New South Wales Supreme Court CITATION : Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 212 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 3 March 1999 - 9 March 1999 JUDGMENT DATE : 19 March 1999 JOHN MARSDEN (Plaintiff) PARTIES : v AMALGAMATED TELEVISION SERVICES PTY LIMITED (Defendant) JUDGMENT OF : Levine J I Barker Q.C. G O'L Reynolds S.C. R G McHugh COUNSEL : (Plaintiff) W H Nicholas Q.C. J S Wheelhouse (Defendant) Phillips Fox (Plaintiff) SOLICITORS : Mallesons Stephen Jacques (Defendant) CATCHWORDS : On plaintiff's Notice of Motion to preclude inspection by the defendant of documents the subject of a subpoena and Notice to Produce issued to the plaintiff and subpoena to the New South Wales Police Service ACTS CITED : Evidence Act 1995 (NSW) Royal Commission (Police Service) Act 1994 DECISION : See paragraph 183 DLJT: 24 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 20223 of 1995 No. 20592 of 1996 JUSTICE DAVID LEVINE FRIDAY 19 MARCH 1999 JOHN MARSDEN (Plaintiff) v AMALGAMATED TELEVISION SERVICES PTY LIMITED ACN 000 145 246 (Defendant) JUDGMENT (On plaintiff's Notice of Motion to preclude inspection by the defendant of documents the subject of a subpoena and Notice to Produce issued to the plaintiff and subpoena to the New South Wales Police Service) The Actions 1 The plaintiff sues the defendant, first, in respect of a publication on 13 March 1995. The jury has determined that that publication ("Today Tonight") conveyed the following defamatory imputations: "1(a) The plaintiff has had sexual intercourse with boys who were under the age of 18 knowing them to be under the age of 18. 3(a) The plaintiff has had sexual intercourse with a 15 year old boy who was then under the influence of drugs which had been given to him by the plaintiff". 2 The second action arises from the "Witness" program telecast on 7 May 1996. In respect of that program, the jury has determined that it conveyed the following defamatory imputations: "1(a) The plaintiff has had sexual intercourse with 15 year old boys, having deliberately refrained from asking those boys how old they were. 2(a) The plaintiff has had sexual intercourse with 15 year old male prostitutes having deliberately refrained from asking them how old they were". The Defendant's Substantive Application 3 By Notices of Motion filed in Court on 18 February 1999 the defendant seeks leave to amend its particulars of justification. The application has yet to be determined. The Present Notice of Motion 4 Process has been served upon the plaintiff and the Police Service of New South Wales for the production of certain documents. 5 By a Notice of Motion filed in Court on 9 March 1999 (it is a composite Notice of Motion to cover the matters that were the subject of argument up to that point of time), the plaintiff seeks, an order that: "1. Inspection of the following documents be restricted to the plaintiff and his legal advisers: (a) Material produced to the Court by the New South Wales police service in answer to subpoenas for production over which the plaintiff has claimed privilege; (b) Material produced to the Court by the plaintiff in answer to a subpoena for production issued on 2 February 1999 at the request of the defendant over which the plaintiff has claimed privilege; (c) Confidential ExhibitsBJW-1, BJW-3, BJW-4 & BJW-5 to the affidavit of Brian James Whittaker affirmed on 1 March 1999 and filed in these proceedings; (d) Confidential Exhibit MBJL-1 to the affidavit of Michael Bryan Joshua Lee sworn 1 March 1999 and filed in these proceedings; (e) Confidential Exhibits Wf-1 to Wf-14 of Wayne Flynn's affidavit affirmed on 2 March 1999 and filed in these proceedings; (f) Confidential Exhibits MBJL- to MBJL-4 of Michael Bryan Joshua Lee's affidavit sworn on 2 March 1999 and filed in these proceedings". 6 The matters referred to in the Notice of Motion arise from the following subpoenas and Notice to Produce. Two subpoenas were served upon the Police Service and the history of their being dealt with by this Court is as follows: 7 The material produced to the Court by the Police Service arises from the following process as I understand it: a subpoena was issued on behalf of the plaintiff on 13 October 1998 returnable on 3 November 1998. A limited call was made on this subpoena and a claim for public interest immunity was dealt with by Ireland J on 24 December on which date his Honour's made certain rulings. The plaintiff's subpoena to the Police (which is annexure "H" to the affidavit of Michael Woodhouse sworn 2 March 1999), on its face, called for an substantial body of material. 8 On 18 January 1999 the defendant's solicitors issued a subpoena to the Police returnable on 27 January which also called for the production of a substantial body of material. As I understand it, a limited call on this subpoena was made. The Police Service has from time to time delivered to the Court material in answer to both subpoenas. The plaintiff had first access to that material and extracted documents in relation to which the claim for privilege is made. 9 It is appropriate to mention that a further subpoena to the Police Service was issued on or about 26 February 1999 requiring production of "all records (that is, reports, documents, memoranda, records of interview, transcripts of interview, file notes, computer print outs, audio tapes, and video tapes) of the meeting which took place on or about 29 January 1999 between the New South Wales Police and John Robert Marsden and/or his legal advisers". This subpoena is subject to a separate claim by the Police Service based upon public interest immunity in respect of which a separate ruling will be given. The meeting referred to, namely that which occurred on 29 January 1999 is significant to this extent: on 25 February 1999 the defendant served a Notice to Produce upon the plaintiff requiring production of materials in the same terms as that in the subpoena served upon the Police Service. (This Notice to Produce is referred to in the affidavit of Michael Bryan Joshua Lee, solicitor, sworn on 2 March 1999, paragraph 2.) In respect of the documents the subject of the subpoena to the Police relating to the interview on 29 January 1999, no claim for privilege is made by the plaintiff. The only matter to be determined is the Police Service's claim for public interest immunity. It is in respect of the plaintiff's records in relation to the same meeting and subject to the Notice to Produce to which I have just referred that the claim for privilege is made. 10 Further, a subpoena was issued on 2 February 1999 addressed to the plaintiff to produce, inter alia, "2. All records of any statements made to the Police by John Robert Marsden during the period 1993 to date; 3. All records of any statements made or evidence given by John Robert Marsden to the Royal Commission into the New South Wales Police Service during the period 1993 to 1998". 11 Another historical matter that should be noted is this: up to the time that I was called upon to hear argument in relation to the plaintiff's Notice of Motion, the procedure had been adopted (as exemplified by the proceedings before Ireland J), whereby matters relating to subpoenas, Notices to Produce or any process which could involve the examination of material that might become evidence in the trial would be heard "elsewhere" so as to "quarantine" myself as the trial judge. It rapidly became apparent that this was as impractical as it was unnecessary. As the trial judge I will determine the issues on the evidence and make my findings on the evidence and according to the relevant legal considerations. 12 For the purposes of the present exercise I have examined the material in respect of which privilege is claimed. This examination was not on the basis of reading every document word by word but rather perusing the bulk to get a "feel" for the overall nature of the material in respect of which the claim for privilege was made. By reason of the degree of complexity involved in reaching some concordance of the material, insofar as it appears in several "bundles", more detailed consideration of particular components of the material in dispute will be necessary. 13 Shortly stated, the material comprises what might be described as the plaintiff's material, Royal Commission material, Police material, and the material arising from the meeting of 29 January 1999. The Problem with the Law 14 As I have stated the plaintiff's Notice of Motion to exclude access is an interlocutory application effectively being heard within a substantive interlocutory application by the defendant to amend its Defence, which is within a "trial in progress". The very nature of the application being interlocutory gave rise to the question of the operation of the Evidence Act, 1995 (NSW) in relation to proceedings of the kind with which I am concerned. 15 For the plaintiff it is contended that the principles embodied in the provisions of the Evidence Act, 1995 (NSW) dealing with client legal privilege govern the question whether documents produced on subpoena are privileged from inspection. I am bound to follow, it is argued, the decision of the Court of Appeal in Akins & Ors v Abigroup Limited (1998) 43 NSWLR 539. The principal passage from the judgment of the President, at 545-546 is as follows: "Claims of privilege may be made in connexion with processes ancillary to trials, notably discovery, interrogatories and the production of documents under subpoena or notice to produce. (I shall refer to these compendiously as the pre-trial gathering of evidence.) As regards discovery in proceedings commenced on or after 1 October 1996, or in respect of interrogatories pursuant to notice given or order made on or after that date, the Supreme Court Rules incorporate by reference the Evidence Act principles: see Pt23, r1(c); Pt24, r6(3)(c). However the corresponding rules as they stood in relation to proceedings such as the directors' proceedings simply acknowledge that the processes of discovery or interrogatories might involve questions of privilege. And there has never been a rule addressing the application of the Evidence Act in relation to subpoenas or notices to produce. The Evidence Act 1995 (Cth) and the Evidence Act 1995 make significant changes to the law of evidence in relation to client legal privilege. These include the adoption of the dissenting view of Barwick CJ in Grant v Downs (see s118) and other changes: see generally, Adelaide Steamship Co Ltd v Spalvins (1988) 152 ALR 418 at 427. The impact of the Acts upon pre-trial gathering of evidence has been a matter of controversy in the cases. It is common ground that each Act is in terms relevantly confined to the adducing of evidence, and that this expression does not in its ordinary and natural meaning extend to ancillary processes involving the pre-trial gathering of evidence. In the decision under appeal, Bainton J held that the common law of client legal privilege (including the waiver thereof) was unaffected in relation to the pre-trial gathering of evidence, even for hearings commenced on or after 1 September 1995 when the Evidence Act generally commenced in New South Wales courts. Opposed to this view are Telstra [No 1] and the recent decision of the Full Court of the Federal Court of Australia in Adelaide Steamship Co. Bainton J was however in accord with the views expressed by Foster J in Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia (1997) 150 ALR 117; Hill J in Zemanek v Commonwealth Bank of Australia (Federal Court of Australia, 2 October 1997, unreported) and Goldberg J in Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 153 ALR 393 (albeit that Goldberg J recognised that he was obliged to bow to the contrary view adopted recently by the Full Federal Court). There have also been a significant number of cases which have held or assumed one position or the other without detailed analysis. The detailed consideration of the legal issues in Telstra [No 1] and Adelaide Steamship Co relieves me of the need to address the matter at length. With one presently immaterial qualification, I would respectfully adopt and follow the reasoning in those cases and hold that the principles of the Act touching client legal privilege apply derivatively to ancillary processes involving the pre-trial gathering of evidence. I acknowledge that this entails recognition that the common law is modified so as to accord with the Evidence Act in this area". 16 And at 547F his Honour, after enumerating his reasons for the position he took at 546C said: "5. Pt3.10, Div 1 (client legal privilege) does not abrogate the privilege, or undercut its high function. Rather it fine tunes the law and states it in accessible legislative form. The principles of statutory interpretation touching the construction of legislation abrogating common law rights have little or no impact in this context: Adelaide Steamship Co (at 429)". 17 It was the position of the plaintiff that the material over which privilege was claimed fell squarely within the privilege conferred by s 118 ("advice" privilege) and s 119 ("litigation" privilege) at the time at which the material was created. Below, I refer to the evidence of certain of the documents being created before 1 September 1995. That this is so was because the material was constituted principally by statutory declarations originally created for privileged purposes, and/or consisted of copies of documents, which copies were made for a privileged purpose or purposes: Commissioner of Australian Federal v Propend Finance Pty Limited (1997) 141 ALR 545; (1996-7) 188 CLR 501. 18 The privileged purpose/purposes were for use by the plaintiffs lawyers as evidence in current or anticipated civil proceedings and anticipated criminal proceedings; for use by the plaintiff's lawyers in providing him with advice in respect of such proceedings; use by the plaintiff's lawyers in dissuading the investigating and prosecuting authorities from commencing the anticipated criminal proceedings. 19 The only question was whether privilege had been lost by reason of the disclosure of that material to the Royal Commission or to the Police. 20 The only relevant provision in the Evidence Act in this respect is s 122(2). That section does not operate to defeat the claim of privilege because in respect of each document the disclosure was made "under compulsion of law" pursuant to notices issued under ss 6 and 7 of the Royal Commission (Police Service) Act 1994 - s 122(2)(c) and/or "in the course of making a confidential communication" in the sense that "the person to whom it was made was under an express or implied obligation not to disclose its contents" - s 122(2)(a) and s 117(1)(i). Accordingly, the material retained its privilege character and inspection should not be granted to the defendant. 21 In any event, and even if the common law test were applied to the question of whether documents produced on subpoena are privileged from inspection, there can be no "unfairness" to the defendant in denying it inspection. The only disclosures were made to the Royal Commission or to the Police for the purpose of assisting them in their inquiries. The plaintiff's giving of that assistance in those contexts in no way prejudiced the defendant in these proceedings or in any other way. 22 In amplification of these propositions (originally set out in the written document provided by Mr McHugh, counsel for the plaintiff), more particularly referred to the position of his client in relation to the various collections of documents. 