Supreme Court New South Wales Medium Neutral Citation: Owners Strata Plan No 68372 v Allianz Australia Insurance Ltd [2014] NSWSC 223 Hearing dates: 18 February 2014 Decision date: 12 March 2014 Jurisdiction: Equity Division Before: Robb J Decision: (1)That, pursuant to UCPR 33.4, the following subpoenas be set aside: (a)Subpoena to SCL Crisp Legal Pty Ltd t/as Crisp legal filed on 6 February 2014 (b)Subpoena to Dr Andrew Baigent filed on 6 February 2014. (2)That the respondent pay the applicant's costs of this application. Catchwords: PROCEDURE - Subpoenas - Application to set aside - Waiver of legal professional privilege - Was privilege waived by failure of counsel to object to questions in cross-examination? Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Evidence Act 1995 (NSW) ss 122(2), (3) Cases Cited: Spedley Securities Ltd (in liq) v Bank of New Zealand (1991) 26 NSWLR 711 Global Medical Imaging Management Ltd (in liq) v Australian Mezzanine Investments Pty Ltd [2003] NSWSC 430 Singapore Airlines v Sydney Airports Corporation [2004] NSWSC 380 Landmark Underwriting Agency Pty Ltd v Kilborn [2006] NSW SC 1108 Texts Cited: J D Heydon, Cross on Evidence, (9th ed, 2012, Lexis Nexis) Category: Procedural and other rulings Parties: The Owners Strata Plan no 68372 (plaintiff) Allianz Australia Insurance Limited (first defendant) Vero Insurance Ltd (second defendant) GEO Developments Pty Ltd (third defendant) Geotech Testing Pty Limited (fourth defendant) Representation: Counsel: D Neggo (plaintiff) D Hughes (third defendant) Solicitors: Crisp Legal Pty Ltd (plaintiff) Arnold Bloch Leibler (third defendant) File Number(s): 2007/266664 Judgment 1The Court has before it a dispute about whether certain subpoenas should be set aside, and if not, the orders that should be made about the manner in which the documents the subject of the subpoenas should be produced. 2The proceedings, which are in the Technology and Construction List of the Equity Division of this Court, concern, as I understand it, a claim by the plaintiff, Owners Strata Plan No 68372, for damages in respect of the defective construction of a strata title building. 3The third defendant, GEO Developments, is the developer of the project. 4The present dispute is between the plaintiff and the third defendant. 5The court has made orders for a reference under Division 3 of Part 20 of the Uniform Civil Procedure Rules. The referee is Ms Grey. The terms of the reference are not material to the resolution of the present dispute. 6The reference was adjourned part heard. At the time of the hearing the reference was due to recommence on Monday, 24 February 2014. At the time of the adjournment the expert witnesses for the parties were in the process of giving evidence jointly, and were being cross-examined. The cross-examination was due to continue on 24 February 2014. 7On 6 February 2014 the third defendant had two subpoenas issued by the court, one against the plaintiff's solicitors, Crisp Legal, and the other against one of its expert witnesses, Dr Andrew Baigent. Both subpoenas were returnable on 24 February 2014. The schedule to both subpoenas sought documents that recorded communications, or the substance of communications, made at a meeting on 12 September 2013 at 10 AM between Dr Baigent, the plaintiff's solicitor, Mr Nicolas Rovalas, and the plaintiff's two barristers. 8As I understand it, Dr Baigent is the plaintiff's structural engineering expert witness. 9By its notice of motion filed on 17 February 2014, the plaintiff moved the court for an order that the two subpoenas be set aside, and in the alternative, that the plaintiff have first access for 48 hours to any documents produced by Dr Baigent. 10Mr Neggo, who appeared for the plaintiff on the application, added that, if the subpoenas are not set aside, the ambit of the documents required to be produced should be narrowed, so that the plaintiff was only required to produce documents on the subject for which, if the motion fails, the plaintiff will be held to have waived its right to claim legal professional privilege. 11Mr Hughes, who appeared for the third defendant, handed up proposed short minutes of order. He sought an order that the notice of motion be dismissed, that the subpoena to Crisp Legal be returnable instanter, and that the subpoena issued to Dr Baigent be returnable at 9 AM on 24 February 2014. Mr Hughes sought orders that the third defendant have access to all documents produced. 