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Goldberg v Ng Hango Holdings Pty Ltd [1995] HCA 39; (1995) 185 CLR 83 (3 November 1995)

CATCHWORDS

HEARING

ORDER

DECISION

2. In the Supreme Court proceedings, the Ngs allege, among other things, that, at the direction of Mr Goldberg, Mr Ng paid in Hong Kong the sum of $A100,100 to Mrs Goldberg, as agent for Mr Goldberg, on account of legal costs in relation to pending proceedings in the Federal Court in which Mr Goldberg was acting as solicitor for the Ngs. They also allege that Mr Goldberg has failed to account to them for any part of the money so paid. By their defence, Mr and Mrs Goldberg admit that $100,100 was paid to Mrs Goldberg in Hong Kong but claim that the money was paid as the purchase price of a diamond bracelet which Mrs Goldberg sold and delivered to Mr Ng.

3. The Supreme Court proceedings were originally brought by Mr Ng against Mr Goldberg. Ms Ng and Hango Holdings were added as plaintiffs and Mrs Goldberg was added as a defendant at a subsequent date. After the proceedings had been instituted by Mr Ng, the solicitors for the Ngs encountered difficulty in serving Mr Goldberg. They wrote and delivered a letter dated 14 March 1990 to the Secretary of the Law Society of New South Wales ("the law Society") which, omitting formal parts, read as follows:

"We act for Mr Bernard Ng of 3 Werambie Street, Woolwich
against Mr Harold John Goldberg, Solicitor, of 107 Oxford Street, Bondi Junction.

The originating process has not as yet been served as the process server has been unable to effect service, either at Mr Goldberg's office at Bondi Junction or at what our client believed to be his home address at 14 New South Head Road, Vaucluse.

Our client is claiming an account for moneys received on his behalf by Mr Goldberg and, with our client's consent, and at his direction, we are delivering to you, a copy of the Summons and supporting affidavit, as filed in the Court. We repeat, these documents have not as yet, been served on Mr Goldberg. Would you please treat delivery of these documents as constituting notice to the Society of our client's claim against Mr Goldberg, as specified therein."

As the letter indicates, it was accompanied by a copy of the summons and supporting affidavit filed in the equity proceedings.

4. In subsequent correspondence between the Law Society and the solicitors for the Ngs, it was made clear that the Law Society would, with the full agreement of Mr Ng, treat the above letter as constituting both a formal complaint of professional misconduct against Mr Goldberg and a formal notification under s 80(7) of the Legal Profession Act 1987 (NSW) of a "failure to account" for the amount of $100,100 paid to Mrs Goldberg allegedly as agent for Mr Goldberg. The giving of such a formal notification of "failure to account" was a requisite step in the making of a claim upon the Solicitors' Fidelity Fund under that Act(1).

5. On 4 May 1990, the manager of the Fidelity Fund wrote a letter to the solicitors for the Ngs, of which the substance was as follows:

"I note that the matter is presently being investigated as a

"I have now had two lengthy conferences with Mr Goldberg in

6. On 25 September 1990, Ms Shirvington wrote to the Ngs' solicitors advising that the "matter" had "now been referred to the Complaints Committee for consideration". On 23 November 1990, Ms Shirvington wrote in the following terms to the Ngs' solicitors:

"I refer to previous correspondence and advise that the

The reasons for this decision are as follows:-

7. The proceedings in the Equity Division of the Supreme Court continued. As has been indicated, Ms Ng and Hango Holdings were added as plaintiffs and Mrs Goldberg was added as a defendant. Mr Goldberg, in addition to denying that the amount of $100,100 had been paid to him, cross-claimed for an amount of "$146,273.50, less such sums as the Taxing Officer might properly deduct therefrom" on account of unpaid costs.

8. On 29 April 1991, the Ngs' solicitors caused to be issued, in the equity proceedings, a subpoena to produce documents addressed to "The Secretary, Law Society of New South Wales" and requiring the production of:

"All documents including (but without limiting the

9. The Law Society did not apply to the Court of Appeal for leave to appeal from Powell J's decision. However, Mr and Mrs Goldberg did apply for such leave. Leave to appeal was granted. In the meantime, Mr and Mrs Goldberg had instituted proceedings in the Equity Division of the Supreme Court seeking a declaration that the documents which Mr Goldberg had provided to the Law Society of New South Wales, and which were covered by the description of documents contained in the subpoena served upon the Law Society, were protected from compulsory disclosure by legal professional privilege. Those proceedings came on for hearing before Young J who found that the documents had initially been protected by Mr Goldberg's legal professional privilege but that that privilege had been waived by his delivery of them to the Law Society. Accordingly, Young J refused the declaratory relief sought and ordered that the legal representative of the Ngs have access to the relevant documents. Mr and Mrs Goldberg sought and obtained leave to appeal from the judgment of Young J to the Court of Appeal.

10. The Court of Appeal (Kirby P, Mahoney and Clarke JJA) heard the two appeals together(3). The appeal from the judgment of Powell J, raising an issue of public interest immunity, was unanimously dismissed. No appeal has been brought to this Court from the judgment or order of the Court of Appeal in that regard. The appeal from the decision of Young J was, by majority (Mahoney and Clarke JJA; Kirby P dissenting), also dismissed. The present appeal to this Court is brought by Mr and Mrs Goldberg from the judgment and order of the Court of Appeal dismissing that appeal. Accordingly, the present appeal is concerned only with the issue of legal professional privilege.

11. In the Court of Appeal, Kirby P concluded that Young J had correctly held that, putting to one side the question of waiver, the documents supplied by Mr Goldberg to the Law Society had been protected by Mr Goldberg's legal professional privilege. Mahoney and Clarke JJA found it unnecessary to decide that question, being prepared to assume that the documents had initially been so protected. The conclusion or assumption to that effect is challenged by the Ngs on the appeal to this Court pursuant to a Notice of Contention filed on their behalf. For their part, Mr and Mrs Goldberg challenge the conclusion of the majority of the Court of Appeal that Mr Goldberg had waived the privilege.

Were the documents initially protected by privilege?
12. The documents in question are not before this Court. However, it is common ground that they are the documents in Bundle A produced to Powell J and that they comprise two statements or "proofs of evidence"(4) of Mr Goldberg and the annexures thereto. Those statements were prepared by Mr Goldberg for the solicitor retained by him in relation to the dispute with the Ngs. The first statement of seventy-two pages was apparently prepared before Mr Goldberg was aware of the institution of the equity proceedings against him by Mr Ng and in anticipation of proceedings by Mr Goldberg against the Ngs in relation to the legal costs which he claimed were owing to him. The second statement was a supplementary statement, prepared at the request of the solicitor, after Mr Goldberg became aware of the institution of the proceedings against him. It deals with matters not covered in the first statement. Clearly, those two statements, being communications between a party to anticipated or actual litigation and his solicitor for the purposes of the litigation, were, if confidential, prima facie protected by legal professional privilege. Indeed, as we followed the argument, it was effectively common ground that, subject to the particular matters mentioned below and the question of waiver, the statements were protected from production for inspection by Mr Goldberg's legal professional privilege.

13. It was submitted on behalf of the Ngs that, quite apart from any question of waiver, Mr Goldberg was not entitled to claim legal professional privilege in relation to the two statements for the reason that those statements covered professional communications which had occurred between the Ngs and Mr Goldberg during the period in which Mr Goldberg had acted for the Ngs as their solicitor. As we followed it, that submission is based upon three distinct, but related, arguments. The first argument is to the effect that the two statements, being concerned with dealings between Mr Goldberg and the Ngs, lacked the degree of confidentiality necessary to support legal professional privilege as against the Ngs. Upon analysis, however, there is no substance in that argument. As has been said, the two statements were prepared for the purpose of being submitted to the solicitor retained by Mr Goldberg in relation to anticipated proceedings against the Ngs or actual proceedings instituted against him by the Ngs. Their confidentiality for present purposes lies in their character as statements of Mr Goldberg's personal version of relevant events prepared for his own solicitor, including, presumably, his comments on the Ngs' claim that he had failed to account for a large sum of money which had been, at his direction, paid to his wife on his behalf on account of legal fees.

