Spalding v Radio Canberra Pty Ltd - [2009] ACTSC 26

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,…

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: [2009] ACTSC 26
Decision Date: 24 March 2009

CaseChat Overview and Summary

In Spalding v Radio Canberra Pty Ltd, the plaintiff sought to recover damages for defamation from the defendant, a radio station. The defendant argued that the plaintiff had waived legal professional privilege by seeking to refresh her recollection using documents that contained privileged communications. The dispute came before the Federal Circuit Court of Australia, which had to determine whether the plaintiff had waived her privilege and whether the defendant was entitled to inspect the plaintiff's proof of evidence. The court had to consider the rules of legal professional privilege, the circumstances in which a party might waive privilege, and the principles of fairness in the context of disclosure of documents for the purpose of refreshing recollection.

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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