Walker-Shipley v State of Victoria
[2003] VSC 178
•29 May 2003
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 7304 of 2002
| YVONNE MAY WALKER-SHIPLEY | Plaintiff |
| V | |
| THE STATE OF VICTORIA & CHILD AND FAMILY SERVICES BALLARAT INC | Defendants |
---
JUDGE: | BONGIORNO J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 & 29 April 2003 | |
DATE OF JUDGMENT: | 29 May 2003 | |
CASE MAY BE CITED AS: | Walker Shipley v State of Victoria | |
MEDIUM NEUTRAL CITATION: | [2003] VSC 178 | |
---
Discovery – inspection – legal professional privilege – waiver – implied or imputed waiver by reason of issue raised – R.S.C., 0.29
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M. Corrigan | Maurice Blackburn Cashman |
| For the 1st Defendant | Mr J. Ruskin QC with Mr M. Murdoch | Victorian Government Solicitor |
| For the 2nd Defendant | Mr J.R. Beach QC with Mr B. Quinn | Heinz & Partners |
HIS HONOUR:
By an application made by summons filed on 16 September 2002 Yvonne May Walker-Shipley seeks an extension of time pursuant to s 23A of the Limitation of Actions Act 1958 in which to bring proceedings against the State of Victoria and Child and Family Services Ballarat Inc claiming damages for personal injuries allegedly suffered by her when, as a child, she was made a ward of the Childrens' Welfare Department and placed in the Ballarat Orphanage. As the events giving rise to the liability asserted by the applicant occurred between about 1955 and 1964 the form of s 23A with which she must comply in order to gain an extension of time is that which applies to causes of action which accrued before 11 May 1977; that is to say s 23A in its original form.
In support of her application Ms Walker-Shipley has sworn an affidavit
(12 November 2002) and relies upon two further affidavits sworn by her solicitor, Vivian Gail Waller (15 November 2002 and 23 April 2003). Each of the defendants has now sought production by the plaintiff of various documents either because they are referred to in one or other of the first two of those affidavits or might reasonably be supposed to exist having regard to the contents of those affidavits. The defendants concede that many of the documents sought might, on their face, be the subject of legal professional privilege. Others might be protected from disclosure by s 28(2) of the Evidence Act 1958 as containing information provided to a medical practitioner for the purpose of his or her rendering treatment. They say, however, that such privilege has been either expressly or impliedly waived so as to entitle them to inspection of those documents.
The defendants' request is made pursuant to RSC Rule 29.10 or on the basis that some of the documents could be called for, in any event, in cross-examination of the plaintiff. No point is taken as to whether this is an appropriate procedure. It is conceded (correctly in my view) that the only real issue is whether any apparent privilege has been waived either expressly or by implication. If in respect of any particular document such privilege no longer exists then, in one way or another, the defendants should be able to obtain access to it. If, on the other hand, the privilege persists then such access will be denied.
An application for the extension of a relevant limitation period made pursuant to s 23A of the Limitation of Actions Act 1958, as that section applies to causes of action arising between about 1955 and 1964, as the plaintiff alleges requires proof by her of a number of facts as conditions precedent to the exercise of the discretion conferred by the section in her favour. Among those facts are:-
(a)that at least one material fact relating to her cause of action was not known to her until after 16 September 2001; and
(b)that that fact would not have been known to her even if she had taken all reasonable steps to ascertain it.
A non-exclusive list of what constitutes material facts for the purposes of the section is set out in s 23A (3).
By merely bringing her application the plaintiff has put in issue in the proceeding the state of her knowledge as to the material facts relevant to the cause of action she claims she has. Further, she relies upon affidavits to establish the required conditions precedent which, arguably at least, raise questions of advice given to her and facts told to her by her legal advisers. By doing so she has waived legal professional privilege at least to the extent of the matters she has disclosed.
The defendants here argue that by bringing her application and by referring in those affidavits to various sources of information, including, either expressly or by implication, documents which might be otherwise the subject of legal professional privilege she has either waived such privilege entirely or waiver of such privilege entirely is imputed to her by operation of law. Thus, they say, they are entitled to inspection of such documents and, by logical extension, should be entitled to cross-examine the plaintiff and her solicitor as to advice and information she received from that solicitor, at least in the period between her first consulting her and the issue of this proceeding.