14. The second argument is a broad one to the effect that a solicitor who is a defendant in proceedings instituted against him or her by a former client in relation to matters arising from their former professional relationship is not entitled to legal professional privilege even in respect of confidential communications made between the solicitor and his or her own legal representative retained for the purposes of those proceedings. Any privilege enjoyed by such a solicitor in relation to the subject-matter of such communications is, so the argument proceeds, confined to what can be justified "on the basis ... of public interest immunity". Again, however, there is no substance in the argument. It is now settled law in this country that legal professional privilege is a substantive general principle which plays an important role in the effective and efficient administration of justice by the courts(5). Like other principles reflecting traditional common law rights, it is only to be abolished or cut down by clear statutory provision(6). It has never been seen, at least in this country, as subject to an exception depriving a solicitor of the benefit of legal professional privilege in relation to proceedings in which he or she is sued by a client. Nor, in our view, is there any reason of principle or policy which would justify the introduction of such an exception. To the contrary, and quite apart from ordinary considerations of fairness, the efficient administration of justice by the courts would be impeded if a solicitor sued by a client were, by the judicial creation of such an exception, placed at significant risk of forensic prejudice unless he or she either appeared in person or withheld written instructions from his or her legal representative.

15. The Ngs' third argument against the initial existence of legal professional privilege is more narrowly confined. It is to the effect that the two statements or proofs of evidence, at least to the extent that they deal with professional communications between Mr Goldberg as solicitor and the Ngs as clients, are the subject of the Ngs' own legal professional privilege. The effect of that is, so the argument proceeds, that the statements cannot be privileged against production for inspection by the Ngs. The answer to that third argument is an amalgam of the answers to the first two arguments. It is that Mr Goldberg's legal professional privilege in the two statements arises not from their character as a record of what transpired between the Ngs and himself but from their character as statements of his own version of events (and of his defence) which were prepared for communication to his own legal representative for the purposes of anticipated or actual legal proceedings between himself and the Ngs. In circumstances where Mr and Mrs Goldberg are seeking to protect confidentiality, it is not to the point that the statements contain information about communications which are the subject of the Ngs' own legal professional privilege and of which they might be entitled to prevent disclosure by Mr Goldberg to a third party. In any event, in the context of what is said below about imputed waiver, it would seem apparent that the Ngs have waived legal professional privilege in respect of the relevant communications by instituting proceedings against Mr and Mrs Goldberg based on an arrangement (ie about the payment of the moneys in Hong Kong) alleged to have arisen out of those communications.

16. In the result, the arguments advanced on behalf of the Ngs in support of the submission that the relevant documents were never protected by legal professional privilege cannot be sustained. It follows that the contents of the body of the two statements or proofs of evidence were, when prepared, protected by Mr Goldberg's legal professional privilege. In a situation where there is no detailed description before the Court of the annexures to the first of the two statements(7), it is not possible to express a firm view about whether all of the documents were so protected. The argument in this Court has, however, proceeded on the basis that no relevant distinction is drawn between the body of the two statements and any other relevant documents. In those circumstances, the appropriate course to be followed is that adopted by the majority in the Court of Appeal, namely, to proceed on the assumption that all of the documents were initially so protected.

Waiver
17. It is clear that there has been no express or intentional general waiver by Mr Goldberg of legal professional privilege in the present case. Any waiver of the privilege as against the Ngs, if there has been one, must have resulted from Mr Goldberg's disclosure of the relevant documents to an officer (Ms Shirvington) of the Law Society. That disclosure was for the limited purpose of dealing with inquiries made on behalf of the Law Society in relation to the complaint which had been made against Mr Goldberg by Mr Ng and was on the express basis that the documents would not be shown to anyone else. It could not properly be seen as constituting an express or intentional general waiver of legal professional privilege(8) or as destroying the confidentiality which is necessary for its maintenance. Accordingly, if there was a waiver of the privilege as against the Ngs, it was a waiver imputed by operation of law in the particular circumstances.

Imputed waiver
18. The circumstances in which a waiver of legal professional privilege will be imputed by operation of law cannot be precisely defined in advance. The most that can be done is to identify a number of general propositions. Necessarily, the basis of such an imputed waiver will be some act or omission of the persons entitled to the benefit of the privilege. Ordinarily, that act or omission will involve or relate to a limited actual or purported disclosure of the contents of the privileged material. When some such act or omission of the person entitled to the benefit of the privilege gives rise to a question of imputed waiver, the governing consideration is whether "fairness requires that his privilege shall cease whether he intended that result or not"(9). That does not mean, however, that an imputed waiver must completely destroy the privilege. Like an express waiver, it can be limited so that it applies only in relation to particular persons, materials or purposes.

19. In Attorney-General (NT) v Maurice(10), it was accepted in all judgments that the question whether a limited disclosure gives rise to an implied or imputed waiver of legal professional privilege ultimately falls to be resolved by reference to the requirements of fairness in all the circumstances of the particular case. Thus, Gibbs CJ saw the decided cases as establishing that(11):

"... the question whether a waiver should be implied depends

"An implied waiver occurs when, by reason of some conduct on

20. Hence, the implied waiver inquiry is at bottom focused on the fairness of imputing such a waiver."

Deane J wrote(14):

"Waiver of legal professional privilege by imputation or

"... it is clear enough that an implied waiver may be

21. The claim that there had been a waiver of legal professional privilege in Attorney-General (NT) v Maurice had been advanced before Maurice J, sitting as the Aboriginal Land Commissioner, in proceedings under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) relating to an Aboriginal land claim. The basis of the alleged waiver was the tender of a claim book at an earlier stage of the proceedings before Maurice J's predecessor as Aboriginal Land Commissioner. However, we do not read the judgments in that case as suggesting either that a claim for waiver of legal professional privilege made in a proceeding before a court or quasi-judicial tribunal must be based upon conduct occurring in that proceeding or, for that matter, upon conduct occurring in, or in anticipation of, any proceeding before a court or other tribunal. Be that as it may, we are firmly of the view that where two or more distinct proceedings or procedures are related in the sense that there is general correspondence between the parties and they arise out of either the same dispute or closely connected disputes, conduct in relation to one proceeding or procedure, whether anticipated or already commenced, can found an imputed waiver for the purposes of all proceedings and procedures. The two distinct proceedings between the Ngs and the Goldbergs in the Equity Division of the Supreme Court and the proceeding or procedure consequent upon Mr Ng's complaint to the Law Society against Mr Goldberg were all related proceedings or procedures in that sense. There was general correspondence between the parties and they arose out of the same dispute about the nature and effect of the payment of the $100,100 paid by Mr Ng to Mrs Goldberg in Hong Kong.

22. It follows that the critical question in the present case is whether Mr Goldberg's disclosure of the privileged documents to the Law Society gave rise to a situation where ordinary notions of fairness required that he be precluded from asserting that those documents were protected from production for inspection by the Ngs in the related equity proceedings between the Ngs and the Goldbergs. In order to answer that question, it is necessary to identify the circumstances of the disclosure in somewhat more detail.

