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Supreme Court of the ACT |
Last Updated: 19 May 2009
MARGARET SPALDING v RADIO CANBERRA PTY LIMITED
[2009] ACTSC 26 (24 March 2009)
LEGAL PROFESSIONAL PRIVILEGE – waiver – to refresh or revive memory out of court – cross examination – production of proof of evidence – fairness
Civil Law (Wrongs) Act 2002 (ACT), ss 135, 136
Evidence Act 1995 (Cth), ss 34, 35, 118, 119 and 122
Evidence Act 2001 (Tas), s 34
Court Procedures Rules 2006 (ACT), rr 601, 606(1)(g), 605(3), 621(2)(c), (e)
Uniform Civil Procedure Rules 2005 (NSW), r 1.9
Desiatnik R J, Legal Professional Privilege in Australia (2nd ed, LexisNexis Butterworths, 2005)
Jackson v John Fairfax and Sons Ltd & Anor [1981] 1 NSWLR 36
Esso Australia Resources Limited v Commissioner of Taxation of the Commonwealth of Australia [1999] HCA 67; (1999) 201 CLR 49
Northern Territory of Australia v GPAO and Ors [1999] HCA 8; (1999) 196 CLR 553
Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1
Australian Securities and Investment Commission v Vines [2003] NSWSC 1005
Carter v The Managing Partner, Northmore Hale Davey & Leake and Ors (1995) 183 CLR 121
Re Stanhill Consolidated Ltd [1967] VR 749
Attorney-General for the Northern Territory v Maurice & Ors [1986] HCA 80; (1986) 161 CLR 475
Mancorp Pty Ltd v Baulderstone Pty Ltd (t/as Baulderstone Hornibrook) (1991) 57 SASR 87
MGICA (1992) Limited v Kenny & Good Pty Limited and Anor (1996) 61 FCR 236
Trade Practices Commission v TNT Management Pty Ltd & Ors (1984) 56 ALR 647
Great Atlantic Insurance Co v Home Insurance Co [1981] 1 WLR 529; [1981] 2 All ER 485
General Accident Fire and Life Assurance Corp Ltd v Tanter, Zephyr, The [1984] 1 WLR 100; [1984] 1 All ER 35
Instant Colour Pty Ltd and Ors v Canon Australia Pty Ltd and Anor (FCA, WAG 93 of 1991, Nicholson J, 30 October 1995, unreported)
AAT Case 11,934 (1997) 36 ATR 1048
Grundy and Anor v Lewis & Ors [1998] FCA 1537
Edmunds v Pickering [1999] SASC 283
Lowe v Lang [2000] NSWSC 309
Moran v Moran (No 9) [2000] NSWSC 219
Payne v Laver Pty Ltd [2000] TASSC 38
Hackett v Rochow [2000] ACTSC 96
Tasmanian Seafoods Pty Ltd v McQueen and Anor (2004) 12 Tas R 436
Curlex Manufacturing Pty Limited v Carlingford Australia General Insurance Ltd [1987] 2 Qd R 335
No. SC 729 of 2006
Judge: Refshauge J
Supreme Court of the ACT
Date: 24 March 2009
IN THE SUPREME COURT OF THE )
) No. SC 729 of 2006
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN: MARGARET SPALDING
Plaintiff
AND: RADIO CANBERRA PTY LIMITED
Defendant
ORDER
Judge: Refshauge J
Date: 24 March 2009
Place: Canberra
THE COURT ORDERS THAT:
1. The proof of evidence of the plaintiff to which she had regard for the purpose of trying to revive her recollection of the events encompassed in her Amended Statement of Claim dated 17 March 2009, except any material unrelated to her evidence or the evidence to be given by her, be produced to the defendant.
1. In these proceedings, the plaintiff, Margaret Jane Spalding, sues the defendant, Radio Canberra Pty Limited, the licensee of radio station 2CC, for defamation alleged to have arisen out of three broadcasts on 11 and 12 May 2006.
2. The defendant denies liability and in its defence pleads, amongst other defences, that:
MR DAWSON: ... Has there been in the course of preparing for your evidence in this case a statement of any kind prepared for you? - Yes.And was that done in consultation with you? - Yes.
And is that a document to which you’ve had access? - Yes.
And is that a document that you’ve read over from time to time? - Yes.
And was the purpose that you had in reading that document from time to time to prepare for your evidence in court? - Yes, it was.
And was it also something that you looked at in order to refresh your recollection for the purpose of giving evidence in court? - Yes.
I call for that document, your Honour.
5. Mr T K Tobin QC, who with Mr R Dearn, appeared for the plaintiff, resisted the call. He made a number of challenges, though the principal one was that the document was a privileged one and, therefore, not one which could be required to be produced.
6. The document for which Mr Dawson called, was what is commonly called the plaintiff’s “proof of evidence”. That is, it is a statement made by the plaintiff (or, indeed, any party or witness) which sets out the facts relevant to the litigation as known to the person. Such a document is commonly prepared by the lawyer to a party and may change over time as issues change or become clarified during the interlocutory stages of the litigation. As defined by DM Walker in The Oxford Companion to Law (Clarendon Press, 1980) at p 1007, it is:
a written statement of the facts on which a witness is able to give evidence taken before a trial, a copy of which is available to counsel to assist him in examining the witness orally.
7. Such a document is clearly intended to be a confidential document prepared for the purpose of the plaintiff obtaining legal services in the representation she seeks in this litigation.
