Bayliss v Cassidy[1998] QCA 38

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 1225 of 1998

Brisbane

[Bayliss v. Cassidy & Ors.]

BETWEEN:

PETER JOHN BAYLISS

(Plaintiff) (Applicant) Appellant

AND:

ROBERT BERNARD CASSIDY

(First Defendant) First Respondent

AND:

NEVILLE JOHN HARPER

(Second Defendant) Second Respondent

AND:

DESMOND GORDON STURGESS

(Third Defendant) Third Respondent

AND:

STATE OF QUEENSLAND

(Fourth Defendant) Fourth Respondent

Davies J.A.

McPherson J.A.

Williams J.

Judgment delivered 11 March 1998

Separate reasons for judgment of each member of the Court;  Williams J. dissenting as to costs.

TERMS OF MINUTES OF ORDER ATTACHED TO REASONS OF DAVIES J.A.

CATCHWORDS: DISCOVERY OF DOCUMENTS - whether claim of legal professional privilege precluded discovery - whether, by their conduct, the respondents expressly or impliedly made an assertion about the content of legal advice in answers to interrogatories - whether fairness requires that the disclosure relied on to constitute an implied waiver of privilege be voluntarily made.

Attorney-General (N.T.) v. Maurice (1986) 161 C.L.R. 475

Goldberg v. Ng (1995) 185 C.L.R. 83

Standard Chartered Bank v. Antico (1995) 36 N.S.W.L.R. 87

Torcasio Developments Pty. Ltd. v. County Park Developments Pty. Ltd. (unreported, Supreme Court of Victoria, 9 September 1991)

Counsel:  Mr. R G. Bain Q.C., with him, Mr. G. H. Brandis, for the applicant/appellant

Mr. P. A. Keane Q.C., with him, Ms. R. G. Atkinson, for the respondents

Solicitors:  Gadens Lawyers for the applicant/appellant

B. T. Dunphy, Crown Solicitor, for the respondents

Hearing Date:  23 February 1998

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 1225 of 1998

Brisbane

Before Davies J.A.

McPherson J.A.

Williams J.

[Bayliss v. Cassidy & Ors.]

BETWEEN:

PETER JOHN BAYLISS

(Plaintiff) (Applicant) Appellant

AND:

ROBERT BERNARD CASSIDY

(First Defendant) First Respondent

AND:

NEVILLE JOHN HARPER

(Second Defendant) Second Respondent

AND:

DESMOND GORDON STURGESS

(Third Defendant) Third Respondent

AND:

STATE OF QUEENSLAND

(Fourth Defendant) Fourth Respondent

REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered 11 March 1998

The applicant sought from this Court an extension of time within which to appeal against part of an interlocutory order dismissing his application for inspection of certain classes of documents in respect of which legal professional privilege had been claimed by the respondents.  The applicant is the plaintiff in an action against each of the respondents seeking damages for false imprisonment, malicious process, malicious prosecution and trespass to goods.  The documents inspection of which was sought were, it was contended by the applicant, relevant to each of those causes of action.

The delay in bringing this appeal, which was relatively short, was explained as the fault of the applicant's legal advisers in not appreciating that time ran during the court vacation and the respondents conceded that, provided that the dates for trial, which have already been fixed, were not lost, they would suffer no prejudice because of that delay.  In the circumstances the Court indicated that it would extend the time within which to appeal and hear argument on and determine the substantive issue.

The appellant, as I will now call him, was at all times a medical practitioner.  The first respondent was a police officer, the second respondent was the Attorney-General for Queensland, the third respondent was the Director of Prosecutions and the fourth was the State of Queensland.  The action by the appellant against respondents arose out of the arrest, imprisonment and prosecution of the appellant on the charge that he conspired with others unlawfully to use force with intent to procure the miscarriage of women and the seizure upon a search warrant of the appellant's patient records, surgical instruments and equipment.