Recently there have been a number of judgments of various courts concerning the question of the waiver of legal professional privilege, particularly on the question of imputed waiver and the extent to which the law will impose such imputation in various factual situations.
In the course of argument it became apparent that there is some difference of approach to the applicable criteria to be applied to determine whether waiver of privilege ought to be imputed taken by the majority of the Full Federal Court in Telstra Corporation Ltd v B T Australasia Pty Ltd[1] and some single judges of State Supreme Courts (including this Court) and the Federal Court. Having examined those authorities and the High Court decisions of Esso Australia Resources Ltd v Federal Commission of Taxation[2], Mann v Carnell[3], Attorney-General (NT) v Maurice[4] and Goldberg v Ng[5] as well as the decisions of Byrne J in Liquorland (Australia) Pty Ltd v Anghie[6], Smith J in HongKong Bank of Australia Ltd v Murphy[7] and DSE (Holdings) Pty Ltd v Intertan Inc[8], it seems to me that there is no need for me to add further to the jurisprudence in this area of the law in deciding this case. Having regard to the fact that the plaintiff's state of mind with respect to her knowledge of the facts which give rise to her alleged cause of action is central to her application, it matters not whether the approach taken by the Full Federal Court in Telstra or the more limited approach favoured by Byrne J in Liquorland and Allsop J in DSE (Holdings) is correct. The application of either to the problem in this case will yield the same result.
[1](1998) 85 FCR 152.
[2](1999) 201 CLR 49.
[3](1999) 201 CLR 1.
[4](1986) 161 CLR 475.
[5](1995) 185 CLR 83
[6][2003] VSC 73.
[7][1993] 2VR 419.
[8][2003] FCA 384.
In my view the principle to be applied in this case can be adequately expressed by reference to [28] and [29] of Mann v Carnell where the majority (Gleeson CJ, Gaudron, Gummow and Callinan JJ) said:-
"Waiver of privilege at common law
28.At common law, a person who would otherwise be entitled to the benefit of legal professional privilege may waive the privilege. It has been observed that 'waiver' is a vague term, used in many senses, and that it often requires further definition according to the context. (Ross T Smyth & Co Ltd v T D Bailey Son & Co [1940] 3 All ER 60 at 70; Larratt v Bankers & Traders Insurance Co Ltd (1941) 41 SR (NSW) 215 at 226; The Commonwealth v Verwayen (1990) 170 CLR 394 at 406, 422, 467, 472.) Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege. (Cross on Evidence, 5th Aust ed (1996), par 25005; Attorney-General (NT) v Maurice (1986) 161 CLR 475 at 497-498.) Examples include disclosure by a client of the client's version of a communication with a lawyer, which entitles the lawyer to give his or her account of the communication (Benecke v National Australia Bank (1993) 35 NSWLR 110), or the institution of proceedings for professional negligence against a lawyer, in which the lawyer's evidence as to advice given to the client will be received (Lillicrop v Nalder & Son (a firm) [1993] 1 WLR 94; [1993] 1 All ER 724).
29Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is 'imputed by operation of law' (eg. Goldberg v Ng (1995) 185 CLR 83 at 95). This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege. Thus, in Benecke v National Australia Bank ((1993) 35 NSWLR 110), the client was held to have waived privilege by giving evidence, in legal proceedings, concerning her instructions to a barrister in related proceedings, even though she apparently believed she could prevent the barrister from giving the barrister's version of those instructions. She did not subjectively intend to abandon the privilege. She may not even have turned her mind to the question. However, her intentional act was inconsistent with the maintenance of the confidentiality of the communication. What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality, not some overriding principle of fairness operating at large."
There is a basic inconsistency between maintaining legal professional privilege in respect of communications between a lawyer and a client and the client’s obtaining much of the information which informs her state of mind from that lawyer when that state of mind is central to the litigation being pursued. A client in that position cannot, as a matter of fairness, selectively report such communications for the purpose of demonstrating ignorance of certain facts at a particular time whilst maintaining the confidentiality of the rest of her communication with her lawyer.
