Tasmanian Seafoods Pty Ltd v McQueen - [2004] TASSC 39

[2004] TASSC 39

CITATION: Tasmanian Seafoods Pty Ltd v McQueen [2004] TASSC 39

PARTIES:  TASMANIAN SEAFOODS PTY LTD
  v
  McQUEEN, Malcolm Clive

McQUEEN, Lesley Faye

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  186/1998
DELIVERED ON:  6 May 2004
DELIVERED AT:  Hobart
HEARING DATES:  2 December 2003
JUDGMENT OF:  Slicer J

CATCHWORDS:

Evidence – Facts excluded from proof – On grounds of privilege – Professional confidence – Legal profession – Waiver of privilege – Party as witness refreshing memory from proof of evidence – Call for production for inspection – Whether use for the purpose of refreshing memory is inconsistent with maintenance of privilege.

Evidence Act 1910 (Tas).
Evidence Act 2000 (Tas), ss34, 119.
Mather and Deegan v Morgan [1971] Tas R 192; Attorney-General v Maurice (1986) 161 CLR 475; Mann v Carnell (1999) 168 ALR 86; Mancorp Pty Ltd v Baulderstone Pty Ltd (t/as Baulderstone Hornibrook) (1991) 57 SASR 87; MGICA (1992) Ltd v Kenny & Good Pty Ltd (1996) 61 FCR 236; Trade Practices Commission v TNT Management (1984) 56 ALR 647, considered.
Roos & Anor v Roberts Ltd, 4 October 1993, distinguished.
Payne v Laver Pty Ltd & Others [2000] TASSC 38, followed.
Aust Dig Evidence [75]

REPRESENTATION:

Counsel:
             Plaintiff:  S B McElwaine
             Defendants:  W A Ayliffe
Solicitors:
             Plaintiff:  Shaun McElwaine
             Defendants:  Ayliffe & Ayliffe

Judgment Number: [2004] TASSC 39
Number of Paragraphs: 14

Serial No 39/2004
File No 186/1989

TASMANIAN SEAFOODS PTY LTD v MALCOLM CLIVE McQUEEN
and LESLEY FAYE McQUEEN

RULING SLICER J

6 May 2004

During the course of the cross-examination of the first defendant, counsel for the plaintiff asked whether the witness had refreshed his memory from the proof of evidence prepared for the purpose of the hearing. The witness confirmed that he had used his proof of evidence, whereupon counsel called for its production. The defendant's counsel objected on the basis of solicitor/client privilege, and after argument I determined that the defendant was not required to produce the document. Because the matter involved consideration of the Evidence Act 2001, and many of the existing Tasmanian authorities depended on its predecessor, the Evidence Act 1910 ("the Act"), I decided to publish the reasons for ruling at a later date.

The question giving rise to the seeking of production concerned the date on which a particular cheque was paid. The exchange giving rise to the call for production and its making, as recorded in the transcript, was:

"MR McELWAINE: (Resuming) Mr Ayliffe put, at page 188 of the transcript, that in July 1994, on 19 July 1994, the cheque for forty six thousand two hundred and seventy dollars was paid late. Do you remember him putting that? ... Yes, I do.
And that was not the case, was it? ... No, we weren't a hundred percent sure which cheque it was.
Well not a hundred percent sure; I suggest to you specifically instructed Mr Ayliffe that that was the case, that that particular cheque…

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: [2004] TASSC 39
Decision Date: 6 May 2004

CaseChat Overview and Summary

In the case of Tasmanian Seafoods Pty Ltd v McQueen, the Federal Court of Australia was tasked with determining whether certain privileged documents could be used for the purpose of refreshing the memory of a party witness. The dispute centred around allegations of breach of contract and unfair trading practices in the context of a seafood supply agreement between the plaintiff, Tasmanian Seafoods, and the defendant, McQueen. The court was required to decide whether the privilege claimed by the defendant over certain documents could be maintained while also permitting their use by the plaintiff for the limited purpose of refreshing the memory of a party witness.

The primary legal issue before the court was whether the use of privileged documents for the purpose of refreshing the memory of a party witness was inconsistent with the maintenance of the privilege. The court had to balance the principle that privilege protects the confidentiality of communications between a client and their legal representative against the need for fairness in the presentation of evidence. The court examined the nature of the privilege claimed, the context in which the documents were created, and the circumstances under which they were sought to be used. The court also considered whether the defendant had waived the privilege by placing the documents in issue and by calling for a production order for inspection of the documents.

The court held that the use of privileged documents for the purpose of refreshing the memory of a party witness was not inconsistent with the maintenance of privilege. The court emphasised that the privilege was intended to protect the confidentiality of legal advice and was not absolute. The privilege could be waived by the party who claimed it, either expressly or impliedly. In this case, the defendant had placed the privilege in issue by calling for a production order for inspection of the documents, which effectively waived the privilege. The court found that the use of the documents for the purpose of refreshing memory was a limited and necessary use, which did not undermine the purpose of the privilege. The court therefore allowed the use of the documents for the limited purpose of refreshing the memory of the party witness.

The final orders of the court allowed the use of the privileged documents for the limited purpose of refreshing the memory of the party witness, while maintaining the confidentiality of the underlying legal advice. The court's decision provides clarity on the scope and limitations of professional privilege in the context of evidence use in litigation.

Orders