12By arrangement the Registrar referred the matter to me to be dealt with in the duty list. 13On Friday, 21 February 2014 I ruled on the plaintiff's notice of motion, as that was necessary because the reference was due to recommence on the following Monday. I made an order setting aside the two subpoenas, and ordered that the third defendant pay the plaintiff's costs of the motion on the ordinary basis. I was not able to give reasons for judgment at the time, because of pressure of business in the duty list. I therefore reserved judgment. These are my reasons for making the orders that I made. 14The third defendant conceded that all of the documents referred to in the schedule to each subpoena were covered by legal professional privilege, so that, in order to resist the plaintiff's notice of motion, the third defendant must establish that the plaintiff has waived its right to claim that privilege. 15As I follow the submissions made on behalf of the third defendant, the present is not a case where the third defendant claimed that the plaintiff waived in its privilege by making a voluntary disclosure of the substance of the communications that occurred at the relevant meeting between Dr Baigent and the plaintiff's lawyers. Rather, the third defendant claimed that the plaintiff waived its privilege by the way that its leading counsel, Mr Gracie, responded to questions that the third defendant's senior counsel, Mr Henry SC, asked Dr Baigent in cross-examination before the referee on 18 September 2013. That cross-examination took place in the context of a number of emails that were written in September 2013. In essence, the third defendant claimed that the plaintiff waived the relevant privilege by failing adequately to protect the privilege by objecting to the course of what happened in the reference on that date. 16Waiver of legal professional privilege may occur where the party entitled to assert the privilege fails to assert it in circumstances where the failure is inconsistent with its continuance: J D Heydon, Cross on Evidence, (9th ed, 2012, Lexis Nexis) at [25010]. See also Spedley Securities Ltd (in liq) v Bank of New Zealand (1991) 26 NSWLR 711. 17In Global Medical Imaging Management Ltd (in liq) v Australian Mezzanine Investments Pty Ltd [2003] NSWSC 430 Einstein J considered a case in which it was claimed that a party had lost its right to claim legal professional privilege because a witness under cross-examination sufficiently disclosed the substance of the privileged communication during the course of a non-responsive answer. 18Einstein J said, relevantly: "9. I deal firstly with the suggestion that there was no knowing and voluntary disclosure because the non-responsive answer meant that the first defendant in any event did not have an opportunity to object to that evidence. To my mind, whilst it may be accepted that a question seeking an answer as to whether a communication had taken place between the two firms of solicitors, was answered by the witness going outside the ambit of the question, that is not to say that the first defendant could not have protected itself by later asking for the non-responsive section of the answer to be struck out. It clearly could have done so... 12. Once the cross-examiner, even in relation to a non-responsive answer, continues into the general area treated with, and there is no objection in terms of that area and no attempt to have what seems to have been non-responsive, struck out from the transcript, it seems to me that the first defendant no longer has any grounds for the proposition that it cannot be taken, by its conduct in the proceedings, to have knowingly and voluntarily disclosed to another person the substance of the evidence or, more particularly, to have acquiesced in the knowing and voluntary disclosure by, in this case, [the witness], in that regard." 19The parties proceeded on the basis that the issue was whether the plaintiff had lost its right to claim client legal privilege by reason of the matters set out in s 122(2) and (3) of the Evidence Act 1995 (NSW). The first issue was whether, under ss (3)(b), the substance of the communications at the meeting had been disclosed with the implied consent of the plaintiff. Alternatively, for the purposes of ss (2), had the plaintiff acted during the course of Dr Baigent's cross-examination in a way that was inconsistent with the plaintiff objecting to producing the communications because it would result in a disclosure of information that was protected by the plaintiff's legal professional privilege. 20It is necessary to have regard to the following circumstances for the purpose of resolving the dispute between the parties. 