STATE OF NEW SOUTH WALES ats
APPLICANT'S SUMMARY OF ARGUMENT
NATURE OF THE APPLICANT'S CASE 1.
In 2008, the opposing party and others commenced proceedings against the applicant in the District Court of New South Wales.
In the District Court proceedings, the opposing party and others allege inter alia that in the period from 1970 to 1989 they were either removed from their parents and families by the applicant and committed to the care of the relevant Minister to be dealt with as a ward of the State or placed in foster or full time live-in care by their families.
It is further alleged that the applicant caused and/or allowed the opposing party and others to be placed in the care and control of Bert and Edith Gordon at Bethcar Children's Home at Brewarrina and that whilst at that facility they were subjected to physical, mental, emotional and sexual abuse perpetrated by the Gordons and/or Colin Gibson, the Gordons' son in law who, at times, resided at BethCar.
On 11 June 2010 the applicant filed its defence to the opposing party's claim. applicant pleaded, inter alia, the Limitation Act 1969 (NS W) ("the Act").
By Notice of Motion which had been filed on 9 February 2009 the opposing party and others sought a declaration that at all relevant times each of them was under a disability within the meaning of s 52 of the Act and that the claim made by each of them was not commenced outside the limitation period prescribed under s 14 of the Act. Alternatively, they sought an order pursuant to s 58 and/or s 60G of the Act extending the limitation period. By Amended Notice of Motion returnable on 12 November 2012, the opposing patty withdrew its claim for the declaration and, in lieu thereof~ sought an order that the applicant's limitation defence be struck out.
By Notice of Motion filed 6 February 2012, the applicant sought orders that the proceedings be dismissed or struck out as an abuse of process pursuant to Rules 13.4 and 14.28 of the Uniform Civil Procedure Rules 2005. The applicant also relied upon the principles in Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 ("Batistatos application").
By agreement between the applicant and the opposing party, the opposing party's limitation Motion and the applicant's Batistatos application were heard separately from and in advance of all other issues in the proceedings, and only insofar as they related to the opposing party.
Those two Notices of Motion were heard by Curtis DCJ on 12, 13, 14 and 15 November 2012.
The applicant relied upon affidavits sworn by Peter Maxwell, a private investigator engaged on behalf of the applicant, on 17 May 2011 , 3 August 2011 and 20 September 2012 as to actual prejudice suffered by the applicant.
On 20 November 2012, subpoenas for production were issued at the request of the opposing party to I.V. Knight, Crown Solicitor, and Peter Maxwell. Those subpoenas were issued in the context of the applicant's Batistatos application.
The subpoenas sought inter alia material comprising the communications between the applicant (including l.V. Knight) and Peter Maxwell and the material comprising the investigations of Peter Maxwell.
By Notice of Motion dated 6 December 2012, the applicant sought orders that the subpoenas be set aside on the grounds that they lack a legitimate forensic purpose, are oppressive and too broad or that the recipients be excused from producing the documents on the basis that they are privileged and that the privilege has not been waived ("subpoena application").
On 13 December 2012, the subpoena application was heard by Curtis DCJ. By consent of the parties, his Honour only dealt with the subpoena to I.V. Knight ("the subpoena").
On 13 December 2012, his Honour delivered judgment in relation to the subpoena application in which he declined to set aside the subpoena and found that privilege had been waived.
The applicant seeks leave to appeal from his Honour's judgment.
THE QUESTIONS INVOLVED
As the structure of the draft Notice of Appeal reveals, there are two key issues: (a)
whether his Honour erred in finding that client legal privilege had been waived (Ground 1); and
whether his Honour erred in finding that the subpoena had a legitimate forensic purpose and was not oppressive (Ground 3).
The other issues raised by the draft Notice of Appeal are subordinate to those two key issues. They relate to the process of reasoning adopted by his Honour in deciding those key issues. The importance, if any, of those subordinate issues is not always clear.
