In Schulman v Abbot Tout Lawyers (a firm) t/a Abbott Tout Solicitors [2010] FCA 308, a plaintiff sued his former lawyers for misleading and deceptive conduct. At the same time as the misleading representations, which were in the nature of legal advice, were alleged to have been made by them to him, he had been obtaining legal advice from the lawyers who came to act for him in the case against the former lawyers. The former solicitors wanted inspection of the advice given by the new lawyers at exactly the time the plaintiff said he had relied on the former solicitors’ representation to his detriment. There are certainly issue waiver cases out there pursuant to which such inspection might have been ordered. But Justice Flick said there was no evidence that the subject matter of the legal advice was the same as the subject matter of the controversial representation, or even that it was relevant to it, and even if there had been, the plaintiff had done nothing in the proceedings so far inconsistent with the maintenance of the privilege so as impliedly to waive it. His Honour said, at paras [17]ff:
‘It was contended by Senior Counsel for the Respondent that the pleading was such that the Applicants had “put in issue the character or contents” of the advice they had received and that by doing so they had thereby laid “open the confidential communication to scrutiny”. “Forensic unfairness” would follow, it was said, if privilege was maintained.
The “forensic” course sought to be plotted by the Respondent firm of solicitors was obvious enough. If an issue was raised at trial as to the reliance said to have been placed by the Applicants upon the legal advice provided by the Respondent, cross-examination would likely be pursued as to the extent to which separate advice had been received on the same issue and the extent to which that separate advice may have influenced the Applicants’ decision-making. This would be by no means the only relevance or potential relevance served by making the advice provided by other solicitors available for “scrutiny”. The “forensic unfairness” in depriving the Respondent firm of solicitors of the very documents relevant to that forensic course may (for present purposes) be accepted.
But the difficulty confronting the submission of inconsistency sought to be advanced by the Respondent is that the Applicants in their Further Amended Statement of Claim have not expressly referred to or made any statement inconsistent with maintaining the privilege otherwise attaching to their separate advice. Indeed, it would perhaps be surprising had they done so. There is no statement in the Further Amended Statement of Claim which expressly or impliedly refers to the obtaining of legal advice – other than that provided by the Respondent firm of solicitors.
Nor, is it respectfully considered, have they impliedly acted in a manner inconsistent with maintaining that privilege.
The allegation in paragraph [40] that “[b]y reason of the [representations]” and the allegation that “the Applicants, advised by the Respondent …” is not a sufficient basis for any conclusion that the Applicants have acted inconsistently with maintaining their privilege in respect to the separate legal advice they received. Even if it is assumed that that separate legal advice was in respect to the same issue, it is not considered that any confidentiality in the advice has been waived.’