21An expert witness conclave took place between Dr Baigent, and the defendants' expert structural engineers, Messrs Broune and MacLeod. The conclave was conducted over a period that concluded on 12 September 2013. Mr Broune had the carriage of producing the experts' joint report. That joint report was signed on 13 September 2013 (Exhibit A Tab 11). The expert report was prepared in the form of a schedule. It included a separate column that summarised the opinion on the relevant issue of each of the three expert witnesses. It then contained a column that summarised the "agreements reached between the experts". That column was followed by another called "reasons for any disagreement between the experts". Each separate issue was identified by what was called a "Line No." 22The issue that is most relevant to the present dispute was described as Line No. 4023. It concerned building movement. Each of the three experts agreed that there was a defect. Their agreement was expressed in the following terms: "Localised underpinning required as recommended by the geotechnical experts. Repairs required to damage consequential to settlement." There is a moderately lengthy statement of disagreement by Dr Baigent in the next column. It is not necessary to set out the detail of that disagreement. Each of Mr Broune and Mr MacLeod have included a response to Dr Baigent's disagreement. 23The final form of the joint expert report was signed by the three experts on 13 September 2013. That date is relevant because the meeting between Dr Baigent and the plaintiff's lawyers, which is the subject of the schedule in the two subpoenas, occurred at about 10 AM on 12 September 2013; that is, the day before the joint expert report was actually signed. 24On 10 September 2013 Mr Rovalas sent an email to Dr Baigent in which he referred to a telephone discussion earlier on that day between the two gentlemen, and confirmed that Dr Baigent's section of the report would be finalised that day and distributed to the other engineers. He offered, if there was anything of concern, or different to the conclave discussions, contained in various emails that Mr Broune had sent to Dr Baigent, Dr Baigent should not hesitate to contact Mr Rovalas if he wanted to discuss the emails. He also referred to an invitation sent to Dr Baigent and the plaintiff's barristers to attend a conference to start at 10 AM on 12 September 2013. 25Also on 10 September 2013 Mr Rovalas sent to Dr Baigent a further email in which he asked Dr Baigent to send a copy of his amended report to the solicitors that afternoon, under a separate email. 26On 11 September 2013 Dr Baigent sent an email to Mr Rovalas that attached "the draft report and my further notes that will be added." The attachment to that email is a document called "Wild - Grove Joint Expert Report" that sets out a statement of Dr Baigent's qualifications to the matters of expert agreement in relation to a number of Line Nos, including No 4023. 27As I understand it, the attachment to Dr Baigent's 11 September 2013 email. was a document that Dr Baigent had sent to Mr Broune for the purpose of assisting Mr Broune to complete the joint expert report. The attachment contained the information that Dr Baigent wanted to have included in the column headed "reasons for any disagreement between the experts". The attachment was prepared by Dr Baigent and sent to Mr Broune before Dr Baigent's meeting with the lawyers on 12 September 2013. 28As I read the attachment and the entry in the final form of the joint expert report under the column "reasons for any disagreement between the experts", the material in each is identical. That is to say, the relevant part of the joint expert report was prepared in accordance with the instructions that Dr Baigent gave to Mr Broune before the meeting took place on 12 September 2013. That would suggest that nothing that occurred during the meeting influenced Dr Baigent's input into the joint expert report. 29On the afternoon of 12 September 2013 Mr Rovalas sent an email to various people, which included Dr Baigent, expert witnesses and the referee, amongst others. 30Mr Rovalas referred to an email from Mr Broune to the referee the previous day that had referred to a foreshadowed "clarification note" from Mr Walker, who was a geotechnical engineering expert witness. The email attached that "clarification note" for consideration by the structural experts. Mr Rovalas then referred to "two outstanding matters which we understand Dr Baigent seeks to have incorporated in the joint report prepared by the structural experts." The first matter was described as concerning "Dr Baigent's note provided yesterday to Mr Broune". 31That matter "requests that Dr Baigent's position in relation to line items... 2023...be set out in the joint report." As I have noted above, that request appears to have been specifically implemented as a result of communications between Dr Baigent and Mr Broune that took place before Dr Baigent's meeting with the lawyers. 