I turn then to apply these principles to the documents sought by each of the defendants in their letters of request, as modified during the hearing by deletion of those documents which have been voluntarily provided by the plaintiff.
The first defendant's letter of request is dated 22 January 2003.
FIRST DEFENDANT’S REQUEST
Plaintiff's affidavit: 12 November 2002
Paragraph 9
In this paragraph the plaintiff deposes to the fact that she first provided an account of her history to her solicitor on about 26 June 1998. She says she did so not so that her solicitor could act for her at that stage but for the assistance of some other women who were bringing claims in relation to allegations of abuse.
The first defendant seeks any document recording the plaintiff's "account" of her history.
In as much as the state of the plaintiff's knowledge at any particular time (at least prior to one year before the issue of this proceeding) is central to the determination of her application, by bringing the application she has impliedly waived privilege in respect of her communication of that "account" to her solicitor. She must accordingly produce for inspection by the defendant any document provided by her to her solicitor on or about 26 June 1998 containing the account referred to in [9] of her affidavit and any document created by her solicitor on about 26 June 1998 containing such account or any part of it.
Paragraph 10
In this paragraph the plaintiff deposes to a telephone conversation with her solicitor on 15 September 1998 in which she instructed her to investigate a potential claim but did not instruct her to commence proceedings. She did request her to find "the police records".
This telephone conversation may throw light on the state of the plaintiff's knowledge as at 15 September 1998. For the reasons expressed above in relation to the consultation referred to in [9] of the plaintiff's affidavit any document created either by the plaintiff or her solicitor recording this telephone call or any part of it must be produced.
Paragraph 11 (d)
In this paragraph the plaintiff deposes that her solicitor told her that she made inquiries of relevant secondary schools in December 1999 and that no records or information about any police report or resulting investigation was located. The defendant seeks documents relating to those inquiries.
Having regard to the fact that s 23A(2) (a) (ii) of the Limitation of Actions Act 1958 requires the plaintiff to demonstrate that she would not have known a fact or facts relevant to the cause of action she asserts if she had taken all reasonable steps to ascertain those facts and presumably relies upon [11(d)] of this affidavit as evidence of steps taken, it follows that she has waived or is held to have waived privilege in relation to the result of the step which her solicitor took on her behalf. Accordingly she must produce any documents relevant to the inquiries referred to in [11(d)] including any file notes of the solicitor recording conversations or other matters relating to such inquiries.
Paragraph 14
Paragraph 14 of the plaintiff's affidavit deposes to a telephone conversation between her and her solicitor in which she told her solicitor that she was having a difficult time and did not wish her to issue proceedings until the outcome of the "test cases" was known. This evidence is presumably tendered to explain any failure to act by the plaintiff prior to the issue of this proceeding.
As the issue of the promptness with which the plaintiff acted is an issue directly relevant to the grant of any relief under s 23A, any record of that conversation must be produced whether kept by her or her solicitor.
Paragraph 15
In [15] the plaintiff deposes that she was advised by her solicitor on or about 2 October 2001 that the test cases had resolved on confidential terms and that she would attempt to initiate settlement discussions with the other parties.
Again, it must be assumed that this evidence is tendered by the plaintiff to explain any delay. Accordingly it goes to an issue central to the determination of this proceeding. Any document recording the conversation between the plaintiff and her solicitor on or about 2 October 2001 whether kept by her or by her solicitor must be produced.
Paragraph 16
For the same reason any note of the conversation between the plaintiff and her solicitor of 25 July 2002 whether kept by her or by her solicitor must be produced.
Paragraph 17
This paragraph deposes to a telephone conversation between the plaintiff and her solicitor on 29 October 2002 concerning documents which her solicitor had obtained from the police department.
The first defendant seeks production of any note or record of this conversation.
Again, this paragraph is relevant to the question of when the plaintiff learned of certain facts relevant to her alleged cause of action. Notwithstanding that the conversation deposed to occurred after the issue of this proceeding I consider any privilege in it has been waived or should be held the be waived. The plaintiff must produce any note or record of that conversation whether kept by her or by her solicitor.
