Lauren Fisher by her tutor Janice Fisher v Marin [2007] NSWSC 473

New South Wales Supreme Court

CITATION : Lauren Fisher by her tutor Janice Fisher v Marin [2007] NSWSC 473

HEARING DATE(S) : 17 April 2007

JUDGMENT DATE : 15 May 2007

JUDGMENT OF : Price J at 1

DECISION : At paragraphs 19, 20, 26, 29

CATCHWORDS : Client legal privilege - whether affidavits in support of an application to set aside an agreement to compromise constitute waiver - authority of tutor - competence and integrity of former legal advisors in issue - ss 122(1) - (4) of the Evidence Act.

LEGISLATION CITED : Evidence Act 1995 (NSW) s 117(1)(b), s 122, s 122(1), s 122(2), s 122(4)

Adelaide Steamship Pty Ltd v Spalvins (1998) 81 FCR 360 Chen & Ors v City Convenience Leasing Pty Ltd & Anor [2005] NSWCA 297 CASES CITED : Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341 Mann v Carnell (1999) 201 CLR 1 Rhodes v Swithenback (1889) 22 QBD 577 Telstra Corporation Limited v BT Australasia Pty Limited (1998) 85 FCR 152

PARTIES : Lauren Fisher by her tutor Janice Fisher Raymond Denis Marin and Another

FILE NUMBER(S) : SC 20247 of 2002

COUNSEL : Mr R Ingram - Plaintiff Mr A J Sullivan QC and Mr J Downing - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

PRICE J

15 MAY 2007

20247 of 2002 Lauren Fisher by her tutor Janice Fisher v Raymond Denis Marin and Another

JUDGMENT 1 HIS HONOUR: The question for decision is whether the plaintiff has waived client legal privilege to the documents identified in a letter dated 16 April 2007 (the letter) from Blake Dawson Waldron to Commins Hendricks. The defendants acknowledge that the documents would otherwise be protected from their inspection by client legal privilege but contend that the privilege has been waived by the contents of affidavits sworn by the plaintiff's tutor and her father. The tutor is the plaintiff's mother. Although the question arises as a result of the issue of subpoenas, s 122 of the Evidence Act 1995 (NSW) (the EA) applies: see Chen & Ors v City Convenience Leasing Pty Ltd & Anor [2005] NSWCA 297 at [28] and [35]. Section 122(1) of the EA is to be construed as including implied waiver of client legal privilege within the meaning of "consent": see Chen at [36], Telstra Corporation Limited v BT Australasia Pty Limited (1998) 85 FCR 152. 2 The present question is to be determined by reference to the terms of s 122 of the EA which is as follows: "122 Loss of client legal privilege: consent and related matters (1) This Division does not prevent the adducing of evidence given with the consent of the client or party concerned. (2) Subject to subsection (5), this Division does not prevent the adducing of evidence if a client or party has knowingly and voluntarily disclosed to another person the substance of the evidence and the disclosure was not made: (a) in the course of making a confidential communication or preparing a confidential document; or (b) as a result of duress or deception; or (c) under compulsion of law; or (d) if the client or party is a body established by, or a person holding office under, an Australian law – to the Minister, or the Minister of the State or Territory, administering the law, or the part of the law, under which the body is established or the office is held. (3) Subsection (2) does not apply to a disclosure by a person who was, at the time, an employee or agent of a client or party or of a lawyer unless the employee or agent was authorised to make the disclosure. (4) Subject to subsection (5), this Division does not prevent the adducing of evidence if the substance of the evidence has been disclosed with the express or implied consent of the client or party to another person other than: (a) a lawyer acting for the client or party; or (b) if the client or party is a body established by, or a person holding an office under, an Australian law – the Minister, or the Minister of the State or Territory, administering the law, or the part of the law, under which the body is established or the office his held. (5) Subsections (2) and (4) do not apply to: (a) a disclosure by a client to another person if the disclosure concerns a matter in relation to which the same lawyer is providing, or is to provide, professional legal services to both the client and the other person; or (b) a disclosure to a person with whom the client or party had, at the time of the disclosure, a common interest relating to a proceeding or an anticipated or pending proceeding in an Australian court or a foreign court. (6) This Division does not prevent the adducing of evidence of a document that a witness has used to try to revive the witness's memory about a fact or opinion or has used as mentioned in section 32 (attempts to revive memory in court) or 33 (evidence given by police officers). 3 By a Statement of Claim, the plaintiff claims that the first defendant, a medical practitioner, and the second defendant, a hospital, were negligent in effecting and managing her birth on 17 July 1985. As a consequence of the defendants' negligence, the plaintiff claims she suffered hypoxic brain damage, neonatal seizures, the development of cerebral palsy and other injuries. 4 On 8 August 2006, the plaintiff served through her then solicitors Maurice Blackburn Cashman (MBC) an offer of compromise, which was accepted by the defendants by a letter dated 23 August 2006. Since that time, the plaintiff has changed solicitors and the court has been informed that the plaintiff disputes there is a valid agreement to settle on the grounds of "duress" and the physical and or mental state of the tutor. 5 Affidavits of Janice Fisher and Geoffrey Fisher sworn on 26 February 2007 and 20 March 2007 have been filed pursuant to orders made by McClellan CJ at CL. It is upon the contents of these affidavits that the defendants' contention of waiver of client legal privilege is founded. 6 The defendants contend, broadly stated, that the overall effect of the affidavits is that the information and advice received by the tutor and the plaintiff's father regarding issues of liability, causation and quantum prior to 2006 led them to believe that the plaintiff had a reasonable claim, the value of which had been assessed by the former solicitors at somewhere in the order of $16 million. In 2006, the advice as to prospects of success and quantum changed significantly so that an offer of compromise in the sum of $2.4 million plus costs was ultimately recommended by the legal advisors. The tutor and the plaintiff's father dispute that they were properly advised as to the reasons for and consequences of serving the offer of compromise. 7 The plaintiff, the defendants submit, has opened up the issue of the communications regarding issues of liability, causation and/or quantum and that it would be unfair to deny access to the documents sought. "Issue Waiver" is said to be the foundation of the defendants' claim, the plaintiff putting in issue the contents of documents, being otherwise confidential communications. 8 The plaintiff, broadly stated, concedes that there has been a waiver of the privilege in respect of some communications between the plaintiff and her former legal advisors being MBC and the three barristers retained by that firm. In accordance with that concession documents have been produced for inspection.