Bonney v Tafe (NSW) [1999] NSWCC 42; (1999) 18 NSWCCR 540 (21 September 1999)

Last Updated: 25 April 2000

[1999] NSWCC 42; (1999) 18 NSWCCR 540

BONNEY v TAFE (NSW)

[1999] NSWCC 42

Compensation Court of New South Wales: Walker J

21 September 1999

Evidence - Admissibility - Document otherwise privileged disclosed to expert witness retained to make report for purposes of litigation - Whether privilege waived by disclosure - Whether waived by failure to object during cross-examination on document - Disclosure made in course of making confidential communication - Waiver during cross-examination not knowingly and voluntarily made - Privilege retained - Evidence Act 1995 (NSW), s 117(1), s 122(2)

The applicant prepared a document addressed to his then solicitor which was a critique of an advice on evidence of counsel retained by the applicant. He sent a facsimile of that document to a medical practitioner qualified by the applicant to give expert evidence in his case. It was common ground that the document attracted legal professional privilege. The issue calling for a ruling was whether that privilege had been waived by the communicating of the document to the medical practitioner or the failure to object when the facsimile was subpoenaed from the doctor and when the doctor and the applicant were cross-examined on the document.

Held:

(1) The disclosure of evidence which would otherwise attract legal professional privilege to a third party, such as the medical practitioner, will cause the privilege to be lost unless made in circumstances set out in the Evidence Act 1995 (NSW) (the Act), s 122(2), e.g. if disclosed in the course of making a confidential communication. A communication is confidential if when it is made the person who made it or the person to whom it was made was under an express or implied obligation not to disclose its contents: s 117(1) of the Act. Here the medical practitioner, as an expert witness retained by the applicant to produce a report on issues in the case, was under such an obligation so the disclosure of the document to him remained privileged.

Amalgamated Television Services Pty Ltd v Marsden [1999] NSWCA 97, per Giles JA at [27] and [29] applied.

(2) The holder of a the privilege attaching to the contents of a privileged document does not waive that privilege unless he or she voluntarily discloses the contents and does so knowingly: s 122(2) of the Act. Here the holder (the applicant) was not present at the time of the cross-examination of the doctor and so could not have consented to the use of the document but he objected once the nature of the document he was being cross-examined on became clear. Mere inadvertence or mistake will not waive the privilege.

CASES CITED

The following cases are cited in the judgment:

Amalgamated Television Services Pty Ltd v Marsden [1999] NSWCA 97

Akins v Abigroup Ltd (1993) 48 NSWLR 539

Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475; 61 ALJR 92; 69 ALR 31

Dingwall v Commonwealth [1992] FCA 627; (1992) 39 FCR 521

DPP v Kane, NSWSC, No. CLD 11386/97, Hunt CJ in CL, 10 September 1997, unreported

Goddard v Nationwide Building Society [1986] 1 QB 670

Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83; 69 ALJR 919; 132 ALR 57

Telstra Corporation Ltd v Australis Media Holdings (1997) 41 NSWLR 147

RULING

This ruling considered whether the applicant, as holder of the privilege attaching to a document he had prepared, had waived that privilege by disclosing it, as background, to an expert witness retained to prepare a report for the proceedings or by failing to object to the use of the document in cross-examination of the witness and the applicant.

D.I. Cassidy QC and D.I. Epstein, for the applicant

I.S. Judd and M.A. Gilmour, for the respondent

Ex tempore

1 WALKER J:

Background

The respondent seeks to admit into evidence MFI R26. MFI R26 consists of two documents created by the applicant Martin Bonney. The first is a facsimile to Dr Mark Donohoe a medical practitioner qualified by the applicant to give expert evidence in this case touching upon the key medical issues in contention.

2 The first part of this facsimile is not contentious merely providing some information to the doctor concerning permission to inspect the building which was the applicant's workplace.

3 The second part of the facsimile is contentious because it encloses a further document created by the applicant. That second document is addressed to the applicant's then solicitor and represents a critique of an advice on evidence of counsel retained by the applicant.

4 It is common ground that in the applicant's hands or in the hands of his solicitor that this is a confidential document that would ordinarily attract client legal professional privilege. The question for my determination is whether or not that privilege has been waived.

Submissions

5 Mrs Gilmour for the respondent submitted:

1. Whilst the document in question attracts client legal privilege that privilege has been expressly or impliedly waived by two acts:

(a) by communicating the document to Dr Donohoe, and

(b) by failing to raise an objection firstly after the document was subpoenaed from Dr Donohoe and secondly when Mr Judd for the respondent cross-examined Dr Donohoe and the applicant upon the document.