Paragraph 18
In [18] the plaintiff deposes to a communication with her solicitor in which her solicitor advised her that she (the solicitor) had interviewed a former resident of the Ballarat orphanage who had reported to the police a violent assault by another staff member, Mr Alan Taylor.
The first defendant seeks a note or record of any such conversation between the plaintiff and her solicitor as well as production of any statement, proof of evidence or note taken by her solicitor when she interviewed the former resident to whom the paragraph refers.
Having regard to the issues which I have referred to above the plaintiff must produce this material for inspection.
Paragraph 19
In [19] the plaintiff deposes to injuries which she claims to have suffered as a result of her ill treatment at the Ballarat orphanage. The first defendant seeks the clinical notes of each doctor consulted by the plaintiff in relation to her alleged abuse or any psychiatric or psychological condition suffered by her. It makes reference to those doctors identified in the Health Insurance Commission Statement of Compensation which I take to be a reference to a document in the possession of all parties.
Insofar as the documents sought by the first defendant as relevant to the matters deposed to in [19] are in the possession of the plaintiff or her solicitor questions of legal professional privilege arise in much the same way as it arises in respect of other documents held by the solicitor on the plaintiff’s behalf. Although Mr Ruskin QC, who argued this case for the first defendant referred to an imputed waiver of medical privilege, the privilege involved is really legal professional privilege; medical privilege being confined, in Victoria, to that right conferred upon a physician or surgeon's patient by s 28(2) of the Evidence Act 1958.
I accept Mr Ruskin's argument that insofar as the plaintiff deposes that no doctor has told her that she suffers from any particular diagnosis or condition in respect of her emotional difficulties caused by her experiences at the orphanage, the evidence in her affidavit is relevant to one of the central issues in this proceeding. It follows that at least insofar as any of the documents sought by the defendant are within the plaintiff's control or custody or that of her solicitor she should be required to produce them. Accordingly, the plaintiff will be required to produce any clinical notes, reports or other documents of any doctor she has consulted with respect to the injuries which she alleges she suffered as a result of the cause of action she alleges which are presently in her possession or that of her solicitors.
Affidavit of Vivian Gail Waller: 15 November 2002
Paragraphs 1, 5, 7 and 8
These paragraphs of Ms Waller's affidavit depose to investigations which she undertook prior to meeting the plaintiff in respect of allegations made by other former inmates of the Ballarat orphanage concerning sexual and physical abuse. The first defendant seeks all documents recording the work performed by Ms Waller and the work performed on her behalf by others.
The argument for the defendant is that all of the material produced by this activity on Ms Waller's behalf was in her possession at the time she saw the plaintiff and that the plaintiff, having an obligation of diligent inquiry imposed upon her as a condition precedent to the exercise of a judicial discretion under s 23A, should have inquired as to this material which then would have been made available to her.
The problem with this argument, from the defendants’ point of view, is that there is no evidence that the plaintiff ever had any conversation with her solicitor concerning the matters deposed to in these paragraphs although it is probable that she did. I am not prepared to make any order in respect of the documents sought by the first defendant in respect of these paragraphs at this stage. However, neither the plaintiff nor Ms Waller could successfully claim privilege if either or both of them were cross-examined as to whether Ms Waller informed the plaintiff of the fact that she was acting for the support group and the information which she had obtained on its behalf. Such cross-examination may then make it appropriate to order production of documents such as those now sought by the first defendant if they are not otherwise produced.
Paragraph 21
In this paragraph the plaintiff's deposes to the conversation she had with the plaintiff on or about 26 June 1998. I have already ruled that any note of this conversation whether kept by the plaintiff or by her solicitor must be produced.
Paragraph 21 goes on to refer to "further, more comprehensive statements" which the deponent had taken from the plaintiff. In a case where the central issue is the plaintiff's knowledge of particular facts at a particular time any legal professional privilege in respect of these statements has been waived by the mere fact of bringing the application. Reference to them in [21] of the solicitor's affidavit merely confirms the waiver. They must be produced.
