Zaltron v Raptis and Benveniste No. DCCIV-94-507

[2000] SADC 64

ZALTRON V RAPTIS AND BENVENISTE
[2000] SADC 64

Judge Noblet
Civil

1. I have before me an application by counsel for the plaintiff to have access to notes made by the first defendant some five years or so ago for the purpose of instructing solicitors in relation to this case.   The notes having been prepared for that purpose, they are clearly the subject of legal professional privilege.   However, the first defendant has said that recently he refreshed his memory out of court by reference to these notes.  The question, therefore, is whether this should be regarded as a waiver of privilege by reason of the defendant having first refreshed his memory from the notes and, secondly, given evidence assisted by his refreshed memory. 

2. I think the starting point on the question of waiver of privilege generally is the case of Attorney-General (NT) v Maurice (1986) 161 CLR 475. In that case, on the question of waiver, Gibbs CJ said:

   “The question whether a waiver should be implied depends on whether it would be unfair or misleading to allow a party to refer to or use material and yet assert that the material or material associated with it is privileged from production.”

3. In the same case Deane J said:

   “Waiver of legal professional privilege by imputation or implication of law is based on notions of fairness.  It occurs in circumstances where a person has used privileged material in such a way that it would be unfair for him to assert that legal professional privilege rendered him immune from procedures pursuant to which he would otherwise be compellable to produce and allow access to the material which he has elected to use to his own advantage.”

4. In the case of Mancorp Pty Ltd v Baulderstone (1991) 57 SASR 87, his Honour Debelle J considered this question at some length. He said, at p.94:

   “Where a witness refreshes his memory from a non-privileged document, either in the witness box or outside the court, cross-examining counsel is entitled to call for and inspect a document which is being used for that purpose.  Where a witness has refreshed his memory in the witness box from a privileged document, the law deems the privilege to have been waived.  ....

   The requirements of fairness apply with equal force where the document used to refresh memory out of court is a privileged document.  Once the witness has given evidence, the reasons for maintaining the privileged status of the statement of his evidence become less compelling.”

5. His Honour also pointed out that the discretion to allow access to the document

   “would be the more readily exercised when the document was very recently used for the purpose of refreshing memory than in the case where the document has not been seen, say, more recently than six months before the trial.  The importance of the document as a prompt to memory may be the more important when the events happened several years before the action is heard, than in the case where the events occurred shortly before the hearing of the action.”

6. Of course, this case is one in which the events happened a very long time, about nine years, before the action was heard. 

7. In MGICA v Keen and Good Pty Ltd and another in the Federal Court of Australia (1996) 135 ALR 743, Lindgren J referred to several cases, including the Mancorp case to which I have just referred, and said this:

   “In my view, the authorities show that the interest of fairness prima facie require that legal professional privilege be treated as lost where a witness, including an expert witness, has refreshed his or her memory for the purpose of giving evidence by reading the document to which the privilege attaches and is called to give evidence by the party benefited by the privilege.  The reason is that an important aspect of the fair treatment of the interests of the other party is that that party have adequate opportunity to test the witness's evidence by comparing with the document the evidence which the witness gives.”

8. That, of course, is exactly what counsel for the plaintiff is seeking to do in this application. 

9. Finally, there is the case of Edmunds and Others v Pickering and Others, an unreported decision of Lander J dated 7 July 1999, Judgment No. SASC 283.  With the greatest respect to Lander J, I am unable to agree with his interpretation of what Debelle J said in the Mancorp case.   His Honour Lander J refers to a passage from the judgment of Debelle J, which reads as follows:

   “Mr Bruce, relying on Trade Practices Commission v TNT Management Pty Ltd (1984) 56 ALR 647, contended that the handing of a statement to Mr Gianonne constituted the waiver. I do not think that the mere handing of the statement to the witness necessarily constitutes a waiver. The statement may have been handed to the witness in furtherance of the privilege. The witness might never be called upon to give evidence, so that there is no disclosure of what is contained in the privileged document. Alternatively, the witness might be handed the statement but then puts it in the bottom drawer of his desk and never looks at it again. Nor do I think that the use of a statement to refresh memory by the witness necessarily constitutes waiver. The witness might not be called upon to give evidence. When a privileged document has been used to refresh memory, I don't think that there can be any waiver until the witness has given evidence.”

10. His Honour Lander J interpreted that passage as meaning that Debelle J considered that “the mere calling of a witness gives rise to a waiver of privilege”.  I do not interpret the above passage in that way.  I think that what Debelle J was saying was that in the circumstances of the case, a combination of factors, namely the handing of the statement to the witness, the reading of it by the witness, the using of the statement to refresh memory by the witness, and the witness giving evidence, was sufficient to justify a ruling that waiver had taken place, even though none of those factors, taken individually, might have been sufficient for that purpose. 

11. Be that as it may, the principle espoused by his Honour Lander J is as follows:

    “The waiver must, if it arises, be because it would be unfair to allow a witness to give evidence with the aid of a document which has prompted the witness's memory without the opposing party being able to test whether the memory has been genuinely refreshed.  The unfairness is in allowing the witness who has been called to refresh the witness's memory from a document to which the opposition does not have access.”

12. In my opinion, this is a case in which it would be unfair to allow the first defendant to give evidence with the aid of a document, which he had previously prepared, and from which he had refreshed his memory, without counsel for the plaintiff being able to compare the document with the evidence and test whether the first defendant's memory had been genuinely refreshed.  I therefore grant the application for access to the notes used by the first defendant to refresh his memory.