THE APPLICANT'S ARGUMENT Waiver of privilege
GROUND 1: His Honour erred in overruling the appellant's objection to producing the documents the subject of the subpoena addressed to its legal representative (which objection was based on a claim of client legal privilege) upon the basis that the applicant had waived that privilege [Judgment paragraph 26] 18.
If the subpoena was not set aside, the applicant made a claim for client legal privilege and objected to producing the documents.
The documents relate to investigations 1 obtained on behalf of the applicant for the purposes of providing legal services to the applicant by way of legal advice and defending the proceedings including preparing Peter Maxwell's affidavits in relation to prejudice.
The opposing party accepted below that the documents attracted privilege. The real issue was whether privilege had been impliedly waived pursuant to s 122 of the Evidence Act 1995.
Section 122(2) provides that there is a loss of privilege if the party has acted in a way that is inconsistent with the party objecting to the adducing of the evidence. This provision imports common law principles of imputed waiver.
In Bailey v Director-General, Department of Land and Water Conservation (2009) 74 NSWLR 333 at 336 , Allsop P said: "The third comment also concerns the notion of inconsistency in the waiver of privilege and is by way of elaboration. Though fairness may have a part to play in assessing inconsistency, it is not a freestanding or overriding principle of fairness "operating at large": Mann v Carnell (at 13 ). I agree with Hodgson JA in Council of the New South Wales Bar Association v Archer (2008) 72 NS WLR 236 at 252  cited by Tobias JA. I would also refer to what I said in DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499 at 504 - (though in context of the common law). I agreed (at 519 -) with Hodgson J (as he then was) in Standard Chartered Bank of Australia Ltd v Antico (1993) 36 NS WLR 87 as to the need to make an express or implied assertion of the content of the confidential communication. His Honour repeated these comments in Council of the New South Wales Bar Association v Archer (at 250 -). The importance of this repetition, after Mann v Carnell, is to reinforce the fact that the relevant issue is inconsistency, not general fairness. As the discussion in DSE (Holdings) reveals (especially at 521 -) there is, after Mann v Carnell, a latent difficulty in some of the jurisprudence arising from the application of general notions of fairness verging on a discretion. Mann v Carnell brought an important clarification and sharpness to the analysis which cannot be easily reconciled with Attorney-General (NT) v Maurice ( 1986) 161 CLR 4 75 in its application to specific circumstances, or generally. With the greatest respect to those who consider that Mann v Carnell worked no real change (the Full Court of the Federal Court in Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341 at 354 ) a review of many of the decisions based on a general overriding principle of fairness and a reconsideration of them based on assessing the inconsistency with the confidentiality underlying the privilege (even informed in part by fairness) leads one to appreciate the practical reality of the change. The approaches in many of the cases discussed in DSE (Holdings) (at 521 -) would be difficult to sustain under Mann v Carnell.
Reports obtained from investigators or experts retained formally by solicitors, but on the explicit instructions of the client, should be regarded as collected and communicated confidentially on behalf of the client to its legal advisor (see Nickmar Pty Ltd & Anor v Preservatrice Skandia Insurance Ltd (1985) 3 NSWLR 44 at 56 as referred to in 789ten Pty Ltd & Ors v Westpac Banking Corporation Ltd  NSWSC 123 at ).
In Bailey, Tobias JA, with whom Allsop P and Hodgson IA agreed, said at 363: "135 I have already referred (at 352  supra) to the statement in the joint judgment in Mann v Carnell (at 13 ) that "[w]hat brings about the waiver is the inconsistency, which the courts, where necessary informed by consideration of fairness, perceive, between the conduct of the client and maintenance of the confidentiality." 136 Often that inconsistency is evidenced by the nature of the proceedings which are brought by the party seeking to maintain the privilege. Thus, in Council of the New South Wales Bar Association v Archer (2008) 72 NSWLR 236 at 252 , Hodgson JA, with the relevant agreement of Campbell JA and Handley AJA, observed: " ... It is not enough to bring about a waiver of client legal privilege that the client is bringing proceedings in which the content of the privileged communication could, as a reasonable possibility, be relevant and of assistance to the other party. For the client to do this is not inconsistent with the maintenance of the privilege and does not give rise to unfairness of the type in question. What would involve inconsistency and relevant unfairness is the making of express or implied assertions about the content of the privileged communications, while at the same time seeking to maintain the privilege. In this respect, it may be sufficient that the client is making assertions about the client's state of mind, in circumstances where there were confidential communications likely to have affected that state of mind."