32Mr Rovalas' email then finished with the following statement: "The second matter concerns references in the joint report to 'localised underpinning required as recommended by the geotechnical experts' (see for example line-item 4023). Dr Baigent's position is that it is more accurate to refer to the recommendations of the geotechnical experts as set out in their joint report (see in particular paragraph B10.2)." 33The statement "Localised underpinning required as recommended by the geotechnical experts" is found in the final joint expert's report in the column headed "Agreements reached between the experts". Mr Rovalas' "second" matter appears to suggest, on behalf of Dr Baigent, a change to this form of words that Dr Baigent preferred. On the basis of my limited understanding of the issues and evidence in the proceedings, this change appears to be somewhat subtle. Dr Baigent apparently preferred the expression "recommendations ... as set out in their joint report" to the words "required as recommended by the geotechnical experts" that were included in the draft joint report. Either form of wording does not rise higher than to refer to recommendations by the geotechnical experts. 34It can be inferred that Dr Baigent must have communicated his preference in this change of wording to Mr Rovalas by some means. Alternatively, Mr Rovalas developed the understanding that Dr Baigent preferred the changes to be made. The email does not itself show the circumstances in which Dr Baigent conveyed his preference to Mr Rovalas. 35It was in this context that Mr Henry's cross-examination of Dr Baigent took place on 18 September 2013. 36Relevantly, Mr Henry commenced by showing Dr Baigent Mr Rovalas' first 10 September 2013 email (T 511.17). Mr Henry elicited from Dr Baigent that he met with Mr Rovalas on 12 September 2013, the day before he signed the joint expert report. Mr Henry tendered that email. Mr Gracie objected on the grounds of relevance. The referee ruled that the tender should be deferred until the relevance of the document became apparent. Mr Henry then showed Dr Baigent Mr Rovalas' second email of 10 September 2013 (T 514.1). Mr Henry then deferred the tender of that email, and then took Dr Baigent to his own email to Mr Rovalas dated 11 September 2013. He asked Dr Baigent why he was sending the draft joint report and his further notes to Mr Rovalas. Dr Baigent in essence said that he was running late, he sent the material to Mr Broune for incorporation into the joint report, and "I just emailed by documents to Mr Rovalas so he was aware of what I was going to be saying in the report" (T 515.45). Dr Baigent agreed to Mr Henry's suggestion that he sent the draft report and the notes to Mr Rovalas for the purpose of the conference the following day (T 516.7). Mr Henry then showed Dr Baigent Mr Rovalas' 12 September 2013 email (T 516.14). Mr Henry asked Dr Baigent a number of questions about the contents of the email. Dr Baigent said that Mr Rovalas would have known that Dr Baigent had provided his note to Mr Broune because Dr Baigent would have told Mr Rovalas at the conference that it had already been emailed off for incorporation into the joint report (T 517.12). Mr Henry then referred Dr Baigent to the material in Mr Rovalas' email concerning the "second matter". Mr Henry suggested that the "second matter" was not referred to in the note that was attached to his 11 September 2013 email. Mr Henry and Dr Baigent then appeared to be somewhat at cross-purposes (T 517.47 - 518.35). Dr Baigent finally appears to have appreciated that Dr Baigent's note to Mr Broune did not specifically contain a reference to the subject matter of what Mr Rovalas described as the "second matter". Somewhat confusingly, when Mr Henry put the suggestion again, Dr Baigent disagreed (T 519.15). Dr Baigent asserted that his position was set out in his notes, and that he was recommending that an extensive regime of underpinning be carried out similar to what he had proposed in his expert report. 37I should interpolate that I do not have a clear understanding about the essential meaning of this issue. Superficially, it does appear that Mr Rovalas' "second matter" was something in addition to the information conveyed in Dr Baigent's note to Mr Broune, but that proposition is not ultimately clear. Dr Baigent did not appear to understand Mr Henry's point during the cross-examination. As far as Dr Baigent was concerned, apparently, the "second matter" did not add anything to that which he had already said. 38Mr Henry pursued the matter (T 520.21). As I read the transcript, Mr Henry was focusing on the actual wording of the "second matter", which did not in specific and literal terms appear in the note or the final joint expert report, but Dr Baigent was responding by trying to explain how the substance expressed in the "second matter" did appear in his note and the joint expert report (T 520.31). Dr Baigent further explained that he was trying to clarify the position because "I no longer took the position that we had full agreement because I was under the misunderstanding, following a meeting with the geotechnical experts, in relation to the advice that they were giving in respect to this particular property" (T 521.17). 