Circumstances of the disclosure
23. On or about 30 April 1990, Mr Goldberg received a telephone call from Ms Shirvington who informed him that a complaint had been made against him by Mr Ng and that the Law Society had a copy of a summons and supporting affidavit which Mr Ng said he was attempting to serve on Mr Goldberg. An appointment was made for Mr Goldberg to see Ms Shirvington at the Law Society's office on or about 1 May 1990. At the time, Mr Goldberg had, as has been indicated, already retained a solicitor (Mr Swaab) to act for him in relation to the dispute with the Ngs and in relation to proceedings which Mr Goldberg was intending to initiate in respect of allegedly unpaid professional fees. The first statement of seventy-two pages had been prepared by Mr Goldberg for Mr Swaab in relation to that dispute and those anticipated proceedings. After receiving Ms Shirvington's telephone call, Mr Goldberg telephoned Mr Swaab and told him of the conversation which he had had. Mr Swaab advised him that, after the summons and affidavit had been received, it would be necessary for Mr Goldberg to prepare a supplementary statement for Mr Swaab "covering anything not in (the) first statement".

24. When Mr Goldberg attended at the Law Society's office, he took with him a copy of the first statement and its annexures and (apparently) some other documents. Young J's findings about what occurred in this first interview with Ms Shirvington are as follows:

"Mr Goldberg had prepared certain papers for the purpose of

25. It should be noted that the reference to "the statements" in the above extract from Young J's judgment should presumably be understood as a reference to the first statement. The second or supplementary statement was not prepared until after the first interview with Ms Shirvington. Mr Goldberg's account of what occurred when that second statement was handed to Ms Shirvington on a subsequent occasion is contained in his affidavit and reads:

"Again, I said to Ms Shirvington words to the effect:
'I've also prepared this statement for my court proceedings. I am prepared

She replied:
'Yes, I understand that.'

The requirement of fairness in the circumstances
26. In the Court of Appeal, both Mahoney JA and Clarke JA concluded that the effect of the delivery of the relevant documents to the Law Society was that it would be unfair to permit reliance by Mr Goldberg upon legal professional privilege to prevent those documents being made available for inspection by the Ngs. Their Honours approached the question of fairness on the basis that, notwithstanding that it was at the request of Ms Shirvington, Mr Goldberg's provision of the documents to the Law Society had been voluntary. In that, they were fully justified. It is true that the Law Society possessed powers of compulsion(18). It is also true that a failure by a solicitor to respond adequately to a complaint of professional misconduct might, in some circumstances, be seen by the Law Society as itself constituting such misconduct. The Law Society's powers of compulsion were not, however, invoked in the present case. Nor is there anything to suggest an express or implied threat by the Law Society or by anyone on its behalf that its powers of compulsion would be invoked or that Mr Goldberg would be seen as guilty of professional misconduct if he declined to produce to the Law Society the privileged statements prepared for his own solicitor in relation to his dispute with the Ngs. Certainly, Mr Goldberg did not allege in his affidavit or oral evidence that he had handed over the statements in response to such a real or imagined threat. To the contrary, the plain inference from the evidence is that Mr Goldberg's provision of the two statements to the Law Society was voluntary and for the calculated purpose of demonstrating the reliability of his denial of Mr Ng's allegation of a failure to account. Thus, in the account of the first meeting between himself and Ms Shirvington which is set out in his affidavit, Mr Goldberg swore that he had informed Ms Shirvington that he was "prepared to give" the first statement to her "as I wish to be full and frank - I have nothing to hide". The same inference is at least as plain in the case of the second statement which presumably was expressly directed to Mr Ng's allegations. That second statement was prepared and delivered to the Law Society after the provision of the first statement with a comment by Mr Goldberg to the effect that he was "prepared" to provide it to the Law Society "on the same basis as the previous one".

27. There remains for consideration the question whether Mahoney JA and Clarke JA fell into error in concluding that Mr Goldberg's provision of the privileged documents to the Law Society created a situation in which considerations of fairness required an imputed waiver of Mr Goldberg's legal professional privilege in relation to those documents. There are, of course, considerations weighing against that conclusion of their Honours. Among them are general considerations relating to the importance of the part played by legal professional privilege in the administration of justice and particular considerations arising from the sensitivity of the privileged documents and the fact that, on the findings of Young J, the documents were provided to the Law Society on the basis that legal professional privilege in relation to them would be retained. However, in the context of the inference that Mr Goldberg's delivery of the documents to the Law Society was voluntary and for the calculated purpose of assisting him to rebut Mr Ng's complaint, it appears to us that those considerations are outweighed by other considerations which favour their Honours' conclusion. We turn to identify those other considerations.

28. As has been seen, the proceedings in the Equity Division of the Supreme Court and the Law Society's procedures consequent upon Mr Ng's complaint were but different emanations of the one dispute about the $100,100 which had been paid to Mrs Goldberg in Hong Kong. Indeed, if the outcome of the complaint to the Law Society had been a finding that Mr Goldberg had been guilty of professional misconduct in failing to account to the Ngs for $100,100, it is at least possible that it would have been unnecessary for the Ngs to persist with the equity proceedings(19). The disclosure of the relevant documents to the Law Society was not restricted to perusal by Ms Shirvington. Clearly, the documents were handed over on the understanding that Ms Shirvington and other officers of the Law Society could make whatever internal use of them was thought appropriate in dealing with the various aspects of Mr Ng's complaint. As has also been seen, the provision of the documents to the Law Society by Mr Goldberg was voluntary and for the calculated purpose of assisting him in having the complaint against him resolved adversely to Mr Ng. Presumably, they played some part in procuring that result. In that regard, it is relevant to note that it has not been suggested that Mr Goldberg provided any other written statement to the Law Society in answer to the complaint against him.

29. Ordinarily, a party involved in a number of related proceedings or procedures will be able, in one proceeding or procedure, to take advantage of documents or other material which have been utilised by the other party in another of the related proceedings or procedures. That would, presumably, have been the case here if Mr Goldberg had not elected to make use of the privileged documents for the purpose of rebutting Mr Ng's complaint to the Law Society since the Law Society's letter of 14 May 1990 (see above) indicates that the "usual procedure" would have been to require Mr Goldberg to make a "written response"(20). As Clarke JA pointed out in the Court of Appeal, such a written response would not, if prepared for the purpose of being placed before the Law Society, have been protected by legal professional privilege from production to the Ngs in the equity proceedings. In these circumstances, it would be unfair if the fact that Mr Goldberg saw fit to rely, in answer to Mr Ng's complaint to the Law Society, upon privileged communications to his solicitor in relation to the equity proceedings should have the effect that the Ngs were deprived of access to, and possible use of, the substance of that answer. That unfairness is heightened in the present case where, in the absence of access to the material before the Law Society, one can only speculate about why the Complaints Committee concluded that Mr Ng's complaint that Mr Goldberg had failed to account for $100,100 allegedly paid on account of professional costs did "not involve a question of professional misconduct or unsatisfactory professional conduct" (emphasis added).

30. The conclusion of the majority of the Court of Appeal that there was an imputed waiver by Mr Goldberg of legal professional privilege in relation to the documents provided to the Law Society was correct. The appeal should be dismissed.

TOOHEY J The issue in this appeal relates to circumstances in which it has been held that the right to legal professional privilege was lost through waiver.

2. The first named appellant (Mr Goldberg) is a solicitor and the other appellant (Mrs Goldberg) is his wife. The respondents, who were clients of Mr Goldberg, sued him for failure to account for moneys received and disbursed by him as their solicitor. They sued Mrs Goldberg for moneys received by her to their use. The proceedings against Mrs Goldberg, taken in the Common Law Division of the Supreme Court of New South Wales, were consolidated with the proceedings against Mr Goldberg, taken earlier in the Equity Division of the Court.

