New South Wales Supreme Court CITATION : Silver v Dome Resources NL [2005] NSWSC 349 HEARING DATE(S) : 13 April 2005 JUDGMENT DATE : 13 April 2005 JURISDICTION : Equity JUDGMENT OF : Hamilton J DECISION : Documents admitted as business records. Legal professional privilege in respect of other documents required to be produced taken to have been given up. CATCHWORDS : EVIDENCE [75] - Facts excluded from proof - On grounds of privilege - Professional confidence - Legal profession - General principles - Evidence Act 1995 (NSW) - Privilege at common law - Waiver of privilege. LEGISLATION CITED : Evidence Act 1995 ss 55, 69, 122 Claremont Petroleum NL v Cummings (1992) 9 ACSR 1 CASES CITED : Odgers, Uniform Evidence Law (6th ed 2004) [1.3.11060] Michael Bernard Silver (P1 & XD1) Fair Choice Limited (P2 & XD2) PARTIES : Dome Resources NL (D1 & XC1) Durban Roodepoort Deep Limited (D2 x XC2) FILE NUMBER(S) : SC 2586/01 J E Thomson and M J Watts (Ps & XDs) COUNSEL : T G R Parker (Ds & XCs) Bull, Son & Schmidt (Ps & XDs) SOLICITORS : Allens Arthur Robinson (Ds & XCs) LOWER COURT JURISDICTION : IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION HAMILTON J WEDNESDAY, 13 APRIL 2005 2586/01 MICHAEL BERNARD SILVER & ANOR v DOME RESOURCES NL & ANOR JUDGMENT 1 HIS HONOUR: Mr T G R Parker, of counsel for the defendants, has tendered a small bundle of documents dating from October and November 1998, which he says amplifies the communications between Minter Ellison and Mr Hutt during that period, that being the time at which the written communications between Minter Ellison and Mr Hutt that are Exhibits D and E were made. 2 Over Mr Parker's objection, I admitted Exhibits D and E as being relevant documents, in that they could rationally affect, directly or indirectly, the assessment of the probability of the content of the communications between Mr Silver and Mr Hutt which had been previously led in evidence: see s 55 of the Evidence Act 1995 ("the EA"). 3 Mr Thomson, leading counsel for the plaintiffs, objected to the documents in the first instance as irrelevant. As I understand it, upon it becoming plain from an examination of the first two documents, being a note of a telephone conversation and a note of a conference, both dated 6 October 1998, which were records of communications with Mr Hutt, the telephone conversation and the conference being with him, Mr Thomson did not in reality pursue those objections to those documents. 4 As to the third document, this is a note in a different handwriting of a conference bearing date 9 October 1998. Mr Parker pressed on me that I should find that it was in the same category, but in my view this is not established. In truth, upon a close examination of the document, it seems to me that the probabilities are that the conference recorded was not with Mr Hutt, but was an internal conference between different persons within Minter Ellison. In those circumstances it seems to me that it does not have the relevance of the other documents, or any relevance, and it will not be admitted. 5 Mr Thomson also objected to the fourth document, which was a facsimile from Minter Ellison, but avowedly not sent, dated 13 December 1998. It is over the names of Martin Bennett and David McKay, who were solicitors at Minter Ellison dealing with the relevant matter. It was addressed to Michael Hutt. 6 Whilst it was not sent, Mr Parker propounds it as recording the content of conversations which Mr Bennett and Mr McKay had with Mr Hutt on 12 and 13 November 1998. It is clear that at least paragraph 1 and the first sentence of paragraph 2 are in that category and, very likely, the balance of paragraph 2. 7 It seems to me, on reading the document, that it is more likely that paragraph 3, which sets out words of Wilcox J in Claremont Petroleum NL v Cummings (1992) 9 ACSR 1, was not part of the conversations, but is a later addition to the communication. Paragraphs 4, 5 and 6 are more equivocal as to whether or not they record what was said by Mr Bennett or Mr McKay to Mr Hutt in conversations with him. 8 In all the circumstances, it seems to me that these things can be debated at a later time if the document is admitted. It seemed to me that the representations in paragraphs 1 and 2 were clearly admissible and the fair course was to ask Mr Thomson whether, if I proposed to admit 1 and 2, he would also wish me to admit 3, 4, 5 and 6, albeit the course he preferred overall was the rejection of the document. Mr Thomson in those circumstances requested that, if I proposed to admit paragraphs 1 and 2, I should also admit paragraphs 3, 4, 5 and 6 and I shall do so. 9 The four documents that I have mentioned are preceded by a cover sheet of file 00/5246 of Minter Ellison, being the file from which the documents were taken. I should add that the documents will be admitted on the basis that they are business records within s 69 of the EA, being clearly records maintained in the course of and for the purposes of the business of Minter Ellison. What is admitted, of course, is not the documents, but the representations in them. In the course of the argument all parties accepted that the documents were business records of Minter Ellison and they have been dealt with on that basis. 