23 The documents in relation to the meeting of 29 January are the subject of a claim constituted by circumstances where a solicitor makes a document for the purpose of advising his client or otherwise providing professional legal services to his client and the documents are prima facie privileged where the "sole" purposes was so doing was one of the purpose of the just mentioned. In relation to this bundle of documents there could be no question of waiver because they had not been dealt with otherwise than by being brought into existence and brought into Court in response to the Notice to Produce 24 In relation to the subpoena dated 2 February 1999 (supra paragraph 10), the claim for privilege is in relation to various documents principally in the nature of witness statements and statutory declarations collected by various lawyers on behalf of the plaintiff and created by various persons on behalf of the plaintiff in relation to anticipated criminal proceedings arising out of allegations that were made in the New South Wales Parliament by Mrs Grusovin and then relating to the defamation proceedings that had been commenced in 1995 and the second proceedings commenced in 1996. As to the last mentioned, it is said that the material was in anticipation of the publication of that matter complained of especially in regard to the applications made by the plaintiff for injunctive relief. It is said that although the documents constituting this bundle of material may have been prepared for more than one purpose in the sense that they may have been prepared for anticipated criminal proceedings and for defamation proceedings, each of the purposes was a privileged purpose. And each can be characterised as a "sole" purpose. 25 With respect to the documents produced by the police, the vast majority of them, it is said, are in the nature of witness statements originally obtained by the plaintiff or his lawyers or people acting on his behalf in connection with anticipated proceedings. Insofar as there may be components of the police documents that are documents created by the police, for example, records of interviews or running sheets, insofar as material was put to the interviewee, or otherwise referred to, which was sourced in documents over which the plaintiff claims privilege, it is contended that the plaintiff's privilege attaches to those portions of the records of interview or other documents. In so far as there may be a question of waiver - (how did the Police get the documents?) - the fact of the documents coming into the possession of the police does not constitute a waiver of the privilege said to attach to those documents or parts of them. Insofar as documents in the possession of the Police were documents provided by the plaintiff to the Royal Commission, they were provided under compulsion of law and were provided in circumstances of confidentiality. 26 For the defendant (which seeks access to the material not merely for its application to amend its Defence but for the purposes of the trial generally), it was argued that the common law essentially applies. The formal submission was made that Akins v Abigroup and the cases upon which it depended was and were wrongly decided. Particularly reference was made to the part of the judgment of the President in Akins at 548A-E: "(I mention one caveat. A nice question would arise were the matter in issue whether a document prepared for the dominant but not sole purpose of providing legal advice was privileged from disclosure in some ancillary process involving the pre-trial gathering of evidence. Grant v Downs still represents the common law in this State. I recognise that most of the cases which arrived at the view which I have adopted saw it as an inevitable consequence that Grant v Downs no longer applies in jurisdictions where the Evidence Act principles apply: see, eg, Adelaide Steamship Co (at 428-429). According to Goldberg J in Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (at 420), Telstra [No 1] turned on the dominant purpose issue; but this is not apparent on the face of the report of that case. I am far from convinced that any court other than the High Court has the right to depart from Grant v Downs merely because of the indirect or flow-on effect of the Evidence Act. Notwithstanding the gravitational pull of s118 it may be that only the High Court could administer the coup de grace to Grant v Downs if that is to be its fate in the Federal Court and courts in New South Wales in the light of the Evidence Act. In Ravenor Overseas Inc v Readhead (1998) 72 ALJR 671 at 672; 152 ALR 416 at 416, Brennan CJ said that: "... Nothing is more important to the due administration of justice than that the Courts of Australia should faithfully follow decisions of this Court. This Court has the responsibility of determining the law applicable throughout the Commonwealth. Nor should it be thought that, because some new argument can be devised contrary to a holding of this Court, the authority of its decisions become problematic. Although the decisions of this Court will, when this Court deems it necessary, be revisited, there should be no qualification about the duty of other Courts faithfully to apply the decisions of this Court as they stand)." 27 It was this "nice point" which was seized upon by the Full Federal Court in Esso Australia Resources Limited v Federal Commissioner of Taxation (1999) 159 ALR 664. 28 The Full Court of the Federal Court held that there is but one common law in Australia by reason of which it is impossible to accept that ss 118 and 119 (of the Evidence Act 1995 (Cth)), had modified the common law applicable to discovery in some courts while leaving that common law unmodified in other courts. Conformably with what Mason P said in Akins, it is for the High Court ultimately to declare that the common law of Australia has been modified and to decide whether one of its previous decisions (Grant v Downs) should no longer be followed. To the extent that the Full Court of the Federal Court had concluded otherwise in Adelaide Steamship Co v Spalvins (1998) 152 ALR 418 that decision should not be followed. Spalvins, of course, was followed in Akins (see generally Esso at 607.15, 671.30 - 672.5; 678.5: per Black CJ and Sundberg J; see also Finkelstein J at 713.35 and 714.45 - 715.35). 29 Mr Nicholas Q.C. for the defendant referred to passages in the judgment of Merkel J. At 687.5 his Honour acknowledged that there was some justification for the caveat the President pointed to in Akins. Merkel J however queried the use of the caveat as a qualification to the President's decision in that case as one not easy to follow (with which query I, with the greatest respect, agree). 30 At 696.23 his Honour said: "There is a further difficulty with the decision of the Full Court. The difficulty is that raised by the caveat of Mason P in Akins v Abigroup. The principles governing client legal privilege were authoritatively laid down in Grant v Downs and are not to be departed from other than by the High Court. Whilst it can be accepted that it is open to the courts to adapt the common law to a new policy setting, including that which is derived from the analogical use of statutes, that is not the case where the common law has already been authoritatively determined by the High Court albeit, in the view of the lower court, in a different policy setting. In that situation, it is for the High Court alone to determine that its decisions are to be departed from or overruled by reason of the new setting… For the above reasons I am of the view that the reasoning employed by the Full Court in Adelaide Steamship in arriving at its conclusion that the common law in respect of privilege had been modified derivatively by reason of the enactment of the Evidence Act is wrong. However, that does not lead to the conclusion that the result arrived at by the Full Court was also wrong. The same result might be reached by a process of construction of the relevant statutory provisions" (see Merkel J also at 688.32.) 31 Mr Nicholas referred to the nature of client legal privilege as usefully described by Gleeson CJ in Benecke v National Australia Bank (1993) 35 NSWLR 110 at 111E: "The rule that prevents an unauthorised disclosure of confidential communications between a client and a legal adviser, when such communications are for the purpose of obtaining legal advice, or for use in existing or anticipated litigation, constitutes a restriction upon the capacity of courts to ascertain the truth in certain circumstances. That restriction, however, is regarded as acceptable on the ground that it promotes the public interest, and assists the administration of justice, by facilitating the representation of clients by legal advisers. It does this by encouraging uninhibited communication. Thus, in cases where the rule operates, one aspect of the public interest is preferred against another (discovering the truth)". 32 In the context of the categorisation of the material the subject of the Notice of Motion it was fundamental to the position of the defendant that the common law applied and that the true "purpose" was to present the information to the Police and to the Royal Commission to "advance the plaintiff's interests". To truly characterise the exercise which involved disclosure and/or presentation to the Police or to the Royal Commission on any particular occasion to which any of the documents were relevant, was to say really that it was by way of putting submissions to the relevant authority quite in the way that an advocate would in a courtroom, by way of advancing a particular interest, present submissions to that body. Once the purpose of the use of the information involved a disclosure to achieve the end of an advancement of the plaintiff's particular interest then any protection that might otherwise had existed at the time of the creation of the material, "goes". 33 In this context Mr Nicholas (having referred to the Evidence Act, 1995 (NSW) for the purposes of dealing with Akins), referred to the different positions taken in the High Court in Grant v Downs (1976) 135 CLR 674. The dissenting position of Barwick CJ (now reflected in the Evidence Act), is set out at 677: "Having considered the decisions, the writings and the various aspects of the public interest which claim attention, I have come to the conclusion that the Court should state the relevant principle as follows: a document which was produced or brought into existence either with the dominant purpose of its author, or of the person or authority under whose direction, whether particular or general, it was produced or brought into existence, of using it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation, at the time of its production in reasonable prospect, should be privileged and excluded from inspection". 34 The particular statements in the judgment of the majority (Stephen, Mason, Murphy JJ) upon which reliance was generally placed to found the defendant's position in this Motion were (at 682-3): "It has been accepted that documents brought into existence after an accident pursuant to a standing instruction previously given may be privileged ... Although to sustain the privilege it is not necessary that the document has been brought into existence on the advice of the solicitor, it is essential that the circumstances are such that the court can subsequently conclude, viewing them objectively, that litigation can be reasonably anticipated … and this at the time when the preparation of the document is undertaken. However, the fact that the document is brought into existence in anticipation of litigation is not sufficient, without more, to attract privilege; the document must be called into being for use in litigation or for advice and it is the extent to which this purpose is intended to be served by the preparation of the document that is in question". 35 Further, at 688-9: "All that we have said so far indicates that unless the law confines legal professional privilege to those documents which are brought into existence for the sole purpose of submission to legal advisers for advice or for use in legal proceedings the privilege will travel beyond the underlying rationale to which it is intended to give expression and will confer an advantage and immunity on a corporation which is not enjoyed by the ordinary individual. It is not right that the privilege can attach to documents which, quite apart from the purpose of submission to a solicitor, would have been brought into existence for other purposes in any event, and then without attracting any attendant privilege. It is true that the requirement that documents be brought into existence in anticipation of litigation diminishes to some extent the risk that documents brought into existence for non-privileged purposes will attract the privilege but it certainly does not eliminate that risk. For this and the reasons which we have expressed earlier we consider that the sole purpose test should now be adopted as the criterion of legal professional privilege. It is well accepted that the court in allowing production and inspection of documents exercises a judicial discretion. In so doing it needs to scrutinize with care claims of privilege made on the ground now under consideration. It is for the party claiming privilege to show that the documents for which the claim is made are privileged. He may succeed in achieving this objective by pointing to the nature of the documents or by evidence describing the circumstances in which they were brought into existence. But it should not be thought that the privilege is necessarily or conclusively established by resort to any verbal formula or ritual. The court has power to examine the documents for itself, a power which has perhaps been exercised too sparingly in the past, springing possibly from a misplaced reluctance to go behind the formal claim of privilege. It should not be forgotten that in many instances the character of the documents the subject of the claim will illuminate the purpose for which they were brought into existence … There was no doubt a reasonable anticipation that litigation might arise out of the accident. This, however, does not overcome the deficiency in point of purpose which is revealed by the affidavits and the character of the documents, for, as we have already observed, the privilege requires a combination of dedication to the stipulated purpose and reasonable anticipation that litigation will ensue before it is attracted" (emphasis added). 36 The emphasised passages underpin Mr Nicholas' general submissions. 37 Further, the approached advocated for the defendant will permit the application of considerations of "fairness": Attorney-General for the Northern Territory v Maurice & Ors (1986) 161 CLR 475; Goldberg v Ng (1994) 33 NSWLR 639; (1996) 185 CLR 83. 38 Thus far, it can be seen that the respective positions of the parties starkly can be stated: for the plaintiff it is contended Akins applies, for the defendant Esso and the common law. 39 On 12 March I drew to the attention of counsel a decision of the High Court handed down on 11 March in Northern Territory of Australia v GP AO (D172-1997) [1999] HCA 8. 40 The defendant seized upon the statement of Gleeson CJ in paragraph 16: "The Evidence Act applies to proceedings in the Family Court, as a court created by the Parliament which is not the Supreme Court of a Territory. This is the effect of s 4(1) of the Evidence Act and the definition in the Dictionary of "federal court". However, the Evidence Act is concerned with the adducing of evidence (Ch 2), the admissibility of evidence (Ch 3), proof (Ch 4) and certain ancillary matters (Ch 5). It does not deal with the obligations of a party to whom an order in the nature of a subpoena is addressed to produce documents to the court in question. Nor does the Evidence Act deal with the grant of leave by the court to inspect or otherwise make use of documents which have been produced in answer to a subpoena". 