3. In the course of those proceedings the respondents issued a subpoena to the Secretary of the Law Society of New South Wales ("the Society") to produce material which was identified in the following terms:

"All documents including (but without limiting the

4. The Society moved to set aside the subpoena. Powell J rejected the motion on 2 March 1993. The Society, in answer to the subpoena, produced to the Court four bundles of documents which were identified as follows:

"Bundle A - Statements made by Mr Goldberg to the Law

5. In respect of Bundles A, B and C the appellants, by a notice of motion dated 16 March 1993, sought a declaration that the documents were the subject of their legal professional privilege. They sought a further order that no access to the documents be provided to the respondents. It is not apparent why the documents in Bundle C would be the subject of any privilege on the part of Mr Goldberg but nothing was said to turn on that. Young J held that though there was legal professional privilege in respect of the documents, the privilege had been waived. His Honour ordered that the respondents' solicitors and counsel have access to the documents in the three bundles.

6. The appellants' appeal to the Court of Appeal was dismissed by Mahoney JA and Clarke JA, with Kirby P dissenting(21). The appellants now ask for an order in terms of their motion. To resolve the question of whether any privilege was waived, it is necessary to describe in some detail Mr Goldberg's dealing with the Society.

Events at the Law Society
7. Mr Ng, one of the respondents, made a complaint to the Society on 14 March 1990 regarding Mr Goldberg's alleged failure to account for moneys entrusted to him. The complaint was made after the institution of proceedings against Mr Goldberg. Mr Goldberg had prepared certain papers for the purpose of the proceedings and he took a copy of the papers with him when he went to the Society in response to the complaint. Young J accepted Mr Goldberg's evidence that the documents were prepared so that he could get legal advice; they were not prepared for the Society.

8. Because considerable reference was made by counsel to Mr Goldberg's interview with Ms Shirvington of the Society on 8 June 1990, in the course of which the documents were produced, it is as well to quote verbatim Young J's account of what took place. His Honour said that he fully accepted Mr Goldberg's evidence.

"Mr Goldberg's evidence is ... that the lady asked him what

The question for determination
9. Put shortly, the question for determination is whether, in making the documents available to the Society by way of answer to the complaint made against him by Mr Ng, Mr Goldberg waived his legal professional privilege in respect of those documents. It is only that privilege which is before the Court. The matter of public interest privilege was raised by the Society before Powell J whose refusal of the Society's motion was upheld by the Court of Appeal(22).

10. The material in question was the subject of legal professional privilege in that it came into existence in anticipation of or for the purpose of the proceedings in the Supreme Court. That was the finding of Young J. Kirby P accepted the finding. Mahoney JA and Clarke JA proceeded on the assumption that the finding was correct without themselves expressing a concluded view on that aspect. It was unnecessary for them to do so because each held that any privilege had been waived.

11. Young J rejected a submission by the respondents that the documents were brought into existence for an improper purpose(23). The Court of Appeal did not deal with this aspect but it was raised before this Court. There is no basis for interfering with Young J's finding of fact in this regard.

12. Although the respondents' argument focused largely on the question of waiver, they also attacked the finding of Young J that the documents were privileged. They submitted, somewhat obscurely, that no privilege attached to the documents because of a lack of confidentiality. As I understood the argument, it was that the documents could not be privileged against the respondents because they related to the affairs of the respondents and incorporated information available to Mr Goldberg solely because he had acted as their solicitor.

13. This submission should not be accepted. It does not take sufficiently into account that the documents came into existence to enable Mr Goldberg to obtain legal advice in proceedings in which he was being sued by his former clients. Of course the material related to the affairs of the respondents in the sense that it related to dealings between the parties. But that does not throw light on the existence of the privilege. The real thrust of the submission, I think, is that there could be no privilege because it has been said that "an essential element in a claim for legal professional privilege (is) that the material, disclosure of which is sought to be precluded is, so far as the person from whom disclosure is sought is concerned, confidential"(24). No doubt some of the information in the documents was known to the respondents but, as Young J pointed out, that information was intertwined with observations made by Mr Goldberg to his legal advisers. Furthermore, in so far as the material included proofs of evidence, it presumably included accounts by Mr Goldberg of conversations or dealings that may be at variance with the accounts likely to be given by the respondents. It is not possible to isolate parts of the material in this analysis. The documents were prepared by Mr Goldberg for the purpose of the proceedings in the Supreme Court, they were regarded by him as confidential and he made that clear to Ms Shirvington.

14. This appeal must be decided on the footing that the documents to which the respondents seek access are the subject of legal professional privilege. The appeal necessarily turns on whether that privilege was waived.

Express waiver
15. The importance of legal professional privilege was very recently affirmed by this Court in Carter v Northmore Hale Davy and Leake(25). Because it is a privilege it can be waived, though only by the client. Mr Goldberg is the client claiming the privilege though, as it happens, he is a solicitor and was the solicitor for those who claim that the privilege was waived.

16. A litigant may waive the privilege by intentionally disclosing protected material to another. If disclosure is incompatible with the retention of confidentiality, there will ordinarily be a general waiver of privilege(26). It is therefore necessary to consider the circumstances in which disclosure is made. Legal professional privilege extends to documents exchanged between parties with a common interest in the litigation(27). Therefore disclosure of otherwise privileged documents to a party with a common interest in the litigation does not constitute a waiver(28). Disclosure to a third party, such as a doctor, for the purpose of obtaining an expert report to be used in litigation does not constitute a waiver(29). Nor does disclosure to an associate or confidant unconnected with the proceedings(30). On the other hand, disclosure to an agent of an opposing party does amount to waiver(31). Although Mr Goldberg intentionally made the material available to the Society, he did so only on an undertaking of confidentiality. It cannot therefore be said that he expressly waived the privilege generally.

The concept of limited waiver
17. When material has been deliberately disclosed to a third party for a limited and specific purpose, as here, the roles of express and implied waiver become somewhat blurred. One argument is that there has been an express waiver and that the privilege then ceases to exist at all. The contrary argument is that a limited waiver has no bearing on the privilege except in those limited circumstances. A refinement of the first argument is that once any waiver has taken place, it becomes a matter for the courts to determine whether, as a matter of fairness, the privilege should no longer exist. In the Court of Appeal Kirby P held that any disclosure in the present case was for a limited and specific purpose, hence delivery of documents to the Society did not amount to a waiver generally. Mahoney JA and Clarke JA took a different view. The former held that once the material had been produced to the Society fairness required that the privilege be no longer available and that disclosure of the documents amounted to a waiver of the privilege. Clarke JA held that waiver of the privilege should be imputed as it would be unfair to permit Mr Goldberg to maintain the privilege even though there had been no use or intended use of the documents in the proceedings in the Supreme Court nor was there any suggestion of prejudice to the respondents in those proceedings.

18. None of the judges below asserted that production of the material to the Society of itself constituted a waiver of the legal professional privilege otherwise attaching to the documents. Those judges who held that there had been a waiver reached that conclusion on the basis of what they regarded as fair in the circumstances.

19. As the argument has developed, the principal question is what further consequences flow from the disclosure by the holder of legal professional privilege to a third party for a limited and specific purpose. If there are no further consequences, the privilege remains otherwise intact. If the answer is not so straightforward, what test do the courts apply in determining whether the waiver has a wider operation? In particular, is the test one of fairness and, if so, what is meant by fairness in these circumstances?

20. In two recent decisions the English Court of Appeal has held that disclosure to a third party for a limited and specific purpose does not lead to a loss of the privilege as against a person opposed in litigation. In British Coal Corpn v Dennis Rye Ltd(32) the plaintiff in an action claiming from the defendants the return of moneys had and damages for misrepresentation handed to the police documents which had been created for the purpose of the civil action. The documents were handed to the police to assist them in investigations as a result of which criminal charges were brought against a number of persons including the defendants. Copies of the documents were made available to the defendants during the criminal trial. Neill LJ, with whom Stocker LJ and Dillon LJ agreed, held that the disclosure for the limited purposes of assisting in the criminal investigation and the criminal trial did not constitute a waiver of the privilege in the civil proceedings.