Those principles make it clear that the making of express or implied assertions about the content of the privileged communication concerned may well be inconsistent with maintaining the privilege.
In the present context the applicant has not taken any step that accords with the notion of inconsistency referred to in Bailey; that is, it has not expressly or impliedly made any assertion about the content of any of the subpoenaed documents.
All Peter Maxwell has done is to indicate that he obtained certain names from the applicant's documents and other material in Exhibits PMI and PM2, identify the steps he took to locate those persons and identify the result in each case. That involves no express or implied assertion about the content of the subpoenaed documents.
Mr Maxwell gave evidence that his affidavit evidence relates to people who cannot be located, including those who are deceased (see T83.45) and that he has a list of people who are alive (T85.34). He gave evidence that there are 150 people on the list (T85.44). During further questioning by his Honour, Mr Maxwell stated that some of the 150 persons are deceased (see T88.17 - 13 November 2012).
The mere mention of a list of persons who are alive resulting from investigations conducted on behalf of the applicant is not inconsistent with maintaining privilege over documents obtained or created by Mr Maxwell in relation to those witnesses, if any.
Accordingly, there has been no implied waiver of the privilege which attaches to the documents sought by the subpoena. The applicant's claim for privilege should be upheld.
In reaching his decision that the privilege had been waived, his Honour appears to have applied a test different to that approved in Bailey; namely, whether the documents might be relevant to an issue in the Batistatos application. As was made clear in Archer's case at 4
 (see paragraph 23 above), this is not the correct test and by applying it his Honour led himself into error. 31.
Alternatively, if the Court is of the view that privilege has been waived then it is necessary to consider the extent of any waiver. That process requires a consideration of each document rather than a global approach and is limited to documents that are relevant to the opposing party's claim (rather than those relating solely to other plaintiffs). Further, as the prejudice identified by the applicant relates to unavailable witnesses (such as Bert and Edith Gordon), any waiver based on notions of inconsistency must be limited to witness statements, rather than all documents responsive the subpoena such as correspondence, file notes, job sheets and invoices.
In holding that the waiver applied to the "balance" of Mr Maxwell ' s "investigations" (see his Honour's judgment at paragraph ), his Honour has failed to consider the content of each document to determine whether the maintenance of privilege of that document was inconsistent with the maintenance of privilege. It was erroneous to determine the matter in a global way.
GROUND 2: Further to ground 1 Ground 2(a): His Honour erred in finding that the respondent alleges that she suffered injury when subjected to physical, mental, emotional and sexual abuse perpetrated by Colin Gibson [Judgment paragraphs 1 and 111 33.
At paragraph [ 1] of his judgment, his Honour found that the plaintiff m:J11111m alleges that she suffered injury when subjected to physical, mental, emotion~l abuse perpetrated by Bert and Edith Gordon and Colin Gibson at the Bethcar Children' s Home at Brewarrina and later in Orange between 1970 and 1989.
, although a plaintiff in the principal proceedings, was not a party to the Notices of Motion being heard by his Honour. The relevant party, who is the opposing party, was Kathleen Biles. During the course of the argument, it was stated on her behalf that she does not allege assault by Colin Gibson (see T4.50 - 13 December 2012).
It would seem that it is this error that caused his Honour to make the erroneous observation that "the plaintiff claims that the defendant is liable in respect of conduct of Colin Gibson" and the irrelevant observation that "Mr Gibson is alive and Mr Maxwell has spoken to him" (Judgment at paragraph (11]). The extent to which these observations infected any of his Honour's reasoning is not clear.
Ground 2(b): His Honour erred in finding that Mr Maxwell had located 150 "other" persons who are alive and able to give evidence [Judgment paragraph 13] 36.