The law
8. The relevant law is set out in the Evidence Act 1995 (Cth) (Evidence Act). In particular, ss 34, 35 and 122 are relevant. They provide:
34 Attempts to revive memory out of court(1) The court may, on the request of a party, give such directions as are appropriate to ensure that specified documents and things used by a witness otherwise than while giving evidence to try to revive his or her memory are produced to the party for the purposes of the proceeding.
(2) The court may refuse to admit the evidence given by the witness so far as it concerns a fact as to which the witness so tried to revive his or her memory if, without reasonable excuse, the directions have not been complied with.
(1) A party is not to be required to tender a document only because the party, whether under this Act or otherwise:(a) called for the document to be produced to the party; or
(b) inspected it when it was so produced.
(2) The party who produces a document so called for is not entitled to tender it only because the party to whom it was produced, or who inspected it, fails to tender it.
(1) This Division does not prevent the adducing of evidence given with the consent of the client or party concerned.(2) Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120.
(3) Without limiting subsection (2), a client or party is taken to have so acted if:
(a) the client or party knowingly and voluntarily disclosed the substance of the evidence to another person; or
(b) the substance of the evidence has been disclosed with the express or implied consent of the client or party.
(4) The reference in paragraph (3)(a) to a knowing and voluntary disclosure does not include a reference to a disclosure by a person who was, at the time of the disclosure, an employee or agent of the client or party or of a lawyer of the client or party unless the employee or agent was authorised by the client, party or lawyer to make the disclosure.
(5) A client or party is not taken to have acted in a manner inconsistent with the client or party objecting to the adducing of the evidence merely because:
(a) the substance of the evidence has been disclosed:
(i) in the course of making a confidential communication or preparing a confidential document; or
(ii) as a result of duress or deception; or
(iii) under compulsion of law; or
(iv) if the client or party is a body established by, or a person holding an office under, an Australian law – to the Minister, or the Minister of the Commonwealth, the State or Territory, administering the law, or part of the law, under which the body is established or the office is held; or
(b) of a disclosure by a client to another person if the disclosure concerns a matter in relation to which the same lawyer is providing, or is to provide, professional legal services to both the client and the other person; or
(c) of a disclosure to a person with whom the client or party had, at the time of the disclosure, a common interest relating to the proceeding or an anticipated or pending proceeding in an Australian court or a foreign court.
(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 given by police officers).
9. The Division referred to in s 122 is Division 1 of Part 3.10. The Part deals with the law relating to Privileges; Division 1 is concerned with Client Professional Privilege. In this connection, there are two forms of such privilege, legal advice privilege (s 118) and litigation privilege (s 119). Including the definitions that are important and contained in s 117, the provisions are:
117 Definitions(1) In this Division:
client includes the following:
(a) a person or body who engages a lawyer to provide legal services or who employs a lawyer (including under a contract of service);
(b) an employee or agent of a client;
(c) an employer of a lawyer if the employer is:
(i) the Commonwealth or a State or Territory; or
(ii) a body established by a law of the Commonwealth or a State or Territory.
(d) if, under a law of a State or Territory relating to persons of unsound mind, a manager, committee or person (however described) is for the time being acting in respect of the person, estate or property of a client – a manager, committee or person so acting;
(e) if a client has died – a personal representative of the client;
(f) a successor to the rights and obligations of a client, being rights and obligations in respect of which a confidential communication was made;
confidential communication means a communication made in such circumstances that, when it was made:
(a) the person who made it; or
(b) the person to whom it was made;
was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.
confidential document means a document prepared in such circumstances that, when it was prepared:
(a) the person who prepared it; or
(b) the person for whom it was prepared;
was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.
lawyer means:
(a) an Australian lawyer; and
(b) an Australian-registered foreign lawyer; and
(c) an overseas-registered foreign lawyer or a natural person who, under the law of a foreign country, is permitted to engage in legal practice in that country; and
(d) an employee or agent of a lawyer referred to in paragraph (a), (b) or (c).
party includes the following:
(a) an employee or agent of a party;
(b) if, under a law of a State or Territory relating to persons of unsound mind, a manager, committee or person (however described) is for the time being acting in respect of the person, estate or property of a party – a manager, committee or person so acting;
(c) if a party has died – a personal representative of the party;
(d) a successor to the rights and obligations of a party, being rights and obligations in respect of which a confidential communication was made.
(2) A reference in this Division to the commission of an act includes a reference to a failure to act.
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:(a) a confidential communication made between the client and a lawyer; or
(b) a confidential communication made between 2 or more lawyers acting for the client; or
(c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person;
For the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:(a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made; or
(b) the contents of a confidential document (whether delivered or not) that was prepared;
for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.
10. At this stage of these proceedings, however, the defendant is not seeking to adduce any relevant evidence, but only to inspect the document for which the call was made. It is clear that ss 118 and 119 of the Evidence Act do not apply to such interlocutory matters as discovery of documents: Esso Australia Resources Limited v Commissioner of Taxation of the Commonwealth of Australia [1999] HCA 67; (1999) 201 CLR 49 at 59. See also Northern Territory of Australia v GPAO and Ors [1999] HCA 8; (1999) 196 CLR 553 at 571; and Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 at 12, 16-17, 45. Thus, it would seem, that it does not apply directly to a proceeding like this where the document is simply subject of a call: Australian Securities and Investment Commission v Vines [2003] NSWSC 1005 at [3].