39Mr Henry again returned to the part of Mr Rovalas' email that referred to the "second matter" and asked whether the contents of the joint report were discussed at the meeting with the lawyers on 12 September 2013. Dr Baigent said "most definitely" (T 522.31). Mr Henry focused on the words "Localised underpinning required as recommended by the geotechnical experts." He then asked whether those words were discussed at the conference (T 523.32). 40Mr Gracie immediately objected. He said: "I think we are getting into areas where I don't think it should be suggested that we waive any privilege as to those questions and we object to any contents of them and that question went squarely to that point, being the content" (T 523.38). 41Mr Henry replied: "I press the question on two bases. The first is what I asked was a subject matter discussed. I didn't ask who said what, but if I have asked the latter question, in any event, any privilege has been waived by the contents of this email" (T 523.44). 42Thus Mr Henry himself justified the question by suggesting first that it did not elicit evidence concerning what was said at the meeting, just whether a particular subject matter was touched upon. In the alternative he suggested that the privilege was waived by the contents of Mr Rovalas' 13 September 2013 email. This alternative submission was not the subject of elaboration by Mr Henry. The first of the submissions involved a positive suggestion by Mr Henry that he was not seeking information that would lead to a waiver of the privilege, if his question was not resisted by Mr Gracie. 43Mr Henry again asked: "Were those words discussed at the conference?" (T 524.6) - which does seem to be an abandonment by Mr Henry of his position that he was only addressing the subject matter at the conference. Mr Gracie immediately objected, but without further ado the referee allowed the question (T 524.10). 44By this stage Mr Gracie had objected twice on the ground that the questions were seeking to elicit the substance of what was said at a privileged conference. As the referee allowed the question, that which immediately followed effectively involved Dr Baigent answering questions under compulsion of law. 45It is clear at least at this point that Mr Gracie, and thus the plaintiff, was strenuously resisting Mr Henry exploring the substance of what happened at the conference between Dr Baigent and the lawyers. 46Possibly in response to the fact that the referee did not give any reason for allowing the question, Mr Gracie then revived his objection. He made a submission as to why Mr Rovalas' 13 September 2013 email did not waive any privilege. He said: "it doesn't purport to relate to that conference or anything discussed in it. And so I don't accept that there has been any waiver of any privilege and the submission to that effect, I submit, is incorrect. This document does not waive anything" (T 524.23). 47Mr Henry immediately pressed on, and again referred Dr Baigent to that part of Mr Rovalas' email that referred to the "second matter". Mr Gracie objected again, although on this occasion on the grounds of relevance (T 524.43). Dr Baigent said, in relation to the reference to "localised underpinning": "I had already emailed him the night before the comments that I had emailed to Mr Broune the comments to be included in the joint report and I discussed with counsel, Mr Rovalas, the reasoning behind why I wanted these remarks put into the joint report" (T 525.11). Dr Baigent clarified that when he referred to "remarks" he was referring to his note. 48In my view, with this evidence, Dr Baigent did not disclose the substance of any conversation at his meeting with the lawyers, although he did give very direct evidence concerning the subject matter discussed, being his reasons for disagreeing with the other experts. There may be cases in which a disclosure of this nature may be considered to be sufficient to lead to a waiver of privilege. That observation is probably consistent with what Einstein J said in the Global Medical Imaging Management case, to which reference was made above. However, the significance of the evidence should, in the present case, be viewed in the context of Mr Gracie's strenuous objection to the evidence being allowed, and his specific claims that the plaintiff did not accept that the questions or answers should lead to a waiver of the plaintiff's privilege. 