2. The facsimile to Dr Donohoe suggests the document could be a useful source of background information for Dr Peter Dingle. Dr Dingle is a technical expert qualified by the applicant to report on the safety of his workplace environment. The implication is that Dr Donohoe should communicate the document to Dr Dingle.

3. S 122 of the Evidence Act 1995 deals with situations were client legal privilege can be lost. S 122(2) provides that if a client knowingly and voluntarily disclosed to another person the substance of the evidence and the disclosure was not made:

(a) in the course of making a confidential communication, or

(b) as a result of duress or deception or

(c) under compulsion of law,

then Div 1 of Pt 3.10 does not prevent the adducing of the document into evidence.

4. The communication to Dr Donohoe, and presumably Dr Dingle, was not in the course of making a confidential communication.

5. The document in question was subpoenaed in May 1998. The applicant had ample time to bring a motion before this Court to claim privilege but failed to do so. The respondent was entitled to assume that privilege was not being claimed.

6. When Dr Donohoe was cross-examined using the document on 9 September 1999 it was clear that it was a communication from the applicant to his solicitor about his barrister's opinion. No objection was taken.

7. Further when the applicant was cross-examined using the document on 16 September 1999 objection was not immediately taken.

8. The applicant as holder of the privilege must seek relief before the confidential communication is relied upon by the respondent at the trial. Failure to claim privilege because it was not appreciated that the document was privileged means the privilege is lost.

6 Mr Cassidy QC for the applicant submitted:

1. Both communications for advice and communication for litigation are included in the classes of confidential communications and documents protected by s 118 of the Evidence Act 1995. Accordingly, communications between client and a third party made for the dominant purpose of receiving legal services in connection with pending litigation such as the provision of expert evidence by Dr Donohoe and Dr Dingle are protected.

2. The plain purpose of providing Dr Donohoe and through him Dr Dingle with the comment on the advice on evidence was to furnish background information to assist them prepare their reports.

3. Dr Donohoe's evidence was that he did not read the applicant's prolix facsimiles in any event. Accordingly, the document though electronically transmitted was not communicated either to Dr Donohoe or Dr Dingle.

4. Both Dr Donohoe and Dr Dingle having been retained as an expert witnesses were under an obligation not to disclose its contents. The copying to Dr Donohoe for information did not alter the essential character of the document.

5. The client's legal representative cannot waive the privilege. Only the person entitled to claim it can expressly or impliedly effect a waiver. S 122 requires that the act of waiver be voluntary and the disclosure occur knowingly.

6. Accordingly, the failure to object to the cross-examination of Dr Donohoe cannot be said to be a waiver because the applicant was not in Court at the time. The applicant when cross-examined about the facsimile to Dr Donohoe immediately made it clear that the document concerned was in fact a memorandum to his then solicitor which led to the privilege being claimed.

7. The Evidence Act 1995 is not a code on client legal privilege. The principles and rules applicable at common law still apply except where the Act provides otherwise. One such principle that still applies is that in cases of imputed or implied waiver of legal professional privilege is not lost by mere copying to some other person for information or providing them to a potential witness.

8. Ordinary notions of fairness should be applied in deciding whether the holder of the privilege has expressly or impliedly waived it. Only where disclosure is incompatible with the retention of confidentiality will there be a waiver.

THE LAW

Is s 122 a code?

7 Both parties ask me to adopt common law principles adopted in case law prior to the enactment of the Evidence Act 1995. The High Court has yet to decide this issue. The Court of Appeal has made the position perfectly clear however. In Akins v Abigroup Ltd (1993) 48 NSWLR 539 at 545, President Mason asserted at 545B:

Questions whether client legal privilege touching discovered documents exists, or is lost, do not require a conclusion as to whether or not the Evidence Act 1995 is a code. Indeed s 9(1) of that Act (the NSW statute, not the Commonwealth statute) makes plain its intention not to affect the operation of principles or rules in relation to evidence in a proceeding except so far as the Act provides otherwise expressly or necessary intendment.

S 122

8 S 122(2) relevantly provides that:

... this Division does not prevent the adducing of evidence if a client or party has knowingly and voluntarily disclosed to another person the substance of the evidence and the disclosure was not made:

(a) in the course of making a confidential communication or preparing a confidential document ...

9 The questions arising on the facts of this case from s 122 are:

1. Was the disclosure to Dr Donohoe an action in the course of making a confidential communication or preparing a confidential document?

2. Was the failure of counsel representing the applicant to object to cross-examination of Dr Donohoe on the document a waiver of his right?

Nature of disclosure to Dr Donohoe

10 Dr Donohoe was not a treating doctor. He is a physician specialising in cases involving exposure of workers to toxic substances in the workplace. He prepared reports which have been tendered in evidence in this case. Similarly Dr Dingle has prepared a report for this case.

