Hamilton v State of New South Wales (No 11)

[2015] NSWSC 115

Supreme Court

New South Wales

Medium Neutral Citation:	Hamilton v State of New South Wales (No 11) [2015] NSWSC 115
Hearing dates:	4 – 8 August 2014; 9 – 19 February 2015
Date of orders:	19 February 2015
Decision date:	19 February 2015
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	Grant access to MFI 27 to counsel for the plaintiff
Catchwords:	EVIDENCE – admissibility – privilege – client legal privilege over document created by witness – whether privilege has been waived
Legislation Cited:	Evidence Act 1995 (NSW)
Category:	Procedural and other rulings
Parties:	Thomas David Hamilton (Plaintiff) State of New South Wales (Defendant)
Representation:	Counsel: C Steirn SC with D Morgan (Plaintiff) P Bodor QC with SA Woods(Defendant) Solicitors: Garling Lawyers (Plaintiff) Makinson & d’Apice Lawyers (Defendant)
File Number(s):	2012/185616

REVISED EXTEMPORE Judgment

1. Earlier this afternoon I gave a ruling in respect of a document I marked MFI 25. I ruled that legal professional privilege had been waived in respect of it for reasons I then expressed. The reasons that I gave involved an application of the principles to be derived from reading s 34 and 122(6) Evidence Act 1995 (NSW) together, informed by the caselaw I referred to. The ruling I am about to give should be considered by any reader in light of my earlier reasons.

2. I have, for reasons given informally in the course of argument, given access to a document I have referred to as the curriculum vitae and chronology of Senior Constable Liebrand.  I had previously indicated in those informal reasons that I was of the view that MFI 27, a commentary, it seems looking at the context of it, on Mr Liebrand's evidential statement prepared for the purpose of the case, was not the subject of legal professional privilege because of evidence that fell from Mr Liebrand during the course of cross-examination by Mr Steirn SC.

3. At that time Mr Liebrand said he compiled the document, my words not his, off his own bat but that he had not used it for the purpose of refreshing his memory before he came to court.  I was inclined on that basis to give Mr Steirn access to it as it was not privileged even though it was not used for the purpose of refreshing the witness's memory.  However, before granting access I gave Mr Bodor QC the opportunity to ask some questions on the voir dire.

4. I will not go through all of the evidence in detail but Mr Bodor established that although it was a document prepared on the witness' own initiative he did so having discussed his previous statement with the solicitors for the defendant and in response to a request or a suggestion by those solicitors that he should put his additional comments in a document and provide it to them. I am also satisfied that Mr Liebrand had no other purpose in bringing the document into existence than for the purpose of complying with that request. I am satisfied on the basis of those facts that client lawyer privilege in accordance with s 119 Evidence Act applies to the document.

5. Mr Steirn was given the opportunity to further cross‑examine Mr Liebrand on the voir dire in respect of that matter. After a careful line of questioning by learned senior counsel, Mr Liebrand, and I do not criticise him or think there is anything untoward about this, said that he had reviewed the document for the purpose of preparing himself to give evidence to make sure that the evidence he gave was truthful by reference to the previous notes he had made and I am satisfied that this is a circumstance which fits the provisions of s 34. That provision says this:

34 Attempts to revive memory out of court

(1) The court may, on the request of a party, give such directions as are appropriate to ensure that specified documents and things used by a witness otherwise than while giving evidence to try and revive his or her memory are produced to the party to the purposes of the proceeding.

6. It seems to me that this document is covered by that provision and that Mr Steirn has requested its production for inspection by him. For the reasons I gave in my earlier ruling I am of the view that s 122(6) picks up s 34 with the effect that privilege is taken to have been waived.

7. In the circumstances, no other ground of withholding access than client lawyer privilege having been advanced, it is appropriate to grant access to MFI 27 to counsel for the plaintiff.

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