Paragraph 22
In this paragraph the plaintiff's solicitor deposes to the plaintiff not having instructed her to act on her behalf at the time of the discussion referred to above. If there is any note of any information provided by the plaintiff as referred to in [22] which the solicitor now has, that note or memorandum must be produced for the same reasons as those referred to in [21].
Paragraph 24
In [24] the plaintiff's solicitor further deposes to seeking information from the plaintiff as a result of which the solicitor formed the view that "she may have a strong case". The first defendant seeks a statement, a completed questionnaire and a pro-forma questionnaire referred to in Exhibit VW3 to this affidavit. For the reasons already given in respect of other statements made by the plaintiff this material must be produced.
Paragraph 29
This paragraph refers to a letter exhibited as VW9 which in turn refers to a statement of the plaintiff. For the same reasons as I have already determined that other statements of the plaintiff must be produced this statement must also be produced if it has not already been produced.
Paragraph 31
This paragraph deposes to a telephone conversation between the plaintiff and her solicitor on 15 September 1998. Any note or memorandum of that conversation whether held by the plaintiff or by her solicitor must be produced.
Paragraph 32
Paragraph 32 refers to a letter written by the plaintiff exhibited as Exhibit VW11. That letter refers to a document (or documents) enclosed. That document or those documents must be produced. Their inclusion in the letter leads inexorably to the inference that they contain material which the plaintiff knew at the time she wrote the letter, namely 17 September 1998. As the knowledge of the plaintiff is central to this application any privilege which might have attached to that document or documents has been waived.
Paragraph 33
This paragraph deposes to a telephone conversation between the plaintiff and her solicitor on 9 October 1998 to the effect that she was seeking a second legal opinion and had forwarded the documents which the solicitor had sent her to a Sydney firm of solicitors. If any file note of that conversation exists then such file note must be produced. Its contents may throw some light on the plaintiff's state of knowledge at the time the conversation was made, namely 9 October 1998.
Paragraph 34
This paragraph deposes to a conversation between the plaintiff's solicitor and one John Wakefield of Holman Webb, Solicitors of Sydney on 2 June 1999. It also refers to an e-mail from Holman Webb on 8 June 1999.
The second defendant seeks production and inspection of any note of the telephone conversation between those solicitors and a copy of the e-mail.
I am not satisfied that communications between these solicitors has lost the protection of legal professional privilege. The plaintiff need not produce these documents, at least not at this stage of the proceeding.
Paragraph 36 and 37
These paragraphs relate to conversations by telephone between the plaintiff and her solicitor. Any note of those conversations whether held by the plaintiff or her solicitor must be produced for the reasons already referred to.
Paragraph 41
This paragraph deposes to a letter written by the plaintiff's solicitor to the plaintiff on 8 May 2000 containing advice as to the strength of her case against the then potential defendants. The letter is produced as Exhibit VW15. It refers to counsel having advised with respect to "the strongest cases".
The first defendant seeks a copy of any advice given by counsel as referred to on p 3 of the produced letter or any record or note made of any verbal advice.
By referring to counsel's advice in the letter to her client the plaintiff's solicitor has made that advice part of the material available to the plaintiff even if, as may well be the case, the advice was in fact obtained for other clients. In doing so she has waived the legal professional privilege of those clients as she has the ostensible authority to do. So far as the plaintiff is concerned, once that material becomes material upon which she can draw to form the state of mind which is central to the determination of this proceeding then any legal professional privilege which she might have had in counsel's advice has also been waived. The advice must be produced or, if it does not exist in writing, then any note or memorandum of it must be produced.
Exhibit VW15 also refers to an appointment between the plaintiff and her solicitor on 20 April 2000. The first defendant seeks production of any note of any conference held between the plaintiff and her solicitor on 20 April 2000. For the same reasons as those already given any such note has lost any legal professional privilege it might have had and must be produced.
Paragraph 42
This paragraph deposes to a conversation between the plaintiff's solicitor and John Wakefield, a solicitor of Holman Webb, Solicitors of Sydney. The first defendant seeks production and inspection of any note or record of that telephone conversation.
