Cameron v Australian Water Technologies [1997] NSWCC 39; (1997) 15 NSWCCR 155 (9 September 1997)

[1997] NSWCC 39; (1997) 15 NSWCCR 155

CAMERON v. AUSTRALIAN WATER TECHNOLOGIES

Compensation Court of New South Wales: Neilson J

9 September 1997

Evidence excluded from proof - On grounds of privilege - Professional confidence - Waiver of privilege - "Lawyer" may authorise disclosure of privileged document - Whether solicitor employed as a clerk is a "lawyer" - Evidence Act 1995, section 122(3)

Words, phrases and maxims - "lawyer" - Evidence Act 1995, section 122(3)

M.L. Snell, for the applicant

G.M. Farkas, for the respondent

Ex tempore

NEILSON J: Mr Farkas for the respondent seeks to cross-examine the applicant upon a letter bearing date 9 January 1997, which I will mark for identification 2.

The letter was addressed by the applicant to her solicitor, Mr Howard Harrison, a partner in the firm Carroll & O'Dea. The solicitor on the record is Mr Michael Concannon, also a partner at Carroll & O'Dea. The notice of change of solicitor filed by Messrs Carroll & O'Dea bears Mr Harrison's reference on the back sheet.

The circumstances in which the letter was generated are clear. On 19 December 1996 a subpoena was issued out of this Court at the request of the respondent's solicitors, addressed to the applicant requiring production of certain financial records. The last date for service of the subpoena was 7 January 1997.

The applicant's letter bears date 9 January 1997 and refers to the subpoena having been served on her son on 7 January 1997. The letter is a letter of instructions permitting the applicant's solicitors to answer the subpoena served upon her.

The letter is a "confidential communication" as defined in section 117 of the Evidence Act 1995. The letter itself was not required to be produced by the subpoena as it postdated the issue of the subpoena and was clearly not an original document of the type called for by the subpoena. It was in fact a letter of instructions.

The applicant sent the letter together with documents to answer the subpoena to her solicitors. The letter came to the attention of Mr Blake McGuire, an employee of Carroll & O'Dea. He is a solicitor employed as a clerk. He then permitted documents to be sent to this Court to obey the subpoena, together with the letter of instructions.

The bundle of documents was inspected on behalf of the applicant, in accordance with the usual practice, by the registration clerk of Carroll & O'Dea, who, it is common ground, is not a legal practitioner.

Mr Farkas' solicitor then inspected the documents and photocopied them, hence a copy of the letter which is MFI 2 has made it way into his brief. The question is whether the privilege that would normally attach to MFI 2 has been destroyed.

By section 118 of the Evidence Act evidence is not to be adduced if, on the objection of a client, the court finds that adducing the evidence would result in disclosure of the confidential communication made between the client, and in this case, her lawyer. As I have already indicated MFI 2 is a confidential communication made between the client and the lawyer.

The circumstances in which privilege may be lost are, in this case contained in section 122. Subsection (1) of that provision is a general one. That provides that the Division of the Evidence Act relating to privileges does not prevent the adducing of evidence given with the consent of the client or the party concerned. The sworn evidence before me is that the applicant has not consented to nor authorised anybody to disclose the confidential communication between her and her solicitor.

Subsection (2) then provides that the Division does not prevent the adducing of evidence if a client or a party has knowingly and voluntarily disclosed to another the substance of the evidence, subject to certain provisos which are not currently relevant. The question is, has the applicant knowingly and voluntarily disclosed to another person substance of the contents of MFI 2.

Clearly there is scope in subsection (2) for the doctrine of constructive consent or implied consent. However, subsection (3) provides as follows:

"Subsection (2) does not apply to disclosure by a person who was, at the time, an employee or agent of a client or a party or of a lawyer unless the employee or agent was authorised to make the disclosure."

Clearly knowing and voluntary disclosure cannot be made by an employee of a lawyer unless the employee was authorised to make the disclosure. It would appear that if the lawyer himself makes the disclosure, he is not protected by subsection (3). The question then becomes whether when Mr McGuire and the registration clerk for Carroll & O'Dea failed to claim the privilege they were protected by subsection (3).

"Lawyer" is defined in the dictionary which forms part of the Evidence Act as meaning "a barrister or solicitor". There is a further definition of lawyer in section 117 which governs the division of the Evidence Act relating to client and legal privilege, that extends the definition of lawyer to include an employee or agent of a lawyer so that a lawyer can mean for the relevant Division an employee or agent of a solicitor or barrister. However, to read that into section 122(3) would in my view negate its purpose.

It appears to me that to read agent or employee of a lawyer, where lawyer appears in subsection (3), would be of little utility as it would refer to an employee of the employee of a lawyer, which of course is a legal nonsense.

In my view the word "lawyer" when used in section 122(3) merely refers to a solicitor or barrister. The question then becomes does it apply to a solicitor where he is admitted as such but is not the solicitor acting for the party but merely a solicitor employed as a clerk.

In my view I should read definition of lawyer contained in the dictionary as referring to the solicitor acting for the party or the barrister acting for the party or client, as the case maybe.

Here Mr McGuire was not the solicitor acting for the party, Mr Harrison and Mr Concannon were the applicant's solicitors. Mr McGuire, although admitted as a legal practitioner, is essentially a clerk employed by them. The common law makes the distinction between the solicitor for a party and a solicitor employed as a clerk and there is nothing in my view in section 122 or other provisions of the Evidence Act which abrogates that common law distinction: vide Knaggs v. JA Westaway & Sons Pty Ltd (1996) 40 NSWLR 476.

I hold therefore that MFI 2 was disclosed by an employee of the applicant's solicitor who was not authorised to make the disclosure at the time.

In those circumstances the applicant cannot be said to have knowingly and voluntarily made a disclosure of MFI 2 and I reject the question based on a copy of MFI 2, which has made its way into the hands of the respondent's counsel.

Ruling accordingly

Solicitors for the applicant: Carroll & O'Dea

Solicitors for the respondent: Astridge & Murray