New South Wales Supreme Court CITATION : Thomas v State of New South Wales [2006] NSWSC 380 HEARING DATE(S) : 19 April 2006 JURISDICTION : Civil JUDGMENT OF : McClellan CJatCL EX TEMPORE JUDGMENT DATE : 04/19/2006 DECISION : 1. Set aside Notice to Produce dated 25 August 2005; 2. Grant leave to the defendant to serve a Notice to Produce seeking documents which were used in a way that could be said to influence the content of counsel's advice; 3. Dismiss the appeal from the decision of Registrar Howe; 4. Costs of the Notices of Motion in relation to the question of privilege be costs in the ultimate cause. CATCHWORDS : LEGAL PROFESSIONAL PRIVILEGE - claim for damages for malicious prosecution and conspiracy - notice to produce - waiving of privilege - application of common law principles - advice attached to affidavit - affidavit not read in proceedings and not relied upon in motion hearing - whether privilege waived in respect of documents used in preparation of advice Crimes Act 1900 (NSW) LEGISLATION CITED : Felons (Civil Proceeding) Act 1981 District Court Act 1973 Evidence Act Attorney-General for the Northern Territory v Maurice & Ors (1986) 161 CLR 475 CASES CITED : Australian Security and Investments Commission v Southcorp Ltd (2003) 46 ACSR 438 Goldberg v Ng (1995) 185 CLR 83 Mann v Carnell (1999) 201 CLR 1 PARTIES : Bruce Malcolm Thomas (Pltf) State of New South Wales (Def) FILE NUMBER(S) : SC 12020/05 COUNSEL : T Molomby SC (Pltf) J L Glissan QC (Def) SOLICITORS : Legal Aid Commission of NSW (Pltf) Crown Solicitors Office (Def) LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 12020/05 LOWER COURT JUDICIAL OFFICER : Registrar Howe LOWER COURT DATE OF DECISION : 01/18/2006 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION McCLELLAN CJ at CL WEDNESDAY 19 APRIL 2006 12020/05 THOMAS, Bruce Malcolm v STATE OF NEW SOUTH WALES JUDGMENT 1 HIS HONOUR: The plaintiff has brought a claim for damages for malicious prosecution and conspiracy. The plaintiff also claims exemplary damages. The events which are the subject of the claim are alleged to have occurred in 1986. The plaintiff was an inmate at Parramatta gaol and was due to be released from prison in June 1997. In late 1986 the plaintiff was charged with various offences under the Crimes Act allegedly arising from the assault of another inmate. At all times the plaintiff denied any involvement in the assault. The charges were effectively brought by two prison officers who alleged that the plaintiff had made relevant oral admissions in relation to the offences and made notes to that effect in their official police notebooks. As a result of the charges, the plaintiff remained in custody beyond when he would otherwise have been entitled to release. He was convicted and in 1988 he was sentenced to 15 years imprisonment with a non-parole period of 11 years. 2 On 31 October 1997 the plaintiff petitioned the Court of Criminal Appeal pursuant to 474 B 1 of the Crimes Act 1900 (NSW) and on 13 April 1999 the Court of Criminal Appeal ordered that the plaintiff's appeal be allowed. The conviction was quashed and a verdict of acquittal entered. As a consequence of the conviction, the plaintiff was in custody for a period in excess of 8 years. During that period he alleges that he suffered injuries from assault including a serious head injury, episodes of suicidal ideation, anxiety and depressive illness. Two of the assaults were allegedly serious; one resulted in the plaintiff being in a coma for 11 days. 3 The plaintiff originally commenced proceedings in the District Court in July 2002. He was granted leave by that court to pursue the claim against the defendant pursuant to s 4 of the Felons (Civil Proceeding) Act 1981. The defendant filed an appeal against that decision. It was ultimately withdrawn. On 2 October 2003 the plaintiff wrote to the defendant seeking that the defendant consent to unlimited jurisdiction in the District Court of New South Wales but there was apparently no response to that letter. This is explained by the fact that an appeal had been brought in relation to the order made pursuant to the Felons (Civil Proceeding) Act. In March 2005 the defendant ultimately responded, advising that it was not prepared to consent to unlimited jurisdiction in the District Court. 4 As a consequence, on 16 May 2005 the plaintiff filed a summons in this Court seeking an order that the proceedings be removed into this Court pursuant to s 145 of the District Court Act 1973. In support of that application, the plaintiff filed an affidavit of his solicitor, David Charles Coorey sworn on the 16 May 2005. That affidavit attached as an annexure a joint advice in relation to quantum given by senior, and I assume, junior counsel. 