49Significantly, Dr Baigent then said that he was not the author of Mr Rovalas' email, referring specifically to what was said about the "second matter" (T 525.24). Dr Baigent in effect disowned Mr Rovalas' statement concerning the "second matter". He said, in so many words, that what Mr Rovalas said was Mr Rovalas' understanding, not what Dr Baigent said to him. That position, as taken by Dr Baigent, may be consistent with Dr Baigent's earlier apparent confusion when responding to Mr Henry's questions. 50Mr Henry then asked, apparently referring to what happened at the meeting, "Did noone suggest to you that the words should be altered?" - (referring to "Localised underpinning required as recommended by the geotechnical experts"). Dr Baigent replied: "No, certainly not" (T 525.33). 51Dr Baigent thus categorically denied that anyone at the meeting had suggested that he change any view that he had expressed on the subject of Mr Henry's question. 52Dr Baigent then agreed that what Mr Rovalas had said concerning the "second matter" "would have been based on my discussions with Mr Rovalas at our meeting" (T 525.42). 53At this point it is probably necessary to accept that by inference Dr Baigent has given evidence of the substance of at least part of the discussion at the meeting with the lawyers. He did not say what was said at the meeting, but has agreed that Mr Rovalas' statement in his email concerning the "second matter" was based on what was discussed at the meeting. 54Mr Henry asked whether Dr Baigent discussed with Mr Rovalas at the meeting whether or not the words; "localised underpinning required as recommended by the geotechnical experts", should remain in the draft joint report. Dr Baigent replied: "No, that was never discussed" (T 526.3). If Mr Henry had achieved by the immediately preceding question an implied disclosure of an aspect of the meeting, that disclosure appears to have evaporated when Dr Baigent denied that the discussion took place. Dr Baigent then said: "I don't think the words were even discussed" (T 526.8), which appears to be a slight retreat on Dr Baigent's behalf. However, he insisted that the only thing that was discussed was why he believed that partial underpinning was no longer a joint agreement with the experts based on the additional information that he had received from Mr Walker. Arguably, this statement involved an element of disclosure of the substance of the discussion at the meeting, but in my view it did not go further than the evidence that Dr Baigent had earlier given over the strenuous objection of Mr Gracie. 55Subsequently in the cross-examination, Dr Baigent again agreed that there was discussion at the meeting concerning his note and why he wanted his additional views to be included in the joint expert report (T 526.36), but Dr Baigent reiterated that he had already sent his note to Mr Broune (T 527.16). The final time that Mr Henry asked Dr Baigent whether the words "Localised underpinning required as recommended by the geotechnical experts" were discussed at the meeting, Dr Baigent replied "I don't remember" (T 529.38). 56Finally, Mr Gracie objected to the tender of the four emails that have been referred to in these reasons (T 530.9). He did so on the ground of relevance. 57My reasons for deciding that the third defendant's subpoenas should be set aside can be stated shortly. 58First, I find that the evidence given by Dr Baigent, even when considered in the context of Mr Rovalas' 13 September 2013 email, did not disclose the substance of what was said at the meeting on 12 September 2009: cf Singapore Airlines v Sydney Airports Corporation [2004] NSWSC 380 McDougall J at [50] - [73]. 59The real issue is whether in all of the circumstances it would now be "inconsistent" for the plaintiff to be permitted to claim the privilege. I have applied the principles discussed by the High Court in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46 at [30] - [32], particularly the reference to "considerations of fairness" in [31]. 60In my view the plaintiff, through its counsel Mr Gracie, cannot be said to have impliedly waived the privilege by standing by and not asserting it when questions were put to Dr Baigent in cross-examination that may have elicited the substance of privileged communications. Mr Gracie objected strenuously, and specifically took the point that the plaintiff was asserting its privilege, and that it did not waive that privilege. It is true that Mr Gracie did not maintain in specific terms the same objection for all subsequent questions. However, he was overruled by the referee who permitted the initial questions without giving reasons. Mr Gracie returned to the fray once, but thereafter did not continually express his objections. That approach is consistent with the modern practice whereby, when counsel suffers an unfavourable evidentiary ruling, counsel accepts the position graciously and does not cause delay or distraction by continuing to fight the lost battle. 