At paragraph  of his judgment, his Honour stated that Mr Maxwell did not disclose in his affidavit that he located 150 other persons who are alive and able to give evidence.
At paragraph (13] of his judgment, his Honour further stated that in cross-examination, Mr Maxwell agreed that the evidence of those persons would be useful in determining whether a full picture of the events could be obtained and that he had spoken to and taken statements from various persons identified to him by Mr Catsanos (counsel for the opposing party below).
During the hearing, Mr Maxwell was asked by his Honour whether he "had a list of other people who are alive". He confirmed the existence of a list, with 150 people on the list (T85.34 - 13 November 2012).
During further questioning by his Honour, Mr Maxwell stated that some of the 150 persons are deceased (see T88.17 - 13 November 2012). There was no further questioning of Mr Maxwell on this topic.
Thus there was no evidence to support the findings in paragraph  of the judgment. Again the manner in which and the extent to which this error infected any of his Honour's reasoning is not entirely clear, although it seems to have led him to the conclusion that some of their evidence might be relevant to the Batistatos application. As noted m paragraph 30 above, relevance is not the correct test when determining the waiver issue.
Ground 2(c): His Honour erred in finding that the assertion made on behalf of the appellant, that the kind of evidence that has been lost is not the kind of evidence that can be made up by people who have been identified, could not be tested without access to the information provided by the people who had been identified by Peter Maxwell [Judgment paragraph 20] 41.
This ground of appeal is considered in Ground 3 below.
Ground 2(d): His Honour erred in finding that the question as to whether legal professional privilege had been waived was to be answered by reference to the common law and not the provisions of the Evidence Act 1995 [Judgment paragraph 21]
At paragraph  of his judgment, his Honour found that the question whether the privilege has been waived is to be answered by reference to the common law and not the provisions of the Evidence Act 1995.
It was submitted on behalf of the applicant and opposing party that s 122 of the Evidence Act 1995 applied.
Rule 1.9 of the Uniform Civil Procedure Rules 2005 applies to circumstances in which a court orders, by subpoena or otherwise, the production of a document to the court (see Rule 1.9(1) of the Uniform Civil Procedure Rules 2005).
A person may object to producing a document on the ground that the document is a privileged document if the answer would disclose privileged information (see Rule 1.9(1) of the Uniform Civil Procedure Rules 2005).
The Dictionary to the Uniform Civil Procedure Rules 2005 defines a privileged document as a document that contains privileged information.
The Dictionary to the Uniform Civil Procedure Rules 2005 defines a privileged information as, inter alia, information of which evidence could not, by virtue of the operation of Division 1 of Part 3.10 of the Evidence Act 1995, be adduced in the proceedings over the objection of any person.
Sections 119 and 122 of the Evidence Act 1995 fall within Division 1 of Part 3 .10 of that Act.
By virtue of Rule 1.9 of the Uniform Civil Procedure Rules 2005, ss 119 and 122 of the Evidence Act I 995 ought to have been applied by his Honour in reaching his decision . . concernmg waiver.
It should be noted, however, that because s 122(2) imports common law principles of
imputed waiver, it may well be that this error did not result in his Honour applying the wrong test. Ground 2(e): His Honour erred in finding that the factual circumstances were of the kind identified by Hodgson JA in Council of New South Wales Bar Association v Archer  NSWCA 164 at , and failed to give sufficient reasons for that finding [Judgment paragraph Q1 52.
Other than the findings made at paragraph  of his judgment, his Honour provides no reasoning as to how the circumstances of the present case are "precisely the kind" referred to in Council ofNew South Wales Bar Association v Archer  NSWCA 164.
His Honour appears to have failed to consider the full context of Council of New South Wales Bar Association v Archer  NSWCA 164 at , which is support for the propositions that it is not enough to bring about a waiver of client legal privilege that the client is bringing proceedings in which the content of the privileged communication could, as a reasonable possibility, be relevant and of assistance to the other party and that for the client to do this is not inconsistent with the maintenance of the privilege and does not give rise to unfairness of the type in question.
