Pigott v Walker [2001] ACTSC 66 (3 July 2001)

Last Updated: 11 June 2002

Jonathon Mark Pigott v Jennifer Louise Walker [2001] ACTSC 66

(3 July 2001)

CATCHWORDS

PRACTICE AND PROCEDURE - Application to set aside subpoena to produce a solicitor's file - Legal professional privilege - Whether or not privilege was impliedly waived due to partial production of file.

Domestic Relationships Act 1995

Evidence Act 1995

Attorney General (Northern Territory) v Maurice [1986] HCA 80; (1986) 161 CLR 475

Griffiths v Kerkemeyer (1977) 193 CLR 49

Wigmore on Evidence (1961 Ed. Vol III para 2327)

No. SC 710 of 1999

Coram: Master T Connolly

Supreme Court of the ACT

Date: 3 July 2001

IN THE SUPREME COURT OF THE )

) No. SC 710 of 1999

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: JONATHON MARK PIGOTT

Plaintiff

AND: JENNIFER LOUISE WALKER

Defendant

ORDER

Coram: Master T. Connolly

Date: 3 July 2001

Place: Canberra

THE COURT ORDERS THAT:

1. The application to set aside the subpoena is dismissed.

2. The matter to be relisted for argument on the extent to which the contents of the file should be disclosed to the plaintiff, and on costs.

1. This was an application to set aside a subpoena to produce a solicitors file. Legal professional privilege was claimed against the subpoena, and I am satisfied that this basis for privilege is, prima facie, made out. The issue for determination at the hearing was whether the privilege had been waived.

2. The substantive proceeding is a claim pursuant to the Domestic Relationships Act 1995 for a property division between the plaintiff and the defendant, who had been defacto partners within the meaning of that Act for a period of some fourteen years. For the purposes of determining the substantive proceedings the various assets of the parties must be determined.

3. In January 1992, the plaintiff and defendant were involved in a motor vehicle accident in which both parties suffered personal injuries. Both parties initiated legal proceedings to recover damages. The plaintiff's claim was resolved in May 1997 when he obtained a judgment in the sum of $56,090 together with costs. The plaintiff says that he received a total of $39,978, which sum was deposited into the parties' joint bank account. The defendant has conceded in an affidavit that some of this award was spent for the benefit of both parties, and this will no doubt be an issue to be taken into account in determining the final property settlement.

4. At the time the parties' relationship came to an end and the present substantive proceedings issued the defendant's personal injuries claim had not been resolved. The defendant's solicitors advised the plaintiff's solicitors on 7 March 2001 that the defendant's personal injuries claim had settled, and gave an undertaking to advise the plaintiff as to the final payout figure when this had been determined.

5. The plaintiff argues that he should be allowed to examine the full file relating to the defendant's personal injuries claim. It was common ground that the claim was settled for a global sum, and that there was no breakdown of the award into the components for general damages, past and future economic loss, out of pocket expenses and damages pursuant to the principles in Griffiths v Kerkemeyer (1977) 193 CLR 49. The plaintiff agues that, in order to allow the court to properly conclude a property settlement, he needs to have the fullest information relating to the calculation of the settlement sum, which information he believes will be found on the personal injuries file. The defendant advised the plaintiff on 22 May 2001 that it was not prepared to make the entire file available, although it would release specific material. In a letter of that date to the plaintiff's solicitors the defendant's solicitors stated:

"You should be aware that it was a negotiated settlement and was not split into the various components as would have occurred if the matter had proceeded to hearing."

6. The subpoena seeking access to the personal injuries claim file was issued on 25 May 2001. By letter of 15 June 2001 the defendant's solicitors restated their claim that the file was subject to legal professional privilege, but provided the plaintiff with the following documents from the file:

1. Ordinary Statement of Claim of Ms Walker;

2. Notice of Grounds of Defence;

3. Notice of Motion of 29 January 1996;

4. Affidavit of Jason Parkinson;

5. Statement of Particulars of Ms Walker;

6. Request for and Answers to further and better particulars of Ms Walker's claim;

7. Ms Walker's notes for statement of particulars;

8. Amended statement of particulars;

9. ACT Supreme Court consent judgment.

7. The plaintiff argues that, by disclosure of this much of the personal injuries file, the defendant should be taken to have waived the legal professional privilege that would otherwise attach to the file. Waiver of legal profession privilege is a common law concept that has been enacted in s122 of the Evidence Act 1995. Waiver may be express or implied, and it is the plaintiff's case that the partial disclosure of the file amounts to an implied waiver in relation to the privilege over the whole of the file. Although the English authorities suggest that this can only arise when otherwise privileged material is put into evidence at trial (General Accident Cooperation v Tanter [1984] 1 WLR 100) Australian courts have not followed this requirement (Gray J, Hills v Raunio and Others [2001] ACTSC 63, para 22).

8. In Attorney General (Northern Territory) v Maurice [1986] HCA 80; (1986) 161 CLR 475 Gibbs CJ cited with approval the following passage from Wigmore on Evidence (1961 Ed. Vol III para 2327) in relation to the circumstances where a waiver will be implied:

"There is always also the objective consideration that when his conduct touches a certain point of disclosure, fairness requires that his privilege shall cease whether he intended that result or not. He cannot be allowed, after disclosing as much as he pleases, to withhold the remainder. He may elect to withhold or to disclose, but after a certain point his election must remain final."

9. After citing this passage the Chief Justice continued:

"The decisions in which this question has been considered seem to me to be particular applications of the rule that in a case where there is no intentional waiver 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 that material, or material associated with it, is privileged from production." (at 481).

10. The plaintiff here says that the fairness issue arises because the defendant has been able to access information relating to the plaintiff's personal injury award, because the award and its components were set out in a judgment of this Court, but the plaintiff has been provided only limited material relating to the defendant's personal injury claim. The plaintiff says that the defendant claims a greater share of the parties joint assets by reason of ill health and reduced earning capacity, and that the plaintiff is therefore entitled to review the personal injuries file to determine the extent to which the personal injury award has compensated her for these claimed disabilities.

11. Most of the material provided is material that forms part of the court file and would be available for public inspection. Disclosure of material such as the pleadings can hardly be the basis of a waiver. The document described as Ms Walker's notes for the statement of particulars, however, goes beyond what is on the court file. It seems to me that this at least falls within the conduct described by the Chief Justice in Maurice's case, and that the release of part of the material can be taken as a waiver of legal professional privilege in relation to those aspects of the file.

12. It follows, it seems to me, that I should not at this point set aside the subpoena entirely.

13. The partial disclosure of privileged material, not forming part of the publicly accessible court file, opens the door to the plaintiff to argue that legal professional privilege has been waived. Release of this statement should not, however, be taken to involve waiver entirely of all privilege to the whole of the file. In determining whether there has been an implied waiver of privilege it is necessary to examine the privileged material that has been partially disclosed, and then to apply the fairness test to the material over which a claim for privilege is maintained (see discussion by Gray J, Hills v Raunio and Others [2001] ACTSC 63). It seems to me that, while the subpoena should not be set aside entirely, I should hear the parties on the extent to which the contents of the file should be disclosed to the plaintiff.

14. I reject the application to set aside the subpoena. I will hear the parties on the further progress of this matter, and on costs.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of Master T. Connolly.

Associate:

Date: 3 July 2001

Counsel for the Plaintiff: Mr Crowley

Solicitor for the Plaintiff: Chris Crowley & Associates

Counsel for the Defendant: Ms Tonkin

Solicitor for the Defendant: Pamela Coward & Associates

Date of hearing: 22 June 2001

Date of judgment: 3 July 2001