11. In that event, the common law would apply. The common law provides, of course, for what is there termed legal professional privilege. A convenient summary of the common law is provided in what fell from McHugh J in Carter v The Managing Partner, Northmore Hale Davey & Leake and Ors (1995) 183 CLR 121 where at 159-160, his Honour said:
Communications between legal advisers and their clients concerning contemplated or pending litigation cannot be disclosed without the consent of the client. Similarly, communications made to obtain or to give legal advice cannot be disclosed without the consent of the client. “Legal professional privilege” is the shorthand description of the right that protects these communications from being disclosed without the consent of the lay client. The right is a substantive rule of law and not a mere rule of evidence. Courts in this country have held that legal professional privilege is available as an answer to the production of documents even in criminal proceedings. (Footnotes omitted).
12. I would simply add that such communications should, of course, be communicated in confidence or otherwise be confidential: Esso Australia Resources Limited v Commissioner of Taxation of the Commonwealth of Australia at 54. There is, of course, a great deal of additional jurisprudence surrounding the exact scope and limit of the privilege, but in broad terms, it can be seen that the Evidence Act provisions broadly mirror the common law in this area. This was certainly the conclusion of Dr R J Desiatnik in Legal Professional Privilege in Australia (2nd ed, LexisNexis Butterworths, 2005) at pp 198-200. Dr Desiatnik made a comprehensive analysis of the cases and legislation and, although finding that the Evidence Act did in part supplant or alter the common law (pp 201-210) or add to the common law (pp 210-214), the definition of the privilege in particular, be found, was to a large extent reflective of the common law (p 200).
13. Further, rr 601 and 605(3) the Court Procedures Rules 2006 (ACT) (the Rules) makes a written confidential communication that would not be admissible under Pt 3.10 of the Evidence Act privileged from production and not discoverable. See also r 1.9 of the Uniform Civil Procedure Rules 2005 (NSW) for a similar approach. Though this has perhaps been criticised by the High Court in Esso Australian Resources Ltd v Commissioner of Taxation of the Commonwealth at 64, 99, the validity of the rules have not, to date, been challenged.
14. It is, however, by no means clear that the Rules regulate the calling for documents. While r 606(1)(g), that a court may make any order about disclosure or non-disclosure, or rr 621(2)(c) or (e) that a court may make an order about whether a document has to be produced to a party or any other order about production of documents, may be power of the court to regulate the calling of a document, it is by no means clear to me that this has the effect of incorporating through rr 601 and 605 the Evidence Act provisions relating to client professional privilege when the court considers whether to enforce a call under s 34, though this may be the effect.
15. In any event, whichever applies, the Evidence Act (whether directly – unlikely – or through the Rules) or the common law, it was not seriously in contention that the document which was the subject of the call was a document that was not privileged because it was a confidential communication for the purpose of Ms Spalding being provided with professional legal services relating to this litigation.
Loss of privilege through waiver
16. The common law rules relating to legal professional privilege have long had as a distinguishing characteristic the ability to waive the privilege. Waiver is said to be an “act of conduct” which does not remove the communication from the category of privileged documents but removes certain consequences; for example the privileged document ceases, after waiver, to be protected from disclosure in evidence in a court of law: Re Stanhill Consolidated Ltd [1967] VR 749 at 751-2.
17. Express waiver can only be effected by the holder of the privilege, though the holder may not be the only person who can claim the privilege. Thus, with legal professional privilege, the privilege is that of the client, but it is the duty of the client’s lawyer (or lawyers) to claim the privilege if it exists. See Re Stanhill Consolidated Ltd at 755.
18. A waiver may also be implied. Thus in Attorney-General for the Northern Territory v Maurice & Ors [1986] HCA 80; (1986) 161 CLR 475 (Maurice), Mason and Brennan JJ said at 487-8:
The limiting effect of legal professional privilege on the availability of evidence otherwise relevant is confined, inter alia, by the doctrine of waiver. A litigant can of course waive his privilege directly through intentionally disclosing protected material. He can also lose that protection through a waiver by implication. An implied wavier occurs when, by reason of some conduct on the privilege holder’s part, it becomes unfair to maintain the privilege.The holder of the privilege should not be able to abuse it by using it to create an inaccurate perception of the protected communication. Professor Wigmore explains:
‘[W]hen 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.’ (Wigmore, Evidence in Trials at Common Law (1961), vol 8, par 2327, p 636).
In order to ensure that the opposing litigant is not misled by an inaccurate perception of the disclosed communication, fairness will usually require that waiver as to one part of a protected communication should result in waiver as to the rest of the communication on that subject-matter: see Great Atlantic Insurance Co v Home Insurance Co [1981] 1 WLR 529; [1981] 2 All ER 485.
Hence, the implied waiver inquiry is at bottom focused on the fairness of imputing such a waiver.
19. Gibbs CJ, however, noted in Maurice at 481:
... 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.
20. Deane J emphasised in Maurice the importance of legal professional privilege but also acknowledged the possibility and, in certain circumstances, desirability of implied waiver. At 490-3, his Honour said:
That general principle is of great importance to the protection and preservation of the rights, dignity and freedom of the ordinary citizen under the law and to the administration of justice and law in that it advances and safeguards the availability of full and unreserved communication between the citizen and his or her lawyer and in that it is a precondition of the informed and competent representation of the interests of the ordinary person before the courts and tribunals of the land. Its efficacy as a bulwark against tyranny and oppression depends upon the confidence of the community that it will in fact be enforced. That being so, it is not to be sacrificed even to promote the search for justice or truth in the individual case or matter and extends to protect the citizen from compulsory disclosure of protected communications or materials to any court or to any tribunal or person with authority to require the giving of information or the production of documents or other materials: see Pearse v Pearse [1846] EngR 1195; (1846) 1 De G & SM 12 at 28-29; [1846] EngR 1195; 63 ER 950 at 957; Baker v Campbell (1983) 153 CLR 52 at 115-116. The right of confidentiality which the principle enshrines has recently, and correctly, been described in the European Court of Justice as a ‘practical guarantee’ and ‘a necessary corollary’ of ‘fundamental, constitutional or human rights’: see A M & S Europe Ltd v Commission of The European Communities [1983] 1 QB 878 at 941, 947; Baker v Campbell (supra). Indeed, the plain basis of the decision of the majority of this Court in Baker v Campbell was the acceptance of the principle as a fundamental principle of our judicial system: see per Murphy J, Wilson J, Deane J, Dawson J. Like other traditional common law rights, it is not to be abolished or cut down otherwise than by clear statutory provision. Nor should it be narrowly construed or artificially confined....
