Background
Via an Application for Directions, the respondent sought production of disclosed documents to which the applicant claimed legal professional privilege over. The documents included various emails communications between the applicant, the applicant’s solicitors and two accountants (Ms Hayley Neumann and Mr James Castley), regarding the preparation of Ms Neumann’s Affidavits.
Submissions
The respondent first argued that the Affidavits referred to in the communications constituted expert opinion and were therefore not the subject of legal professional privilege, as also the rule for expert medical reports (Rule 74.4. of the Uniform Civil Rules 2020). The respondent alternatively argued that the documents were ‘impliedly waived.’ It suggested that the applicant’s assertion that the Affidavits were of Ms Neumann was inconsistent with the maintenance of confidentiality because communications of this nature were also occurring with Mr Castley.
In relation to the respondent’s first argument, the applicant submitted that the communications were privileged ‘for the purpose of existing or contemplated litigation’ and that the Affidavits did not constitute expert opinion, but rather presented evidence of fact. Alternatively, the applicant submitted that ‘rules pertaining to expert reports do not require production of documents.’ Further, the applicant identified that Rule 74.4 of the Uniform Civil Rules 2020, as referenced by the respondent, did not apply due to the operation of rules 65-71 of the South Australian Employment Tribunal Rules 2024. The applicant denied any implied waiver and asserted that she did not fail to maintain confidentiality.
Consideration
Her Honour Deputy President Judge Kelly reiterated that ‘communications are entitled to privilege where they are made in contemplation of existing or anticipated litigation and for the purpose of use in that litigation’ and that this extends to correspondence between solicitors and third parties. Her Honour identified that all of the communications occurred after the period in which legal proceedings were initiated, and appeared to relate to the preparation of two Affidavits of an accountant and hence were entitled to privilege.
In relation to expert evidence, her Honour did not accept that the Affidavit in question constituted an expert opinion and, consequently, that Rule 74.4 could not apply anyway.
In relation to the burden of proof, her Honour referenced the comments of Gillard J in Australian Hospital Care Pty Ltd v Duggan (No 2):-
In my opinion once the client swears the affidavit of documents claiming legal professional privilege in a way which leads the court to the conclusion that the claim is properly made, then the prima facie position is that the legal adviser was acting independently at the relevant time.
Following that presumption, the onus is then cast on the respondent to dispute the existence of legal professional privilege. Kelly DPJ held that the applicant had ‘established the prima facie presumption that the documents are privileged’ and that the respondent failed to prove that this had been waived.
Her Honour emphasised that a waiver of legal professional privilege may be express or implied, referencing Mann v Carnell;-
Implied waiver of privilege reflects a judgement that the conduct of the party entitled to the privilege is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. That judgement is to be made in context and in the circumstances of the case.
Her Honour did not accept that potential input of Mr Castley’s in communications surrounding Ms Neumann’s Affidavits constituted a waiver of privilege by the applicant. Kelly DPJ identified the possibility that both Ms Neumann and Mr Castley were aware of the facts being deposed to, and that ‘it would be a waste of the court’s time for both to give evidence about the same matters.’ Her Honour did not view the applicant’s conduct as inconsistent with the maintenance of confidentiality. She takes the view that ‘the respondent seems to be making a general submission of unfairness based on their suspicions.’
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