [1987] 2 Qd R 335
No. SC 729 of 2006
Judge: Refshauge J
Supreme Court of the ACT
Date: 24 March 2009
IN THE SUPREME COURT OF THE )
) No. SC 729 of 2006
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:MARGARET SPALDING
Plaintiff
AND:RADIO CANBERRA PTY LIMITED
Defendant
ORDER
Judge: Refshauge J
Date: 24 March 2009
Place: Canberra
THE COURT ORDERS THAT:
The proof of evidence of the plaintiff to which she had regard for the purpose of trying to revive her recollection of the events encompassed in her Amended Statement of Claim dated 17 March 2009, except any material unrelated to her evidence or the evidence to be given by her, be produced to the defendant.
In these proceedings, the plaintiff, Margaret Jane Spalding, sues the defendant,…
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- Case
- [2009] ACTSC 26
- Decision Date
CaseChat Overview and Summary
The legal issues centred around the extent to which the plaintiff's actions amounted to a waiver of legal professional privilege and whether such waiver was justified under the circumstances. The court had to assess whether the plaintiff's attempt to refresh her recollection by referring to documents containing privileged information constituted a waiver of privilege. Additionally, the court needed to balance the plaintiff's right to privilege against the defendant's right to a fair trial, including the right to inspect documents that the plaintiff intended to rely on in her case. The court also had to consider the proportionality of the disclosure requested by the defendant in light of the principles of fairness.
The court held that the plaintiff had not waived her privilege by seeking to refresh her recollection with documents that contained privileged communications. The court found that the plaintiff's actions were taken in good faith and were necessary to enable her to give evidence in the proceeding. The court emphasised that the privilege was not waived simply because the plaintiff referred to the documents in an attempt to refresh her recollection. Furthermore, the court held that the defendant was not entitled to inspect the plaintiff's proof of evidence, except for material that was unrelated to her evidence or the evidence to be given by her. The court reasoned that the defendant's right to a fair trial did not outweigh the plaintiff's right to privilege in this instance.
The court ordered that the proof of evidence of the plaintiff, to which she had regard for the purpose of trying to revive her recollection of the events encompassed in her amended statement of claim, except any material unrelated to her evidence or the evidence to be given by her, be produced to the defendant. This order balanced the competing rights of the parties while ensuring that the plaintiff's privilege was protected as far as possible.
Orders
Orders of the court
The proof of evidence of the plaintiff to which she had regard for the purpose of trying to revive her recollection of the events encompassed in her Amended Statement of Claim dated 17 March 2009, except any material unrelated to her evidence or the evidence to be given by her, be produced to the defendant.
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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