10 I propose to admit the cover sheet, the note of a telephone conversation of 6 October 1998, the notes of the conference of 6 October 1998 and the draft facsimile of 13 November 1998. They will together be marked Exhibit 5. I reject the note of conference of 9 October 1998. It will be MFI 6 and returned to Mr Parker. …oOo… 11 Mr Parker has tendered certain documents from the file of Minter Ellison from the period October/November 1998. He has tendered them on the basis that they record communications between Minter Ellison and Michael Hutt. The plaintiff has already tendered in Exhibits D and E written communications from Minter Ellison to Michael Hutt during that period. The documents tendered by Mr Parker are tendered as reflecting upon or tending to show what communications passed between Mr Hutt and Mr Silver generally on the subject matter of those written communications. 12 Although they have not yet formally been marked, I have indicated that I intend to admit a number of those documents as Exhibit 9. The written communications between Minter Ellison and Mr Hutt during that period having been tendered, it is appropriate to admit also on the same basis the oral communications between Minter Ellison and Mr Hutt at that time. 13 Mr Thomson, leading counsel for the plaintiff, has now given oral notice to the defendants to produce the relevant file of Minter Ellison from its inception up to and including 31 May 1999. This is the date on which the transaction that was being discussed was entered into. The evidence is unclear as to when the relevant conversations between Mr Silver and Mr Hutt, which the material admitted may reflect on, took place. It is in light of this that the plaintiff has called for the file, although the documents may be privileged, and any relevant documents very likely are. 14 Mr Thomson says that the relevant defendant should be taken to have consented to the production under the terms of s 122(1) of the EA, which is the relevant criterion for the determination of questions of privilege on a call for production, pursuant to Part 36 r 13 of the Supreme Court Rules 1970. He says that, so far as necessary, the ambit of consent ought be affected by common law notions of fairness, or that those notions ought be incorporated into that concept of consent. 15 That raises quite difficult questions of law, as there are counterveiling decisions on this subject matter: see Odgers, Uniform Evidence Law (6th ed 2004) [1.3.11060]. To avoid the matter becoming entangled in these difficult questions of law, Mr Parker has, very sensibly, stated that he accepts that the authorities as they stand favour the view - and this is the view upon which he says I should proceed - that the word "consent" in s 122(1) imports the common law principle of waiver arising from what is loosely called fairness, which may be more accurately stated as arising from circumstances where the conduct of a party makes it unfair to maintain the privilege. Mr Parker's useful invitation to me to proceed on that basis is joined in by Mr Thomson, and I intend to do so. 16 The conversations upon which the documents whose production is sought may reflect may on the evidence have taken place as late as May 1999, although the written communications originally tendered, being Exhibits D and E, date back to October and November 1998. In view of the fact that the oral communications upon which all these matters may be taken to reflect may have occurred as late as that, it seems to me that the consent under s 122(1) ought be taken to cover the whole of that period. 17 In those circumstances, the stance taken by Mr Parker was that the concept of consent or the concept of fairness should be taken to be adequately served if the period in respect of which production was required or access was allowed was taken up to 30 November 1998. However, in my view, the consent should be taken to extend to 31 May 1999. Not only should production up to that date be required, but access should be granted to documents up to that date, on the basis that the privilege should be taken to be given away up to that time. ********** 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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