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High Court of Australia |
HAROLD JOHN GOLDBERG AND YONA GOLDBERG v BERNARD NG, HANGO HOLDINGS PTY
LIMITED AND CHERYL NG
F.C. 95/044
Number of pages - 37
[1995] HCA 39; (1995) 185 CLR 83
HIGH COURT OF AUSTRALIA
DEANE(1), DAWSON(1), TOOHEY(2), GAUDRON(1) AND GUMMOW(3) JJ
CATCHWORDS
HEARING
CANBERRRA, 15 August 1995ORDER
Appeal dismissed with costsDECISION
DEANE, DAWSON AND GAUDRON JJ. The first appellant, Mr Harold Goldberg, is a Sydney solicitor. The other appellant, Mrs Yona Goldberg, is his wife. They are the defendants in proceedings brought in the Equity Division of the Supreme Court of New South Wales by the three respondents, Mr Bernard Ng, Hango Holdings Pty Limited ("Hango Holdings") and Ms Cherry Ng, who were former clients of Mr Goldberg. Mr Ng and Ms Ng are brother and sister. Hango Holdings has been described as "their company". It will be convenient to refer to the three respondents collectively as "the Ngs".
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 acomplaint by the Society's Professional Conduct Department. I will continue to liaise with that Department concerning progress of the matter.
"I have now had two lengthy conferences with Mr Goldberg inrelation to this matter and he has forwarded me quite a number of documents which I have perused.
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 theinvestigation of this complaint has been completed and the Society's Complaints Committee has resolved to dismiss it on the grounds that it does not involve a question of professional misconduct or unsatisfactory professional conduct.
The reasons for this decision are as follows:-1. As the matter is now presented the Committee was not satisfied that there was any evidence of professional misconduct or unsatisfactory professional conduct.
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 thegenerality of the foregoing) correspondence, files, file notes, minutes and records of conversations or proceedings relating to the complaint to the Society by Bernard Ng regarding Harold John Goldberg, Solicitor, and concerning the accounting by Mr Goldberg to Mr Ng for moneys paid to him or his agent by Mr Ng in or about February 1989."
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 dependson 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".
"An implied waiver occurs when, by reason of some conduct onthe 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:
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 orimplication 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."
"... it is clear enough that an implied waiver may berequired by fairness notwithstanding that it was not intended. It would not be fair to allow privilege to be waived with respect to a portion of a document or a conversation without requiring disclosure of the rest of it, at least if the document or conversation dealt with the one subject-matter: see Burnell v British Transport Commission(16) and Great Atlantic Insurance Co v Home Insurance Co(17). So much may be obvious, but legal professional privilege is concerned with protecting the confidentiality of a relationship and if that confidentiality is abandoned by a particular disclosure it may be necessary in fairness, whether further disclosure was intended or not, to require disclosure extending beyond the particular communication: see Wigmore on Evidence (McNaughton rev 1961), vol VIII, par 2327. The cases are not entirely consistent and perhaps what is fair by way of disclosure must ultimately depend upon the relevant circumstances."
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 ofthese proceedings and took copies with him when he went to see 'the lady from the Law Society' who appears to have been one Virginia Shirvington ('VS'). Mr Goldberg's evidence is (page 7 of the transcript) that the lady asked him what the papers were that he had with him. Mr Goldberg replied: 'I do have papers in this file which are relevant to this matter: and the lady said: 'Can we have a look at those?' Mr Goldberg said: 'I have brought them with me to refer if I need to ... I don't have anything to hide. I've already been very full and frank with you because we have now stayed over three hours being asked questions and giving answers. I don't want to have anything in these papers, which includes the things like a statement to my solicitor, given to the Ngs or their company or their legal advisors because you know it's my private confidential matter.' VS said: 'Well we won't give it to anybody else'. VS said: 'I would like to look through those documents' whereupon Mr Goldberg handed them to her saying 'I want to retain my legal professional privilege in regard to these papers' to which VS said 'You do'. Mr Goldberg then said: 'Well in that case in order to be completely frank and free with you and so that it is clear that I have nothing to hide, you can have a look through them.' VS then said: 'We want to keep these. Do you have a copy for yourself and your solicitor?' Mr Goldberg said 'Yes there are other copies. I just picked these up from my solicitor. There are other copies in the file.' VS said: 'Well, we'll keep these and I'll go through them'.