61I consider that, if the issue is approached from the position of fairness, the plaintiff maintained its objection and attempted to preserve its privilege throughout the relevant part of the cross-examination. 62Further, the information that Dr Baigent provided for inclusion in the joint expert report was provided by him to Mr Broune on the day before the meeting with the lawyers. I accept that there is some doubt about the true subject matter of what Mr Rovalas described as the "second matter" in his 13 September 2013 email. That comment does appear to refer to something in addition to the material that Dr Baigent had already given to Mr Broune. However, I cannot see in the evidence that what was described as the "second matter" lead to any alteration of Dr Baigent's contribution to the joint expert report. 63If I had thought that there was any substance in an argument that the expert evidence that Dr Baigent ultimately contributed to the joint expert report was influenced by any discussions at the 12 September 2013 meeting, I may have more easily been persuaded on the basis of the evidence that was given as to the subjects discussed at that meeting, that fairness required that the plaintiff be prevented from asserting its privilege. As it is, the issue was left uncertain, and in the context of the objections made by Mr Gracie that I have considered above, I find that the plaintiff has not waived its privilege. 64The third defendant, by the subpoenas that it caused to be issued, sought production of all documents that evidenced communications that occurred at the meeting between Dr Baigent and the lawyers on 12 September 2013, irrespective of the subject matter of the communications. The third defendant did not subpoena from the plaintiff's solicitors and Dr Baigent documents that evidenced communications between Dr Baigent and Mr Rovalas that led to Mr Rovalas including in his 13 September 2013 email the comments that he made concerning the "second matter" of concern to Dr Baigent. As I have noted above, in response to Mr Gracie's initial objection, one of Mr Henry's submissions was that the plaintiff had waived privilege by means of the content of Mr Rovalas' 13 September 2013 email. The third defendant's submissions on the application focused on the evidence given by Dr Baigent during his cross-examination, and not upon the effect of Mr Rovalas' email. That was consistent with the subpoenas seeking production of communications relating to all subject matters discussed at the meeting, and not any communication between Dr Baigent and Mr Rovalas that led Mr Rovalas to make his observation concerning the "second matter". It is arguable that the plaintiff did waive any privilege that it had concerning any communication that Dr Baigent made to Mr Rovalas that caused Mr Rovalas to form the understanding which he described as the "second matter". A subpoena that was confined to seeking that information may possibly have survived, and if documents had been produced in answer to a subpoena that was restricted to that communication, it may have appeared from the terms of those documents that fairness required that the plaintiff should be obliged to disclose further information. However, given the terms of the schedule to the two subpoenas, and the manner in which the argument was put, I was not satisfied that the plaintiff had waived its privilege in relation to everything discussed at the meeting. 65I have been influenced by the observations of Young CJ in Eq in Landmark Underwriting Agency Pty Ltd v Kilborn [2006] NSW SC 1108 at [116]. His Honour observed that in a borderline case it is sometimes necessary to decide the issue of whether the privilege has been waived "by impression", and that where there is doubt, the doubt should be resolved by maintaining the privilege. I am not sure whether it is appropriate to describe the present as a borderline case, although I can understand why it appeared to the third defendant that there was a reasonable basis for arguing that the plaintiff had waived its privilege. When the issue is considered in detail, however, the conclusion must be reached that the plaintiff did not waive its entitlement to claim legal professional privilege over communications at the meeting on 12 September 2013, and accordingly I set aside the two subpoenas. ********** 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. Decision last updated: 12 March 2014