5 In that advice a history is related of the relevant facts. It is unnecessary for me to set that history out, although it is apparent that it must have been constructed either from matters which the plaintiff directly related to counsel or, as would seem likely, from instructions given by the solicitor. After outlining the relevant facts the advice considers the nature of damages for malicious prosecution, damages for loss of liberty, general damages, interest on general damages and exemplary damages. Consideration is also given to economic loss, both past and future and interest on past economic loss. Matters of superannuation loss and out of pocket expenses together with future treatment expenses are also considered. Although the reports of medical practitioners are not referred to by reference to any particular practitioner or report, it is apparent that the advice was framed after consideration of medical opinion which had been obtained by the solicitor. 6 There is a reference to identified psychiatric injuries and disabilities together with a reference to "the plaintiff's own medical evidence, had a personality type which predisposed him to angry and violent conduct." On 25 August 2005, the defendant issued a notice to produce seeking, in essence, copies of the brief to counsel or, at least, all of the documents on which the joint advice on quantum had been based. It is that notice to produce which I am required to consider today. 7 On 7 September 2005 the plaintiff filed a notice of motion seeking to set aside the notice to produce. On 27 September 2005, that motion came before Registrar Howe, and was stood over for judgment until 4 October 2005. The Registrar made orders setting aside the notice to produce. The defendant filed a notice of appeal from the decision of Registrar Howe. That decision was reviewed by Associate Justice Malpass who on 21 October 2005 set aside the orders of Registrar Howe and referred the matter back to him for determination. 8 The matter was again heard by Registrar Howe on 12 December 2005. On 18 January 2006 the Registrar handed down judgment in favour of the defendant and in addition making orders for costs. The application for transfer of the proceedings had still not been determined. 9 On 6 February 2006 the plaintiff served a further affidavit of David Coorey in support of the transfer application. This second affidavit did not annex the advice of counsel. Notwithstanding that fact, the defendant continued to press for production of the documents provided for in the notice to produce. 10 On 15 February 2006 the plaintiff filed a motion appealing the decision of Registrar Howe together with a separate motion seeking to set aside the notice to produce. Associate Justice Harrison heard the motion for removal on 14 March 2006 and granted that application. At the same time she referred the motion appealing the decision of Registrar Howe and the motion to set aside the notice to produce to a judge of the Court for resolution. Both motions are before me today, it being accepted by the parties that the issue which I am required to resolve is whether or not the defendant is entitled to have the documents, the subject of the notice to produce, provided to it. 11 The notice to produce in its original form contained three separate sections identified as A, B and C. The defendant does not press sections B and C, and they may be put aside. Section A refers to five categories of documents. On reflection, senior counsel for the defendant accepts that it is only documents in subcategory 1, 2, 3 and 5 which are sought. Subcategory 1 refers to: "Any Letter(s) of Instruction (and enclosures) from the plaintiff's solicitor to both Counsel regarding the preparation of the Joint Advice." 12 Subcategory 2 refers to: "Any Statement(s) of the Plaintiff provided by the Plaintiff and/or the Plaintiff's solicitor to Counsel for the purpose of obtaining the Joint Advice." 13 Subcategory 3 is to the same effect as subcategory 2 and I need not repeat it. Subcategory 5 is expressed as: "Any other documentation forwarded by the Plaintiff and/or the Plaintiff's solicitors to Counsel for the purpose of obtaining such Joint Advice." 14 The relevant principles which this Court must apply when considering questions of legal professional privilege are not in dispute. Because at this stage of the proceedings no party is endeavouring to adduce evidence, it is accepted that s 122 and subsequent sections of the Evidence Act have no relevance: see Mann v Carnell (1999) 201 CLR 1. The matter falls to be determined in accordance with the appropriate common law principles. In Attorney-General for the Northern Territory v Maurice & Ors, (1986) 161 CLR 475, Deane J said at 490 of the principles: "It is a substantive general principle of the common law and not a mere rule of evidence that, subject to defined qualifications and exceptions, a person is entitled to preserve the confidentiality of confidential statements and other materials which have been made or brought into existence for the sole purpose of his or her seeking or being furnished with legal advice by a practising lawyer or for the sole purpose of preparing for existing or contemplated judicial or quasi-judicial proceedings. (See generally, Baker v Campbell (1983) 153 CLR 52.) That general principle is of great importance to