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:to provide it to you on the same basis as the previous one.'
'I've also prepared this statement for my court proceedings. I am prepared
She replied:It was upon such basis that I made a copy of my supplementary statement available."
'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 thegenerality of the foregoing) correspondence, files, file notes, minutes and records of conversations or proceedings relating to the complaint to the Society by Bernard Ng regarding Harold John Goldberg, Solicitor, and concerning the accounting by Mr Goldberg to Mr Ng for moneys paid to him or his agent by Mr Ng in or about February 1989."
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 LawSociety at the request of the Society when it was investigating allegations made against him to that Society by Mr Ng together with a draft brief and other annexures.
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 whatthe papers were that he had with him. Mr Goldberg replied: 'I do have papers in this file which are relevant to this matter: and the lady said: 'Can we have a look at those?' Mr Goldberg said: 'I have brought them with me to refer if I need to ... I don't have anything to hide. I've already been very full and frank with you because we have now stayed over three hours being asked questions and giving answers. I don't want to have anything in these papers, which includes the things like a statement to my solicitor, given to the Ngs or their company or their legal advisors because you know it's my private confidential matter.' VS said: 'Well we won't give it to anybody else'. VS said: 'I would like to look through those documents' whereupon Mr Goldberg handed them to her saying 'I want to retain my legal professional privilege in regard to these papers' to which VS said 'You do'. Mr Goldberg then said: 'Well in that case in order to be completely frank and free with you and so that it is clear that I have nothing to hide, you can have a look through them.' VS then said: 'We want to keep these. Do you have a copy for yourself and your solicitor?' Mr Goldberg said 'Yes there are other copies. I just picked these up from my solicitor. There are other copies in the file.' VS said: 'Well, we'll keep these and I'll go through them.'"
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 itmust be, cannot be construed as a waiver of any rights available to them in the present civil action for the purpose of which the privilege exists."
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, theinitial disclosure to the taxing officer must amount to waiver of privilege."
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 byimplication. An implied waiver 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."
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 onhis 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."
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 becauseof the current proceedings between your client and himself (in respect of which I understand he has not yet been served) he will not authorise the Society to make a copy of his response available to you. That is reasonable given that the matters in dispute in the proceedings are identical with the complaint/claim on the Fidelity Fund which you have made on behalf of Mr Ng, based on the material contained in Mr Ng's affidavit in support of summons."
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 theinvestigation of this complaint has been completed and the Society's Complaints Committee has resolved to dismiss it on the grounds that it does not involve a question of professional misconduct or unsatisfactory professional conduct.
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 thegenerality of the foregoing) correspondence, files, file notes, minutes and records of conversations or proceedings relating to the complaint to the Society by Bernard Ng regarding Harold John Goldberg, Solicitor, and concerning the accounting by Mr Goldberg to Mr Ng for moneys paid to him or his agent by Mr Ng in or about February 1989".
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 caseagainst Mr Ng, his sister and their company. On that basis and provided I retain legal professional privilege, I am prepared to give it to you, as I wish to be full and frank - I have nothing to hide."
