Reported Decision : (2000) Aust Torts Reports 81-557 New South Wales Supreme Court CITATION : Moran v Moran [No 6] [2000] NSWSC 240 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 20032/98; 21360/95 31/1/2000 1-3/2/2000 7-11/2/2000 HEARING DATE(S) : 14-18/2/2000 21-25/2/2000 28-29/2/2000 1-3/3/2000 6-8/3/2000 JUDGMENT DATE : 8 March 2000 Kristina Moran (Pl) Douglas John Moran (1D) PARTIES : Greta Richmond Moran (2D) Peter Moran (3D) Moran Health Care Group Pty Ltd (4D) Doug Moran Holdings Pty Ltd (5D) JUDGMENT OF : Kirby J COUNSEL : P Semmler QC/D E Baran (Pl) I Harrison SC/L McFee (Defs) SOLICITORS : Carroll & O'Dea (Pl) Clayton Utz (Defs) CATCHWORDS : Application by defendants for access to privileged documents - Implied waiver LEGISLATION CITED : Evidence Act, 1995 - s126 Benecke v National Australia Bank (1993) 35 NSWLR 110 CASES CITED : Attorney-General (NT) v Maurice (1986) 161 CLR 475 Goldberg v Ng (1995)185 CLR 83 DECISION : Ref para 17 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION KIRBY J Wednesday 8 March 2000 20032/98 - Kristina MORAN v Douglas J MORAN & Ors 21360/95 - Kristina MORAN v Douglas J MORAN & Ors JUDGMENT [No 6] - Re application by defendants for access to privileged documents 1 HIS HONOUR: Application is made by the defendants' for access to the files of various solicitors consulted by the plaintiff in 1994. 2 In June 1994, the plaintiff sought advice from Messrs Laurence and Laurence, solicitors. She spoke to Mr Goldstein, a partner of that office. She was provided with certain advice. Her solicitors, however, perceived a conflict of interest. They therefore declined to act. She thereafter consulted Messrs Paltos and Cumming in July 1994. 3 The plaintiff gave the following evidence: (T.124/125) "Q. Earlier in the year, earlier than when you received that letter, had you yourself been to see some lawyers? A. Middle of the year. Q. Why was that? A. When Brendan went missing. For the three or four weeks he went missing and took all the money out of my bank account. Q. And did you commence any proceedings? A. No. Q. Why did you see some lawyers? A. To try and get some legal advice. Everyone was saying to me you better go and get some advice, getting this correspondence all the time, Brendan was missing, to go on a sole parent pension." 4 Mrs Moran's evidence thereafter included a conversation with her husband, Brendan, after his return from overseas. She related to her late husband the nature of her consultation with her solicitor. She said this: (T.128) "Q. At any stage did he speak to you about whether you were divorcing him? A. Yes, he did. Q. When was that? A. After he came back from that trip and he was very, very - at a low ebb, and he came to Foss Street and he came through the door and he was crying, and he said, 'My mother tells me you are divorcing me.' I said, 'Brendan, what are you talking about?' And he was crying and I said, 'You know that I have been to see lawyers,' and he said, 'She said y9ou have been to see lawyers,' and I said, 'You know I did that. I told you I did that when you went away. I didn't know where you were.' I was getting all the correspondence. It was very, very frustrating. Q. Did you answer the statement that he made that you were divorcing him? A. Yes, I said, 'You know I haven't done that. I was not doing that.' Q. Did you have any intention of doing that? A. No. Q. Did you commence divorce proceedings at any stage? A. No." 5 In cross examination, Mrs Kristina Moran was asked the following: (T.324) "Q. What were you seeking legal advice about? A. Because Brendan had gone missing for a large period of time, and I had very little money in my bank account. I couldn't find out at that stage where he was. I didn't know what to do, and I went and got some advice. Q. What advice were you given? OBJECTION SEMMLER: There is a matter of law that I need to raise at this stage. HARRISON: I will do it another way so my friend isn't discomforted your Honour. HARRISON: You went to Laurence and Laurence for some legal advice? A. Yes. Q. Was that legal advice for you, or legal advice for you and Brendan, or what was the position? A. It was a bit of everything. Bit of both. Q. And you did not go to Laurence and Laurence to get advice about a divorce? A. No I didn't. Q. That is absolutely as true as anything you have told this Court in the whole of the case, is it? A. I did not go to get a divorce. Q. I didn't ask you that. You did not go to Laurence and Laurence, do you say, to get advice about divorce? A. No I didn't." 6 On 30 June 1994, Messrs Laurence and Laurence lodged, on Mrs Moran's behalf, a Caveat against a property owned by Mr Brendan Moran. The Caveat identified the interest of Mrs Moran in these words: "An equitable interest in the land pursuant to proposed Family Court proceedings." 