21. Neill LJ did not approach the matter in terms of fairness. His Lordship said that it was clear that the plaintiffs made the documents available for a limited purpose only, adding(33):

"This action of the plaintiff looked at objectively as it

22. In Goldman v Hesper(35) the defendant taxed her costs of proceedings in the Family Division. The plaintiff sought to inspect all documents lodged in support of the bill including those which were privileged. His application was refused and the refusal was upheld by the Court of Appeal. Taylor LJ, with whom Woolf LJ and Lord Donaldson of Lymington MR agreed, saw the starting point in considering how far the privilege extended as the procedure for lodging documents on taxation. There was a statutory requirement on a claimant for costs on taxation to disclose privileged documents to the court. It was then the duty of the taxing officer to be fair to both parties by maintaining the privilege as far as possible while giving the paying party a proper opportunity to raise a bona fide challenge to any item. His Lordship applied what he saw as the "pragmatic approach" taken in British Coal Corpn v Dennis Rye Ltd and concluded that the approach taken by the taxing officer was "fair and reasonable"(36). Thus fairness played a part in Goldman v Hesper, though in the context of how the taxing officer should approach his task rather than in terms of some overriding principle governing waiver(37).

23. Goldman v Hesper was referred to in this Court by McHugh J in Giannarelli v Wraith (No 2)(38). McHugh J distinguished the English decision from the situation with which he had to deal. That situation was one of a party seeking to tax costs but refusing to produce documents on the ground that they were subject to legal professional privilege. McHugh J held that the taxing officer was not entitled to refuse to tax a bill on the ground that privileged documents had not been produced. Having referred to English decisions including Pamplin v Express Newspapers(39), he said(40):

" In the present case, unlike the English cases, the

24. The concept of limited waiver of professional privilege is well accepted. Where some uncertainty has arisen is the point at which ideas of fairness or unfairness intrude. Where the issue is one of limited waiver considerations of fairness do not arise. Fairness is relevant in determining whether there has been imputed waiver; the concept of limited waiver is an exception to express general waiver.

Imputed waiver
25. Express waiver is not the only way in which the privilege may be lost. In Attorney-General (NT) v Maurice Mason and Brennan JJ observed(42):

"He can also lose that protection through a waiver by

26. Although judges speak at times of implied waiver in order to contrast it with express waiver, the operative principle is that the law will impute waiver when it would be unfair not to do so(43). Thus, the judgment of Mason and Brennan JJ in Maurice thereafter asserts: "Hence, the implied waiver inquiry is at bottom focused on the fairness of imputing such a waiver."

27. Implied or imputed waiver will ordinarily arise when partial disclosure of privileged documents is made in the proceedings in which the privilege is asserted. That was the situation in Maurice in the context of the hearing of a claim under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) and, in my view, the judgments in that case must be read accordingly. It was also the situation in Great Atlantic Insurance Co v Home Insurance Co(44) where part of a document was read to the court by counsel. Where that sort of thing occurs, it is appropriate for the court or tribunal to consider whether it is fair that the party making the partial disclosure should otherwise maintain the privilege or whether fairness, in particular fairness to the other party, demands that the privilege be foregone. That question will usually be answered by seeing whether the party making the disclosure gained some advantage in the proceedings or, obversely, whether the other party suffered a disadvantage thereby.

28. But when the partial disclosure is made outside the proceedings, it hardly seems apt to speak in terms of fairness or unfairness. Ordinarily such a disclosure has no impact on the proceedings in respect of which the privilege is claimed. The party making the disclosure gains no advantage in the proceedings and the other party suffers no disadvantage thereby. The question rather is whether a waiver should be imputed, viewing the conduct of the party concerned objectively.

29. In the present case Mr Goldberg disclosed material to the Society. He did so because there was a complaint against him by one of the respondents. He disclosed the material, not merely on the understanding but on the undertaking by the Society that their contents would be kept confidential. Disclosure was in the context of the investigation of a complaint by the Society exercising its powers under the Legal Profession Act 1987 (NSW) ("the Act"), as it then stood(45). Complaints of professional misconduct could be referred by the Society Council to the Legal Profession Disciplinary Tribunal(46), which could order that the legal practitioner's practising certificate be cancelled(47). Additionally, the Society Council was empowered to cancel or suspend the practising certificate of a solicitor who failed to give a satisfactory explanation for specified conduct(48). Disclosure by Mr Goldberg was made for the purposes of the Act and was confined to the Society. These considerations militate strongly against any implied or imputed waiver(49).

30. Arguably, the Society should not have given the undertaking in carrying out its function of inquiring into the complaint made against Mr Goldberg. By letter dated 23 November 1990 to Mr Ng's solicitors, Ms Shirvington said that the investigation of the complaint had been completed and the Society's Complaints Committee had resolved to dismiss it. The reasons given for dismissal were twofold. The first was that "As the matter is now presented the Committee was not satisfied that there was any evidence of professional misconduct or unsatisfactory professional conduct." The second was that "The complainant should pursue his own remedies as his solicitors have indicated." The letter did not elaborate on the first reason. Arguably, the Society did not afford natural justice to Mr Ng in dismissing the complaint without informing him of the material provided by Mr Goldberg and of the part (if any) it played in that dismissal. But these are not the questions raised by this appeal. Those questions turn on the waiver of privilege in the Supreme Court proceedings. It is not to the point to say that the respondents might be assisted in those proceedings by access to the documents in question.

31. And although the complaint and the proceedings in the Supreme Court arose from the same circumstances, they are not the same proceedings nor in any way does one depend upon the other(50). The respondents' rights against the appellants will be decided in the Supreme Court on the material available to the Court in accordance with the principles governing the reception of evidence. Legal professional privilege is one of those principles.

32. There was a further argument by the respondents, namely, that by discovering and not claiming privilege for one particular document in their list, the appellants had waived any legal professional privilege. The document in question was the letter from the Society to Mr Goldberg, informing him that the complaint against him had been dismissed. I agree with Kirby P(51) that "the inclusion of the one letter ... cannot be taken to be a waiver of all the documents the subject of this appeal. Plainly, such an inference would be entirely unreasonable."

Conclusion
33. The issue in the present case is not determined by questions of fairness or unfairness but according to whether any disclosure was for a limited and specific purpose only and hence whether any waiver was so limited. The evidence points inexorably to the conclusion that disclosure by Mr Goldberg was for such a purpose and that waiver was limited to disclosure to the Society in order to meet the complaint made against him. This limited waiver was not an express waiver of the privilege generally. Nor can a waiver be imputed in the circumstances. I would allow the appeal, set aside the orders of the Court of Appeal, allow the appeal to that Court from the judgment of Young J, set aside the judgment of Young J and grant the declaration sought by the appellants in their notice of motion dated 16 March 1993.

GUMMOW J This appeal from the New South Wales Court of Appeal(52) raises issues as to what, particularly since Attorney-General (NT) v Maurice(53), has been identified as "waiver" of legal professional privilege.

2. The first appellant (Mr Goldberg) is a legal practitioner. The second appellant (Mrs Goldberg) is his wife. From the mid-1970s, Mr Goldberg acted as solicitor for the first respondent (Mr Ng) in a number of matters, litigious and non-litigious. The third respondent (Ms Ng) is the sister of Mr Ng. They were the sole shareholders in the second respondent, Hango Holdings Pty Ltd ("Hango"). In October 1985, Mr Ng retained Mr Goldberg, who was then in practice as a sole practitioner, to act for himself, his sister and Hango in relation to a proposed proceeding in the Federal Court of Australia. This proceeding sought relief for allegedly misleading and deceptive conduct on the part of one or other of the State Authorities Superannuation Board ("the Board"), Jennings Industries Limited and Chesterton International (NSW) Pty Ltd in respect of a lease of premises in which the Board was lessor and Hango the lessee.