41 The attractiveness of that bare statement by his Honour is obvious. However, the subject matter of his Honour's observation was in the end irrelevant to the determination of the issues before the High Court. The appeal was concerned essentially with the operation of s 79 of the Judiciary Act, 1903 (Cth) and relevant provisions of the Northern Territory Community Welfare legislation. Kirby J declined to consider the question of the effect of the Evidence Act, at all (paragraph 251); see paragraphs 16-17 per Gleeson CJ and Gummow J, 135 per Gaudron J, 199 per McHugh and Callinan JJ and 254 per Haine J. 42 It is, of course, inevitable that in an interlocutory proceeding the very issue to which I have been referring should arise. It is as inopportune as it is inappropriate, particularly in this trial in progress, that in an interlocutory proceeding in effect within an interlocutory proceeding, in effect within a trial in progress, that the trial judge embark upon consideration of all the lines of authority, submissions and arguments and an analysis of the judgments that has lead to an apparent erection of a structure by the Court of Appeal of this State and it deconstruction by the Full Federal Court of Australia. 43 I propose to approach the resolution of the plaintiff's Motion on the basis that the principles of the Evidence Act, 1995 (NSW) (dealing with client legal privilege), govern the question of whether documents produced on subpoena or pursuant to a Notice to Produce can be excluded from inspection by the opposite side and to follow the decision of the Court of Appeal in Akins. The Evidence and The Materials 44 The evidence for the plaintiff was constituted by an affidavit sworn 2 March 1999 by Wayne Flynn, Barrister; two affidavits (1 March and 2 March 1999) of Michael Bryan Joshua Lee, Solicitor; an affidavit of 1 March 1999 sworn by Bryan James Whittaker, Solicitor: each of these deponents gave oral evidence. For the defendant parts of an affidavit of Detective Superintendent Michael Woodhouse sworn 2 March 1999 were read. This deponent was not cross-examined. 45 It is appropriate to commence with the evidence of Mr Flynn (principally from the chronological perspective). Mr Flynn deposes that on 13 March 1995 he was retained by the plaintiff's firm of solicitors to assist the plaintiff in taking witness statements to answer allegations of criminal conduct made in the first publication complained of the "Today Tonight" program. The primary purpose for which the statements were taken was to gather material for the plaintiff's lawyers for advice in respect to that publication and for use in any defamation proceedings arising from the program. Mr Flynn had been informed by the plaintiff that the plaintiff anticipated criminal charges might be brought against him arising from the allegations of criminal conduct made in the program and he himself believed that the material gathered by him would be used by the plaintiff's solicitors for such criminal proceedings. In short, he swears that he believed that the statutory declarations gathered by him could be used by the plaintiff's lawyers to advise the plaintiff in relation to any such proceedings, for use as evidence in such proceedings, and if necessary, to try to persuade the investigating and prosecuting authorities not to initiate criminal proceedings against the plaintiff. 46 In November 1995 Mr Flynn was retained by Phillips Fox, the plaintiff's solicitors in the defamation proceedings, to take statements from witnesses for the purposes of those proceedings. The letter of retainer is annexed to the affidavit. He continued to take statutory declarations for use as proofs of evidence until the end of 1995. In 1996 he also took some further statements for use in those proceedings and anticipated criminal proceedings against the plaintiff. 47 The plaintiff had provided Mr Flynn with the names of people to assist in responding to the allegations him. Apparently, Mr Flynn also suggested other people from whom statements should be obtained to assist. Mr Flynn deposes to his general practice as to making arrangements to meeting with various witnesses, taking notes of what the person said, writing out the statements, providing them to a secretary at Marsdens to type as statutory declarations and arrangements for their execution. Mr Flynn never witnessed any of the statutory declarations. In final form they would be given to the plaintiff or left with the plaintiff's secretary. Any notes that Mr Flynn took of the conversations leading to the creation of the statutory declarations have since been destroyed. 48 Exhibited to Mr Flynn's affidavit are fourteen statutory declarations (marked WF: 1 - 14 and MFI 11 - 24). The range of dates of the statutory declarations are from 22 March 1995 to 6 February 1996. They are the statutory declarations of persons described as P30, P31, P32, P2, P33, P34, P35, P36, P37, P38, P39, P40, P41 and P42: MFI 25 lists the pseudonyms and the names of those people are included in MFI 26 (confidential). 49 In his affidavit Mr Flynn deposes to the circumstances attending the creation of each of the fourteen statutory declarations. To what he there deposes I accept generally as conforming with the practice he adopted and the purpose for which he deposed the statutory declarations were brought into existence, and with his oral evidence. 50 Copies of the documents (WF: 1 - 14; MFI 11 - 24) became attachments to document number 4 in confidential exhibit BJW 1, being a statutory declaration of a person described as "P1" dated May 1996; I shall return to that document in due course. The statutory declaration being WF: 4/MFI 14 of P2 also became an attachment to document 1(a) and document 20(a) in confidential exhibit BJW 4. BJW 1 is an exhibit to the affidavit of Mr Whittaker affirmed 1 March 1999 and is a folder of documents sourced in the plaintiff and produced pursuant to the Notice to Produce. BJW 4 is a folder of documents exhibited to the same affidavit of Mr Whittaker being documents sourced in material produced by the Police pursuant to the subpoena. The "migration" of documents brought into existence pursuant to endeavours of Mr Flynn will be of significance. I add that Mr Flynn had no direct knowledge of what became of the originals of the statutory declarations with which he dealt. 51 In his oral evidence Mr Flynn stated that he commenced taking statements from about the time of the publication of the "Today Tonight" program, as I understood it, in connection with that program, and that within a week of the program he was informed by the plaintiff that the plaintiff anticipated that criminal charges might be brought against him arising from the allegations in the program. 52 With respect to the view that the documents would be used to persuade investigating authorities not to proceed, Mr Flynn said that was a possibility dependent upon the advice Mr Marsden received from his lawyers. Certainly for a short period he had that expectation as to a purpose of obtaining the statutory declarations. However, in April or May of 1995, as I understand Mr Flynn's evidence, he received information from a retired police officer known to him personally that that officer had been informed by somebody in the Task Force investigating the plaintiff that the allegations against the plaintiff did not seem to be standing up to scrutiny and that it was highly unlikely that there would be any charges laid. That information was passed on by Mr Flynn to Mr Marsden. The retired police officer, Detective Sergeant George Slade, did not provide to Mr Flynn the identity of the source of information within the Task Force and Mr Flynn did not seek it. In the light of the information Mr Slade had provided to Mr Flynn, as far as Mr Flynn was concerned, the purpose of gathering the statutory declarations to dissuade the authorities was no longer his expectation. As far as the oral evidence is concerned it is clear to me that Mr Flynn was instructed to gather the statutory declarations with respect to the Channel 7 allegations; his subjective views however were that they could be available for the other purposes. 53 Mr Flynn was instructed by Corrs Chambers Westgarth (CCW/Corrs) who at that time in 1995 were the solicitors for the plaintiff particularly in respect of the defamation action arising from the first program; he provided the statutory declarations to Marsdens and did not draw to the attention of the plaintiff's presents solicitors, Phillips Fox and in particular Mr Potter and, as I understand it, anyone else, the existence of the statutory declarations. 54 I turn to the evidence of Mr Brian James Whittaker, Solicitor of Corrs and the documents to which he refers. 55 Mr Whittaker under the supervision of various partners of Corrs was involved in providing legal representation to the plaintiff in relation to the first defamation action (20223/95 "Today Tonight"); the investigation by the New South Wales Police Service relating to allegations of criminal conduct by the plaintiff which commenced around mid-March 1995 and investigations by the Royal Commission into the New South Wales Police Service concerning allegations of criminal conduct by the plaintiff, which investigations commenced around late December 1994 or early in 1995. Mr Whittaker's affidavit of sixty five paragraphs, together with the two substantial folders of documents exhibited, constitutes the bulk of the material for consideration and is of some complexity. The first part of the affidavit deals with the "background to instructions and retainer of Corrs". Mr Whittaker first met the plaintiff on or about 2 December 1994, the day following the tabling in the Lower House of the New South Wales Parliament by Mrs Deidre Grusovin, the Member for Heffron, of a statutory declaration of one Colin Fisk of 21 October 1994. The plaintiff retained Corrs to act on his behalf in relation to that event on either the first or second of December 1994. 56 In or about December 1994 or January 1995 the plaintiff became aware that the defendant was investigating his affairs and may intend to broadcast a story about him. Corrs were retained by the plaintiff from about mid-January 1995 (it could have been earlier) to provide professional legal services in respect to the anticipated broadcast and any proceedings for defamation arising from it. 57 Following the events in the NSW Parliament, the Terms of Reference of the Royal Commission were amended to inquire into, amongst other things, the impartiality of the Police Service in investigating and/or pursuing prosecutions for paedophile activity. This amendment to the Terms of Reference took place on 21 December 1994. From in or around early January 1995 Corrs were retained by the plaintiff in connection with the Royal Commissions investigations. 58 On 13 March 1995 "Today Tonight" was telecast and instructions were immediately given to Corrs to institute the defamation action, the Statement of Claim being filed on 14 March 1995. 59 On or about 14 March the Commissioner of the New South Wales Police Service established a Task Force to investigate the criminal allegations concerning the plaintiff. Corrs' retainer was extended by the plaintiff to cover that Police Service investigation on or about that day. 60 It was in mid-March 1995 that the plaintiff withdrew his instructions from Corrs relating to the defamation action and instructed Phillips Fox to provide him with legal services in respect of those proceedings. From mid-March 1995 Corrs was retained by the plaintiff in respect of the investigations by the New South Wales Police Service and the Royal Commission. Phillips Fox instituted proceedings arising from "Witness" program on 7 May 1996 and its retainer from the plaintiff in relation to the defamation actions has continued. 61 The next component of Mr Whittaker's affidavit related to "background to preparation of statements and statutory declarations". Shortly after Corrs was retained by the plaintiff, Mr Marsden informed the deponent that he would be retaining his own firm, Marsdens, to act on his behalf in gathering and preparing materials to demonstrate his innocence of the "Grusovin allegations" and in anticipation of any proceedings that might be commenced out of those allegations. That arrangement continued through the period of Corrs retainer as the plaintiff's "brief" to that firm expanded. Mr Whittaker deposes to a conversation with the plaintiff in December 1994 or early 1995 touching upon this arrangement and it appears that it was put in place as a cost saving measure. In any event, as a result of what Mr Whittaker describes as a "limitation" on Corrs' retainer, the majority of statements and statutory declarations subsequently prepared relating to the Police Service investigations and the Royal Commission were prepared by Marsdens. Information as to the preparation of these statutory declarations was given to Mr Whittaker by the plaintiff. This was the usual practice, (objection was taken to parts of the affidavit relating thereto), in place over the relevant times. 62 The next component of Mr Whittaker's affidavit concerned "documents produced to, and communication with the NSW Police Service and Royal Commission into the NSW Police Service". 63 Documents were provided to the Police during meetings at which the plaintiff was not present, during interviews or around the time of interviews by the Police. The deponent states that the documents were provided by the plaintiff's lawyers in the course of cooperating with Police inquiries and in particular with a view to demonstrating objectively to the police the falsity of the allegations made against the plaintiff. Apparently some discussions took place relating to the production of material to the Police with a Detective Inspector Inkster and other officers working on the investigation. It was the deponent's practice to indicate to whomsoever the documents were being produced that the plaintiff had instructed him to provide the documents to the Police and that the production was "confidential and given to you for the purpose of the inquiry only". 64 As to the Police Royal Commission, the plaintiff's lawyers provided material pursuant to notices issued under ss 6 or 7 of the Royal Commission (Police Service) Act 1994; (said by the "deponent" to be under compulsion of law) and in "anticipation of receiving s 6 or s 7 Notices where the plaintiff had been given notice prior to their issue". 65 The first occasion the deponent can recall the plaintiff producing documents to the Commission was on 1 March 1995 when he and the plaintiff attended an interview, on a voluntary basis, with Ms Bergin, counsel assisting the Commission and a Mr Nicholas, believed to be a solicitor employed by the Commission. To the best of the deponent's recollection on that occasion the documents were produced pursuant to a s 7 Notice of which a copy has not been retained. A pattern apparently was established, to the best of the deponent's recollection, to the effect that he would speak with Ms Bergin during the days prior to the interview and discuss production of various documents in the plaintiff's possession. One conversation is deposed to between a partner of the deponent, Mr McCann, and Ms Bergin at the end of which words were attributed to the latter to the effect that if the plaintiff was willing to attend an interview Ms Bergin would be available, he should bring whatever documents he has and "we will deal with what we have discussed". Ms Bergin is deposed to have said words to the effect "we will issue you with a s 7 Notice and you can hand over the documents upon receipt tomorrow". 66 On most occasions documents were produced to the Royal Commission "under compulsion". According to the deponent the production was on a confidential basis for the purposes of assisting the Commission only. It was his understanding that the documents would not be provided to "third parties" and that the Commission in fact did not do so. The nature of the information, he deposes, was inherently confidential and the view he formed was based on statements made to him by lawyers and officers acting for the Royal Commission. By way of example, he could recall a disagreement with Royal Commission staff in or about late May or early June 1995 concerning an interview subsequently given by the plaintiff to the Commission. The Commission refused to provide the plaintiff with copies of the transcripts of the interview and a Mr Stewart of the Royal Commission is reported as saying words to the effect that the Royal Commission does not release any documents because it cannot risk the integrity of the Royal Commission's documents being compromised. The "transcript and documents received are confidential records of the Commission". 