It seems to me that such note or record is probably still the subject of legal professional privilege which in this particular instance has not been waived. Accordingly I decline to order production of that document.
Paragraph 44
This paragraph deposes to a conversation between the plaintiff and her solicitor on 15 June 2000. Again, having regard to the date of the conversation and the substance of it as deposed to in that paragraph it would seem that any legal professional privilege has been waived in respect of this conversation between. She must produce any note or memorandum of that conversation whether held by her or by her solicitor.
Paragraph 45
This conversation is in exactly the same position as others already discussed including that deposed to in paragraph 44. The plaintiff must produce any note or memorandum of that conversation whether held by her or by her solicitor.
Paragraph 48
This paragraph deposes to the plaintiff's solicitor having briefed counsel on 28 November 2001 to advise as to limitation issues arising in the Ballarat orphanage cases generally. Having regard to the fact that no reference is made to the content of any advice received, that the brief was delivered less than 12 months before this proceeding was commenced and that the topic of the brief was the Ballarat orphanage cases generally it seems to me that privilege has not been waived in this instance. I decline to order production of the brief as sought by the first defendant.
Paragraph 54
This paragraph contains an assertion that the plaintiff instructed her solicitor to issue this proceeding. The date is not given but the conversation must have occurred on or about 24 July 2002. The plaintiff's instructions to commence this proceeding must, either actually or notionally, have included instructions as to her state of mind at the relevant time with respect to her knowledge of the facts relevant to the cause of action she asserts. Having regard to the centrality of that issue as an issue in this proceeding it is appropriate that her instructions to issue the proceeding be produced on the basis that any legal professional privilege has been impliedly waived. The plaintiff must produce any note or memorandum of her instructions to her solicitor to issue this proceeding whether held by her or by her solicitor.
Paragraph 64
This paragraph deposes to a discussion between the plaintiff and her solicitor on 6 November 2002 concerning documents contained in a police file which the solicitor had obtained. Having regard to the date of that discussion I am in some doubt as to whether legal professional privilege in respect of this conversation has been waived. Accordingly I decline to order the production of any note or record of that discussion as sought by the first defendant at this stage of the proceeding. Cross examination of the plaintiff or her solicitor may strengthen the second defendant’s position so that inspection might be ordered.
Paragraph 65
This paragraph relates to a letter from the plaintiff's solicitor to the plaintiff dated 30 October 2002 which is produced as Exhibit VW22. The paragraph paraphrases material which the solicitor had obtained and refers to a conversation between Ms Waller or someone else at the plaintiff's solicitor's office and "a former resident" of the Ballarat orphanage. Having regard to the date of that conversation I am not prepared to hold that legal professional privilege in respect of any note of it has been waived. I decline to order production of such a note as sought by the first defendant.
SECOND DEFENDANT'S REQUEST
By letter dated 25 March 2003 the second defendant requested production and inspection of various documents from the plaintiff in similar form to the first defendant's request with which I have already dealt. The second defendant sought all of the documents requested by the first defendant together with some additional documents with which I will now deal.
Plaintiff's affidavit: 12 November 2002
Paragraph 2
This paragraph contains a general statement by the plaintiff that she instructed her solicitor to make this application. No date is given nor is it made clear whether such instruction was oral or in writing. The second defendant seeks any note or other document which records the date upon which the plaintiff first instructed her solicitor to commence the proceeding.
Having regard to the centrality of the issue of the plaintiff's state of mind, particularly as at a date one year prior to the issue of this proceeding, the date upon which she instructed her solicitor to take that step is certainly evidence relevant to her application. Consistency with the approach which I have taken with respect to the request of the first defendant I am satisfied that legal professional privilege in respect of that piece of information has been waived by the plaintiff in accordance with the principles which I have discussed. The plaintiff must produce any note or memorandum which records when she first instructed her solicitor to make this application whether such note is held by her or by her solicitor.