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 or allow access to the material which he has elected to use to his own advantage. Thus, ordinary notions of fairness require that an assertion of the effect of privileged material or disclosure of part of its contents in the course of proceedings before a court or quasi-judicial tribunal be treated as a waiver of any right to resist scrutiny of the propriety of the use he has made of the material by reliance upon legal professional privilege.
21. That approach, whereby fairness was the touchstone by which an implied waiver was tested has been modified since then. In Mann v Carnell, the majority judgment of Gleeson CJ, and Gaudron, Gummow and Callinan JJ held at 13:
Waiver of privilege at common lawAt 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. 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. Examples include a 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, 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.
Waiver 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’. 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, 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. (Footnotes omitted).
22. Thus, to determine whether there has been a waiver, one must look at the conduct of the holder of the privilege and, where necessary, informed by notions of fairness, determine whether there has been an inconsistency of that conduct with the entitlement of the holder to maintain the privilege.
The call for the proof of evidence
23. As is clear from s 34 of the Evidence Act, where a witness uses a document out of court to revive their recollection of events, the opposing party to the party which called the witness is entitled to have the document produced. In this respect, again, the Act mirrors the common law. As Debelle J said in Mancorp Pty Ltd v Baulderstone Pty Ltd (t/as Baulderstone Hornibrook) (1991) 57 SASR 87 (Mancorp) at 88-9:
Where a witness has been permitted to refer to a document in order to refresh his (sic) memory in court while giving evidence, cross-examining counsel is entitled to inspect the document without penalty and the witness may be cross-examined as to the contents of the document: see Woodcock v Nichol (1976) 13 ALR 411 at 414. The circumstances in which a witness will be permitted to use a document to refresh his memory in the witness box are summarised in Cross on Evidence (Australian looseleaf ed), par 17175, and in A L C Ligertwood, Australian Evidence (1988), pp 298-302.Before giving evidence, a witness is entitled to refresh his memory out of court in any way he can: see Collaton v Correll [1926] SASR 87; O’Sullivan v Waterman [1965] SASR 150 at 156. In that case, there is no rule requiring production of the document before the witness is permitted to give evidence, except when recollection is not being revived and the witness is, in effect, giving oral secondary evidence of an available and unproduced document: see King v Bryant (No 2) [1956] QSR 570; R v Kingston [1986] 2 Qd R 114 at 126-127. If any document is used for the purpose of stimulating recollection, it is usual and reasonable that it should be produced in court and made available for inspection by cross-examining counsel: see Collaton v Correll (supra); O’Sullivan v Waterman (supra); Taylor, A Treatise on the Law of Evidence (12th ed, 1931), par 1413. See also R v Pachonick [1973] 2 NSWLR 86; R v Alexander [1975] VR 741; Ames v Nicholson [1921] SASR 224; Phipson on Evidence (14th ed), par 12-46. Failure to produce the document does not preclude the witness from testifying to his recollection of the facts but it will go to the weight of the evidence: see Collaton v Correll; O’Sullivan v Waterman. In Collaton v Correll, Napier J said (at 94) that the failure to produce the document ‘might well justify grave suspicion of the evidence’.
The question of the use of a document to refresh memory out of court was considered at length in Mather v Morgan [1971] Tas SR 192. In that case the Full Court of the Supreme Court of Tasmania held that, as a general rule, where a witness has refreshed his memory by reading a document before he came into court, in the absence of any good reason to the contrary, the document should be produced to the cross-examiner on demand and the cross-examiner is entitled to inspect it and use the document in cross-examination. The documents under consideration in Mather v Morgan (supra) were notes and a report made by a police officer in respect of observations he had made. Burbury CJ and Neasey J said (at 206):
In our view the decisions which clearly establish the right of cross-examining counsel to inspect a document used in the witness box by a witness to refresh his memory justify the conclusion that he should be given the opportunity to exercise the same right in relation to a document used by the witness to refresh his memory before he comes into court. The rationale of the decisions is that in the interests of justice cross-examining counsel should be able to check the source of the witness’s memory stimulus, and test the reliability of the witness’ oral testimony by reference to it.
In our opinion it is not possible to lay down a hard and fast rule that the document must always be produced. For example, the document may not be in the control of the witness (as it is when he uses it in the witness box). It may have been destroyed or become unavailable since it was used to refresh memory. Upon the assumption, which we make for present purposes, that a document used to refresh memory out of court may be any document (not being confined to a contemporaneous record made by the witness) it may contain matter which it would not be fair to let cross-examining counsel see. It may for instance be part of the brief of the opposing side.’
It will be noted that their Honours allowed for certain exceptions and, in the course of their reasons, their Honours made it clear that they were not ruling on the question whether the principle should apply in the case of privileged documents. They expressly left that question open: see Mather v Morgan (at 206, 208).