67 The next component of Mr Whittaker's affidavit deals with "documents produced on subpoena by the plaintiff". Annexure A to Mr Whittaker's affidavit is the relevant subpoena. Confidential exhibit BJW 1 (MFI 5) is the bundle of documents prepared by Phillips Fox over which privilege is claimed on behalf of the plaintiff. A schedule annexed to Mr Whittaker's affidavit and marked "B" tabulates the sixteen documents that constitute BJW 1. 68 The first document with which Mr Whittaker deals is document 2 described as "copy of statutory declaration of John Marsden dated 27 June 1996 attaching (a) copy of letter from Royal Commission (Crooke) to Corrs Chambers Westgarth (CCW - Whittaker) dated 19 June 1996 and (b) copy of statutory declaration of John Marsden dated 13 June 1995". Mr Whittaker requested the plaintiff to prepare this document in response to a request from the Royal Commission dated 19 June 1996. That request is annexure A to the statutory declaration of 27 June 1996. Annexure B to the statutory declaration of John Marsden made 27 June 1996 (document 2) is another statutory declaration. This other statutory declaration is described by Mr Whittaker in his affidavit as being one dated 31 May 1995. It is not. It is dated 13 June 1995. It is correctly described as such in annexure B to the affidavit as document 2(b). The statutory declaration dated 13 June 1995 annexed to the statutory declaration of 27 June 1996 (document 2) was brought into existence pursuant to the service of a s 6 notice dated 31 May 1995, that notice being annexure C to Mr Whittaker's affidavit. The statutory declaration dated 27 June 1996 (document 2) together with its two enclosures was prepared by Marsdens in the period mid to late June 1996. The earlier statutory declaration dated 13 June 1995 was prepared by Mr Marsden at the deponent's request upon receipt of the s 6 notice. 69 Document 3: copies a statutory declaration of John Marsden dated 12 July 1996. This statutory declaration, to the best of the deponent's understanding, was prepared by Mr Marsden or a member of his firm for the purpose of responding to a letter form the Royal Commission to Corrs dated 8 July 1996. The original of this statutory declaration was provided by Corrs to the Royal Commission. The letter dated 8 July 1996 became Exhibit 1 tendered by the defendant on the plaintiff's Notice of Motion to preclude inspection. I shall deal further with that when I return to Mr Whittaker's oral evidence. 70 Document 4 in MJW 1 is described in annexure B to Mr Whittaker's affidavit as "copy of statutory declaration of John Marsden dated May 1996 with attachments". It is four centimetres thick. Among those attachments are the fourteen statutory declarations, WF 1 - 14 (MFI 11 - 24) in respect of which Mr Flynn gave evidence. In relation to this document 4, Mr Whittaker cannot recall whether a s 7 Notice was received. Annexed to Mr Whittaker's affidavit and marked "C" is a letter from him to the Royal Commission for the attention of Patti Bergin (sic). That letter became Exhibit 2 tendered by the defendant on the plaintiff's Motion. Exhibit 2 (the Whittaker/Bergin letter) is in the following terms: "We enclose Statutory Declaration of John Marsden dated 8 May 1996. The statutory declaration is produced to the Royal Commission on our client's instructions. Some of the annexures to the statutory declaration are subject to legal professional privilege. Our client waives legal professional privilege with respect to those annexures. Legal professional privilege in relation to communications between our client and his legal advisers about the annexures and/or any other privileged communications with respect to the annexures is not waived". 71 In more respects than one, it quite arguably can be said that this is a most unhelpful communication. First, it fails to identify which of the annexures to the statutory declaration are subject to legal professional privilege which is waived. Nor does it discriminate the communications in respect of which privilege is maintained. Over objection, Mr Whittaker in paragraph 27 of his affidavit states that all he intended by the words was to "decline to claim privilege with respect to the Royal Commission". He did not intend or understand himself to be waiving privilege to the "world at large". He reiterates that the material was provided to the Royal Commission on a "strictly confidential basis" for the use by the Royal Commission for the purpose of its investigations. 72 Document 5 in BJW 1 is described in annexure B to Mr Whittaker's affidavit as a statutory declaration dated 18 April 1997. He prepared that statutory declaration for the purpose of providing the plaintiff with professional legal services relating to anticipated criminal proceedings against the plaintiff and professional legal advice relating to investigations of the plaintiff by the Royal Commission. In paragraph 28 of the affidavit dealing with this document Mr Whittaker deposes that he cannot recall the exact time of its production to the "NSW Police" (sic) but believes it accorded with the practice of "confidentiality" referred to earlier in the affidavit (paragraph 21) in relation to dealings with the Royal Commission: a little confusion here. 73 Document 6 in BJW 1, according to annexure B to the affidavit of Mr Whittaker, is a copy of "statement of John Marsden (undated)". This document was prepared by the plaintiff or Marsdens, it is said, for the sole purpose of providing the plaintiff with professional legal services relating to anticipated criminal proceedings against him. The best that Mr Whittaker could do in relation to document 6 was state that it "may" have been provided to the Royal Commission pursuant to a ss 6 or 7 notice. 74 Document 7 in BJW 1, according to annexure B to Mr Whittaker's affidavit, is a copy of "statement of John Marsden dated 6 March 1995". This document was prepared by the plaintiff at Mr Whittaker's request. A copy of the statement was sent to the Royal Commission. A confidential exhibit marked "BJW 3" to the affidavit of Mr Whittaker is a true copy of a letter sent by him on 8 March 1995 which enclosed document 7. To the best of Mr Whittaker's recollection, a copy of the document was provided to the Royal Commission in compliance with a s 7 Notice dated 16 May 1995 (which post-dates the date of the statement). That s 7 Notice is annexure D to Mr Whittaker's affidavit. The schedule to that notice is in the following terms: "1) All Statements, statutory declarations or other documents including, but not limited to, notes of meetings, correspondence, audio tapes and computer-generated records relating to allegations that John Robert Marsden is a pederast. 2) All statements, statutory declarations or other documents including, but not limited to, notes of meetings, correspondence, audio tapes and computer-generated records in relation to the search warrant executed upon the house of John Robert Marsden in May 1994 and also in relation to any allegation of drug use by John Robert Marsden". 75 As to document 8 in BJW 1 it is described in annexure B to Mr Whittaker's affidavit as a "copy of a statutory declaration of John Marsden dated 21 March 1995". This document, it is contended by the deponent, was prepared for the sole purpose of the provision of professional legal services relating to the first defamation proceedings. (I interpose here that the terminology employed in paragraph 31 of Mr Whittaker's affidavit appears to be that of s 119 of the Evidence Act the commencement of which post-dates the statutory declaration). A copy of that statutory declaration was forwarded to the Royal Commission to comply with the s 7 Notice which is annexure D to Mr Whittaker's affidavit. 76 Document 9 in BJW 1, described in annexure B as "copy of statutory declaration of John Marsden dated 21 March 1995", was forwarded to the Royal Commission pursuant to the s 7 Notice, annexure D. It was said that it was prepared by Marsdens for the "sole purpose of providing the plaintiff with legal services relating to anticipated criminal proceedings against the plaintiff". 77 Document 10 in BJW 1 is described in annexure B as a "copy of statutory declaration of John Marsden dated 21 March 1995". The statutory declaration was prepared by the plaintiff or solicitor in his employ at Marsdens for the purpose referred to as "providing the plaintiff will legal advice relating to the Royal Commission which was investigating the plaintiff". A copy of that statutory declaration was provided to the Royal Commission to comply with the s 7 Notice, being annexure B. 78 Document 11 in BJW 1 is described in annexure B as "copy of statutory declaration of John Marsden dated 21 March 1995". This was prepared by the plaintiff or Marsdens in relation to the provision of professional legal services relating to the first defamation action and a copy was forwarded to the Royal Commission in compliance with a s 7 Notice which is annexure D. 79 Document 12 in BJW 1 is described in annexure B to Mr Whittaker's affidavit as a "copy of statutory declaration of John Marsden dated 21 March 1995". It was prepared by the plaintiff or a solicitor in Marsdens in connection with or as is stated, for the "sole purpose of" the provision to the plaintiff of professional legal services relating to the first defamation action and it also was forwarded to the Royal Commission in compliance with the s 7 Notice being annexure D. 80 Document 13 in BJW 1 is described in annexure B as a "copy of statutory declaration of John Marsden dated 23 March 1995" It was prepared by the plaintiff or a solicitor at Marsdens for the purposes of providing the plaintiff with legal advice relating to the Royal Commission. To the best of Mr Whittaker's recollection it was prepared by the plaintiff at his request and a copy was forwarded to the Royal Commission to comply with the s 7 Notice, annexure D. 81 Document 14 in BJW 1 is described in annexure B as a "copy of statement of John Marsden (undated)". This was prepared by the plaintiff to obtain professional legal services in relation to anticipated criminal proceedings and was done so by the plaintiff at Mr Whittaker's request. It was forwarded to the Royal Commission in compliance with the s 7 Notice, annexure D. 82 Document 15 in BJW 1 described in annexure B as "copy of statement of John Marsden (undated)". This document was prepared in the offices of Corrs for the purpose of providing the plaintiff with professional legal advice relating to the Royal Commission and a copy was forwarded to that body to comply with the s 7 Notice, annexure D. 83 Document 16 in BJW 1 is described in annexure B as "copy of statement of John Marsden (undated)". This document was prepared by the plaintiff for the purpose of the plaintiff being provided with professional legal advice relating to the Royal Commission which was investigating him and a copy of that statutory declaration was provided to the Royal Commission to comply with the s 7 Notice, annexure D. 84 I turn now to that component of Mr Whittaker's affidavit which deals with "documents Produced on Subpoena by Police". Confidential exhibit BJW 4 to Mr Whittaker's affidavit is comprised of documents produced by the Police Service to the Court over which the plaintiff maintains a claim for privilege. Annexure E to Mr Whittaker's affidavit is a schedule of those documents. Confidential exhibit BJW 5 to Mr Whittaker's affidavit is a document to which I have already referred (paragraph 48) being MFI 26 which identifies by name the persons to whom the numbers P1 - P42 have been allocated. In annexure E to Mr Whittaker's affidavit there is reference to forty four documents. 85 Document 1 is described in annexure E as the statutory declaration of P1 dated May 1986 (edited copy) attaching fifteen statutory declarations. It is described as an edited version of document 4 in annexure B. Annexure B discloses that it is that statutory declaration of John Marsden dated May 1996 with attachments. Thus, one does not have to be a cryptologist to identify P1 as the plaintiff. The attachment to document 1 described as "(a) statutory declaration of P2 dated 8 February 1996 attaching a statutory declaration of P2 dated 12 December 1995" discloses that the latter is the same document as is WF4 (MFI 14) to which Mr Flynn refers in his evidence. Thus, the particular statutory declaration dated 12 December 1995 from P2 being WF 4 (MFI 14) appears to have found its way to the Royal Commission by reference to being part of document 4 in BJW 1 and in some way unknown to have found its way into the possession of the Police Service. None of the other attachments to document 1 in annexure E, being attachments to the plaintiff's statutory declaration of May 1996 in the possession of the Police, were documents with which Mr Flynn was concerned in his evidence. 86 Documents 2, 3, 5, 7 and 9 being statutory declarations of the following and dated respectively, P24 5 June 1996, P25 17 June 1996, P27 19 June 1996, P9 19 June 1996, and P11 19 June 1996 were provided to Mr Whittaker by the plaintiff. A copy of each was forwarded to the Royal Commission following the issue of a s 7 Notice. The letter forwarding to the Royal Commission copies of these statutory declarations (though in edited form) is Exhibit 3 tendered by the defendant on the plaintiff's Motion. 87 Documents 4 and 6 being respectively statutory declarations of P26 and P28 dated 10 May 1996 and 22 May 1996 as set out in annexure E were provided to Mr Whittaker by the plaintiff and copies were provided to the Royal Commission following the issue of the s 7 Notice. 88 Document 8 being a statutory declaration of P10 dated 5 June 1996 was prepared by Mr Whittaker and forwarded to the Royal Commission following the issue of a s 7 Notice. 89 Documents 10, 11 and 12 being statutory declarations of P2, 8 February 1996 (without annexure), P12, 28 November 1995, P13 (undated), to the best of Mr Whittaker's recollection were provided to him by the plaintiff and subsequently provided to the Royal Commission. In paragraph 46 of his affidavit Mr Whittaker candidly states that his recollection of the circumstances of their provision to the Royal Commission and "to the Police" is unclear. 90 Document 14 described in annexure E as "statutory declaration of P13 dated 31 July 1996" was provided by the plaintiff. Annexure F to the affidavit is a copy of a facsimile dated 5 August 1996 to Detective Inspector Inkster of the New South Wales Police Service attaching a copy of document 14. Annexure F to Mr Whittaker's affidavit is an "open" document which states "please find enclosed a copy of the signed statutory declaration of (named inserted)". Thus, the identify of P13 as sworn in document 14 is disclosed in exhibit F. 91 Document 15 referred to in annexure E is a statutory declaration of P1 dated 18 April 1997. It is a copy of the statutory declaration of the plaintiff of that date being document 5 in BJW 1, (see paragraph 72 above hereof). 92 Document 16 in annexure E described as a statutory declaration of P13 is a copy of document 14 in annexure E (see paragraph 81 above). 93 Document 17 is made up of a statutory declaration of P28 dated 8 March 1995, a statutory declaration of P29 dated 8 March 1995 and a statement of P1 (unsigned and undated). A copy of each of these documents was provided by Corrs to the Police under cover of a letter dated 28 March 1995 which is annexed to Mr Whittaker's affidavit and marked "G". That is also a "open" exhibit which on any reasonable construction discloses the third component of document 17 to be a statement of the plaintiff (originally described as "unsigned and undated") as a statutory declaration dated 13 March 1995 of the plaintiff but not sworn. 