3. The Federal Court proceeding was instituted in 1985. In March 1989, an agreement was reached for compromise on terms which included payment by the other parties of $400,000 inclusive of costs. That sum later was paid to Mr Goldberg on behalf of his clients, the respondents.

4. Disagreement then arose between Mr Goldberg and the respondents. This led to disputes at several levels, but all as part of the one overall controversy. In particular, there was litigation in the Supreme Court of New South Wales giving rise to the present appeal.

5. Before the compromise of the Federal Court proceeding, the respondents had made an agreement with Mr Goldberg as to the amount of professional fees to be charged by him. The contention of the respondents was that it was pursuant to this agreement that Mr Ng went to Hong Kong in the latter part of February 1989 and there paid to Mrs Goldberg $100,100. In April 1989, after the compromise, Mr Goldberg delivered to the respondents a memorandum of costs and fees, together with a statement of account. This acknowledged receipt of the sum of $400,000 by Mr Goldberg following the compromise but not the sum of $100,100 said by the respondents to have been paid to Mrs Goldberg in Hong Kong. It was accompanied by a cheque for $320,220.92, which represented the balance of the compromise sum after the deduction of costs and fees.

6. On 1 December 1989, the respondents commenced a proceeding against Mr Goldberg in the Equity Division of the Supreme Court. Mrs Goldberg later was added as second defendant. Relief was claimed in respect of Mr Goldberg's alleged breach of the agreement as to the amount of professional costs and return was sought of the sum of $100,100 allegedly paid to Mrs Goldberg in Hong Kong. On his part, Mr Goldberg admitted that he retained $26,000 from the settlement moneys received by him but asserted that this represented costs and fees payable to him in respect of other matters. Mr Goldberg denied any money had been paid to Mrs Goldberg on his behalf. Mrs Goldberg admitted receipt of $100,100 but contended that this had been paid to her as the purchase price of a platinum and diamond bracelet she sold and delivered to Mr Ng.

7. On 17 August 1990, Mr Goldberg commenced a proceeding in the Common Law Division of the Supreme Court claiming moneys said to be owing on his bill of costs. On 19 October 1990, orders were made in the Equity Division which had the effect of consolidating the Common Law Division proceeding with that in the Equity Division. The application by Mr Goldberg was reformulated as a cross-claim.

8. It is now necessary to refer to the involvement in the dispute of the Law Society of New South Wales ("the Society"). The Legal Profession Act 1987 (NSW) ("the Profession Act") vested in or imposed on the Council of the Society powers and duties which involved the Council of the Society in overseeing the professional conduct of solicitors. The Council did so by the reception and investigation of complaints concerning solicitors which had been submitted to the Society by the courts, the Attorney-General and members of the public. The procedures maintained by the Society for the investigation of complaints were designed to facilitate a free and frank disclosure of both the complaint and the reply to it of the solicitor in question. The Council frequently resolved to invoke the provisions of what was then s 35(2)(c) of the Profession Act with the objective of compelling reply by a solicitor to an inquiry by the Society which affected the professional conduct of the solicitor. Officers of the Society employed in its professional conduct department encouraged solicitors to respond adequately by the threat of action pursuant to s 35(2). The statutory provision(54) empowered the Council to cancel or suspend a practising certificate held by a solicitor who, being required by the Council to explain specified conduct as a solicitor, failed and continued to fail to give an explanation satisfactory to the Council.

9. As I have indicated, the Equity proceeding was commenced by the respondents on 1 December 1989. The solicitors for the respondents appeared to have had difficulty in serving the originating process on Mr Goldberg. On 14 March 1990, they wrote to the Secretary of the Society stating that they acted for Mr Ng and that, on his instructions, they had commenced a proceeding in the Equity Division against Mr Goldberg. The letter referred to difficulties in effecting service and continued:

"Our client is claiming an account for moneys received on

10. The reference to notice of the claim was designed to comply with the requirements of s 80(7) of the Profession Act. Part 7 of that statute (which then comprised ss 70-90) provides for the establishment of a Solicitors' Fidelity Fund ("the Fund"). Section 80(7) states that a claim does not lie against the Fund unless the prospective claimant has notified the Society of the failure to account not later than three months after the prospective claimant has become aware of that failure or within such further time as is allowed by the Council of the Society or the Supreme Court. By letter to the manager of the Fund dated 19 April 1990, the solicitors for Mr Goldberg affirmed that the letter of 14 March was to be regarded as notice pursuant to s 80(7).

11. The correspondence over this period indicates that the Society was treating the complaint made to it as having two aspects, first, as presenting questions of possible professional misconduct and, secondly, as giving notice of a claim on the Fund.

12. A solicitor in the professional conduct department of the Society (Ms V P Shirvington) referred the letter of 14 March and the enclosures to Mr Goldberg for his comments on the allegation that he had failed to account for the sum of $100,100. Ms Shirvington confirmed that she had taken this step in her letter to Mr Ng's solicitors of 24 April 1990. She wrote again to those solicitors on 14 May stating that she had now had two lengthy conferences with Mr Goldberg "in relation to this matter and he has forwarded me quite a number of documents which I have perused".

13. It will be necessary to refer later in these reasons and in more detail to what transpired at one of those conferences. The letter of 14 May went on to say:

"Mr Goldberg is to forward me a written response but because

14. After further correspondence which it is not necessary here to describe, Ms Shirvington wrote on 23 November 1990 to the solicitors for Mr Ng a letter(55) including the following:

"I refer to previous correspondence and advise that the

15. In the meantime, the originating process in the Equity proceeding had been served, the Common Law proceeding had been commenced by Mr Goldberg and, on 19 October 1990, the orders effecting a consolidation of the Common Law proceeding and the Equity proceeding had been made.

16. On 29 April 1991, the solicitors for the present respondents caused to be issued a subpoena to produce documents addressed to "The Secretary, Law Society of New South Wales" and requiring production of:

"(a)ll documents including (but without limiting the

17. The Society produced to the Court four bundles of documents. The respondents sought access only to the first three bundles and, in respect of these, on 8 May the Society filed a notice of motion seeking an order that the subpoena be set aside. This was supported by an affidavit sworn by Ms Shirvington. The matter eventually came before Powell J on 24 October 1991 and, on 2 March 1993, his Honour rejected submissions by the Society in which it relied upon public interest immunity. Then, by motion returnable 16 April 1993, Mr and Mrs Goldberg sought an order that there be no access to the three bundles of documents, together with a declaration that the documents were subject to the legal professional privilege of Mr and Mrs Goldberg. The motion came before Young J who, on 17 August 1993, delivered detailed reasons for judgment and ordered that the respondents' solicitors and counsel have access to the relevant documents.

18. Appeals, by leave, from the decisions of Powell J and Young J were heard together by the Court of Appeal. The Court held that the doctrine of public interest immunity did not apply to documents furnished by a solicitor to the Society in response to a complaint made to it against the solicitor where, confidentiality not being necessary to ensure frankness, there is no public interest in treating as confidential the response of the solicitor. Nothing in this Court turns upon that branch of the case. This appeal is concerned with the decision, by majority(56), dismissing the appeal from Young J. The appellants, Mr and Mrs Goldberg, submit that it has been wrongly held against them in the Supreme Court and in the Court of Appeal that the production by Mr Goldberg to the Society of the documents sought by the respondents on subpoena addressed to the Society had constituted a waiver of his privilege for the purpose of the Equity proceeding.