7 In the context of that exhibit, Mrs Moran gave the following evidence: (T.326) "Q. Yes according to me. And you claimed an equitable interest over his investment property pursuant to proposed Family Court proceedings, correct? A. That is just what they put down on the caveat. Q. Yes I know that is what they just put down, you proposed to commence Family Law proceedings against Brendan Moran on 30 June 1994 did you not? A. No I did not." 8 Counsel for the defendant returned to the issue later in the cross examination. The following exchange took place: (T.367/368) "Q. So you did not tell him you were going to see lawyers before he went away, is that fair? A. No. Q. Is that right? A. Yes. Q. And you told us, 129, you consulted lawyers 'because of all this legal stuff'? A. Yes. Q. But do you still say it had nothing to do with Family Court proceedings when you went to see lawyers? A. Yes. Q. It had nothing to do with Family Court proceedings? OBJECTION. QUESTION ALLOWED Q. Do you say that when you consulted solicitors at that time it had nothing to do with Family Court proceedings? A. Yes. HIS HONOUR: Q. Just tell me Mrs Moran, what do you understand by Family Court proceedings? A. I understand it would mean that you were going to get divorced. Q. To what, get a divorce? A. Get divorced." 9 The papers having been passed to Messrs Paltos and Cummings in July 1994, a Deed under s86 of the Family Law Act was prepared. It was signed on 8 November 1994. The Deed included the following recital: "B. The husband and wife separated on 1 June, 1994 and intend to apply to have the marriage dissolved when legally entitled to do so." 10 Mrs Moran was asked about the recital. She said that, before she signed the Deed, she was advised that it was a means of avoiding stamp duty. The Deed did not signal the commencement of divorce proceedings. No divorce proceedings were ever commenced. 11 I have been referred to a number of authorities. In Benecke v National Australia Bank ((1993) 35 NSWLR 110), Gleeson CJ said this: (at 111/12) "The law permits the search for truth in legal proceedings to yield, in certain circumstances, to the public interest in preserving the secrecy of communication between lawyer and client. In the present case, however, the appellant herself lifted the veil of secrecy by giving the version of the communications. Thereafter there as no reason in principle why the pursuit of the truth should not take its course, or why the court should be inhibited in seeking to ascertain the true facts concerning those communications." 12 Mason and Brennan JJ in Attorney-General (NT) v Maurice ((1986) 161 CLR 475), identified the following circumstances in which there will be an implied waiver of privilege: (at 487) "A litigant can, of course, waive his privilege directly through intentionally disclosing protected material. He can also lose that protection through a waiver by implication. An implied waiver occurs when, by reason of some conduct on the privilege holder's part, it becomes unfair to maintain the privilege." 13 In Goldberg v Ng ((1995) 185 CLR 83), Deane, Dawson and Gaudron JJ dealt with imputed waiver in these words: (at 95-96) "The circumstances in which a waiver of legal professional privilege will be imputed by operation of law cannot be precisely defined in advance. The most that can be done is to identify a number of general propositions. Necessarily, the basis of such an imputed waiver will be some act or omission of the persons entitled to the benefit of the privilege. Ordinarily, that act or omission will involve or relate to a limited actual or purported disclosure of the contents of the privileged material. When some such act or omission of the person entitled to the benefit of the privilege gives rise to a question of imputed waiver, the governing consideration is whether 'fairness requires that his privilege shall cease whether he intended that result or not'. That does not mean, however, that an imputed waiver must completely destroy the privilege. Like an express waiver, it can be limited so that it applies only in relation to particular persons, materials or purposes [emphasis added]." 14 The issue must now be determined under the Evidence Act, 1995, s126. However, the principles emerging from these authorities have not, in my view, been disturbed by that section. 15 Here, there is an issue as to the state of mind of the plaintiff (and of Brendan Moran) when she signed the s86 Deed. Mrs Kristina Moran has asserted that she had a particular understanding of the document which she was signing. Her understanding was based upon the advice which had been provided to her. She chose to reveal the nature of that advice. I believe, in these circumstances, fairness requires that the defendants should have access to so much of the file as reveals, or may reveal, the advice provided in respect of the Deed. 16 Access to the material from Messrs Laurence and Laurence is less certain. At various stages I have inclined to the view that Mrs Moran did no more than reveal her state of mind before she arrived at the solicitors' office door. She said nothing about the advice provided. Nonetheless, on balance, I believe the material, taken as a whole, does assert a particular state of mind at the moment she gave instructions to her solicitors. I believe, therefore, that fairness requires that the defendants should be entitled to so much of the file as may reveal the issue that she posed for those solicitors (although not the advice they provided). 17 When one examines the file, the instructions given by Mrs Moran are embodied in documents which include the advice which was provided. Having regard to the terms of s126 of the Evidence Act, I believe, in these circumstances, that the defendants should have access to the whole of this material. Last Modified: 09/25/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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