94 Document 18 is described in annexure E as "edited statutory declaration of the plaintiff dated 9 June 1995". This was prepared by the plaintiff or by solicitors in the employ of Marsdens for the purpose of responding to a s 6 Notice believed by the deponent, Mr Whittaker, to be that Notice which is annexure C to his affidavit which is a Notice issued pursuant to s 6 of the Act dated 31 May 1995. 95 Document 19 is an edited version of document 2 in annexure B to Mr Whittaker's affidavit which is a statutory declaration of the plaintiff dated 27 June 1996 (see paragraph 68 above hereof). 96 Document 20 in annexure E, as I understand it from paragraph 53 of Mr Whittaker's affidavit is another form of document 1 in annexure E being the statutory declaration of the plaintiff (edited copy) to which was attached the fifteen statutory declarations to which I make reference in paragraph 85 above. 97 Documents 21 to 31 are copies of documents 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 in annexure E. 98 Document 32 is a statutory declaration of Bekir Erkilic of 27 June 1995 in respect of which privilege has been expressly waived by a communication to me dated 11 March 1999. 99 Document 33 is a statutory declaration of P15 dated 19 December 1994. The deponent states that a copy was provided to him by the plaintiff and his recollection was unclear but he believes that a copy was subsequently made available to the police. 100 With respect to document 38 (whatever it was), annexure E states that privilege is no longer claimed over it. 101 Document 34 is described as "part of paragraph 2 on page 2 of a NSW Police running sheet created 11 August 1998 re statement obtained by the Police from D16 on 11 August 1998". The defendant has a copy of this document however edited out are two lines that relate to the contents of two statutory declarations of the plaintiff in respect of which contents privilege is claimed. 102 Document 35 is part of paragraph 52 of a statement of D16 to the Police dated 11 August 1998 which has been edited in the same manner and for the same reason. BJW 4 being the folder of "Police" documents in respect of which privilege is claimed and to which I have access, contains unedited versions of these documents. 103 Document 36 is described as "part of paragraph 3 of page 1 of a NSW Police running sheet created on 14 September 1998 re telephone conversation with D16 on 14 September 1998". This has been edited for the same reason. 104 Document 37, according to annexure E, contains parts of paragraphs from a statement of D16 dated 3 December 1998 which has been edited. 105 Document 39, according to annexure E, contains part of paragraph 11 of a statutory declaration of one Deanne Maynard dated 12 August 1998 from which one and a bit lines have been excised for the same reason. 106 Document 40, according to annexure E is "part of paragraph 18 of the statutory declaration of Pamela Kent dated 13 August 1998" from which again a line and a bit have been excised for the same reason. 107 Document 41 is a statutory declaration of D16 dated 29 July 1996. 108 Document 42, 43 and 44 are statutory declarations of P16 dated 28 September 1998, 27 October 1998 and 10 December 1998. 109 Mr Whittaker gives no affidavit evidence in connection with annexure E relating to document 13 being part of a statutory declaration of P16 dated 10 December 1998, documents 35, 36, 37, 39 - 44. Further, in relation to annexure B document 1 described as "copy of statutory declaration of John Marsden dated 25 November 1998 with attachments consisting of other documents" being the first of the documents produced by the plaintiff over which privilege is claimed, Mr Whittaker makes no reference in his affidavit. 110 I turn to the oral evidence given by Mr Whittaker. In relation to the Police receiving documents and information, it was Mr Whittaker's recollection that it was he personally who handed over documents. Other members of his employing firm who would have been involved were Mr McKeogh, Mr McCann and Mr Lee. The general purpose was initially described (T194.55) as the provision of documents on the plaintiff's instructions "of course it is confidential and is given to you [the Police] for the purpose of the inquiry". Documents were handed by Mr Whittaker to Mr Inkster, Head of the Task Force established on 14 March 1995. I gather the witness dealt principally with Mr Inkster and one Sergeant Eris Shields. 111 When asked for the first time what was the witness' expectation as to what would happen to the document Mr Whittaker replied (T195.50-56): "A. My expectation was that were providing material to the police generally, and I say that because I am not clear on exactly what we gave to them at this point but generally with the purpose of demonstrating to them that matters that we believed were the subject of inquiry could on an objective basis be availed of by the police as having at least a reasonable doubt or being groundless". 112 He also agreed that he would have expected that the material made available to the Police would have been used by the various individuals in the task force to assist them with them inquiries and investigations (T196.9). He could not be sure of the proposition that he would envisage that the Police investigations assisted by such documents as they saw fit to use, would involve interviewing people. He was generally aware of the nature of the Task Force inquiry but "The information that was provided to the Police was provided for the purposes of showing them that objectively the matters that we were aware of that were subject of the investigation could be challenged on an objective basis" (T196.20). 113 He agreed that it was fair comment that he would trust the police officers to whom he was handing over the information to rely upon it to assist them in furthering their investigations to the end that the investigations were brought to an end as soon as possible. He would not however expect the Police to swallow the information "holus bolus" but he would have expected, where the information was clear, that they would not need to take it necessarily any further (T196.45). 114 In response to the suggestion that he would have had the expectation that the police officer may very well put some of the information to the persons who had made allegations against Mr Marsden to challenge them, was that the police officer "may well have informed him or herself of the material". 115 At 197.5 there commenced the following exchange: "Q. And indeed I suggest to you sensibly that you indeed provided this material to enable the police officers again if they saw fit to do so in their discretion in order to achieve the end you were hoping to achieve to do just that? A. As I say the principal purpose of providing the documents was to demonstrate on an objective basis there was nothing in the allegations. If the police informed themselves through the material of matters, yes that would be a sensible conclusion that would go on and it was certainly never the intention the documents would be shown to other people. Q. Putting the document to one side, plainly enough for the information in the document to do the work you were hoping it would do, you would expect the policeman to be putting that information to the, in order to test so as to demonstrate the unreliability of the allegations that had been made, you would expect that wouldn't you? A. I am not, I am not familiar enough with police investigations to know whether or not they would go off and put things to third parties in that way. As I say, in providing the information the principal object was to demonstrate to the police that there was an objective basis upon which to doubt the information they had been provided with. Q. Is this a fair way of summing-up the situation so far as you were concerned and consistent with your instructions, that the material was handed over for the police officers to use in furthering their inquiries as they saw fit in their discretion? A. No I would not go that far, no". 116 This evidence gives rise to a consideration of the expectations as to confidentiality, the reality of the confidentiality and the extent of the confidentiality between the plaintiff and his lawyers and the police. Mr Whittaker's evidence is not dissimilar to that, to which I will shortly refer, given by Mr Lee. 117 In relation to the production of documents to the Royal Commission, Mr Whittaker identified the "compulsion" as responses to Notices issued under ss 6 or 7 of the Royal Commission (Police Service) Act 1994. He agreed that upon receipt of any such Notice he would consider the terms of the relevant section of the legislation. He had no particular recollection of any claim for "privilege" being made as provided for by the terms of the Notice or the Act. He could not recall on any occasion when steps were taken to set aside any Notice. 118 As to taking objection it does turn out from Exhibit 3, a letter to the Royal Commission in response to a s 7 Notice the statutory declarations therewith provided were "produced on objection". 119 In relation to document 2 in annexure B to his affidavit which was a copy of a statutory declaration of the plaintiff dated 27 June 1996 attaching a copy of a letter from the Commission dated 19 June 1996 and a copy of a statutory declaration of the plaintiff dated 13 June 1995 (see paragraph 68 above), Mr Whittaker clarified that the second mentioned statutory declaration was based upon a s 6 Notice. But in respect to document 2 otherwise no claim for privilege or objection was taken. It was Mr Whittaker's recollection that the genesis of that document (document 2) was discussions between Royal Commission staff and Mr Greg James Q.C. (as he then was). Mr James had contacted him and said that he had had discussions with Royal Commission staff and that on the basis of those discussions a letter would issue and that he would provide material responding to it. That was how document 2 "came to pass". 120 Exhibit 1, a letter dated 8 July 1996 from the Royal Commission to Corrs, was acknowledged to be the document referred to in paragraph 26 of the witnesses affidavit dealing with document 3, a letter which I gather was delivered at a time when there were discussions concerning the possibility of "statement" by the Royal Commission. All I can understand from the evidence is that the material was provided in connection with the "public statement". The document was prepared on the witness's request by the plaintiff or someone in the plaintiff's office and was prepared for the purpose of responding to Exhibit 1. At the time of the preparation of document 3 the witness said it was not known whether or not a statement would be made. A letter was provided to the plaintiff, that is, Exhibit 1, with a request that he deal with the two matters raised by it and subsequently this caused document 3 to be sent to the Royal Commission. Mr Whittaker would not agree that he contemplated the likelihood that the document made well have been referred to in any public session in which a public statement was to be made in the Commission. His understanding of the discussions that were taking place at that time was that what he was looking here for and what was being discussed was a statement of a general nature. Mr Whittaker went on to say (T207.29): "that statement was subsequently made". By that I take him to mean a statement in public session of the Royal Commission. That was clear to me on hearing that piece of evidence. I have heard nothing nor received any evidence as to the nature and content of that statement made in public session of the Royal Commission. He agreed that any statement made in public session of the Royal Commission was for the "benefit of mankind". He did not agree that the information provided in response to Exhibit 1 was for use by the Royal Commission staff as "they saw fit" in dealing with the contents of a public statement. 121 As to document 5 in annexure B to Mr Whittaker's affidavit referred to in paragraph 28 (statutory declaration of the plaintiff dated 18 April 1997), the witness seemed to recall a conversation with Mr Inkster relating to the inquiry moving along, references to the "Witness" program and his saying to Mr Inkster that he would discuss the matter with the plaintiff and provide him "confidentiality" material subject to instructions from Mr Marsden. He assisted the plaintiff in the preparation of the document and it was provided to Mr Inkster on a confidential basis for the purpose of providing legal advice and in response to his request. 122 As I understand the course of the evidence after dealing with this particular document 5, there was admitted into evidence Exhibit 2 (see paragraph 70 above). 123 Exhibit 2 is the letter from Mr Whittaker to Ms Bergin dated 10 May 1996 with which was enclosed document 4 in annexure B being the bulky document namely, the statutory declaration of the plaintiff dated 8 May 1996 to which there were voluminous annexures including all the statutory declarations the subject matter of the evidence of Mr Flynn. This particular letter (Exhibit 2) and its relationship with document 4 in BJW 1 (MFI 5) did not receive much particular attention in cross-examination by Mr Nicholas and no doubt, for very good reason. Mr Whittaker however admitted that he gave careful consideration every time a notice under s 6 or s 7 was received to whether or not a claim for privilege should be made. In response however to the question as to when it was deemed appropriate to make the claim a claim was made, Mr Whittaker replied (T212.27-35): "A. As I was trying to explain to you a moment ago, reasonably early in the Royal Commission's hearings, my recollection is that a ruling was given by Wood J or Commissioner Wood on the issue of legal professional privilege and its availability. That ruling was quite narrow in the sense that it restricted the availability of legal professional privilege based on his interpretation of notices. So we were operating in that context". 124 I add that no information or evidence was put before me as to the nature of the particular ruling given by the Royal Commissioner in this context. 125 It was put to Mr Whittaker that to the best of his recollection documents were made available to the Commission without the assertion of any claim for privilege. His response essentially was that the documents were made available without assertions of legal professional privilege but that never was it within his contemplation that these documents would find themselves in the hands of parties other than the Royal Commission. 126 In respect of documents on "compulsion" Mr Whittaker said that documents were so produced in response to Notices under ss 6 or 7 or "in anticipation of them", though he agreed that there was no compulsion in anticipation of a Notice. He agreed that each of the Notices made clear that the recipient had an opportunity of not complying if the recipient wishes to assert, for example, a claim for privilege. 127 In relation to document 6 (referred to in paragraph 29) of the affidavit and being a copy of an undated statement of the plaintiff (see paragraph 73 above), Mr Whittaker agreed that he could not be sure as to the basis upon which or the circumstances in which that document was provided. 128 In relation to documents 10, 11 and 12 (see paragraphs 77 - 79 above) the witness's recollection was unclear as to the circumstances of the provision of the documents to the Royal Commission and to the Police; this was clarified in cross-examination in the sense that Mr Whittaker made it clear that he was speaking of ignorance of how documents came into the possession of the Police and thus were produced to the Court. 