Watson and Anor. v McLernon and 26 Ors.Watson v McLernon and 27 Ors

[2000] NSWSC 114

CITATION:	Watson & Anor. v. McLernon & 26 Ors.Watson v. McLernon & 27 Ors. [2000] NSWSC 114
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	SC No. 3358 of 1999; No. 3357 of 1999
HEARING DATE(S):	01/03/00
JUDGMENT DATE:	1 March 2000
PARTIES :	John Watson - 1st Plaintiff Bernard John Kelly - 2nd Plaintiff Hugh McLernon - 1st Defendant. See Court file for remaining defendants Mr.Brent James - 3rd Defendant (Separately represented)
JUDGMENT OF:	Hodgson CJinEq at 1

COUNSEL :	W. Muddle for plaintiffs D. Williams for all defendants except Mr. B. James A. Bell for Mr. B. James
SOLICITORS:	Coudert Brothers, Sydney for plaintiffs Ebsworth & Ebsworth, Sydney for defendants Eakin McCaffery Cox for Mr. B. James
CATCHWORDS:	EVIDENCE - Privilege - Legal Professional Privilege - Waiver - Production in discovery process by mistake - Solicitor led in cross-examination to say that reviewed file in order to make affidavit - Privilege not waived.
LEGISLATION CITED:	Evidence Act ss.122, 126.
DECISION:	See par.12 of judgment

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

CORAM: HODGSON, CJ in Eq.

Wednesday 1st March 2000

NO. 3357 OF 1999
WATSON V. McLERNON & ORS.
NO. 3358 OF1999
WATSON V. McLERNON & ORS.

JUDGMENT (See page 140 of transcript).

1   HIS HONOUR: I have now heard submissions as to whether privilege has been waived in relation to the documents in Exhibit VD1 and as to the extent or effect of waiver if it has occurred. 2   Mr Ellicott has submitted that Mr Johnston, the solicitor for the McLernon defendants, intended in the process of discovery to make available documents including those documents. Waiver could not be negatived on the basis of inadvertence, because this was not a case of true or mere inadvertence. Mr Ellicott referred me to the cases of Hooker Corporation v Darling Harbour Authority (1987) NSWLR 538 and Guiness Peat Properties Ltd. v. Fitzroy Robinson Partnership (1987) 1 WLR 529. He submitted, as a further independent ground of waiver, that Mr Johnston said that he had reviewed the whole file to prepare for the giving of his evidence, so that there was waiver of the privileged part of the file under s.122(6) of the Evidence Act. That subsection is in the following terms:

122(6) This Division does not prevent the adducing of evidence of a document that a witness has used to try to revive the witness's memory about a fact or opinion or has used as mentioned in section 32 (Attempts to revive memory in court) or 33 (Evidence by police officers).

3   Turning to the effect of waiver, Mr Ellicott submitted that waiver extended not merely to these documents, but also to any other communication or documents which were reasonably necessary to enable a proper understanding of these documents; and Mr Ellicott relied on s.126 of the Evidence Act which is in the following terms:

126. If, because of the application of section 121, 122, 123, 124 or 125, this Division does not prevent the adducing of evidence of a communication or the contents of a document, those sections do not prevent the adducing of evidence of another communication or document if it is reasonably necessary to enable a proper understanding of the communication or document.

4   Further, he submitted that the waiver extended to all communications relating to the matters dealt with in these communications, that is, in effect, all communications relating to legal advice given to the McLernon defendants at or about the time of the commencement of the Commercial List proceedings. 5   In response to a submission that in relation to at least some documents the privilege was a privilege of Mr James, Mr Ellicott submitted that Mr James waived that privilege by providing the documents to the solicitors for the McLernon defendants. 6   Mr Douglas, for the McLernon defendants, submitted that this was a case in which documents were provided by mistake, and that privilege was not waived in those circumstances. He referred me, in addition to the cases to which Mr Ellicott referred, to Kabwand v National Australia Bank (1987) 81 ALR 721 and Meltend Pty. Ltd. v. Restoration Clinics of Australia Pty. Ltd. (1997) 145 ALR 391. He submitted that s.122(6) required proof that evidence given by a witness will not result in a loss of privilege unless it is shown that the particular document has been used to try to revive the witness' memory and that has not happened in this case. Mr Douglas submitted that if privilege were lost, it was lost only in relation to these particular documents. 7 As submitted by Mr Ellicott, Mr Johnston did agree that he intended that inspection be afforded to the documents which he provided; but I accept Mr Johnston's evidence that that was because of a mistake. I accept that it may be appropriate to characterise the mistake as resulting from some lack of care but, in my opinion, that does not mean that privilege has thereby been waived. 8 I accept Mr Douglas' submission that s.122(6) only applies where one can identify a document that has been used to try to revive a witness' memory. It is not sufficient, to engage s.122(6), that a solicitor be led to say in cross-examination that in preparing an affidavit, he has reviewed the whole file. 9 If I am wrong on the question of whether waiver has occurred, I would express the opinion that if waiver occurred, it occurred only to the extent of these particular documents. 10 Mr Ellicott has not been able to point to any parts of the documents that require reference to other documents for them to be properly understood and, in those circumstances, I do not think s.126 has any application. 11 Insofar as it is suggested that fairness would require a decision in favour of some wider waiver, in my opinion there is nothing in the circumstance of this case that would support that. I do not see that there are any considerations of fairness that would require the widening of the waiver, if waiver occurred, beyond these particular documents. 12 For those reasons, I find that there has not been waiver of the relevant documents.

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Last Modified: 09/25/2000