Leigh-Mardon Pty Ltd v Titan Corp Ltd & Ors [1997] FCA 942

FEDERAL COURT OF AUSTRALIA

PRACTICE AND PROCEDURE - Legal professional privilege - Waiver - Proofs of evidence prepared by applicant's solicitors incorporated by reference into police statements - Whether confidentiality in the proofs was lost by providing statements to the witnesses - Whether confidentiality lost by providing statements knowing they may be given to the police - Whether express waiver of privilege - Whether implied or imputed waiver of privilege - Whether unfair in the circumstances for privilege to remain against the respondents

Goldberg v Ng (1995) 185 CLR 83

Leigh-Mardon v Titan Corporation & Ors (Federal Court of Australia, Northrop J, 21 November 1996, unreported)

LEIGH-MARDON PTY LTD v TITAN CORPORATION LTD & Ors

VG 346 of 1993

JUDGE: NORTH J

PLACE: MELBOURNE

DATED: 12 SEPTEMBER 1997

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 346 of 1993

GENERAL DIVISION

BETWEEN: LEIGH-MARDON PTY LTD (ACN 004 432 633)

Applicant

AND: TITAN CORPORATION LIMITED (ACN 003 503 615)

First Respondent

BAIROIL PTY LTD (ACN 005 292 795)

Second Respondent

BAIROIL (ACT) PTY LTD (ACN 008 581 628)

Third Respondent

BAIROIL (VIC) PTY LTD (ACN 006 168 636)

Fourth Respondent

OMPROD DCS PTY LTD (ACN 005 599 799)

Fifth Respondent

OMPROD PDC PTY LTD (ACN 005 473 496)

Sixth Respondent

OMPROD HOLDINGS LTD (ACN 006 737 159)

Seventh Respondent

OMPROD MANAGEMENT LIMITED (ACN 006 682 880)

Eight Respondent

BAIROIL (TEMPS) PTY LTD (ACN 005 966 950)

Ninth Respondent

GODFREY DAVID CULLEN and GARY CHARLES GRACO

Tenth Respondent

JUDGE(S): NORTH J PLACE: MELBOURNE DATED: 12 SEPTEMBER 1997

REASONS FOR JUDGMENT On 25 August 1997, the applicant filed a notice of motion claiming legal professional privilege over proofs of evidence of John Milton Barnes and Shane Ryan Truscott prepared by the solicitors for the applicant. The claim to privilege arises in the following circumstances. Mr Barnes was the manager of computer operations of Australian Airlines and Mr Truscott was an officer employed by the State Revenue Office at the time that the first, second, fifth, sixth, seventh, eighth, tenth and eleventh respondents (the respondents) are alleged to have been involved in overcharging clients. The overcharging of Australian Airlines and State Revenue Office are issues in the present proceedings. Consequently, the applicant's solicitors interviewed Mr Barnes and Mr Truscott and prepared proofs of evidence from them. On 6 November 1996, the applicant's solicitors sent Mr Truscott's proof of evidence to him with a letter requesting him to sign and return it to them. He apparently did so, because the applicant's solicitors have a copy of the proof signed by Mr Truscott and dated 20 November 1996. The applicant's solicitors did not provide the proof to anybody else. On 28 November 1996, the applicant's solicitors sent Mr Barnes' proof of evidence to him with a letter requesting him to sign it and return it to them. He apparently did so, because the applicant's solicitors have a copy of the proof signed by Mr Barnes and dated 3 December 1996. At this time, the Major Fraud Group of the Victoria Police were investigating the alleged overcharging. On 5 December 1996, the Major Fraud Group rang the applicant's solicitors and requested a copy of Mr Barnes' proof, saying that Mr Barnes had given permission to the Major Fraud Group to obtain a copy from the solicitors. The applicant's solicitors refused to provide the Major Fraud Group with the copy. On the same day, Mr Barnes rang the applicant's solicitors and asked for a copy of his signed proof. The applicant's solicitors sent Mr Barnes a copy of his proof in response to his request. On 17 December 1996, Mr Barnes signed a statement taken by the Major Fraud Group from him in relation to the matters under investigation and, on 30 July 1997, Mr Truscott signed a statement taken by the Major Fraud Group from him in relation to the matters under investigation. Mr Barnes and Mr Truscott produced the proofs of evidence to the Major Fraud Group at the interviews and the proofs were incorporated by reference into the statements. The statements, in part, comprise comments on and explanations of the incorporated proofs . Two subpoenas, one dated 10 April 1997 and the other 24 July 1997, were served by the applicant on Detective Chief Inspector Cockerell of the Major Fraud Group, requiring the production of, inter alia, the statements of Mr Barnes and Mr Truscott. The statements, together with the proofs of evidence incorporated in the statements, were produced to the Court on 7 August 1997. The motion, notice of which was filed by the applicant on 25 August 1997, seeks orders that the proofs of evidence not be produced for inspection by the respondents and that the proofs be returned to the solicitors for the applicant. Mr Shirrefs, who appeared as counsel for the respondents, first contended that the applicant's privilege in the proofs of evidence had been expressly waived as confidentiality in the documents had been lost. It is convenient to deal with each of the proofs separately on this issue. In the case of Mr Truscott, the applicant's solicitors sent his proof to him for signature and return. The obvious purpose of this step was to have Mr Truscott verify that the written proof accorded with his instructions. By sending the proof to Mr Truscott for this limited purpose, the solicitors for the applicant did not indicate that he was free to use it for any purposes other than to sign and return, or to refuse to sign. It was not necessary, although it may have been desirable to avoid argument, that the letter state that the proof could not be used without permission. That was implicit in the circumstances. In the case of Mr Barnes, I infer that the applicant's solicitors knew, when they forwarded him a copy of his proof upon request, that he intended to pass on a copy of the proof to the Major Fraud Group. The applicant did not expressly waive its right to keep the proofs confidential as against the respondents. Again, it was implicit in the circumstances surrounding the giving of the proof to Mr Barnes that he would use it for the limited purpose of his interview with the police. Counsel for the respondent then contended that the circumstances gave rise to an imputed waiver of legal professional privilege. The proper approach to such waiver was explained by Deane, Dawson and Gaudron JJ in Goldberg v Ng (1995) 185 CLR 83, at 95‑96: "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' (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) 161 CLR 475 at 481, 488). 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.