Paragraph 12
This paragraph deposes to a conversation between the plaintiff and her solicitor on 15 November 1999 in which she told her solicitor she wished to proceed with her claim. As her state of knowledge of the facts relied upon as providing her with the cause of action she now wishes to litigate is central to this application I am satisfied that privilege in respect of any conversation between her and her solicitor on 15 November 1999 has been waived. Accordingly she must produce any note or memorandum of such conversation whether it is held by her or by her solicitor.
Paragraph 15
This paragraph deposes to a conversation between the plaintiff and her solicitor on or about 2 October 2001 to the effect that the "test cases" had resolved on confidential terms. I have already ordered production of any note or memorandum of that conversation. However the second defendant seeks also the production of any correspondence between the plaintiff's solicitor and the plaintiff in relation to the "test cases" referred to on or after 2 October 2001.
No correspondence is referred to in [15] so that the criteria for production pursuant to RSC Rule 29.10 do not exist. It may be that upon cross-examination of the plaintiff or her solicitor questions as to whether such correspondence exists would be admissible. If so and if an affirmative answer is given to a suggestion that such correspondence exists it may be appropriate to order production of that correspondence at that time. However I decline to do so at this stage.
Affidavit of Vivian Gail Waller: 15 November 2002
Paragraph 3
Paragraph 3 of Ms Waller's affidavit deposes to the fact that in late 1997 and early 1998 several hundred former State wards contacted the plaintiff's solicitors. It goes on to depose to the fact that many such callers did not have viable claims and were so advised. The second defendant now seeks production of any notes or other records of any conversations between the plaintiff's solicitors and the callers referred to in this paragraph.
Having regard to the references in the plaintiff's affidavit and that of her solicitor to conversations between them as to cases brought by other former residents of the Ballarat orphanage it would seem that the plaintiff's solicitor has provided the plaintiff from time to time with information so as to inform her of facts which are some of the facts which form the basis of the cause of action she now seeks to litigate. It is difficult to tell whether that information or some of it came from the conversation with the State wards referred to in [3] of Ms Waller's affidavit. However the fact that that evidence is tendered by the plaintiff and is apparently regarded by her and her legal advisers as admissible on the issues in this application suggests that legal professional privilege in respect of it, having regard to the nature of those issues, has been waived. Accordingly subject only to what I say hereunder, the plaintiff or her solicitors must produce notes of any of the conversations referred to in [3] of Ms Waller's affidavit whether such notes are held by the plaintiff of by her solicitor. I will make this order, however, subject to the right of the plaintiff to object to production on the ground that such production is oppressive in the circumstances having regard to the real relevance of this information to the issues to be determined in this case. Should the plaintiff or her solicitor seek to avoid production on the ground of oppression I shall hear argument as to that issue prior to the trial of the proceeding.
The second defendant also seeks access to any correspondence to or from any of the "several hundred former State wards" referred to in [3] of Ms Waller's affidavit. Consistency demands that I make the same order in respect of that correspondence as I have foreshadowed with respect to notes of the conversations referred to above and subject to the same qualification with respect to possible oppression.
Paragraph 14
Paragraph 14 is a statement in conclusionary terms as to advice which the plaintiff's solicitor gave putative plaintiffs in other Ballarat orphanage matters. The second defendant seeks production of this advice. There is no basis, in my view, for requiring such production. Legal professional privilege in it belongs to those to whom it was directed, not the plaintiff. Reference to it in this affidavit, although of doubtful relevance, does not constitute a waiver of privilege nor does the issue of this proceeding raising the issues for determination which it does.
Paragraph 17
Paragraph 17 similarly involves further matters which the plaintiff's solicitor has been instructed to investigate. The relevance of this passage in her affidavit is not apparent. However there does not appear to me to have been any waiver of privilege by its inclusion in the affidavit or by the plaintiff issuing this proceeding. Accordingly I decline to order production of any documents related to it.
Paragraph 18
This paragraph contains a simple assertion that the plaintiff instructed Ms Waller to issue proceedings against the State of Victoria and the successors to the Ballarat orphanage. Consistently with other rulings I have made it seems that legal professional privilege in respect of such instructions has been waived and accordingly I direct that any note of such instructions whether held by the plaintiff of by her solicitor must be produced.
