New South Wales Supreme Court CITATION : Tulloch (deceased) v Braybon & ors [2010] NSWSC 640 HEARING DATE(S) : 10 March 2010 JURISDICTION : Equity Division Expedition List JUDGMENT OF : Brereton J EX TEMPORE JUDGMENT DATE : 10 March 2010 DECISION : Privilege not waived – question allowed. CATCHWORDS : EVIDENCE – Facts excluded from proof – Grounds of privilege – Professional confidence – Legal Profession – Waiver of privilege – Whether privilege waived – Whether disclosure inadvertent LEGISLATION CITED : (NSW) Evidence Act 1995, s 118, s 119, s 120, s 122, s 132 CATEGORY : Procedural and other rulings AWB Limited v Cole (2006) 152 FCR 382 CASES CITED : Hooker Corporation Limited v Darling Harbour Authority (1987) 9 NSWLR 538 Thomason v Campbelltown Municipal Council (1939) 39 SR (NSW) 347 University of Western Australia v Gray (No 15) [2007] FCA 423 John Archibald Tulloch (since deceased) PARTIES : Raymond Patrick Braybon (first defendant) Racing Information Services Australia Pty Ltd (second defendant) Racing Victoria Limited (third defendant) FILE NUMBER(S) : SC 09/287768 COUNSEL : I M Neil SC w LM Wilson (plaintiff) P T Taylor SC w S Blount (first defendants) Lumleys Solicitors (plaintiff) SOLICITORS : Taylor & Whitty (first defendant) Allens Arthur Robinson (second defendant) Minter Ellison (third defendant) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION BRERETON J Wednesday, 10 March 2010 2009/287768 John Archibald Tulloch v Raymond Patrick Braybon & Ors JUDGMENT (ex tempore) 1 HIS HONOUR: The present objection arises in the context of the witness having been asked and answered the following question, which was then followed by the question under objection: Q. Did you hear Mr Hood ask Mr Tulloch whether the proposition that, because you had been so good to Mr Tulloch he was prepared to extend to you a percentage of ownership of the horse, was true? A. Isn't that just a response to what was going on in the courtroom? Mr Hood and I didn't discuss his line of questioning or whether he intended to ask Mr Tulloch or I don't understand why this involves me, but, I was in the courtroom, I heard all the questions and answers, yes. Q. Did you tell your solicitor or your counsel that Mr Tulloch had extended to you a percentage of ownership of the horse because you had been so good to him? 2 Mr Neil SC, for the plaintiff, submits that by the answer "Mr Hood and I didn't discuss this line of questioning or whether he intended to ask Mr Tulloch or --" there has been a sufficient waiver of privilege to permit the ensuing question to be asked and answered. 3 (NSW) Evidence Act 1995, s122, provides that, subject to subs(5) (which is not presently relevant) the adducing of evidence is not prohibited by ss 118, 119 or 120 if the client or party concerned has acted in a way that is inconsistent with objecting to the adducing of the evidence because it would result in a disclosure of the kind referred to in those sections. Then subs(3) provides that, without limiting subs(2), a client or party is taken to have so acted if the client or party knowingly and voluntarily disclosed the substance of the evidence to another person. 4 In the time available, the closest assistance in the authorities I have been able to find for present purposes is the judgment of French J (as the Chief Justice of Australia then was) in University of Western Australia v Gray (No 15) [2007] FCA 423. In that case, the Vice-Chancellor of the University in cross-examination was asked when he had formed a view referred to in his affidavit, to which he answered that he had done so over several years. In the course of expanding on that answer, he said: We had the additional information that was disclosed in the external advice, it was then convincing to me that there was a reasonable case that the University had ... 5 Production of the external advice, which was otherwise privileged, was then sought. French J held that the case was not one in which it could be said that there had been a knowing and voluntary disclosure of privileged material for the purposes of s122, but that in a case in which the state of mind and belief of the University and its principal was in issue, the grounds on which that belief was held were relevant, and that it was inconsistent with reference to the advice as one of those grounds to maintain its confidentiality, insofar as it set out the factual matters upon which it was based, in light of the issues pleaded. Thus his Honour required production of a redacted version of the advice, not so much on the basis that there had been a waiver by the answers given in cross-examination, but because the issues in the case were such as to make aspects of the advice relevant – just as in an undue influence case or an unconscionable conduct case the content of advice given by a solicitor is relevant: see Thomason v Campbelltown Municipal Council (1939) 39 SR (NSW) 347 at 358-9. 6 In the present case, I am satisfied that it would be inconsistent for the defendant, Mr Braybon, to rely on the answer that I have set out above and at the same time to maintain confidentiality about the subject matter of the question under objection. Prima facie, that means that the question can be asked and answered, under s 122(2). 7 However, it is well-established that inadvertent disclosure does not result in a waiver or loss of privilege, although this has typically happened when documents which are entitled to privilege have been produced inadvertently: see Hooker Corporation Limited v Darling Harbour Authority (1987) 9 NSWLR 538 and AWB Limited v Cole (2006) 152 FCR 382. 8 In this case, the first question set out above was unobjectionable and objection was not taken to it. The last part of the answer "I was in the courtroom, I heard all the questions and answers, yes" was responsive to that question. The witness approached that response, however, with material that was not directly responsive to the question and was not called for by it and which his counsel could not reasonably have been expected to anticipate. Although there had been some earlier references to privilege in the context of objections taken in the course of earlier cross-examination of this witness, those references were, if not sub silentio, at least in rather veiled speech. There was certainly no clear advice to the witness of his right to object to answering questions which would expose communications that had taken place between client and solicitor. 9 In those circumstances, it is relevant to bear in mind that the witness is entitled to have a warning or advice from the court in that respect, and indeed that the court is obliged to satisfy itself that the witness is aware of the effect of a provision that might entitle the witness to make an application or objection under a provision of Part 3.10 of the Act: see (NSW) Evidence Act, s132. 10 As the answer was given in the absence of such advice, and in circumstances where it is far from apparent that the witness knew or should have known that he was entitled to take such an objection, and where his counsel could not have anticipated the need to do so, I think I am bound to regard at least so much of the answer as was not directly responsive to the question and opened up privileged communications as having been given inadvertently. 11 In those circumstances I do not think it would be fair to hold that there had been a waiver of privilege as a result of that answer. At the same time, in circumstances where the claim for privilege is maintained, I do not think it would be fair to the plaintiff to allow the witness to rely on that answer. 12 Accordingly, in respect of the answer given, I reject the matter "Mr Hood and I didn't discuss this line of questioning or whether he intended to ask Mr Tulloch or --". Having rejected that, I disallow the subsequent question under objection. ********** 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.