Manly Municipal Council v Ward SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL POWELL and STEIN JJA 12 May 1997, 12 May 1997 [1997] NSWCA 194 Practice and Procedure — Subpoena for production of documents — Addressed to person not party to proceedings — Document produced in answer to subpoena — Access sought by party to proceedings (P2) — Access opposed by other party to proceedings (D) — Privilege — Legal professional privilege — Waiver — When imputed from conduct — Expert's report obtained by D in relation to earlier proceedings between a third party (P1) and D — Report served by D on P1 in earlier proceedings (District Court Rules Pt28 r8) — Report tendered by P1 and marked as exhibit in earlier proceedings — Claim for legal professional privilege in respect of report not available to D in later proceedings. Powell JA By Summons filed 29 April 1997, the Claimant ("the Council") seeks leave to appeal from an Order made in the District Court by Taylor DCJ on 15 April 1997, by which Order his Honour granted to the Opponent's ("Ms Ward") counsel or solicitors, access to (inter alia) a document ("the Markham Report") which had been produced in answer to a subpoena served on a firm of solicitors ("Forsters"'). The background to the application with which, at the time, his Honour was concerned to deal, was that, in 1993, at the Manly Youth & Community Centre ("the Centre"), premises which appear to be owned, or occupied by the Council, there was held an event - seemingly called "Kangaroo Rock" - during the course of which event some 50 people, or thereabouts, sustained injury when the railing on a balcony at the Centre collapsed and they fell to the ground. It is said that some 40 or more of the people involved in that incident, have since commenced proceedings against the Council seeking to recover damages. It would appear that the first of those proceedings, ("the Hill proceedings") came on for hearing before Dodd A-DCJ in the District Court in August 1996, and that in those proceedings his Honour found a verdict for the then plaintiff ("Ms Hill") and apportioned liability between the Council and a Third Party, Travis McEwen Group Pty Ltd - which is also the Third Party in these proceedings - in the proportions 1:1. It would appear that, for the purposes of those proceedings, the Council's solicitors commissioned a report by a Mr Markham, a consulting engineer, no doubt with a view to using that report, if it were thought suitable, in the course of those proceedings. It would further appear that, prior to the trial, a copy of the Markham report was made available to Forsters, who were Ms Hill's solicitors, by the Council's solicitors, one assumes, in compliance with the provisions of Pt28 r8 of the District Court Rules, which provide for the exchange of expert witnesses' reports prior to trial. 2 UNREPORTED JUDGMENTS It would further appear that, in the course of the trial before Dodd A-DCJ, Ms Hill's counsel tendered the Markham Report as part of Ms Hill's case, the report, so we have been told, being marked "Ex. D" in Ms Hill's case; the tender of the report, as it would seem, was not objected to by counsel then appearing for the Council. The present proceedings relate to another action brought by one of those injured in the incident in February 1993. It would appear that on 25 March 1997, the counsel, or solicitors, acting for Ms Ward called on subpoenas addressed to Forsters and to the Registrar of the District Court On 25 March 1997, the Registrar of the District Court granted to the Council's counsel, or solicitors first access to the documents produced pursuant to those subpoenas, and, on the following day, the Council's counsel or solicitors, claimed privilege in respect of the Markham Report which had been produced pursuant to the subpoena served on Forsters. Thereafter, the proceedings were listed before Taylor DCJ at the request of counsel, or the solicitors for Ms Ward with a view to obtaining an Order for access to the Markham Report which had been produced by Forsters. Pursuant to that application, Taylor DCJ, on 15 April 1997, made the Order for access which had been sought; access was in fact had by Ms Ward's counsel, or solicitors, on 21 April 1997. The basis upon which it is submitted that leave to appeal ought to be granted, is that although Taylor DCJ held that there had been no waiver of privilege at common law, his Honour held that, by virtue of the provisions of s122 of the Evidence Act 1995 ("the Act'), he had a discretion to order access. However, when the matter came before the Court today, the Court raised with Mr S. White, who appears with Miss D. Hogan-Doran for the Council, the question whether his Honour was correct in holding that there had been no waiver of privilege at common law and whether, assuming that his Honour had been in error, the question of the operation of s122 of the Act was of any relevance to the question whether or not leave ought to be a granted. It has been submitted by Mr White, that, even though the Council may be regarded as having, in the earlier proceedings, waived the privilege which it would otherwise have had in respect of the Markham Report, that waiver was but a limited one and was not such a waiver as would permit others who sought access to the Markham Report in unrelated proceedings, to obtain access to the report. It seems to the Court, with respect, that that argument is ill-founded, the view of the Court being that, once a document, which would otherwise have been the subject of legal professional privilege, has been made available, otherwise than under compulsion of law, to the other party to the relevant proceedings and that document has been tendered in open court, as it was in this case, and becomes evidence in the proceedings, any privilege which might otherwise have attached to the document is to be regarded as having been wholly waived. As the Court understands it, the basis upon which, in situations such as this, privilege is accorded, is that the material contained in the relevant document is confidential and that the confidentiality is not to be regarded as having been totally waived, except where the actions of the party in question have allowed the material contained in the document to become publici juris. Decisions which support that view may be found in the judgment of Stirling J in Goldstone v Williams Beacon & Company ([1899] 1 Ch 47), in the Judgment of the Court of URJ Manly Municipal Council v Ward (Powell JA) 3 Appeal in Great Atlantic Insurance Company v Home Insurance Company ({1981] 1 WLR 529) and the recent judgments of the High Court in Attorney-General (NT) v Maurice ((1986) 106 CLR 475), and Goldberg v Ng ((1995) 69 ALJR 919). In the Court's view, the Order made by Taylor DCJ may be supported upon that ground, and, as his Honour's Order was one which, in the Court's view, was correctly made, the Court does not consider that the present proceeding is one in which leave to appeal ought to be granted so that the question of the relevance, or otherwise, of the provisions of s122 of the Act, to cases such as the present might be argued. For these reasons leave is refused and the Summons is dismissed with costs. Leave to appeal refused; summons dismissed with costs. Counsel for the claimant: S. White and Ms D. Hogan-Doran. Solicitors for the claimant: Phillips Fox. Counsel for the opponent: MR Lawson. Solicitors for the opponent: L.G. Parker & Co.