129 As to document 17 (in annexure E), statutory declarations of P28, P29 and an undated statement of the plaintiff (see paragraph 93 above), and annexure G being a letter to Detective Inkster of 28 March 1995, Mr Whittaker believed the material was provided pursuant to a request and handed over at a meeting. The cross-examination of Mr Whittaker concluded with his agreement to the proposition that material was provided to the Task Force with a view to putting an end to the inquiry as soon as possible and that Mr Whittaker and Mr McKeogh caused to be prepared for Mr Marsden the material to be produced at the meeting for the consideration of the Task Force. 130 I turn now to the evidence of Michael Bryan Joshua Lee, a Partner of Corrs. In his first affidavit sworn 1 March 1999 Mr Lee deposes to receiving instructions to act on behalf of the plaintiff on or about 23 September 1998 in relation to the investigation of the plaintiff by "Strike Force Cori" of the New South Wales Police Service. 131 On 20 November 1998 Mr Lee had a telephone conversation with Detective Superintendent Woodhouse, the leader of that Strike Force, during the course of which Mr Lee indicated that he would like to arrange a meeting at his office. He indicated that at that meeting he proposed to give Detective Superintendent Woodhouse certain material stating "I trust that like any other material I provide to you during the course of your investigation you will keep it strictly confidential" to which Mr Woodhouse replied, "any material that I receive from you during the course of my investigation will be kept confidential - you don't need to worry about that". 132 A meeting took place at Mr Lee's office at 9.30am on 26 November during the course of which Mr Lee provided to Mr Woodhouse a document. Annexure A to Mr Lee's affidavit is in identical terms to annexure B to Mr Whittaker's affidavit. The document referred to is document 1, being "copy of statutory declaration of John Marsden dated 25 November 1998 with attachments consisting of other documents". The document was made by the plaintiff to be provided with professional legal services relating to anticipated criminal proceedings against him, so deposes Mr Lee. 133 Late in 1998 Mr Lee caused his secretary to provide copies of statutory declarations to Mr Woodhouse. Those documents are set out in annexure B to Mr Lee's affidavit which is in the same form as annexure E to Mr Whittaker's affidavit. Those documents were number 13, described as "part of a statutory declaration of P16 dated 10 December 1998"; document 41 described as "statutory declaration of D16 dated 29 July 1996" and documents 42, 43 and 44 being statutory declarations of P16 dated 28 September 1998, 27 October 1998 and 10 December 1998. Mr Lee deposes to those documents being provided on a "confidential basis" after conversations with Mr Woodhouse in which he had said words to the effect "I will keep these statements confidential for the purpose of my inquiries". The document would not have been provided on any other basis according to Mr Lee. 134 Mr Lee's second affidavit was sworn on 2 March 1999 and relates to what I have described earlier as the 29 January 1999 meeting. 135 Mr Lee was present at the meeting in his capacity as solicitor acting for Mr Marsden in relation to the ongoing investigation of Mr Marsden by "Strike Force Cori". Mr Lee deposes that prior to the meeting he had formed the view that it was likely that a transcript of the meeting would be prepared by a member of the Police Service and that such a transcript might be used in anticipated criminal proceedings against his client. In order to provide legal advice to Mr Marsden in relation to anticipated criminal proceedings, Mr Lee says he caused a tape recording to be made of the meeting using equipment owned by himself in order that he might have his own transcription of the meeting. There is exhibited (confidentiality), to Mr Lee's affidavit three original tape cassettes (MBJL 1); a copy of a partial transcription prepared by his secretary (MBJL 2); the transcription is "partial" by reason of parts of the final tape being non-transcribable because of mechanical difficulties. The third exhibit is MBJL 3 which is constituted by copies of original handwritten notes made by Mr Lee during the meeting. 136 The meeting was arranged at the request of Detective Superintendent Woodhouse in order for that officer to raise various matters with the plaintiff connected with the ongoing criminal investigation of Mr Marsden. 137 In paragraph 11 of this second affidavit Mr Lee deposes to instructions from the plaintiff that had Mr Marsden believed that the defendant in these proceedings would have had access to the material in MBJL 1 and MBJL 2 at a time prior to the conclusion of the ongoing police investigation of the plaintiff he would not have cooperated with the Police and would not have attended the meeting. Mr Lee was informed by Detective Woodhouse and believed that Detective Woodhouse himself believed that it was important for his ongoing investigation that the plaintiff be interviewed. 138 I turn now to the oral evidence of Mr Lee (who was the first deponent to be cross-examined). 139 Mr Lee gave evidence of contacts between himself and Mr Woodhouse prior to the meeting that took place on 26 November 1998. To some extent, as I understand it, Mr Lee was constrained by questions of privilege in relation to those communications. However, he went about the process of gathering together the materials for that meeting and was instructed by Mr Marsden to make the material available to that officer. He denied that it was his understanding that the Superintendent would make the material available to his colleagues in the Strike Force. When he was asked what his understanding was, Mr Lee said (T163.21 - 45): "A. I had understood that Det Superintendent Woodhouse was the person who was investigating the allegations raised against the plaintiff in these proceedings. I believed that the matter was sufficiently sensitive for Det Superintendent Woodhouse to retain personal control over those documents and I don't think I would have thought that Superintendent Woodhouse would have been sharing the information with others. Q. You did not expect him just to sit on it himself, did you? A. I anticipated he would review it himself, yes. Q. In relation to his reviewing it, what was your anticipation as to the use to which he might put it? A. Well, I anticipated that Det Superintendent Woodhouse on the material I provided to him would possibly wish to interview additional witnesses and would have gone through the analytical process by which he would analyse the material hitherto in relation to whether it stacked up in light of the material which contradicted the material he had previously gathered". 140 He understood that the investigation would involve making inquiries of a variety of people but over a relatively small number and a relatively "confined universal facts". He believed that Mr Woodhouse would undertake the task himself. Mr Lee could not say whether, at the time of providing the material, he went through the mental process of anticipating that Mr Woodhouse at his selection might put some of his materials to various individuals. He acknowledged the logic of the proposition at the time of giving evidence but said he was not sure he had formed a view about that one way or the other at the time. 141 He was asked (T165.23 - 35): "Q. Can you tell us to the extent you did turn your mind to it what use you considered he was likely to make of it? A. I thought he would use it as a basis upon which he would pursue further lines of inquiry. I also thought it would be a basis upon which he would look at the material in the statement he presumably received from the witnesses, or the relevant witnesses and critically analyse that material in light of the material I was providing to him with a view, in my submission, to forming the view that the material which had been gathered was unreliable". 142 It was agreed by Mr Lee that the material was provided to the Superintendent with the expectation that he, having used it, would ultimately close down his investigation. Mr Lee did not agree that some of the material was the subject of a request from the Superintendent and identified document 41 in annexure B to his affidavit, a statutory declaration of D16 dated 29 July 1996 as an item specifically requested. 143 In relation to any conversation of discussion with the Superintendent at the time he handed over the material Mr Lee said that he did not have a discussion as to what Woodhouse was to do with it. He gave the following evidence as to the discussion (T168.10 - 169.11): "A. I believe I would have said to Superintendent Woodhouse words to the following effect: "This is an affidavit. This is a statutory declaration by John Marsden which annexes a large amount of material. I think it is extremely important you read this very carefully. I think after analysing this material you should have real doubts whether you should be pursuing an investigation in respect of events and allegations." I would have said words to the effect: "I believe on the basis of the material I have seen and all the contemporaneous records I have seen that (--) story" – I beg your pardon, the witness' story did not stack up, sorry, and I would have entreated him probably relatively forcefully to consider the material very carefully. Q. What do you recall his response to that exhortation being? A. I believe he would have said words to the effect: "Yes, of course I will consider it very carefully. My desire is to conduct a fair and impartial and balanced investigation." Q. Did that not indicate to you that in order to achieve the continuation of the investigation there was a real likelihood that after consideration he would be putting to the various people the matters raised for consideration in your client's information? A. No, I don't believe I did have that expectation at that time, no. I expected him to conduct or undertake an analytical task looking at the material I had provided to him, comparing and contrasting it with the other material and forming a view as to its reliability. In doing so it may have been necessary for him to make further inquiries, but I anticipated those to be inquiries of other witnesses, following up leads which would be obvious to him from the material I had provided to him. Q. As part of that follow up process it would involve the likelihood of him, first of all, discussing matters raised in the information that you provided with those people? A. No. Q. You simply did not turn your mind to that prospect, would that be a fair way of putting it? A. No. Q. To be clear about it, it did not occur to you one way or the other that the investigations that Superintendent Woodhouse might thereafter carry out would involve putting to individuals part of the material that you had provided. That simply did not occur to you, that prospect? A. I didn't have the expectation he would do that. I didn't have the expectation he would do that". 144 The assurance Mr Lee said he understood Mr Woodhouse to be giving was that his investigations would be confidential, unobtrusive and discrete. He did not agree that the material was provided to the Superintendent for use by him "as he saw fit". 145 In relation to document 1 in annexure A to Mr Lee's affidavit being the copy of statutory declaration of the plaintiff dated 25 November 1998 (the day before the meeting) with attachments consisting of other documents, Mr Lee played a part in the preparation of the statutory declaration but not the attachments. The attachments were provided to him by his client Mr Marsden. The other documents provided, as I understand his evidence, was provided by the plaintiff. 146 Mr Lee was cross-examined in relation to annexures B and C to the affidavit sworn 2 March 1999 of Superintendent Woodhouse. Those annexures constitute a letter from the Superintendent to the plaintiff and the plaintiff's reply thereto. The subject matter, very briefly stated, concerns D15 and D16. The communications were referred to Mr Lee and Mr Lee said that eventually his instructions were to provide the material to Detective Superintendent Woodhouse. He had only recently been instructed however, and then wished not to provide that material until he had the opportunity of becoming fully apprised of the matter. He had a number of conversations with the plaintiff leading up to the following month as to whether or not the material should be provided. He agreed that the exercise of whether or not the material should be provided was a carefully considered one and said that the purpose of the provision of the material was to provide Detective Superintendent Woodhouse with material for the purposes of his investigation. 147 As to Mr Lee informing Phillips Fox of the existence of the statutory declarations and other documents, Mr Lee believed that he would have had a conversation with Mr Potter (the solicitor on the record in the defamation actions), at some stage, indicating to him that he had provided material to Woodhouse. He did not believe that he particularised that material. His conversations with Mr Potter would have been relatively general. 148 In his affidavit parts of which were read for the defendant, Mr Woodhouse deposes that at the beginning of the interview with Mr Marsden on 29 January 1999 Mr Lee said words to the effect "My client does not want a copy of the tape or transcript of the interview at this time because be may be obliged to discover them to Channel 7". It was put to Mr Lee that this was the essence or substance of the conversation. Mr Lee whilst not denying the use of the words to that effect gave evidence as to the following context (T181.10): "A. I said to Detective Inspector Woodhouse: "You will note that when you go into the room there will be recording material I have placed there. I propose to record the meeting to keep a record of what was said in order that I may be able to formulate a response to the matters you put to Mr Marsden. I don't want a copy of the ERISP tape at the conclusion of the meeting because I don't want there to be an argument about whether or not that material is required to be provided in the existing defamation proceedings that are taking place." I think Detective Inspector Woodhouse said: "That's fine. Q. And as part of that conversation, it would be fair to say wouldn't it that you made the statement that I have already put to you, namely: "My client does not want a copy of the tape or transcript of the interview at this time because he may be obliged to discover them to Channel 7"? A. I certainly believe I said the first part of that. I think I actually have a recollection of using the word ERISP tapes and I believe I said I don't want there to be an argument about whether or not that material is required to be provided in the existing civil litigation or defamation proceedings or words to that effect, that is why I tried to describe it as a reduction of what I said. It was part of what I said. Q. Because your concern was if you did take possession of the tape or transcript of this interview from the police you might be obliged to discover it in the defamation proceedings wasn't it? A. It wasn't a matter for me, it was a matter for other solicitors, but I took the view if I made a transcript it would be subjected to client legal privilege but if a transcript was received by the police I really hadn't turned my mind to the fact whether or not that would be privileged but I thought it would be better to avoid an argument if at all possible. Q. And to avoid the risk? A. Yes". 149 Finally, agreed that he did not inform the solicitors for the plaintiff in the defamation actions (Mr Potter of Phillips Fox), of the existence of Mr Lee's records of the meeting of 29 January 1999 until he swore his affidavit of 2 March 1999. 150 As I have indicated Superintendent Woodhouse swore an affidavit on 2 March 1999, parts of which were read by the defendant as evidence in the plaintiff's Motion. The deponent is a Detective Superintendent of Police and is Commander of Strike Force Cori, a Task Force established in December 1997 to investigate the claims made by the Honourable Franca Arena MP. During the course of the investigations conducted by that Strike Force, the deponent has investigated allegations made against the plaintiff. In particular he carried out investigations into allegations made two brothers D15 and D16 (their names are set out in para graph 5 of the affidavit). 