Paragraph 21
Paragraph 21 deposes to a discussion between the plaintiff and her solicitor on 26 June 1998. As well as the document sought by the first defendant arising out of that discussion the second defendant seeks production of the front cover (both inside and outside) and back cover (both inside and outside) of any file opened by the plaintiff's solicitors in relation to the plaintiff.
Mr J R Beach QC who appeared for the second defendant in this application explained, in his oral submission on this paragraph, that the second defendant sought production of the plaintiff's solicitors file cover on the ground that if the communications within the file are the subject of waiver then the defendant is entitled to inspect the file cover to determine the chronological sequence of those communications.
There is an assumption in this submission that the file cover will, if produced, provide the information which Mr Beach submits his client is entitled to. On the evidence before me I am not prepared to make that finding. If, on cross-examination of the plaintiff's solicitor on the hearing of this application an inspection of the plaintiff's file cover reveals more information than simply the plaintiff's name and a file number it might be appropriate to order such production. I decline to do so at this stage.
Paragraph 24
Paragraph 24 of Ms Waller's affidavit produces a letter, Exhibit VW3, which asked the plaintiff to sign certain authorities so that her solicitor could obtain certain records for her. The second defendant seeks production of the "correspondence" referred to in Exhibit VW3.
An examination of Exhibit VW3 refers to its enclosure of "correspondence in this regard". The letter appears to be referring to correspondence concerning the plaintiff's proposed registration with Maurice Blackburn & Company as part of a group action.
As the letter itself has been disclosed and any legal professional privilege in respect of it waived it seems to me that enclosures in the letter must be treated similarly. The plaintiff's solicitors must produce the correspondence said to have been enclosed in Exhibit VW3.
Paragraph 33
This paragraph refers to the plaintiff telling her solicitor that she intended to seek a second opinion from Sydney solicitors. It refers to the plaintiff having forwarded "the documents I sent her dated 23 September 1998" to those solicitors. The second defendant seeks production of those documents.
Consistently with the view I have taken of this paragraph with respect to the first defendant's request such documents must be produced.
Paragraph 48
The second defendant seeks production of documents relating to a brief to counsel delivered by the plaintiff's solicitor on 28 November 2001 concerning limitation issues arising in the Ballarat orphanage cases. For reasons which I have given with respect to the first defendant's request I decline to order production of any of these documents.
Paragraph 54
This paragraph relates to the plaintiff's instructions to issue this application. Those instructions must be produced whether any note or memorandum of them is in the possession of the plaintiff or her solicitors.
Conclusion
Having regard to the large number of decisions which I have made in respect of these applications I shall not proceed to make formal orders unless that becomes necessary. In the absence of any objection by any party I shall assume that the parties themselves will put this judgment into effect by yielding such inspection as I have ordered without the need for formal orders. If any party requires formal orders that party should prepare such orders and submit them for signature to me pursuant to RSC Order 60.14 in accordance with the ordinary practice of the Major Torts list.
Before concluding this matter, which I have found much more difficult than I anticipated, I draw attention to the fact that the delineation of the issues to be determined on these applications has not been made easier by the form of the affidavits relied upon by the plaintiff. In many instances those affidavits are less than complaint with the rules of evidence as to form and, in some instances, as to substance. They contain conclusionary statements, opinions and, in some cases, unattributed hearsay. The relevance of some of the evidence in the affidavits is not readily apparent having regard to the matters which the plaintiff must establish in order to obtain the relief that she seeks. I raise these questions solely because the determination of many of the matters which I have had to determine upon these applications has not been rendered easier by the failure of these affidavits to follow appropriate form. Questions of privilege with respect to communications are often eliminated if evidence as to those communications is provided in admissible form; that is to say free of conclusionary statements which have a tendency to hide the real evidence upon which they are based.
I shall grant liberty to all parties to apply on short notice and I indicate that I am inclined to order the plaintiff to pay the defendants' costs of these applications, they having been virtually completely successful on them. There should be a stay upon any such order, however, until the determination of this proceeding or, if the plaintiff is successful in it, until the determination of her action for damages. I shall, however, hear counsel on the question of costs before making any order.
---
2
7
0