19. I agree with Toohey J, whose judgment I have had the advantage of reading, that this appeal must be decided on the footing that the documents in question are the subject of legal professional privilege. In particular, what I later identify as the first statement was prepared by Mr Goldberg to obtain legal advice with respect to and in anticipation of litigation with his former clients. I agree also that Mr Goldberg made no express waiver of his privilege, that "limited waiver" is an exception or qualification to express waiver, that general considerations of fairness do not arise on any aspect of express waiver, and that the appeal turns upon the doctrine of implied or imputed waiver as an imposition of law. With that in mind, I return to the facts.

20. Before Young J an affidavit sworn on 16 March 1993 was read by Mr Goldberg in which he described a meeting, by appointment, at the offices of the Society on 1 May 1990. He went to the meeting after taking advice from Mr F Swaab, whom he had engaged as his solicitor to act for him and Mrs Goldberg in the dispute which had arisen with the respondents. In 1989 Mr Swaab had requested that Mr Goldberg prepare a detailed statement. This took some time to complete. It was finished in mid-April 1990 and was approximately 72 pages long. It was prepared for the purpose of obtaining advice from Mr Swaab with respect to, and in anticipation of, litigation with the respondents.

21. In his affidavit sworn on 16 March 1993, Mr Goldberg stated that, during the course of his interview with Ms Shirvington on 1 May 1990, he said to her words to the effect:

"I have a statement which was prepared solely for my case

22. Later, Mr Goldberg prepared a supplementary statement, again for the assistance of his solicitor in the Supreme Court litigation with the respondents. Mr Goldberg deposed that he also handed a copy of that statement to Ms Shirvington at a later meeting. He said that he was prepared to provide it on the same basis as the previous statement and Ms Shirvington had said that she understood that.

23. In cross-examination, Mr Goldberg said that the papers which he supplied at the first meeting were produced to Ms Shirvington towards the end of an interview which had continued for some three and a half hours. He said he had taken the documents with him to refer to if need be at the interview and that they were on the floor beside him in case he needed to refer to them. He described what happened as follows:

"(W)ell, I, first of all, said 'Yes, I do have papers in

24. In his judgment, Mahoney JA said(57):

"It is not clear why Mr Goldberg produced to the Society the

25. The other member of the majority, Clarke JA, dealt with the matter as follows(58):

"On the one hand there is no suggestion that the

...
For my part I have concluded that it would be unfair to permit Goldberg to

26. The President dissented. His Honour pointed out that legal professional privilege might be waived for a limited and specific purpose and found that the disclosure of the documents in question by Mr Goldberg to the Society was for a specific purpose in a specific context. His Honour said(59):

"To say that Mr Goldberg 'chose' to make the disclosure in

27. Has there, then, been an implied or imputed waiver by imposition of law? In Wigmore on Evidence(60), in answer to the question what constitutes waiver by implication, it is said:
"Judicial decision gives no clear answer to this question. In deciding it, regard must be had to the double elements that are predicated in every waiver, ie, not only the element of implied intention, but also the element of fairness and consistency. A privileged person would seldom be found to waive, if his intention not to abandon could alone control the situation. 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."

That statement has been influential not only in the United States but in Canada, where it is said in a leading text and with reference to Wigmore(61):

"Whether intended or not, waiver may occur when fairness

"The mere fact that a person on some one occasion chooses to

28. Looked at in this way, the question of "fairness" involves an inquiry as to whether the facts supply a sufficient reason for depriving the client of the form of protection which the law confers upon communications between solicitor and client. In approaching any particular case in this fashion, it also is to be borne in mind that legal professional privilege is not a mere rule of evidence but a substantive and fundamental common law doctrine, a rule of law, the best explanation of which is that it affords a practical guarantee of fundamental rights(64). Thus, English decisions, such as British Coal Corpn v Dennis Rye Ltd (No 2)(65), which approach the question of waiver of legal professional privilege on the footing that what is at stake is a rule of evidence, may underestimate the significance of that which, it is contended, has been abrogated by imposition of law.

29. However, to say that the issue is one whether, in fairness, the facts supply sufficient reason for depriving the client of the benefit of a substantive rule of law is not necessarily to accept the further proposition contended for by the appellants. The substance of this was that the facts said to call for an implied waiver must have occurred in anticipation of or otherwise in relation to the very same legal proceeding in the course of which the privilege is later claimed. The reference by Jordan CJ, in the passage in Thomason which has been set out, to disclosure in evidence "on other occasions" indicates that a broader view is required. So also does the particular proposition for which Thomason treated Minter v Priest(66) as authority, namely(67):

"And the rule to be extracted from this authority may

30. In his dissenting judgment in the present case(68), Kirby P emphasised what he described as the creation of the privileged documents "in the quite separate proceedings" to those in the course of which disclosure was made to the Society. However, as I have indicated earlier in these reasons, in my view, there was in substance but the one dispute between the appellants and the respondents. That dispute was manifested in the taking of various steps by either side. The respondents instituted the Equity proceeding and took steps to involve the Society on two fronts. Mr Goldberg instituted the Common Law proceeding. The Equity proceeding preceded the complaint to the Law Society which, in turn, came before the institution of the Common Law proceeding. But, by August 1990, all were on foot. In seeking to locate where the fairness of the matter lies, in the sense I have described, it would, on the somewhat unusual facts of this case, be wrong to divorce what was done by Mr Goldberg in responding to the complaint made to the Society from the question of what was to be discovered, without privilege, as an interlocutory step towards the trial of the consolidated proceeding in the Supreme Court.

31. Counsel for the respondents relied upon the statement by Clarke JA that Mr Goldberg had used the privileged material to his advantage and to the disadvantage of the respondents, the Society having resolved to dismiss the complaint "as a consequence of the information contained in the privileged material". However, in my view, this represents an incomplete picture. Thus, it might be said with some cogency that the Society dismissed the complaint as "now presented" as a consequence of its failure or omission to afford to the respondents the opportunity to counter whatever favourable impression otherwise was created by the provision to the Society of the privileged material. This is not to say that the Society was obliged to provide such an opportunity to the respondents. I express no view upon that matter. It is to say that it cannot simply be said that the dismissal of the complaint was a consequence of the provision of the information by Mr Goldberg.

32. Certainly, as Mahoney JA pointed out, Mr Goldberg used the privileged material to seek to obtain a benefit vis-a-vis his former clients. The evidence indicates that, following the request of Ms Shirvington to look at the documents prepared for Mr Swaab, Mr Goldberg responded in a manner which avowedly suggested that he had nothing to hide and was being very full and frank in the course of a lengthy interview.

33. However, I agree also with the statement of Kirby P that, to say that Mr Goldberg "chose" to make the disclosure he did, does not tell the full story. In my view, it is here that the critical point is reached.

34. As I have indicated, the interview with Mr Goldberg was conducted in a particular legal setting provided by the existence of the compulsive powers enjoyed by the Society, pursuant to statute, in dealing with complaints by clients. Looked at objectively, the occasion in which the disclosure was made by Mr Goldberg was not one in which he was an entirely free actor. Even without the backing provided by the statutory sanction, it might be thought incumbent upon Mr Goldberg, as a practitioner whose conduct has been called into question, to deal with it fully and frankly before the responsible professional body.

35. In Woollahra Municipal Council v Westpac Banking Corp(69) and Network Ten Limited v Capital Television Holdings Limited(70), Giles J treated as very significant the circumstance that an alleged implied waiver of legal professional privilege involved making documents available to enable the recipients to carry out their statutory duties and that there existed statutory compulsory processes. I agree.

36. In the present case, the disclosure to the Society was of this nature. Even allowing for the advantage Mr Goldberg sought to gain by making the disclosure, the circumstances of the case supply no sufficient reason for depriving him of the form of protection which the law has deemed it specially necessary to throw around communications between solicitor and client.

