For the moment, I am taking Advanced Evidence at Melbourne University, and Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83 is on the reading guide. As it is a case about a lawyer-client dispute, and as it not likely to be at the forefront of reading about legal professional privilege since Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1, I thought it would be appropriate to share a proper note of it.
How would it be decided today? Both decisions were decided according to the common law. This post is more about the common law than the Evidence Act, 2008. Soon enough, though, s. 122(2) of the Evidence Act, 2008 may provide the answer. But it’s a pretty Mann v Carnellish section, so the answer may well turn out to be the same at common law and under the Act. It provides for waiver where the privilege holder ‘acted in a way that is inconsistent with … objecting to the adducing of the evidence [on the basis of client legal privilege]’. Without limiting sub-section (2), a client is taken, according to sub-section (3)(a) to have acted inconsistently if he knowingly and voluntarily disclosed the substance of the evidence to another person.’ According to sub-section 5(a), a client is not taken to have acted inconsistently merely because the substance of the evidence has been disclosed (i) in the course of making a confidential communication or preparing a confidential document, or (ii) as a result of duress or deception, or (iii) under compulsion of law.’
The majority’s language in Goldberg was certainly tweaked by Mann. ‘Fairness’ is out as the touchstone, and the search for conduct inconsistent with the maintenance of the privilege against the person seeking to establish waiver is in, a category of conduct which overlaps with but does not correlate with unfairness. But would the tweak affect the outcome? Justice McHugh, who alone in Mann thought privilege had been waived, said at [108] he thought Goldberg was wrongly decided, as did Justice Kirby at [147], maintaining the position in his dissenting decision in the Court of Appeal in Goldberg v Ng. The plurality judgment of the rest of the Court (Chief Justice Gleeson and Justices Gaudron, Gummow and Callinan) seemed content with the decision, however (see below).
In outline, a dispute over a payment by a client to his solicitor’s wife of about $100,000 was concurrently the subject of Supreme Court proceedings and a professional conduct complaint made to the NSW Law Society. The proceedings and the complaint were both brought by the former client. In response to a request by the Law Society to look at a proof of evidence the solicitor had prepared for the purpose of a suit for fees he had intended to bring against the former client, the solicitor volunteered it (free of compulsion to do so) for the purpose of convincing the Law Society of his case. Later, he did likewise with a second proof of evidence he drafted at his lawyer’s request in response to the allegations in the former client’ suit against him. Had he not volunteered these two proofs, he would in the ordinary course have had to provide a formal written response to the complaint, but he did not have to do so. The Law Society had promised not to show them to the former client, and reassured him that he maintained his privilege over the documents notwithstanding that he had disclosed them to it. The Law Society dismissed the disciplinary complaint by the Law Society by reference to the information contained in the proofs of evidence, and advised the client complainant to pursue his remedies at law. Had the complaint not been dismissed, the Fidelity Fund might have paid out the $100,000 or so claimed in the Supreme Court proceedings, obviating the need for those proceedings. The proceedings having to continue, however, both proofs were subpoenaed by the former client, along with the rest of the Law Society’s file, which were but ‘different emanations of the same dispute’ — in fact, the complaint had been initiated by providing a copy of the issued but as yet un-served Supreme Court documents to the Law Society with a request that the allegations within be investigated.
The High Court confirmed the lower courts’ decisions that privilege had been waived over the documents by their provision to the Law Society and so could be inspected following production in response to the subpoena. The dissenters said this was a plain case of limited waiver and ‘fairness’, the majority’s touchstone, had nothing to do with it. Furthermore, they took issue with the majority’s characterisation of the solicitor’s conduct as being voluntary and calculated self-interest, saying that the threat of compulsion, and an obligation of frankness in solicitors towards legal regulators meant that there was a quasi-compulsion operating. Continue reading “How would Goldberg v Ng be decided today?”