The reference in this and other cases to “without penalty” refers to a consequence of a call at common law that has now been abrogated by s 35 of the Evidence Act.
24. The common law used the term “refresh memory”, as it is in the extract from Mather v Morgan quoted by Debelle J in Mancorp as set out above. On the other hand, the Evidence Act uses the term “revive recollection”. I note, however, that Debelle J in Mancorp used the words interchangeably and also used the words “stimulating recollection”.
25. Unaided by authority, I would have come to the view that the two phrases are relevantly identical. While not precisely identical, the Macquarie Dictionary (2nd edition, 1991), gives meanings that are effectively and substantially the same and do suggest they are synonyms; refresh “to stimulate (the memory); to make fresh again; reinvigorate or cheer; to become fresh or vigorous again; revive”; revive: “to set going again or in activity again; to make operative or valid again; to bring back into notice, use or currency”.
26. Similarly, memory (“the mental capacity or faculty of retaining and reviving impressions or of recalling or recognising previous experiences”) and recollection (“the act or power or recollecting, or recalling to mind; remembrance”) are even closer.
27. Despite this similarity, the Australian Law Reform Commission (ALRC) in its Report No 26 (Interim) Evidence (AGPS, 1985) (volume 1 at [614]) suggested that the terminology “refreshing memory” was an inaccurate description of the mechanism and that memory would either be “revived” or a new memory created. It was clear, however, that there was no intention to change the law: “These proposals are developed from existing law but introduce a greater degree of flexibility”.
28. The matter is, however, not free of authority and in MGICA (1992) Limited v Kenny & Good Pty Limited and Anor (1996) 61 FCR 236 (MGICA), Lindgren J, after referring to paragraph [614] of the ALRC Report I have referred to above, held at 238:
In this way the Report recognises a difference between what is intended to be referred to by the “refreshing” or “reviving” memory on the one hand, and the creation of a “new memory” on the other hand. The Commission considered that the word “revive” was more apt than “refresh”, to denote the stimulation or sharpening of existing memory. In my view it is at least questionable whether the Commission was correct, but what matters for present purposes is that the Commission chose “revive”, not to signify something different from “refresh”, but in an attempt to indicate more accurately that to which “refresh” was intended to refer.In the result, I do not accept the submission that in order to show that Mr Ponton used the draft reports to “try to revive” his memory within the meaning of the Evidence Act s 122(6), the applicants were required to satisfy a stricter test than the general law test of “refreshment” of memory.
29. Accordingly, I hold, contrary to the submission of Mr Tobin QC, that there has been no change in the test introduced by the use of the word “revive” in the Evidence Act.
30. The question then is whether the privilege that clearly attaches to the proof of evidence has been waived by the use by Ms Spalding of the proof to refresh or revive her recollection.
The cases on production despite privilege
31. There is a good deal of authority now on the issue, though not all of it is consistent.
32. In Trade Practices Commission v TNT Management Pty Ltd (1984) 56 ALR 647 (TPC V TNT), Franki J held that cross-examining counsel could call for the statement of the evidence to be given by the witness which had been prepared by the legal advisers for one of the defendants, where the witness had used the statement to refresh his memory at various times within the month before he was called, even though it was conceded that the statement was a privileged document. His Honour held that the use of the document to refresh the witness’s memory constituted waiver of the privilege.
33. In Mancorp, Debelle J held that the proof of evidence of a witness which was used to refresh his memory was required to be produced to the cross-examining counsel. His Honour relied heavily on two English cases: Great Atlantic Insurance Co v Home Insurance Co [1981] 1 WLR 529; [1981] 2 All ER 485; and General Accident Fire and Life Assurance Corp Ltd v Tanter, Zephyr, The [1984] 1 WLR 100; [1984] 1 All ER 35.
34. His Honour relied principally on a principle of fairness and at 90-1 said:
The reason why the use of the privileged document is deemed to be a wavier is founded on notions of fairness. There is a number of reasons why the requirements of fairness dictate that the document should be inspected. They include:(1) The reasons given by Mustill J in the passage just cited, namely that it enables the opposite party and the court to have an opportunity of satisfying themselves that what the party has chosen to release from privilege represents the whole of the material relevant to the issue in question. It avoids the risk of an individual item being plucked out of context with the potential for its real weight or meaning being misunderstood;
(2) there is possibility that any use of a part of a document may be unfair or misleading: see Great Atlantic Insurance Co v Home Insurance Co (supra) (at 535-536; 490);
(3) The party who possesses the document is not the most appropriate person to decide whether a partial disclosure is misleading or not and the judge cannot decide the issue unless the document is disclosed as a whole to him and to the other party: see Great Atlantic Insurance Co v Home Insurance Co (at 538-539; 492);
(4) It avoids false aids to testimony: see Wigmore on Evidence (Chadbourn revision), Vol 3, par 762 where it is stated:
‘On a general principle, that has in view the risk of imposition and false aids, against which the opponent is entitled to the means of protection, the writing must be shown to him on request. Furthermore, as by this opportunity of inspection the opponent is guarded against imposition clearly apparent, so by cross-examination based on the paper he may further detect circumstances not appearing on the surface, and may expose all that detracts from the weight of testimony’; and
(5) The interests of justice require that cross-examining counsel should be able to check the source of the witness’s memory stimulus, and test the reliability of the witness’s oral testimony by reference to it: see Mather v Morgan (at 206).