37. I would allow the appeal and make the orders proposed by Toohey J.

Footnotes:

1 See Div 3 of Pt 7 of the Legal Profession Act.

2 It is not clear whether Bundle A included any other documents such as a record of oral interviews between Mr Goldberg and an officer of the Law Society. The appeal has been argued on the basis that it did not and it is convenient to proceed on that basis.

3 Goldberg v Ng (1994) 33 NSWLR 639.

4 Mahoney JA's description.

5 See, eg, Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475 at 487, 490; Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52 at 88, 95, 115-117, 131-132; Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 at 685.

6 See Attorney-General (NT) v Maurice (1986) [1986] HCA 80; 161 CLR 475 at 491. See further Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 at 685 per Stephen, Mason and Murphy JJ: "not to be exorcised by judicial decision"; O'Reilly v State Bank of Victoria Commissioners [1983] HCA 47; (1983) 153 CLR 1 at 23-24 per Mason J, 34-35 per Wilson J; Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52 at 114 per Deane J; Waterford v The Commonwealth [1987] HCA 25; (1987) 163 CLR 54 at 62 per Mason and Wilson JJ, 100 per Dawson J; Carter v Northmore Hale Davy and Leake (1995) 69 ALJR 572; 129 ALR 593.

7 Other than that one annexure to the first statement is described as "a draft brief". Mr Goldberg gave evidence that there were no annexures to the second statement.

8 See, as to the possibility of a limited waiver, Thomason v The Council of the Municipality of Campbelltown (1939) 39 SR (NSW) 347 at 354-358 per Jordan CJ; British Coal Corporation v Dennis Rye Ltd (1988) 1 WLR 1113 at 1121; Goldman v Hesper (1988) 1 WLR 1238 at 1244-1245; Harbour Inn Seafoods Ltd v Switzerland General Insurance (1990) 2 NZLR 381 at 384; Woollahra Municipal Council v Westpac Banking Corporation (1994) 33 NSWLR 529 at 539-540.

9 Wigmore on Evidence (McNaughton Rev 1961), vol 8, par 2327, quoted with approval by Gibbs CJ and by Mason and Brennan JJ in Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475 at 481, 488.

10 [1986] HCA 80; (1986) 161 CLR 475.

11 [1986] HCA 80; (1986) 161 CLR 475 at 481.

12 [1986] HCA 80; [1986] HCA 80; (1986) 161 CLR 475 at 487-488.

13 (1981) 1 WLR 529; (1981) 2 All ER 485.

14 [1986] HCA 80; (1986) 161 CLR 475 at 492-493.

15 [1986] HCA 80; (1986) 161 CLR 475 at 497-498.

16 (1956) 1 QB 187.

17 (1981) 1 WLR 529 at 536; (1981) 2 All ER 485 at 490.

18 See Legal Profession Act, s 35(2) since replaced by s 37 (see the Legal Profession Reform Act 1993 NSW)).

19 See Div 3 of Pt 7 of the Legal Profession Act.

20 The evidence does not disclose whether, as the Law Society's letter of 14 May 1990 might suggest, the second privileged statement was in fact supplied to the Law Society pursuant to a request for such a "written response".

21 Goldberg v Ng (1994) 33 NSWLR 639.

22 See (1994) 33 NSWLR 639.

23 See Attorney-General (NT) v Kearney [1985] HCA 60; (1985) 158 CLR 500.

24 Ritz Hotel v Charles of the Ritz (No 22) (1988) 14 NSWLR 132 at 133 per McLelland J.

25 (1995) 69 ALJR 572; 129 ALR 593.

26 State Bank of South Australia v Smoothdale No 2 Ltd, unreported, Supreme Court of South Australia, 2 June 1995 at 5 per King CJ (Mullighan and Nyland JJ agreeing).

27 Buttes Oil Co v Hammer (No 3) (1981) QB 223; Guinness Peat Ltd v Fitzroy Robinson (1987) 1 WLR 1027.

28 Bulk Materials v Coal and Allied Operations (1988) 13 NSWLR 689; Thiess Contractors Pty Ltd v Terokell Pty Ltd (1993) 2 Qd R 341.

29 Dingwall v Commonwealth of Australia [1992] FCA 627; (1992) 39 FCR 521.

30 Harbour Inn Seafoods v Switzerland General Insurance (1990) 2 NZLR 381.

31 Harbour Inn Seafoods v Switzerland General Insurance (1990) 2 NZLR 381 at 384.

32 (1988) 1 WLR 1113.

33 (1988) 1 WLR 1113 at 1121.

34 (1988) 1 WLR 1113 at 1122.

35 (1988) 1 WLR 1238.

36 (1988) 1 WLR 1238 at 1245.

37 Both decisions were applied by a Divisional Court in Northern Ireland in Downey v Murray (1988) NI 600 (QBD).

38 [1991] HCA 2; (1991) 171 CLR 592.

39 (1985) 1 WLR 689.

40 [1991] HCA 2; (1991) 171 CLR 592 at 606.

41 (1994) 33 NSWLR 639 at 654.

42 [1986] HCA 80; (1986) 161 CLR 475 at 487-488.

43 Andrews, "The Influence of Equity Upon The Doctrine Of Legal Professional Privilege", (1989) 105 Law Quarterly Review 608 at 623-624 criticises the use of "implied" waiver to describe such a situation since termination of the privilege in this situation "is an imposition of law".

44 (1981) 1 WLR 529.

45 The Society was investigating pursuant to Div 3 of Pt 10 of the Legal Profession Act.

46 s 134(1)(c).

47 s 163(1)(a).

48 s 35(2)(c).

49 See Woollahra MC v Westpac Banking Corp (1994) 33 NSWLR 529 at 540; Hartogen Energy Ltd v AGL Co (1992) 36 FCR 557 at 568; TPC v Ampol Petroleum (Vic) Pty Ltd [1994] FCA 1301; (1994) 52 FCR 578 at 586.

50 As the Act then stood, the Legal Profession Disciplinary Tribunal could, if satisfied that a legal practitioner was guilty of unsatisfactory professional conduct, order the practitioner to pay monetary compensation for any loss suffered because of the conduct, but not exceeding $2,000 except with the consent of the practitioner: s 163(3) and (4). But this did not affect any other remedies available to the complainant except that there was to be no double compensation: s 163(4) and (5).

51 (1994) 33 NSWLR 639 at 659.

52 (1994) 33 NSWLR 639.

53 [1986] HCA 80; (1986) 161 CLR 475.

54 Now repealed and replaced by s 37, as a consequence of the Legal Profession Reform Act 1993 (NSW), Sched 1.

55 This letter later was discovered by Mr Goldberg. I agree, for the reasons given by Toohey J, that nothing turns on this.

56 Mahoney and Clarke JJA, Kirby P dissenting.

57 (1994) 33 NSWLR 639 at 665-666.

58 (1994) 33 NSWLR 639 at 677.

59 (1994) 33 NSWLR 639 at 655.

60 McNaughton Rev (1961), vol 8, par 2327.

61 Sopinka, Lederman and Bryant, The Law of Evidence in Canada, (1992) at 666.

62 [1986] HCA 80; (1986) 161 CLR 475 at 481, 488, 497-498.

63 (1939) 39 SR(NSW) 347 at 355.

64 Baker v Campbell [1983] HCA 39; ; (1983) 153 CLR 52 at 88, 95-96, 116-117, 131-132; Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475 at 480, 490-491; Carter v Northmore Hale Davy and Leake (1995) 69 ALJR 572 at 577, 593-594; 129 ALR 593 at 600, 622.

65 (1988) 1 WLR 1113 at 1120; (1988) 3 All ER 816 at 821.

66 (1930) AC 558.

67 (1939) 39 SR(NSW) 347 at 357-358.

68 (1994) 33 NSWLR 639 at 655.

69 (1994) 33 NSWLR 529 at 540.

70 (1995) 16 ACSR 138 at 144-145.