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Supreme Court 19 April 2006

Thomas v State of New South Wales

[2006] NSWSC 380

Other
LEGAL PROFESSIONAL PRIVILEGE NOTICE TO PRODUCE WAIVING OF PRIVILEGE APPLICATION OF COMMON LAW PRINCIPLES ADVICE ATTACHED TO AFFIDAVIT

Citation: Thomas v State of New South Wales [2006] NSWSC 380
Court: Supreme Court of New South Wales, Common Law Division
Date: 19 April 2006
Judge(s): McClellan CJ at CL

Background

The plaintiff brought proceedings against the State of New South Wales for malicious prosecution and conspiracy, arising from events in 1986 when he was an inmate at Parramatta gaol. He was charged with assault-related offences following alleged admissions recorded by prison officers, convicted in 1988, and sentenced to 15 years imprisonment. The Court of Criminal Appeal quashed his conviction in 1999 and entered a verdict of acquittal. The plaintiff alleged he suffered serious physical and psychological harm during more than eight years of additional custody.

When the plaintiff applied to transfer the proceedings from the District Court to the Supreme Court in May 2005, his solicitor filed an affidavit annexing a joint advice on quantum from senior and junior counsel. That advice drew on factual instructions and medical evidence, and addressed heads of damage including general damages, economic loss, and exemplary damages.

The defendant issued a notice to produce in August 2005, seeking the brief to counsel and all documents upon which the joint advice had been based. The plaintiff resisted production on grounds of legal professional privilege, prompting a series of interlocutory hearings before Registrar Howe and Associate Judges before the matter was referred to a judge of the Court.

  • Whether the plaintiff waived legal professional privilege in the joint advice on quantum by annexing it to an affidavit filed in support of the transfer application.
  • Whether any waiver extended to the underlying documents used by counsel in preparing that advice.
  • Whether privilege was preserved because the affidavit was not read in court and not ultimately relied upon in the hearing of the motion.
  • The appropriate scope of any notice to produce issued to obtain those underlying documents.

Decision

McClellan CJ at CL held that by disclosing the advice in the proceedings to gain whatever assistance it might provide in advancing the plaintiff's claim, the plaintiff had waived legal professional privilege. The disclosure was made for a forensic purpose, and that was sufficient to constitute waiver, regardless of whether the affidavit was formally read or tendered at any hearing.

The court reasoned that the relevant question under common law principles is whether fairness requires that privilege be treated as waived. Here, the plaintiff sought an advantage by placing the advice before the Court. Having taken that step, the plaintiff could not later resile from its consequences simply because the advice was not ultimately pressed into service at the hearing. The court distinguished the present case from situations involving disclosure to third parties (as in Goldberg v Ng) because here the disclosure was made directly in the proceedings.

The waiver extended not only to the advice itself but also to documents that were used by counsel in a way that could be said to have influenced the content of the advice. The court did not accept that waiver reached every document in the brief indiscriminately. The original notice to produce was set aside as too broad, and the defendant was granted leave to issue a narrower notice to produce limited to documents that influenced the advice.

The court declined to dismiss the appeal from Registrar Howe's decision outright, instead making orders consistent with its conclusions on the scope of any permissible notice to produce.

Orders Made

  • The notice to produce dated 25 August 2005 was set aside.
  • The defendant was granted leave to serve a new notice to produce limited to documents used in a way that could be said to have influenced the content of counsel's joint advice.
  • The appeal from the decision of Registrar Howe was dismissed.
  • Costs of the notices of motion relating to the privilege question were ordered to be costs in the ultimate cause.

Key Takeaways

  • Privilege in counsel's advice is waived when a party discloses that advice in proceedings for the purpose of obtaining a forensic advantage, even if the advice is not formally read or relied upon at any hearing.
  • Waiver arising from disclosure in proceedings extends to documents that influenced the content of the advice, but does not necessarily reach all materials in the brief to counsel.
  • The fact that an affidavit annexing privileged material was subsequently replaced by a further affidavit omitting that material did not undo the waiver that had already occurred.
  • Under the common law principles affirmed in Mann v Carnell and Goldberg v Ng, the central question is whether fairness requires the conclusion that privilege has been impliedly waived by the conduct of the party asserting it.
  • A notice to produce that is cast too broadly, seeking all documents in a brief rather than those that influenced the advice, will be set aside, even where some waiver has been established.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Felons (Civil Proceeding) Act 1981 (NSW)
- District Court Act 1973 (NSW)
- Evidence Act (NSW)

Cases:
- Mann v Carnell (1999) 201 CLR 1
- Goldberg v Ng (1995) 185 CLR 83
- Attorney-General for the Northern Territory v Maurice & Ors (1986) 161 CLR 475
- Australian Security and Investments Commission v Southcorp Ltd (2003) 46 ACSR 438