On 11 October 2023 Justice Kunc made a decision in the matter of Hall v Hall  about whether privilege over documents in a solicitor’s file had inadvertently been lost by a general reference to that file in an Affidavit in the proceeding.
The proceeding relates to a Family Trust and the attempt of one brother to remove the other brother as Trustee. Much of the evidence is in the form of correspondence between the parties and their respective solicitors. The Plaintiff’s evidence was annexed to an affidavit of the solicitor, Ms Vojvodic, sworn on 17 May 2022. The affidavit included a fairly typical statement that the content was based on her own knowledge of the facts and information following her review of the file and from information provided to her by the Plaintiff.
The Defendants sought production of the file by way of Notice to Produce (as a document or thing that had been referred to in an Affidavit and was therefore susceptible to a Notice to Produce).
The Notice to Produce was served on 2 November 2022 but was not responded to by the Defendant, which lead to a sequence of correspondence between the solicitors.
On 15 February 2023 the Defendant filed a Notice of Motion seeking compliance with the Notice to Produce, or in the alternative, a copy of the original file and copies of documents provided to Ms Vojvodic by the Plaintiff.
The Notice of Motion was heard by the Registrar on 12 May 2023 whose decision was provided on 21 June 2023. The Registrar ordered the Plaintiff to comply with the Notice to Produce and to pay the Defendant’s costs of the Notice of Motion.
The Registrar took the view that the purpose for which the solicitor’s Affidavit had been produced meant that there was more than a mere reference to something that might otherwise have had no effect on a claim for privilege. The rationale was that because the Plaintiff based the entire case on the file it must have considered the whole file “relevant”.
In reaching her conclusion, the Registrar relied on the principles set out by the Court of Appeal in GR Capital Group Pty Ltd v Xinfeng Australia International Investment Pty Ltd  (McFarlan JA at paragraph 57). In essence, those principles focus on whether there is an inconsistency between:
- the privilege holders conduct;
- the maintenance of the privilege;
- whether the privilege holder has made express or implied assertions about the contents of privileged communications. The relevance of the privileged communication to the wider proceeding does not by itself equate to inconsistent conduct;
His Honour noted that whether an expressed or implied assertion about the content of privileged communications had been made is an evaluative decision to be based on consideration of the whole circumstances of the case. There are no hard and fast rules and the principles expounded by the High Court in Mann v Carnell apply. The Court must then decide whether maintenance of privilege is inconsistent with the privilege holders conduct.
In this case, His Honour referred to the Defendant’s submission that the Plaintiff had failed to file evidence to make good the claim for privilege in relation to particular documents. That case referred to the dominant purpose test and that the onus of proving privilege in a communication is on the party claiming privilege. It is necessary for that party to:
- provide evidence about –
- the circumstances and context of the communications; and/or,
- the reason that documents were brought into existence; or,
- provide evidence as to the purpose/intention of the person who made the communication or authored the documents.
Privilege may also be established by reference to the nature of the documents supported by argument or submissions.
His Honour noted that during the proceeding, the parties acknowledged that (at its core) the debate related to certain documents rather than the entire file. He noted that there would necessarily be documents within a file that were not relevant to the proceeding and as such the defendant had no right pursuant to UCPR Rule Part 21, R21.10 (I) to require production.
More fundamentally, His Honour identified one weakness in the Defendant’s argument was that the reference in Ms Vojvodic’s Affidavit did not of itself constitute an express or implied waiver of privilege over any documents that might be contained in the file. Such references must not be read in isolation to the rest of the Affidavit. His Honour accepted the Plaintiff’s Submission that to lose privilege, in relation to advice, what must be disclosed is “… a statement of the advice or its substance of effect”.
His Honour stated that in response to a claim for a request for privileged information/documents, the party relying on client/legal privilege would provide Affidavit evidence along the lines set out by the Court of Appeal in Hastie v Moore. The Court also accepted that the privilege could be demonstrated by reference of the nature of documents supported by argument or submissions.
His Honour noted the Defendant accepted that irrelevant material, to which the Defendant was not entitled, would be present in the file. To that end, His Honour inferred that the Defendant’s position may have been improved had it identified specific documents that were sought from the Plaintiff’s file, which could have been identified by close examination of Ms Vojvodic’s Affidavit.
Ultimately the Court could not accept the Defendant’s Submission that a solicitor simply referring to a “file” gave an entitlement to access to the entire file. The Court reversed the decision of the Registrar whilst making Orders requiring the production of certain categories of documents from the Plaintiff’s file to which the Defendant was entitled.
This case provides a helpful summary of the principles of waiver of privilege. In particular, the centrality of the dominant purpose test and whether the conduct of the party claiming privilege was inconsistent with the maintenance of that privilege. In relation to waiver of privilege, specific reference to privileged documents is required before such waiver can be inferred; an oblique reference to a “file” is not sufficient to waive privilege over specific documents within that file.
For further Information about privilege or any other issue in Commercial Litigation please contact David Collins, Special Counsel, Mullane & Lindsay
Liability limited by a scheme approved under Professional Standards Legislation
  NSW SC 1230
 Uniform Civil Procedure Rules 2005 (NSW) (UCPR) Part 21, R21.10 (I)
 And immaterially amended on 29 June 2023
  NSWCA 266
  HCA 66; 201 CLR 1; 74 ALJR 378; 168 ALR 86
 Hastie Group Limited (in liq) v Moore (2016) 339 ALR 635;  NSWCA 305 at  –  (Hastie v Moore)
 AWB Limited v Cole (No 5) (2006) 155 FCR 30;  FCA 1234 at 
 Ampolex Limited v Perpetual Trustee Co (Canberra) Limited (1996) 40 NSWLR 12 per Rolfe J
 AWB Limited per Young J