the protection and preservation of the rights, dignity and freedom of the ordinary citizen under the law and to the administration of justice and law in that it advances and safeguards the availability of full and unreserved communication between the citizen and his or her lawyer and in that it is a precondition of the informed and competent representation of the interests of the ordinary person before the courts and tribunals of the land. Its efficacy as a bulwark against tyranny and oppression depends upon the confidence of the community that it will in fact be enforced. That being so, it is not to be sacrificed even to promote the search for justice or truth in the individual case or matter and extends to protect the citizen from compulsory disclosure of protected communications or materials to any court or to any tribunal or person with authority to require the giving of information or the production of documents or other materials." 15 Notwithstanding the importance of the protection which the common law provides, a litigant can waive his or her privilege directly through intentionally disclosing protected material or lose that protection through a waiver by implication: see Mason and Brennan JJ in Maurice; at 487. There is normally little difficulty in determining whether or not the privilege has been expressly waived. In the present case the annexation of the advice to the affidavit of the solicitor constituted an act of express waiver. So much is accepted by the plaintiff. However, difficulties can arise where it is submitted that waiver by implication has been effected. Those difficulties sometimes emerge when a document is disclosed by a litigant to another party to the litigation which refers or is apparently dependent upon some document which has not been disclosed. That question will often arise in relation to an expert report which is proposed to be relied upon in litigation. 16 In Australian Security and Investments Commission v Southcorp Ltd (2003) 46 ACSR 438, Lindgren J defined the principles relevant to these circumstances. The principles were not controversial in that case and I do not understand them to be in controversy in this case. His Honour said at 442: "I will apply the following principles which I did not understand to be in dispute: (1) Ordinarily the confidential briefing or instructing by a prospective litigant's lawyers of an expert to provide a report of his or her opinion to be used in the anticipated litigation attracts client legal privilege: cf Wheeler v Le Marchant (1881) 17 Ch D 675; Trade Practices Commission v Sterling (1979) 36 FLR 244 at 246; Interchase Corp Ltd (in liq) v Grosvenor (Qld) Pty Ltd [1999] 1 QD R 141 ( Interchase ) at 151 per Pincus JA, at 160 per Thomas J. (2) Copies of documents, whether the originals are privileged or not, where the copies were made for the purpose of forming part of confidential communications between the client's lawyers and the expert witness, ordinarily attract the privilege: Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 (" Propend "); Interchase , per Pincus JA; Spassked Pty Ltd v Commissioner of Taxation (No 4) (2002) 50 ATR 70 at [17]. (3) Documents generated unilaterally by the expert witness, such as working notes, field notes, and the witness's own drafts of his or her report, do not attract privilege because they are not in the nature of, and would not expose, communications: cf I nterchase at 161-162 per Thomas J. (4) Ordinarily disclosure of the expert's report for the purpose of reliance on it in the litigation will result in an implied waiver of the privilege in respect of the brief or instructions or documents referred to in (1) and (2) above, at least if the appropriate inference to be drawn is that they were used in a way that could be said to influence the content of the report, because, in these circumstances, it would be unfair for the client to rely on the report without disclosure of the brief, instructions or documents; cf Attorney-General (NT) v Maurice (1986) 161 CLR 475 at 481 per Gibbs CJ, 487-488 per Mason and Brennan JJ, 492-493 per Deane J, 497-498 per Dawson J; Goldberg v Ng (1995) 185 CLR 83 at 98 per Deane, Dawson and Gaudron JJ, 109 per Toohey J; Instant Colour Pty Ltd v Canon Australia Pty Ltd [1995] FCA 870; Australian Competition and Consumer Commission v Lux Pty Ltd [2003] FCA 89 (" ACCC v Lux ") at [46]. (5) Similarly, privilege cannot be maintained in respect of documents used by an expert to form an opinion or write a report, regardless of how the expert came by the documents; Interchase at 148-150 per Pincus JA, at 161 per Thomas J. (6) It may be difficult to establish at an early stage whether documents which were before an expert witness influenced the content of his or her report, in the absence of any reference to them in the report; cf Dingwall v Commonwealth of Australia (1992) 39 FCR 521; Tirango Nominees Pty Ltd v Dairy Vale Foods Ltd (No 2 ) (1998) 83 FCR 397 at 400; ACCC v Lux at [46]." 