As noted in paragraph 30 above, it was the failure to apply this test and the application of the erroneous test of potential relevance that led his Honour to reach the wrong conclusion in relation to waiver.
Legitimate forensic purpose
GROUND 3: His Honour erred in finding that the subpoena issued on 20 November 2012 at the request of the respondent and addressed to the appellant's legal representative was issued for a legitimate forensic purpose [Judgment paragraphs 9 and 29] 55.
The applicant submitted below, and submits in this Court, that the subpoena should be set aside because it was issued other than for a legitimate forensic purpose; 2 that is, because there is no reasonable basis for supposing that the material called for will likely add, in some way or other, to the relevant evidence.
The correct identification of the relevant evidence necessarily involves the correct identification of the issue or issues to be determined by the Court. In the present context, the only issue is the one which arises by reason of the applicant's Batistatos application.
A subpoena is not issued for a legitimate forensic purpose unless there is a reasonable basis for supposing that the material called for will likely add, in some way or another, to the relevant evidence in the case (see A v Z  NSWSC 899 at [4 ]). There must be something beyond speculation, some concrete ground for belief which takes the case beyond a mere fishing expedition (see Burm ah Oil Co. Ltd v Governor and Company of the Bank of England  UKHL 4;  AC 1090 as referred to in ICAP Australia Pty Ltdv BOC Partners (Australia) Pty Ltd  NSWCA 307 at ).
In that regard, the applicant asse1is that it is prejudiced because key witnesses (for example, Bert and Edith Gordon) are dead with the consequence that the applicant is permanently deprived of the ability to identify the full nature and extent of the evidence they may have been able to give. Thus the issue is whether there can now be a fair trial of the opposing party's claim in light of that prejudice.
Thus the material which the subpoena seeks, namely the evidence which other actual or potential witnesses may be able to give, is entirely irrelevant to the very narrow issue raised by the applicant's allegation of prejudice.
Further, material relating only to other plaintiffs is irrelevant in circumstances where no issues relating solely to any other plaintiff were before his Honour.
In the circumstances, the subpoena sought production of documents which are irrelevant to the issue raised by the applicant's Batistatos application and it should have been set aside.
At paragraph  of his judgment, his Honour noted that in the applicant's submission the only issue for determination on its primary motion is whether the death of both Bert and Edith Gordon has permanently deprived it of the ability to identify the full nature and extent of the evidence that they may have been able to give and the material which other actual or potential witnesses may be able to give. His Honour disagreed with this submission of the applicant at paragraph  of his judgment and found at paragraph [l OJ of his judgment that Mr Maxwell agreed in cross examination that the evidence of other persons 3 to whom he spoke in the course of his investigations would be able to cast a strong light upon the events of all these years ago and that the question for determination is not simply whether the deaths of Mr and Mrs Gordon have prejudiced the defence of the claim, but whether that prejudice is irremediable.
Thus it is clear that his Honour has erred by incorrectly identifying the issue raised by the applicant in the applicant's Batistatos application.
The issue in the applicant's Batistatos application is that it cannot have a fair trial by virtue of the deaths of Bert and Edith Gordon. The prejudice is caused by it not being capable of being known what is lost by virtue of the deaths of Bert and Edith Gordon. Not only is direct evidence lost, but the capacity to obtain instructions, identify witnesses, and to identify any factual matters that may impact upon the accuracy of the respondent's recollection of events has been lost.
The issue is not, as his Honour has incorrectly identified, what information is known or capable of being known about Bert and Edith Gordon and their conduct (see his Honour's judgment at paragraph  and T2.44- 13 December 2012).
In erring by incorrectly identifying the issues in the applicant's Batistatos application as including the issue of whether the prejudice is irremediable, his Honour has erred in determining that there is a legitimate forensic purpose for documents which relate to that issue.