11 A number of authorities have been cited to assist me determine if s 122(2) applies to Mr Bonney's communication to Dr Donohoe to strip it of the privilege it would otherwise enjoy.

12 In Telstra Corporation Ltd v Australis Media Holdings (1997) 41 NSWLR 147 McClelland CJ in Eq expressed his views on the true construction of s 118(c) of the Evidence Act 1995 which prohibits the adducing of evidence that would result in the disclosure of the contents of a confidential document prepared by the client.

13 At 149F he said:

...Par(c), on its true construction, does not apply to a document, the essential character of which is a communication ... made by the client to another person.

14 He went on to say:

This is not to say that a document, the essential character of which is not such a communication, which may therefore find protection under par(c) will lose any such protection under par(c) merely because it is communicated. The words: (whether delivered or not) would preclude such a view. For example, the making of a written communication which enclosed a document, the essential character of which was not that of a communication of the kind already referred to, would not alter the essential character of the last mentioned document. Furthermore the mere copying to some other person for information of a document, which in its primary form was a document, the essential character of which was not that of a communication of the kind referred to, again would not alter the essential character of the document.

15 In Dingwall v Commonwealth [1992] FCA 627; (1992) 39 FCR 521, Justice Foster considered the doctrine of waiver as it applied to privileged medical reports forwarded to potential witnesses by the solicitor for the holder of the privilege.

16 At 525 Justice Foster expressed the opinion:

I would not, therefore, accept the view that the documents in these present proceedings are liable to production as being privileged documents in respect of which waiver is established, simply on the basis that they were provided to the doctor as part of material put to him for the purpose of obtaining his expert opinion. If that were so, really, legal professional privilege would cease to have any substance.

17 The High Court considered prior to the 1995 Evidence Act the question of implied or imputed waiver in Attorney General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475. At 487 the Court considered implied waivers and said:

... A litigant can of course waive his privilege directly through intentionally disclosing protected material. He can also lose that protection through a waiver by implication. An implied waiver occurs when, by reason of some conduct on the privileged 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.

18 In Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83 at 84 Deane, Dawson and Gaudron JJ said at 84:

... That disclosure was for the limited purpose of dealing with enquires made of the Law Society in relation to a 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 be properly seen as constituting an express or intentional general waiver of legal professional privilege or as destroying the confidentiality which is necessary for its maintenance.

19 Justice Toohey dissented saying at 106:

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.

20 The respondent draws my attention to two further cases where it is suggested that in the circumstances of this case a different result would be obtained. Firstly my attention is drawn to the decision of Justice Hunt in DPP v Kane, NSWSC, No. CLD 11386/97, Hunt CJ in CL, 10 September 1997, unreported. There Justice Hunt reviews the case law in circumstances where the solicitor for the DPP inadvertently provided Mr Kane with a legal opinion meant for the Director.

21 In particular he considered the decision of Lord Justice Nourse in Goddard v Nationwide Building Society [1986] 1 QB 670. That was a decision that asserted that the common law limits of the privilege do not confine equity.

22 Equity goes further in protection of the privilege holder's information because it treats him as enjoying property in that information. Be that as it may, this inferior Court has no statutory power to provide remedies such as injunctions to protect the property in privileges. Kane's case was resolved on the basis that inadvertence or mistake is not a voluntary or knowing waiver of privilege within the meaning of s 122.

23 In Amalgamated Television Services Pty Ltd v Marsden, 1999 NSWCA 97, 15 April 1999, unreported, the Court of Appeal considered whether client legal privilege was lost in a defamation suit by providing copies of witnesses statements to police conducting a separate inquiry. The documents were privileged and they were allegedly conveyed to the police on a confidential basis. Justice Giles at [27] said on construing s 122(2):

Unless the disclosure was made in the course of making a confidential communication, client legal privilege was lost.

The question then posed was:

Was the communication a confidential communication, that is a communication made in circumstances that, when it was made, Mr Lee (Marsden's solicitor) or Mr Woodhouse (Police Superintendent) was under an express or implied obligation not to disclose its contents?

24 Justice Giles went on to say at [29]:

Confidentiality was to be measured not by consent to extinguishing privilege or confidentiality or a sense of fairness, but by the words of the definition in s 117(1).

Resolving the first question

25 Applying Justice Giles's dictum, the question of whether Mr Bonney's communication to Dr Donohoe remains privileged will depend upon whether that communication was confidential within the meaning of s 117(1). In other words it will depend on whether Dr Donohoe and Dr Dingle were under an express or implied obligation not to disclose its contents. Both gentlemen were expert witness retained to produce reports on issues in the case. Both received a communication of a privileged document. Atkin's case confirms that merely copying the document does not change its privileged character.

