New South Wales Supreme Court CITATION : Shiree Donna WILESMITH v CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS [2006] NSWSC 936 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S) : 11 September 2006 JUDGMENT DATE : 15 September 2006 JURISDICTION : Common Law - Administrative Law List JUDGMENT OF : Associate Justice Malpass DECISION : Decision and orders made by Assistant Registrar Howe on 13 April 2006 are set aside.; Defendant to have access to relevant documents. Plaintiff to pay costs of both Notices of Motion. CATCHWORDS : Review or Appeal - legal professional privilege - waiver - r. 31.2 (evidence to be given by affidavit) - filing and service of affidavit - compulsion of law. LEGISLATION CITED : Limitation Act 1969 (NSW); Uniform Civil Procedure Rules 2005 (NSW); Evidence Act 1995 (NSW). PARTIES : Shiree Donna WILESMITH (Plaintiff) CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS (Defendant) FILE NUMBER(S) : SC 13579 of 2004 COUNSEL : Mr E. G. Romaniuk (Plaintiff) Mr P. T. Taylor SC (Defendant) SOLICITORS : Farrell Lusher (Plaintiff) Hunt & Hunt (Defendant) LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 13579/04 LOWER COURT JUDICIAL OFFICER : Howe AR LOWER COURT DATE OF DECISION : 13 April 2006 LOWER COURT MEDIUM NEUTRAL CITATION : Shiree Donna Wilesmith v Church of Jesus Christ of Latter-Day Saints IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST Associate Justice MALPASS 15 September 2006 13579 of 2004 Shiree Donna WILESMITH v CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS JUDGMENT 1 These proceedings were commenced by Summons. The plaintiff now relies on a Further Amended Summons. It seeks relief under the Limitation Act 1969 (NSW) (including ss 58 & 60 G). The proceedings arise out of sexual abuse of the plaintiff by her stepfather during the 1980's. Both were members of the defendant. 2 In support of the claim for relief, the plaintiff has filed and served affidavits. The affidavits contained material dealing with, inter alia, her knowledge and belief concerning a claim for damages against the defendant. It would seem that it was intended that they be adduced in evidence in chief at any hearing and that this was done on legal advice. 3 Although the proceedings have been in the List on many occasions, the Summons is yet to come to hearing. Presently it is being delayed because of a dispute concerning waiver of privilege. 4 Mr Gayler of Farrell Lusher is presently the solicitor for the plaintiff. He commenced acting in or about September 1999. It appears that Simone Quilligan of McLaughlin's has also acted for her in the past (in respect of a claim for compensation in the Victims Compensation Tribunal). 5 The contents of the plaintiff's affidavits reveal that, prior to 13 January 2004, there had been some contact between the plaintiff and Mr Gayler concerning advice on the question of the liability of the defendant. Paragraph 5 of an affidavit sworn on 5 July 2005 (the affidavit) deposes to advice given to her by Mr Gayler on 13 January 2004 and as to knowledge and belief she had about the liability of the defendant prior thereto. 6 By subpoena, the defendant has sought production of documents from the plaintiff's legal advisors. Documents have been produced and there is now a dispute as to access. The plaintiff maintains her claim for privilege in respect of material prior to 13 January 2004. 7 The defendant filed a Notice of Motion on 7 April 2006 seeking access. The application was heard by Assistant Registrar Howe. He had before him, inter alia, two affidavits sworn by the plaintiff on 28 October 2004 and 5 July 2005. The application was determined by him on 13 April 2006. 8 The defendant argued before the Assistant Registrar that the plaintiff's legal professional privilege had been waived. The Registrar held that this was not so and denied access to the defendant. 9 The defendant has filed a further Notice of Motion. It seeks relief pursuant to Division 5 of r. 49 of the Uniform Civil Procedure Rules 2005 (NSW). The question of whether the remedy thereby provided can now be accurately described as a review (as opposed to an appeal) has been the subject of judicial comment. At least to a substantive degree, the rules treat it as an appeal. For present purposes, the question was not regarded as requiring further consideration. 10 There was also some initial expression of concern as to whether or not an Associate Justice has jurisdiction to hear the application. This concern appeared to evaporate and the parties acceded to the application being heard by me. 11 Largely, other relevant matters may be found in the Registrar's reasons for decision. It is unnecessary to repeat them in this judgment. 12 The court has been referred to a number of decisions concerning the matter of waiver of privilege. There is no significant dispute as to what is said in these cases. The narrow area of dispute concerns their application to the circumstances of this case. I shall briefly refer to certain of the matters that were pressed on behalf of the plaintiff. 13 Some comfort was sought to be taken by reason of the words "my own belief" appearing in paragraph 5 of the affidavit. As I understand what was being put, it was being emphasised that this was her personal belief only. In my view, those words do not assist the plaintiff. The words comprise merely one of the matters deposed to by her in respect of her relevant knowledge. The issue is her knowledge and that matter cannot be divorced from any legal advice that she has been given. 14 The plaintiff seeks comfort also in provisions contained in Part 31 of the Uniform Civil Procedure Rules. That part contains provisions that deal with the manner in which evidence is to be given. Rule 31.2 prescribes the manner where, inter alia, the proceedings are commenced by Summons. The provision is in the following terms:- " r 31.2 Evidence of witnesses at other hearings 31.2 Subject to rule 31.1 evidence in chief of any witness at any hearing must be given by affidavit unless the court orders otherwise." 15 This provision is said to have the effect of "compulsion of law", within the meaning of s.122[2](c) of the Evidence Act 1995 (NSW) (which deals with the adducing of evidence by a client or party). 16 The argument proceeds to the effect that, inter alia, what appears in paragraph 5 of the affidavit has been disclosed under compulsion of law. I do not accept that argument. 17 The plaintiff was not legally compelled to either give the evidence or to swear the affidavit. She was not compelled by law to say what appears in paragraph 5. Rule 31.2 merely requires her to put in affidavit form any evidence in chief that she may wish to adduce in a trial. This obligation is subject to an "otherwise" order by the court. 18 I should add that, if the plaintiff's argument be correct, the rule would have extraordinary and unintended consequences. 19 With respect to Assistant Registrar Howe, I have come to a different view on the question of waiver. I consider that the claim for legal professional privilege made in respect of documents prior to 13 January 2004 has been waived. 20 The decision and orders made by Assistant Registrar Howe on 13 April 2006 are set aside. The defendant is to have access to the relevant documents. If need be, the defendant is to prepare short minutes of order. The plaintiff is to pay the costs of both Notices of Motion. ********** 18/09/2006 - - Paragraph(s) 18/09/2006 - spelling mistake inh word plaintiff - Paragraph(s) 20 19/09/2006 - spelling error - Paragraph(s) coversheet 21/09/2006 - spelling and typograhical errors - Paragraph(s) coversheet, 3, 8, 13, 15 &20 21/09/2006 - spelling errors - Paragraph(s) various 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.