151 In September 1998 Superintendent Woodhouse wrote to Mr Marsden in relation to these allegations and the correspondence already referred to above (paragraph 146 are annexed to the affidavit and marked "B" and "C". On 22 December 1998, the Superintendent wrote to Mr Lee seeking an appointment with Mr Marsden to conduct with him during which he intended to put to him the contents of allegations investigated by the Strike Force during 1998. There was some delay in interviewing Mr Marsden by reason of Mr Lee's absence on leave and an appointment was eventually made for 29 January. 152 On 29 January the Superintendent interviewed Mr Marsden and put to him allegations arising from the investigation carried out by the Strike Force in 1998. Present at the meeting were Mr Lee and Detective Senior Constable Cunningham. The interview commenced at 9.30am and concluded at 12.10pm and was recorded. At the beginning of the interview with Mr Marsden, Mr Lee said to the deponent words to the effect: "My client does not want a copy of the tape or transcript of the interview at this time because he may be obliged to discover them to Channel 7". 153 According to Mr Woodhouse none of the documents supplied to him and referred to in paragraphs 3, 4 and 5 of Mr Lee's affidavit were solicited by him. That material, I note, includes document 41 being a statutory declaration of D16 dated 29 July 1996 (document 41). On the evidence of Mr Lee and taking into account that Mr Woodhouse was not cross-examined, I think at best Mr Woodhouse is mistaken in this regard. In exhibit B to his affidavit, being the letter Mr Woodhouse wrote to Mr Marsden, Mr Woodhouse states "I am also aware that you are in possession of statutory declarations made by … D16 … which you may wish to forward to me at this stage. … D16 … is agreeable to this course of action". I am of the view that that statement in exhibit B fairly can be regarded as a request. 154 Mr Woodhouse goes on to depose that he has no recollection of a conversation of 20 November 1998 (see paragraph 131 above), however his understanding at all times when he received material from Mr Marsden's solicitors was that the material was to be used "exclusively for the purpose of considering it in the context of other material I had received in the course of the investigations of Strike Force Cori". Submissions 155 In the context of applying Akins and, for the moment, not discriminating as to the date for the creation of any relevant document or event, it is submitted for the plaintiff that the evidence before me discloses that the material over which privilege is claimed falls within s 118 of the Evidence Act being "advice" privilege. That is, documents are not to be inspected if, on the objection by a client, the Court finds that the inspection of the documents would result in the disclosure of a confidential communication made between the client and a lawyer or the contents of a confidential document (whether delivered or not) prepared by the client or a lawyer for the "sole" purpose of the lawyer or one or more of the lawyers providing legal advice to the client. (Mr McHugh "opened" his case on this issue on a "sole" purpose basis, as I have indicated.) The material also would fall within s 119 ("litigation" privilege) at the time it was created. That is, documents are not to be inspected if, on objection by the client, the Court finds that the inspection of documents would result in disclosure of a confidential communication between the client and another person or between a lawyer acting for the client and another person that was made or, the contents of a confidential document (whether delivered or not) that was prepared for the "sole" purpose of the client being provided with professional legal services relating to anticipated or pending proceedings in which the client is or may be or was or might have been a party. Insofar as the documents consist of copies of documents which were made for privileged purposes the "Propend" principle would apply. 156 The privileged purposes were constituted by (a) use by the plaintiff's lawyers as evidence in current or anticipated civil proceedings and anticipated criminal proceedings; (b) use by the plaintiff's lawyers in providing him with advice in respect of such proceedings; and, (c) for use by the plaintiff's lawyers in dissuading the investigating and prosecuting authorities from commencing the anticipated criminal proceedings. 157 The real issue is whether, when the document found to have been privileged, the privilege has been lost by reason of the disclosure of the material to the Royal Commission or to the Police. The only relevant provision of the Evidence Act is s 122(2) which would not operate to defeat the claim for privilege because in respect of each document or communication the disclosure was made, as I understand the submissions, in the end, (a) "under compulsion of law" pursuant to Notices issued pursuant to ss 6 and 7 of the Royal Commission (Police Service) Act 1994 (Evidence Act s 122(2)(c)), or (b) in the course of making a confidential communication in the sense that the person to whom it was made was under an express or implied obligation not to disclose its contents (Evidence Act s 122(2)(a) and s 117(1); Royal Commission (Police Service) Act 1994 ss 28 and 30). 158 Further, in any event, even if the common law test were applied to the question of whether documents produced on subpoena or Notice to Produce are privileged from inspection, there could be no "unfairness' to the defendant in denying it inspection. The only disclosures were made to the Royal Commission or to the Police were disclosures made for the purpose to which I have referred namely, dissuading the authorities from commencing anticipated criminal proceedings and the plaintiff's giving of assistance in that context. The evidence and submissions for the defendant do not disclose any particular unfairness to it from the plaintiff's conduct. The defendant's position really boils to nothing more than the conduct might be characterised as preventing the "truth" from coming out and that is "unfair". I would take it that that would be argued to conform with and not contravene the general statement of principle by Gleeson CJ in Benecke (supra). 159 Indeed it is argued that if privilege attaches to the material provided to the Police and which therefore provides the source of some material used by the Police in relation to others concerned in the investigation the "unfairness" to the plaintiff would be obvious, the defendant, in effect, if inspection is allowed, being given proofs of the plaintiff's witnesses on the issues of truth in order to put to its own witnesses on that subject before the trial begins (see, for example, document 37 in BJW 4. This was not a document from the plaintiff. It is a police document from which has been excised material founded in privileged material provided to the Police by the plaintiff). 160 A subsidiary argument advanced by Mr McHugh is that the material provided to the Royal Commission and the Police would be protected by a notion akin to public interest immunity. Inspection should be declined because the very criterion by which it has been identified, that is, the material, is the fact that it was provided to the Royal Commission or to the Police. The "public interest in preserving secrecy or confidentiality in relation to the … documents" outweighs the defendant's private interest in inspecting them (s 130(1) Evidence Act). To grant inspection of such material would defeat what is said to be the important public interest recognised by the criminal sanctions provided for by s 27(1)(b) and s 30(2) of the Royal Commission (Police Service) Act 1994 in the confidentiality of material provided to the Royal Commission. This is particularly so where and when the material was brought into existence under compulsion of law for the sole purpose of a complying with a Notice under that Act. None of the material could have subpoenaed from the Royal Commission itself (s 30(3)). Finally, disclosure of the material would be inherently likely to prejudice Police inquiries which are continuing (that is clear on the evidence both of Mr Lee and Mr Woodhouse: see s 130(4)(c) of the Evidence Act and Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667 at 680 - 681). 161 For the defendant in response to this last mentioned component of the plaintiff's position (the asserted "public interest immunity") it was submitted that there is no foundation for the application of any such doctrine (I take it outside of its usually accepted areas of application), to the circumstances of this case. By itself an assertion of some "public interest immunity" would not envelope and protect the disclosure of the confidential exhibits to Mr Lee's second affidavit, being his record of the interview of 29 January 1999. Section 30 of the Royal Commission (Police Service) Act 1994 is limited by its terms to the staff of the Commission. It is not relevant because we are not concerned with any conduct of an individual or person associated with the Commission but with whether or not the plaintiff can maintain this notion of immunity having divulged to the Commission the information and material. In any event, it is submitted, that "confidentiality" does not found immunity of the kind advanced by the plaintiff: D v National Society for the Prevention of Cruelty to Children (1978) AC 171 at 231D. Nothing in s 28 of the Royal Commission legislation (disclosures prejudicing inquiry), supports in any independent way the existence of any such asserted immunity. Indeed s 28, it is argued, provides mechanisms which if followed preclude contravention of that section. 162 The plaintiff in reply to the defendant's position emphasises reliance upon s 130 of the Evidence Act and the Royal Commission (Police Service) Act. The clear provision of the latter is s 30 dealing with secrecy of material provided to the Commission. Section 28(1) is a supplement which deals with "information about the Notice or Summons", not about the information provided pursuant to any such Notice or Summons. Section 28(1) provides that information about such Notices is not to be disclosed even by the person to whom Notices are issued and the provisions of s 28(3) are exceptions to s 28(1) without which a person would not able to obtain legal advice about the Notice itself (s 28(3)(c)). Section 130 of the Evidence Act requires the Court to balance the public interest in the disclosure of documents in the present proceedings with the public interest in the secrecy and integrity of the Royal Commission and Police investigations. It is submitted that there is no reason to think that the disclosure of these documents in this civil litigation is of sufficient importance to undermine that component of the public interest. 163 In the light of the ultimate conclusions to which I have come as to the disposition of the Motion in the context of the applications of the principles relating to privilege and the Evidence Act in that regard, there is no necessity for me to decide between the attractive arguments advanced on each side. In the context of this civil litigation (being an action for defamation in which the defendant is seeking to prove to be true the defamatory imputations it has been found to have published of the plaintiff), particularly, I would be inclined seriously to consider the propositions advanced by Mr McHugh. 164 The basic position taken by the defendant is, whether or not the common law applies or the Evidence Act applies in relation these ancillary processes, taking up the proposition of "dedication to the stipulated purpose" (Grant v Downs at 689 (supra)), that the true purpose clearly was to present this information to the Police and where relevant to the Royal Commission to "advance the plaintiff's interests". The information was assembled to put the plaintiff's case to another entity and documents used for that purpose are not protected in the way presently claimed. Much reliance in this regard is placed upon the actual evidence given by Mr Lee in support of this proposition restated to the effect that the dominant purpose, the true purpose for disclosure was to advance and enhance the plaintiff's submissions as to why the inquiry by the Police into his affairs or by the Royal Commission should be brought to end. Such a purpose is not one that would be embraced by the Evidence Act nor would be recognised at common law. 165 The submission is also advanced in terms that whilst what took place, as-it-were, in the office as between the client or the witness and the solicitor might be protected, once that office door was opened and the material was used in the way it was here by delivery to the Royal Commission or the Police, the reality is that the conclusion had been reached that it would be a useful thing, a beneficial thing to the plaintiff, that the material be provided to the Police for the purposes of their investigations and ultimately to the end that the inquiry would be terminated because innocence has been satisfactorily established without prosecution and trial. 166 That this was the true purpose was exemplified by the document to which I have referred being a statement produced by the Police upon an interview with D16 being document 37 in BJW 4 from which parts have been excised. This points to the Police, it is said, putting to D16 material from the statutory declaration provided by the plaintiff. Relying upon this and similar examples, it is argued for the defendant that even if the Evidence Act applies, by the operation of s 122(4), because the substance of the evidence/document has been disclosed with the express or implied consent of the client., privilege is lost. It is argued in relation to these edited documents that their existence demonstrates very clearly what happened, that is, there was put to the relevant person, namely D16, components of what had been put to the Police, that was what was likely to happen, that it was known that that was likely to happen and thus there was the necessary express or implied consent. For the purposes of this submission, it is argued, that s 122(2)(a) is directed to the occasion of the creation of the communication or document. That brings one back, it is argued, to the discussion in the office between the client and the solicitor. That exercise of disclosure is the one that is protected. That is to be distinguished from what is described as the next step, the material having been prepared, it is then handed over in what is said to be a "confidential" situation. At this point I am not persuaded by this submission as to s 122(2)(a). The confidentiality requirement is established in s 119; on the defendant's construction s 122(2)(a) would be redundant. Privilege is established in ss 118 - 120 of the Evidence Act and then lost in the circumstances referred to in ss 121 - 126. The other sub-paragraphs of s 122(2), in my view, are also concerned with the time of disclosure not creation of the relevant document. (cf. Telstra v Australis Media Holdings (No. 2) (1997) 41 NSWLR 346 at 351 per McClelland CJ in Eq.) 167 With respect to the communication of material to the Royal Commission, the position of the defendant is essentially that either the material was provided voluntarily in the absence of any Notices under ss 6 and 7 or in the absence of any objection being taken or privilege being claimed, documents produced pursuant to the service of such Notice were not produced under compulsion of law. In relation to material the subject of Notices under ss 6 or 7 the evidence is clear that in respect of one communication only namely, Exhibit 3, was objection taken. No other allowable claim for privilege was made. The further category to which I will come below is the material that accompanied Exhibit 2. 