35. An important case is Instant Colour Pty Ltd and Ors v Canon Australia Pty Ltd and Anor (FCA, WAG 93 of 1991, Nicholson J, 30 October 1995, unreported) (Instant Colour). There Nicholson J held that the proof of evidence of the second applicant, a party not just a witness, must be produced where the second applicant gave evidence that he had read the proof a week before giving evidence in order to refresh his memory about the matters upon which he was proposing to give evidence, should be produced for inspection.
36. His Honour relied on the general principles in Maurice and on the decisions in TPC v TNT and Mancorp.
37. In MGICA, in a splendidly concise judgment which I have not been able to emulate, Lindgren J was asked to order production of draft reports prepared by an expert who was called and provided a report. The call came after the giving of the following evidence by the expert:
38. After referring to the authorities, his Honour held at 237:
In my view, the authorities show that the interests 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 a document to which the privilege attaches, and is called to give evidence by the party benefitted 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.
39. Although no precedent authority, I note that in the Administrative Appeals Tribunal, AAT Case 11,934 (1997) 36 ATR 1048, Senior Member J Block followed the above line of authorities and ordered production of documents which the witness had used to refresh his memory.
40. In Grundy and Anor v Lewis & Ors [1998] FCA 1537, Cooper J recognised the power to require production of a privileged document where it was used to revive memory, though his Honour did not refer to any of the above authorities. The document in this case was not a proof, but was counsel’s advice, though the applicant had admitted using it to revive their recollection. His Honour said at p 3:
In my opinion, s 122(6) enables evidence to be adduced of a document although the contents are subject to client legal privilege, where for the purposes of giving evidence of the fact, the witness has referred to the document prior to giving the evidence to try to revive the witness’s memory of the fact. The sub-section does not apply generally to all documents to which recourse is had for the purpose of the litigation or for the framing of the case advanced.
41. In the circumstances of the particular case, however, the advice was not relevant to the proceedings and was never relied on by the applicants. Accordingly, his Honour declined to require the document to be produced.
42. In Edmunds v Pickering [1999] SASC 283, Lander J recognised that where a witness had used a privileged document to refresh his or her memory, it was required to be produced. His Honour, however, was not prepared to hold that the mere calling of the witness was sufficient to justify production: see [16]-[18]. His Honour held that the unfairness was constituted by the allowing of 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”: at [21]. In the case before his Honour, there had been no refreshing of memory in this way and the call was rejected.
43. In Lowe v Lang [2000] NSWSC 309, Hamilton J went further than before, holding at [9]:
In my view, common law rules of privilege play no part in carrying out the Court’s function under s 34. Once the matter falls within s 34 and, therefore, within the process of adducing evidence, common law notions of privilege are excluded or superseded for the purpose of carrying out functions under the section and apply neither directly nor indirectly.
44. In the alternative, his Honour was prepared to follow Mancorp and MGICA. His Honour was also prepared to allow the document to be dissected so that those parts which had not been read for the purpose of refreshing the witness’s memory should not be produced.
45. In Moran v Moran (No 9) [2000] NSWSC 219, Kirby J also recognised the right to require production of a privileged document used to refresh the recollection of a witness. In the actual case, however, there was nothing in the material the subject of the call that the witness had used to refresh his memory and, accordingly, the application that the document be produced was rejected.
46. The next case is, however, the first of the authorities which took a different approach. In Payne v Laver Pty Ltd [2000] TASSC 38, Cox CJ was asked to require the plaintiff’s proof of evidence to be produced as the plaintiff acknowledged in cross-examination that he had used it to refresh his memory. The proof came into existence about six weeks prior to the evidence being given. His Honour referred to TPC v TNT and Mancorp and held this case was “a far cry from either of those cases” and declined to require production.
47. His Honour acknowledged at [2] that “[i]f after having exhausted his memory in the witness box he had used this document to refresh his memory, that would clearly constitute a waiver of privilege”.
48. The only real distinction with the earlier cases to which his Honour referred was that they involved a witness not a party. It appears his Honour was not referred to Instant Colour, where the witness was a party. His Honour continued at [5]:
The evidence here makes it appear, and I so find, that this document was not intended for the purpose of refreshing memory, but rather of confirming instructions and correcting any misconceptions held by the plaintiff’s solicitors as to those instructions. The privilege was clearly not intentionally or expressly waived by the plaintiff or by his advisers, nor in my view was it impliedly waived. The plaintiff, in his capacity as a witness in his own cause, coincidentally may have been able to refresh his memory on some unidentified parts of his evidence. There was no cross-examination directed to those parts of his evidence which were the subject of refreshed memory, and hence no way of knowing their significance in the overall case. To compel production of the whole of this privileged but incomplete document would, in the circumstances, be unfair to the plaintiff in my view, whereas failure to afford the defendant’s counsel the opportunity to see if after only in effect having elicited that it was one of several documents, the remainder of which are available to both sides, if not already before the Court, which the witness read before giving his evidence and from which he had refreshed his memory, could not without more, in my view, constitute unfairness to the defendant.
49. It seems to me, with respect, that the fact that the document was not prepared in order to refresh the plaintiff’s memory is not to the point. That is never a consideration when deciding such matters. For example, the document may have been a letter sent for a quite other purpose (business, social) but the reading of which is for the purpose of refreshing memory. That is the relevant purpose.
50. Similarly, I respectfully do not agree that the fact that there was no cross-examination on the part of the evidence where memory was refreshed is the relevant criterion either. That memory was not refreshed is not required under s 34 of the Evidence Act and probably was not under the common law. It is the attempt and the use to which the document is actually put that is relevant.