Mr Maxwell gave evidence that "some people" would be able to cast a strong light upon the events of all these years ago, rather than "other persons" (compare T88.39 - 13 November 2012 and the judgment of his Honour at paragraph ). 8
GROUND 4: Further to ground 3 Ground 4(a): His Honour erred in finding that the appellant failed to establish that the subpoena was too broad and is oppressive, and failed to give sufficient reasons for that finding [Judgment paragraph 28] 66.
At paragraphs  and  of his judgment, his Honour found that the applicant had not established that the subpoena is too broad and oppressive. His Honour provided no reasons for such findings.
As submitted above as at paragraphs 36-40 above, his Honour erred in finding that Mr Maxwell did not disclose that he located 150 other persons who are alive and able to give evidence.
In that respect, his Honour has failed to consider, even in his incorrect identification of the issues in the applicant's Batistatos application, how the material in relation to other persons who are not alive relates to the forensic purpose submitted on behalf of the opposing party. That material does not meet the forensic purpose submitted on behalf of the opposing party.
In that context, his Honour erred in finding that the applicant failed to establish that the subpoenas were too broad.
Ground 4(b): The applicant repeats Grounds 2(a)-(c) above
The applicant repeats the summary of argument set out above in relation to each of those grounds.
REASONS WHY LEAVE SHOULD BE GRANTED
His Honour's ruling that the applicant has waived privilege will, unless corrected by this Court, result in the opposing party being given access to privileged documents, justifying appellate intervention.
Unless corrected now (as opposed to at the conclusion of the proceedings) any miscarriage of justice which occurs will be irremediable.
The applicant has shown a strong case and/or that the reasons for appeal are sufficiently arguable to warrant leave to appeal being granted.
Client legal privilege is commonly recognized as a substantive right. An unjust erosion of that right represents a question of general public importance.
The potential erosion of client legal privilege by the need to satisfy the onus placed upon a defendant in a Batistatos application, creates an issue of general public importance.
REASONS WHY AN ORDER FOR COSTS SHOULD NOT BE MADE IN FAVOUR OF THE RESPONDENT IF THE APPLICATION IS REFUSED
Costs ought follow the event.
WHETHER THE APPLICANT CONSENTS TO THE APPLICATION FOR LEAVE BEING DEALT WITH IN THE ABSENCE OF THE PUBLIC AND WITHOUT THE ATTENDANCE OF ANY PERSON 78.
The applicant does not consent to the application for leave being dealt with in the absence of the public and without the attendance of any person.
WHETHER THE APPLICATION SHOULD BE HEARD WITH THE ARGUMENT ON THE APPEAL, AND WHY 79.
The application and appeal should be heard together because the arguments to be relied upon and material to be referred to on the appeal and application are likely to be similar, and it is unlikely that the hearing of the appeal will be of greater duration than the hearing of the application.
LIST OF RELEVANT AUTHORITIES AND LEGISLATION 80.
The relevant legislation is: • Sections 122 and 131 A of the Evidence Act 1995. • Rule 1.9 of the Uniform Civil Procedure Rules 2005.
The relevant authorities are: Batistatos application • Batistatos v Roads and Traffic Authority ofNew South Wales (2006) 226 CLR 256
Legitimate Forensic Purpose • Av Z [2007) SWSC 899. • Burmah Oil Co. Ltd v Governor and Company of the Bank of England [1979) UKHL 4; [ 1980) AC 1090. • ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd  NSWCA 307. • Marsden v Amalgamated Television Services Pty Limited [1999) NSWSC 619. • NSW Commissioner of Police v Tuxford & Ors  NSWCA 139. Waiver of Privilege • Attorney-General (NT) v Maurice (1986) 161 CLR 475. • Bailey v Director-General, Department of Land and Water Conservation (2009) 74 NSWLR 333. • Council of the New South Wales Bar Association v Archer (2008) 72 NSWLR 236. • Mann v Carnell (1999) 201 CLR 1.
_,r--j_J_ Michael Cashion SC
Wentworth Selborne Chambers Tel: 9235 0063 [email protected]
Wentworth Selborne Chambers Te l: 9235 2488 [email protected]
Selborne Chambers Tel: 8915 2132 [email protected]
12 March 2013 10