26 Dingwall's case establishes that documents provided to expert witnesses for the purposes of obtaining their expert opinion remain privileged. Mr Bonney clearly has furnished the document as background information. It deals at length with his medical condition as well as his work environment. This situation is to be distinguished from Marsden's case where the document was provided for purposes extraneous to the case to a party who had nothing to do with the case.

27 Accordingly, I take the view that the communication was a confidential communication within the meaning of s 117(1) made in circumstances where both Dr Donohoe and Dr Dingle were under an obligation as qualified expert witnesses not to disclose its contents. I therefore determine that in communicating the privilege document to Dr Donohoe the applicant has not either expressly or impliedly waived his client's legal professional privilege within the meaning of s 122(2).

Failure to object

28 Chief Justice Gibbs in Maurice's case at 480 said:

However like every privilege properly so called, it can be waived, although only by the person entitled to claim it, that is the client and not the client's legal representative.

29 S 122(2) states:

Subject to subsection (5), this Division does not prevent the adducing of evidence if a client or party has knowingly and voluntarily disclosed to another person the substance of the evidence ...

30 In other words, the holder of the privilege must not only voluntarily disclose the evidence but know what he or she is doing. The respondent suggests that the requirements of s 122(2) have been met in three instances:

1. Dr Donohoe answered some questions about the privileged document without objection from the applicant's counsel.

2. The documents, having been subpoenaed, languished from May 1998 in the custody of the Court without the applicant seeking to uphold his privilege by notice of motion.

3. The applicant was slow to object when questioned about the document.

31 The respondent directs my attention to Justice Hunt's judgment in Kane's case and through him to Lord Justice Nourse's statement of the law in Goddard's case. In particular my attention is directed to Nourse LJ's observation at the foot of 21 that:

First it is crucial that the holder of the privilege seek relief before the party to whom the confidential communication was disclosed has adduced it in evidence or otherwise relied on it at trial.

32 What Lord Justice Nourse was referring to was equitable relief in the form of an injunction, not relief under s 118 of the Evidence Act. The applicant's legal advisers were slow to grasp the fact that Mr Judd was using a privileged document to conduct his cross-examination. Indeed the point was not taken at all during the cross-examination of Dr Donohoe. It was clear to me that counsel for the applicant were not aware of the existence of the annexure to the facsimile.

33 That is understandable in a case where there is a super abundance of paper evidence and Dr Donohoe's files overflowed with special investigations as well as faxes from Mr Bonney together with material for five other applicants. There was also a change of solicitors with all the associated problems of a small firm with limited resources getting across a very large case.

34 Mr Cassidy suggests that Mr Judd's cross-examination of Dr Donohoe was devious. I cannot agree. Mr Judd may have been subtle but his questions did in fact reveal that the document he was using was a communication from the applicant to his then solicitor about a barrister's advice. The fact is that the point could have been but wasn't taken by Mr Cassidy.

35 Nevertheless, the document being used was protected by legal professional privilege. The holder of that right was not present at the time to waive it. The common law makes it clear that mere inadvertence or mistake will not waive it. S 122 makes it clear that the waiver must be a knowing and voluntary act by the holder. Maurice's case asserts that the applicant's legal advisers cannot exercise the right of waiver on his behalf.

36 I determine therefore that the privilege was not waived either expressly or impliedly.

37 This brings me to the cross-examination of Mr Bonney. The transcript reveals that when Mr Bonney made the nature of the document in Mr Judd's hands clear the appropriate objection was taken. I see no waiver there by the applicant.

38 Even if this Court was to be pedantic and assert that if the point was not taken immediately the first question was asked that went to the substance of the privileged document, I do not believe the waiver could be said to be voluntary.

39 Mr Bonney is a teacher of industrial chemistry and has no understanding of arcane legal principles. He needs to be advised of his rights before he can voluntarily and with knowledge waive them.

Fairness

40 The final matter raised in the submission go to the question raised in Goldberg and Maurice's case about fairness. The question is whether ordinary notions of fairness might require that the applicant be precluded from asserting his privilege by virtue of his intentional disclosure of it to Dr Donohoe and through him to Dr Dingle. I have already found that there was nothing incompatible with the retention of confidentiality in that disclosure.

41 Mr Bonney's views to his solicitor about his barrister's opinion on the merits of his case are precisely the sort of material that the privilege is designed to protect. If they were not protected no litigant could safely consult a barrister or instruct a solicitor and the administration of justice would break down.

43 For all these reasons I find there has been no waiver expressed or implied of the applicant's rights under s 118 of the Evidence Act 1995 and I do not propose to accept MFI R26 into evidence.

Ruling accordingly

Solicitors for the applicant: Spooner & Bradshaw

Solicitors for the respondent: Dunhill Madden Butler