17 The fourth principle which Lindgren J expressed emphasises that if the brief provided to an expert or instructions or documents were used in a way that "could be said to influence the content of the report, privilege may have impliedly been waived." Although in the present case the primary document for which privilege was expressly waived was the advice of counsel, I can discern no difference in principle between such an advice and the advice or report of an expert retained for the purpose of the litigation. As I have indicated, I am satisfied that counsel relied upon instructions which they were given and, it would appear, relied upon medical reports in a way which influenced the content of the advice which they gave. Accordingly, insofar as there are documents which were relied upon in the preparation of the advice falling within categories 1, 2, 3 and 5 of the notice to produce, the service of the affidavit impliedly waived privilege in those documents. 18 However, that is not an end of the matter. Although the affidavit was prepared in support of the original motion to remove the proceedings to this Court, it has not been read in any proceedings and was not relied upon when the motion was litigated. In these circumstances the plaintiff submits that it would be unfair if the defendant now was given access to those documents. Although it is accepted that the plaintiff advanced the advice with the intention of relying upon it, it is submitted that because no advantage has ultimately been obtained, this Court should decline to require the plaintiff to produce the documents. I cannot accept the plaintiff's submission. By including the advice in the affidavit, an act of express waiver was undertaken. And at that point, in my opinion, the implied waiver which I have identified also took place. It is plain that the plaintiff sought to have the advantage of the advice and use it in these proceedings. That step was taken consciously. 19 The High Court has in a number of cases expressed the relevant test where a question of waiver of legal professional privilege arises by reference to the concept of fairness. Although trenchantly criticised by McHugh J in Mann v Carnell it remains the touchstone whereby difficult problems in this area have been resolved. A particular difficulty arose in the matter of Goldberg v Ng (1995) 185 CLR 83, where although the relevant principles were not particularly controversial the Court divided on their application to the facts of the case. That division was but a reflection of the division which occurred in the Court of Appeal in relation to whether or not fairness required the conclusion that privilege has been waived. In that case, the disclosure has been made to a third party, being the New South Wales Law Society. And the plaintiff, Mr Ng, sought access to the defendant's documents provided to the Law Society for use in proceedings which he had brought against Mr Goldberg. Notwithstanding that the documents had been furnished to a third party in circumstances where the third party had accepted them on the basis that the defendant was not waiving his privilege, the majority of the Court concluded that fairness required a conclusion that there had been an implied waiver of legal professional privilege. 20 The present case is of a different character to Goldberg. In the present case the plaintiff disclosed the advice in these proceedings for the purpose of obtaining whatever assistance he could from that advice in pursuit of his claim. To my mind, that disclosure waived his privilege both in the advice itself and the documents which were used by counsel and which influenced the content of the advice. Waiver having occurred, the fact that the advice was not ultimately tendered is, to my mind, not relevant. Having sought an advantage, the plaintiff was bound by the course he had taken and accordingly is amenable to producing the relevant documents in response to an appropriate notice to produce. 21 Following further argument the appropriate orders are agree to be: 1. Set aside the notice to produce dated 25 August 2005. 2. Grant leave to the defendant to serve a notice to produce seeking documents which were used in a way that could be said to influence the content of counsel's advice. 3. I would, consistent with orders 1 and 2, dismiss the appeal from the decision of Registrar Howe. 22 In relation to the costs, the defendant has to a significant degree succeeded in these proceedings. However, the success has not been complete. Furthermore the issue raised was one of difficulty requiring a judgment to be made at an interlocutory stage of these proceedings. That judgment will be of assistance in the further preparation of the matter, but will not in itself be necessarily determinative of any issue in the proceedings. In those circumstances it seems to me appropriate that I make the costs of the Notice of Motion, litigated before me and before the Registrar or Associate Judges in relation to the question of privilege, costs in the ultimate cause. ********** 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.