51. Accordingly, I do not regard the reasons in this case for refusing to require production of the document persuasive.
52. There is also authority in this Territory, though not authority which has direct precedent authority. In Hackett v Rochow [2000] ACTSC 96, Connolly M (as his Honour then was) followed MGICA to require a plaintiff to produce diaries he had kept after a car accident in which he was injured and for the damages for those injuries he was suing for in the litigation. His Honour held that as the plaintiff acknowledged using the diaries to refresh his memory, the privileged documents were required to be produced.
53. In Australian Securities and Investments Commission v Vines, Austin J acknowledged the position with the following propositions, with which I would respectfully agree, at [3]:
(i) Although the application for access arose during the course of the final hearing, it was, in essence, an interlocutory application – to which it seems that the common law principles would apply, according to the decision of the High Court in Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49 (especially at 59, 73, 81FF and 100) – but for the existence in this Court of rules of court, including Pt 23 r 1(c) and Pt 36 r 13(2)(a), which seem to have the effect that the Court should deal with the application under the statutory principles of the Evidence Act.(ii) None of the parties submitted to me that the law of waiver of privilege under the Evidence Act is different in content from the common law in any manner relevant to the resolution of this issue.
(iii) Where a witness refers to a document to refresh his or her memory for the purpose of giving oral evidence, the case law establishes that there is an implied waiver of privilege in respect of that document: Mancorp Pty Ltd v Baulderstone Pty Ltd (1991) 57 SASR 87, 90, per Debelle J; MGICA (1982) Ltd v Kenny & Good Pty Ltd (No 2) (1996) 135 ALR 743, 744 per Lindgren J; and see more generally Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 (especially at 9-11 and 17); Attorney-General (Northern Territory) v Maurice [1986] HCA 80; (1986) 161 CLR 475 (especially at 483, 487, 492, 497).
(iv) Somewhat more broadly, there is authority for the view that an implied waiver of privilege may arise where a document is used as a memory stimulus for the purpose of oral evidence: Mather v Morgan [1971] Tas SR 192 at 206 per Burbury CJ and Neasey J, cited by Debelle J in Mancorp at 89.
54. In this case, however, the witness had not refreshed his memory with the relevant material and his Honour declined to order that it be produced to the other party.
55. Finally in Tasmanian Seafoods Pty Ltd v McQueen and Anor (2004 12 Tas R 436, Slicer J declined to permit a proof of evidence of the first defendant to be produced to the plaintiff after a call, notwithstanding that it had been used to refresh memory. His Honour held that there may be a difference between criminal and civil proceedings (at 442) and held, without describing it, that there may still be a distinction between a document used in court and one used before the hearing (at 443), notwithstanding that his Honour acknowledged that s 34 of the Evidence Act 2001 (Tas) (identical to s 34 of the Evidence Act) provided for no such distinction.
56. His Honour then referred to TPC v TNT and MGICA but preferred instead to follow Payne v Laver Pty Ltd. His Honour held that there was no inconsistency between the action of the first defendant in using the document to revive recollection and the maintenance of the claim for privilege. I did not, with respect, quite understand his Honour’s reasoning. There was no relevant difference between the facts as enunciated by his Honour and those set out by Nicholson J in Instant Colour, for example, where his Honour ordered a party to produce a document used to revive recollection.
57. I was not persuaded by his Honour’s reasoning that what appears to me from the above survey to be a quite consistent trend to recognise that where a document of whatever character has been used to refresh memory it should, after the witness, whether a party or not, has given his or her evidence, be produced, notwithstanding any privilege adhering to the document.
58. It will also be seen from the above survey that the principle is not confined to expert witnesses and does not seem to be limited to non-party witnesses.
59. I note that this case is used as authority in Heydon JD, Cross on Evidence (Butterworths, 1996), loose-leaf edition, as authority for the proposition that “[t]he mere reference to documents out of court to revive memory does not entail waiver”. With respect, I do not quite understand how that sits with the authorities or s 34 of the Evidence Act. The words of the Act are “used ... to try to revive”. The use of the document for that purpose is what triggers the section.
60. Of course, there may be many purposes for the proof of evidence and for looking at it. Here, the evidence was clear and specific – it was used to refresh recollection. In that even, subject to any discretion, there is no reason why the document should not be produced.
61. Indeed, the survey of cases is, it seems, to me, justification for the following comment recounted by Dr Desiatnik in Legal Professional Privilege in Australia. At p 141, Dr Desiatnik quotes Mr A Sullivan QC in a “Supplement” to a commentary published in The Principles of Privilege (CLE Department of the College of Law, 1994) p 87, where Mr Sullivan QC writes:
The moral is an obvious one. Ensure that the only documents your witnesses refresh their memory [sic] from for the purposes of giving their evidence are those which you propose to tender in Court.
Inconsistency or fairness
62. There is a distinction between the approach of the High Court to waiver between Maurice and Mann v Carnell. The earlier case emphasised fairness while the latter reshaped the test to one of inconsistency, where necessary informed by consideration of fairness.
63. I have given anxious thought to whether this has changed the approach to this issue and come to the conclusion that it has not. The use of a document for the purpose of reviving recollection from which evidence will be given is, in itself, inconsistent with the maintenance of the privilege of the document. Indeed, it seems to me that the Mann v Carnell test makes the production of such a document even more appropriate.
Should the whole document be produced
64. There is authority that if part of a privileged document is to be produced, then the whole document should be produced. See, for example, Great Atlantic Insurance Co v Home Insurance Co. That decision has been subject, at least in Queensland, to trenchant criticism. See Curlex Manufacturing Pty Ltd v Carlingford Australia General Insurance Limited [1987] 2 Qd R 335 at 339-340 per McPherson J.