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 inthis pile which are relevant to this matter' and she then said to me 'Can we have a look at those?' and I said to her, 'I have brought them with me to refer if I need to. These are papers which I have prepared for Mr Swaab,' having already mentioned that I had retained him as a solicitor, and I - I prepared them at his request, so that I can get advice from him and they can be used for me in proceedings against Mr Ng and his sister and their company, and we had some other conversation. I then said, 'Look, I don't have anything to hide. I have already been very full and frank with you because we have now stayed over three hours being asked questions and giving answers,' I said 'I don't want to have anything in these papers, which includes the things like a statement to my solicitor, given to the Ngs or their company or their legal advisers because, you know, it's my private confidential matter,' and she said, 'Well, we won't, you know, we won't give it to anybody else' and I think that is the stage when she said in fact 'We can - you can have an undertaking from the Law Society that it will all be confidential, nothing will be - none of the material will be given to anybody else,' and at that time I, you know, I felt under a compulsion to hand it across and that is when --
24. In his judgment, Mahoney JA said(57):
"It is not clear why Mr Goldberg produced to the Society thedocuments for which he could claim privilege rather than merely informed the Society of the relevant contents of them. If he did what he did in order, for example, to add force and authenticity to what he told the Society by virtue of the fact that the information was contained in the documents prepared for his solicitors, that would, I think, be a factor suggesting that what he did involved a conscious use of the fact of his solicitors' involvement for his own benefit and accordingly that fairness required that privilege not be available. The Court is asked to rule upon the matter without full knowledge of these circumstances.
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 therespondents' conduct of the present litigation has itself been influenced or prejudiced by the disclosure of the material to the Society. The respondents do not know the contents of the documents and, obviously enough, have not acted to their prejudice as a consequence of any knowledge of those contents. On the other hand, Goldberg has used the privileged material to his advantage and to the disadvantage of the respondents. The Law Society resolved, as a consequence of the information contained in the privileged material, to dismiss the complaint which had been brought by the respondents and to advise the respondents to take proceedings in the Court.
...maintain his privilege in the material. In saying this I am taking account of the fact that in the normal course he would have provided the Law Society with statements in response to the complaints, which were not privileged, and these would have been discoverable. The mere assurance of Ms Shirvington that confidentiality would be maintained would provide no answer to a subpoena addressed to the Law Society calling for the production of those documents. However, Goldberg chose to respond to Ms Shirvington's requests by supplying the privileged material which was then used by the Law Society to his advantage and to the disadvantage of the respondents. In these circumstances it is my opinion that it would be unfair to the respondents to uphold the privilege in the documents which have been used to their disadvantage. He should not be permitted to enjoy the benefits derived from the submission of the material to the Law Society without being subjected to the normal consequences of the submission of his own arguments to it. In other words his voluntary decision to use privileged, rather than non-privileged, material to provide his answer to Ng's complaint should not enable him to keep the contents of his answer from Ng."
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 inthe form of the privileged documents does not tell the full story. Nor do I accept that it was done to secure an advantage over his former clients. It was done out of duty as a practitioner and because the Society asked for such disclosure. Accompanying this disclosure was an express reservation by Mr Goldberg of his privilege and confidentiality in the documents. ... (T)he delivery of the relevant documents ... did not constitute a waiver by Mr Goldberg of his legal professional privilege in those documents as against any litigant party, including the Ngs, in the quite separate proceedings for which the documents were created. There was thus a limited waiver only of Mr Goldberg's legal professional privilege."
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 fairnessrequires it, for example, if a party has taken positions which would make it inconsistent to maintain the privilege."
"The mere fact that a person on some one occasion chooses toimpart to another or others advice which he has received from his solicitor indicates no intention on his part to waive his right to refuse on other occasions to disclose in evidence what that advice was, and supplies no sufficient reason for depriving him of a form of protection which the law has deemed it specially necessary to throw around communications between solicitor and client".
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 maytherefore well go no further than this, that if a communication made upon a privileged occasion is disclosed to a third party by a person who is entitled to the benefit of the privilege, and the third party is led by the disclosure to regulate his conduct in relation to some matter which becomes relevant in subsequent litigation to which he is a party, the otherwise privileged party cannot on the ground of privilege refuse to give, evidence as to the nature of the privileged communication if questioned on behalf of the third party."
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) 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) 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) 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) 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) 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.
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