168 In addition to the construction of s 122(2)(a) advanced for the plaintiff in reply, it was submitted that I would reject the defendant's invitation to find or to infer that the "true" or "dedicated" or even the "dominant" purpose of all the documents over which the plaintiff claims privilege was to give them to the Police and/or the Royal Commission for the purpose asserted by the defendant. A Browne v Dunn point was sought to be taken by Mr McHugh in relation to the sweeping nature of the proposition advanced for the defendant in its not having been put to any of the plaintiff's witnesses. I am not persuaded that such a submission fairly can be made. The cross-examination of the plaintiff's witnesses, particularly Messrs Lee and Whittaker, was clear, to my mind, in its import and direction in this regard. 169 It was submitted that there no evidence to support the submission about the purpose in such general terms. The documents over which privilege was claimed fall into clear categories: (a) Mr Lee's notes of the meeting of 29 January 1999. These documents have been created but never disclosed to any third party; the meeting of 29 January 1999 cannot be described as the defendant describes it as "not being a protected occasion" as this misconceives the nature of the claim which concerns the documents created by Mr Lee rather than the information imparted by the plaintiff and Mr Lee at the meeting. (b) Original witness statements of third parties which were copied and attached to statutory declarations of the plaintiff: these are submitted to be classic privilege documents. There is no evidence to suggest that their "true" purpose was anything else at the time at which they were made. The retainer of Corrs in respect of the Police investigation came after its retainer in respect of the anticipated broadcast of "Today Tonight" (see, for example, paragraphs 7 and 12 of Mr Whittaker's affidavit). Mr Lee's evidence concerned the "use" to which the Police would put the material provided by Mr Lee, not the circumstances or the purpose of the creation of that material. (c) Statutory declarations of the plaintiff brought into existence to answer s 6 Notices or letters or requests from the Royal Commission: these are identified as documents numbered 2 in BJW 1, 19 in BJW 4; 3 in BJW 1; 6 in BJW 1 and 18 in BJW 4. Certainly these are documents in respect of which evidence is capable of pointing to the defendant's submission as to a "dedicated" purpose. However, it is the plaintiff's case that the purpose was one arising out of the professional legal services which Corrs were providing to the plaintiff in respect of the Royal Commission. (d) The Records of Interview (that is, Police documents) which refer to the above documents: the claim for privilege stands or falls on the claim in respect of the primary material to which the Police documents refer. 170 Where documents are created for the purpose of use by a client's legal advisers to persuade an investigating or prosecuting authority not to bring anticipated criminal proceedings, that purpose clearly constitutes the provision of "professional legal services" within the ordinary of s 119 of the Evidence Act. It is a traditional form of professional legal representation and there could be no question, it is argued, that such documents were privileged at the time of their creation before they were provided to the Police. The only question is whether or not the documents retain that quality of confidentiality after they were so provided, which is a question of waiver and not of purpose. Additionally, where the documents which were copied and attached to the statutory declarations of the plaintiff provided to the Police were originally privileged, the purpose for which they were copied is irrelevant: those documents remain privileged until privilege is lost by operation of those sections of the Evidence Act which govern the loss of privilege. In relation to the use of documents for the Police investigation the question is whether or not the material was confidential at the time it was provided to the Police or to the Royal Commission. What those bodies did later does not destroy the confidential character of the communication of that material. Section 122(4) of the Evidence Act deals with the consequences flowing from disclosures made by Mr Woodhouse to third parties. As I have said, if those disclosures were made with the express or implied consent of the plaintiff, then privilege is lost. 171 I was assisted by the preparation of three schedules prepared by the parties for the purposes of submissions. The schedule of material produced by the Police over which the plaintiff claims privilege is MFI 32 and kept with the Court file; the schedule of material produced to the Court by the plaintiff over which privilege is claimed is MFI 33, these two schedules were provided by counsel for the plaintiff; the document entitled "Reconciliation of Marsden Material Whittaker Annexure B Documents Produced by Plaintiff; Whittaker Annexure E Documents Produced by the Police" is marked MFI 34; this document was provided by Mr Nicholas Q.C. for the defendant. Conclusions and Orders 172 With respect to confidential exhibits MBJL 1 - 3 to Mr Lee's affidavit of 2 March 1999 relating to the meeting of 29 January 1999, I have no difficulty at all in coming the conclusion that those three items were created by Mr Lee both for the provision of legal advice to his client consequent upon the events recorded and relating to anticipated criminal proceedings in the clear context of continuing Police investigation. In this regard, the plaintiff will be entitled to the benefit of Order 1(f). 173 With respect to confidential exhibits WF 1 - 14 to the affidavit of Mr Flynn sworn on 2 March 1999, in relation to those documents created before 1 September 1995 I hold them to be clearly documents brought into existence as witness statements in anticipation of civil proceedings as one purpose and criminal proceedings then anticipated as another. Either purpose can be described as "sole" or indeed, "dominant". Any conclusion to which Mr Flynn came that the criminal proceedings would not be proceeding as a result of information provided to him by a source independent of the plaintiff is irrelevant. The subsequent disposition of this material, privileged at its creation, will be considered later. 174 With respect to confidential exhibit MBJL 1 to the affidavit of Mr Lee sworn 1 March 1999, in the light of all the findings, it will remain confidential save as to the identity of P1 and P14. 175 With respect to materials provided to the Royal Commission: the first observation I make (and it is perhaps inconsequential) is to query any Notice issued to Mr Marsden under s 6 of the Royal Commission (Police Service) Act. The section appears to be directed to public authorities or public officials. With respect to material produced pursuant to a Notice under s 7, I am of the view that all such material is produced under compulsion of law unless pursuant to s 8(2) the Commissioner sets aside the requirement of the Notice. I do not read ss 7 or 8 of that Act as derogating from the requirement of compliance merely by the taking of objection (as evidenced in this application by Exhibit 1), or by the making of a claim for privilege. The compulsion arises upon the service of the Notice; the terms of compliance might be affected by the setting aside of the requirement or the upholding of a claim for privilege but until such events occur the compulsion persists. That is a compulsion of law provided for by s 122(2)(b) of the Evidence Act. It is a compulsion that precludes the disclosures referred to in s 28 of the Act, the only disclosures being relevant in the present application is that provided for by s 28(1)(b) which permits a person without penalty to disclose information about the Notice or Summons for the purpose of obtaining legal advice in relation to the Notice or Summons. (In my view, s 28(3)(c) permits disclosure for the very purpose of the determination in legal proceedings of the Notice of Motion with which I am concerned.) 176 Communications with the Royal Commission otherwise than pursuant to Notice or Summons and thus under compulsion of law, of material which is otherwise privileged is protected as a confidential communication under s 122(2)(a) of the Evidence Act. The operation of the Royal Commission (Police Service) Act particularly ss 7, 8 and 9 and ss 28 and 30 provide the foundation for the existence of such circumstances: the recipient (the Royal Commission) obtained the information under an obligation not to disclose its contents for the purposes of the definition of confidential communication in s 117 and thus, the operation of s 122(2)(a). 177 With respect to all documents save for what I will describe as "Police generated" documents I have come to the conclusion that at the time of their creation, whether they are statements of the plaintiff or of other witnesses, they were created in circumstances to which privilege applies either under the common law or the Evidence Act. 178 The communication of this privileged material by the plaintiff or his lawyers to the Royal Commission does not deprive that material of its quality of being privileged by reason of no objection being taken or no claim for privilege being made. Such material is protected as privileged material and as a confidential communication. 179 There is one body of material however, that does cause me some concern. That is document 4 in BJW 1 which was delivered to the Royal Commission under cover of the letter which is now Exhibit 2, the relevant terms of that letter with are set out in paragraph 70 above a statutory declaration dated 8 May 1996. This is an extraordinarily curious document in itself: presumably the Royal Commission would not have been troubled to go about discriminating between communications with respect to which Corrs said privilege is not waived and annexures in respect of which it says legal professional privilege was waived. On one view, the letter is almost incomprehensible viewed by itself and viewed with document 4 of BJW 1. Mr Whittaker's evidence is referred to in paragraph 71 above. 180 The only conclusion to which I can come is that first, the material was provided generally on a confidential basis and second, in that context as between the persons who provided the material in respect of which privilege was waived, it was waived to the Commission as between the Commission and those people. As I have remarked above, I was not provided with the text of any ruling Wood J gave as Commissioner in relation to claims for privilege. In the end the conclusion to which I come, but candidly with some reservation based upon, at the very least, the peculiar wording of the letter to the Royal Commission, is that the whole of the communication being document 4 in BJW 1 was a confidential communication. 181 Bearing in mind that I have found that the material hitherto referred to was privileged at the time of its creation and remains so notwithstanding communication to the Royal Commission, I turn to the material from the Police, namely BJW 4. I am persuaded that the compilation of material both by Mr Whittaker and Mr Lee for provision to the Police as between each and the plaintiff was the compilation of privileged material including privileged material constituted by "witnesses statements" hitherto obtained. Equally am I persuaded that the provision of that material to the relevant Police officers in the course of an ongoing investigation was a confidential communication; that in relation to both Mr Whittaker and Mr Lee the circumstances of their giving the information and the position of the recipient gave rise to the requisite confidentiality. I am satisfied in relation to the November 1998 and January 1999 provision of materials that the circumstances were such as to create an express or implied obligation not to disclose the contents of those materials. The ambit of that confidentiality at one end, as-it-were, can be identified as not precluding the Police during the course of their investigation using it to conclude that the plaintiff should be prosecuted and using the material in the course of the prosecution of the plaintiff. On the other hand, the position taken by both Mr Lee and Mr Whittaker to the effect that the material was placed before the Police with a view to their considering it in isolation and being thereby persuaded to shut down the investigation favourably to the plaintiff, cannot be described as having, on any realistic view, been reasonably based. Mr Woodhouse in his affidavit (paragraph 35) in relation to his understanding stated that the material was to be used exclusively for the purpose of "considering it" in the context of other material he had received in the course of his investigation. Even that understanding, on any realistic view, could not preclude a person in the position of Mr Woodhouse from making an inquiry of a complainant in the light of the information provided to him. To put it at its highest, it would be naive to expect an officer in the position of Mr Woodhouse either to immediately shutdown his investigation by reason of the provision of the information or to take no step by way of inquiry or in pursuing the investigation, the material having been provided. 182 Nonetheless, whilst the ambit of confidentiality would permit such a limited course to be taken by the Police officer, such a course would not amount to one taken with the implied or express consent of the plaintiff to extinguish the privilege that attaches both to the material or the confidentiality that otherwise exists. This is an extremely delicate and difficult area. I am not persuaded by the submission for the defendant in relation to s 122(4) of the Evidence Act. The documents being privileged, the provision of them to the Police being a confidential communication, the consent of the plaintiff to the use by the Police officer as I have described it, in my view, is not consent, express or implied, to the disclosure of the substance of the privileged material by the Police officer which, as a matter of principle, construction of the Evidence Act or in any sense of fairness could be one as to amount to a "waiver" and thus deprive the plaintiff of the benefit of the privilege that attached to the material and the confidentiality that flowed from the occasion of its being handed over. 183 Accordingly, I make the following orders: 1. Inspection of the following documents be restricted to the plaintiff and his legal advisers: (a) material produced to the Court by the New South Wales Police Service in answer to subpoenas for production over which the plaintiff has claimed privilege being the material in MFI 8, being confidential exhibit BJW 4 to the affidavit of B J Whittaker affirmed on 1 March 1999, except for document 32 therein. (b) material produced to the Court by the plaintiff in answer to a subpoena for production issued on 2 February 1999 at the request of the defendant being the material in MFI 5, being confidential exhibit BJW 1 to the affidavit of B J Whittaker affirmed 1 March 1999. (c) Confidential exhibits BJW 1 (MFI 5), BJW 3 (MFI 7), BJW 4 (MFI 8), BJW 5 (MFI 9) save for the identity of P1 and P14 to the affidavit of B J Whittaker affirmed on 1 March 1999. (d) Confidential exhibit MBJL 1 to the affidavit of M B J Lee sworn 1 March 1999 save for the identity P1 and P14. (e) Confidential exhibits WF 1 - 14 (MFI 11 - 24) to the affidavit of W Flynn affirmed on 2 March 1999. (f) Confidential exhibits MBJL 1 to MBJL 3 (MFI 2, 3 and 4) to the affidavit of M B J Lee sworn 2 March 1999. 2. The MFI's referred to in Order 1 are to be retained the confidential custody of the Court until further order. ********** Last Modified: DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.