65. In Mancorp, Debelle J said at 95:
The doctrine of waiver does not always require disclosure of the whole of the privileged document. Discussion as to the limits of waiver is to be found in George Doland Ltd v Blackburn Robson Coates & Co (A Firm) (1972) 1 WLR 1338; [1972] 3 All ER 959; Great Atlantic Insurance Co v Home Insurance Co; General Accident Fire and Life Assurance Corp Ltd v Tanter (supra) and Attorney-General (NT) v Maurice (supra). Fairness requires no more than that part of the statement which has been used for the purpose of refreshing memory be produced. If the document contains other privileged material, counsel for the party who called the witness may draw that fact to the attention of the court. If necessary, the court can then inspect the document for the purpose of determining how much of the document should be available for inspection.This accords with the approach of Hamilton J in Lowe v Lang.
66. In that case, Debelle J inquired whether there was “anything unrelated to the evidence given by” the witness in the document and on being assured that there was not, ordered the whole of the statement be produced.
67. Usually a document such as a proof of evidence would be an auxiliary document and contain only what it purports to be – the evidence to be given by the witness. It may be, however, that the proof of a party might contain other material. An example might be instructions on settlement negotiations. This would clearly be unrelated to the evidence to be given by the party as a witness.
68. Similarly in Instant Colour, Nicholson J said at p 5:
Given that the application does not extend to any portions of the document which counsel for the applicants considers does not form part of the proof of evidence strictly so called, I do not consider there are any circumstances of the present case disclosing unfairness in the document being made available for inspection.
69. Accordingly, the document to be produced may excise such material that is wholly unrelated to the evidence that the party as a witness should give or which is considered not part of the proof of evidence strictly so called.
Discretion
70. There is in the section and on the authorities a discretion as to the ordering of production of the document. Again, in Mancorp, Debelle J addressed this issue at:
I do not think that it should be an absolute rule that the privileged document should be produced. Although a court has no discretion as to the requirement to produce a non-privileged document, the importance of upholding the sanctity of a privileged document might in some circumstances require that the court should be able to exercise a discretion whether to require a privileged document to be produced for inspection. The discretion 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. In Trade Practices Commission v TNT Management Pty Ltd Franki J ordered the production for inspection of the document where the witness had used it to refresh his memory at various times within the month preceding the giving of his evidence. In this case, Mr Gianonne said that he had looked at his statement for the purpose of refreshing his recollection at various times within the two weeks prior to his giving evidence. The events which were the subject of his evidence occurred some two and a half years ago. One of the central issues in this action is the quality of the finish of polished pre-cast concrete which was an important element in the construction of the building the subject of this action. Mr Giannone’s evidence involved a detailed recollection of inspections made by him of the polished pre-cast concrete. There were a number of inspections and what took place and what was said at those inspections or in consequence of those inspections is of central importance to the resolution of the issues in this case.
71. I find this a little difficult to determine what the way his Honour is suggesting the discretion should be exercised. In any event, there were no submissions to me that indicated specific prejudice to Ms Spalding beyond that which inevitably follows the release of such a document.
72. His Honour may be suggesting that a document created much earlier would be more readily ordered to be produced, but there are equal arguments that favour a more recently produced document. Certainly a number of the documents ordered to be produced were created relatively proximate to the date of the evidence being given. Many were read very recently – see TPC v TNT, Instant Colour.
73. Here, it appears from the whole context of the Evidence of Ms Spalding, though I cannot be sure, that the proof of evidence was used to refresh memory relatively recently.
74. To quote Nicholson J in Instant Colour again,
The only circumstances present to set against the requirements of fairness dictating that the document should be inspected are the absence of knowledge on the part of the second applicant of the legal effect of his resorting to the document for the purpose of refreshing his memory.
75. His Honour did not consider that justified the exercise of a discretion to refuse an order for production; and nor do I.
Other matters
76. Mr Tobin QC also submitted that the proof of evidence was used to record the recollection of Ms Spalding and that this purpose prevented its production.
77. As I have indicated above, the purpose for which the document was created is not determinative; it is the use to which it is put. In this case, the evidence was clear that it was used to revive recollection.
78. If Ms Spalding had read it to check it was accurate, to see that it was complete, to add additional material of instruction to her lawyer or to excise inaccuracies or irrelevancies, that would not justify its production following a call. The evidence, however, was not to this effect.
79. Initially, I was attracted to the thought that the opposing party had to be specific about the part of the document that revived recollection. I now reject that. A document read with the intention of trying to revive recollection is a whole and cannot, subject to what I have said above, be dissected into those points where recollection was actually revived and where it was not. Of course, there will be documents referring to matters of which the reader could never have recollection for it was not part of their experience – then such parts could be dissected.
Conclusion
80. This is a hard-fought case, with significant issues of credibility clearly involved. Those issues may well be affected one way or the other by what is produced in response to this call.
81. Accordingly, though I have not had long to consider some of the quite difficult issues involved in this decision, I am of the view that the proof of evidence, so far as it relates to any evidence given or to be given by Ms Spalding, should be produced and I so order.
I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 24 March 2009
Counsel for the plaintiff: Mr T K Tobin QC with him Mr Dearn
Solicitors for the plaintiff: Colquhoun & Murphy
Counsel for the defendant: Mr A T S Dawson
Solicitors for the defendant: Ken Cush and Associates as agents for Banki Haddock Fiora
Date of hearing: 20 March 2009
Date of judgment: 24 March 2009
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