It was contended in the appellant's statement of claim that the arrest which resulted in his imprisonment was effected by the first, second and third respondents maliciously and without reasonable and proper cause;  that the institution of the prosecution of the appellant was caused or effected by the first and second respondents maliciously and without reasonable and proper cause;  that the first, second and third respondents continued to prosecute the charge maliciously and without reasonable cause;  that the arrest, imprisonment and prosecution was unlawful in that the first respondent did not believe, on reasonable grounds that the offence charged had been committed;  that the continuation of the prosecution by the third respondent was done maliciously and without reasonable and probable cause;  and that the search warrant was obtained maliciously and without reasonable and probable cause.  Each of these allegations was denied by the respondents.

Although counsel for the respondents rightly conceded in this Court that, in the cause of action for false imprisonment, the respondents bore the onus of justifying the imprisonment and so of proving reasonable cause for believing or at least suspecting that the appellant had committed the crime the subject of the charge, no justification was alleged in the defence on behalf  of the second or third respondents.  On behalf of the first respondent paragraph 5(b) of the defence alleged that -

"... before the said arrest, the First Defendant with reasonable cause suspected that the crime hereinbefore referred to had been committed and with reasonable cause he suspected that the plaintiff had committed the said crime."

No particulars were sought or given of the facts relied on for either reasonable cause referred to in paragraph 5(b).

Answers to interrogatories by the respondents show that, before the appellant's arrest, the first respondent had as a basis for his suspicion that the appellant was engaged in illegal operations and for his belief that the appellant had committed the offence referred to in the charge, advice from the Director of Prosecutions;  and that, before that arrest, the third respondent had a belief that the appellant had committed the offence based on advice of the Director of Prosecutions and the Solicitor-General.  It is plain from these answers that, at trial, the respondents will contend, as they should have pleaded, justification for the arrest and imprisonment on the basis that the first and second respondents believed or suspected that the appellant had committed the offence and that there were reasonable grounds therefor based on the advices of the Director of Prosecutions and the Solicitor-General.  All of the advices to which the claim of privilege attaches appear to be included in these answers;  that is, there do not appear to be any advices relevant to the causes of action for malicious process, malicious prosecution or trespass to goods which are not relied on to justify the arrest and imprisonment.  The respondents did not contend to the contrary.

Paragraph 2 of the appellant's summons, in which production was sought of documents for which legal professional privilege had been claimed, was in very broad terms.  So was the primary argument advanced on behalf of the appellant before his Honour.  His Honour stated the appellant's proposition in the following way:

"The proposition advanced was that where documents would otherwise be properly the subject of a claim to legal professional privilege that privilege is lost if the documents relate, directly or indirectly, to an issue in the action."

An argument in such broad terms was also initially advanced as the primary argument in this appeal.  It was put in the appellant's written outline of submissions in the following terms:

"The Applicant submits that his Honour erred in failing to give effect to a recognized exception to legal professional privilege, where the legal advice is directly relevant to an issue in the case, either because:

1.  the legal advice is itself in issue;  or

2.  the legal advice is immediately relevant to an issue.

In this case, so far as concerns the Third Defendant (Sturgess), the legal advice itself is in issue.  So far as concerns the First and Second Defendants, the legal advice is immediately relevant to an issue (i.e., the existence of an honest and reasonable belief, based upon that advice, that a crime had been committed)."

Support for that broad proposition was sought in five decisions of Australian courts.  They were Thomason v. Campbelltown Municipal Council (1939) 39 S.R.(N.S.W.) 347, Torcasio Developments Pty. Ltd. v. County Park Developments Pty. Ltd. (unreported, Supreme Court of Victoria, 9 September 1991), Hongkong Bank of Australia Ltd. v. Murphy [1993] 2 V.R. 419, Data Access Corporation v. Powerflex Services Pty. Ltd. [1994] A.I.P.C. 91-112 and Wardrope v. Dunne [1996] 1 Qd.R. 224.  That broad proposition was rejected by the learned primary Judge who defined the relevant proposition more narrowly in terms stated by Hodgson J. in Standard Chartered Bank v. Antico (1995) 36 N.S.W.L.R. 87 at 94-5 and by Byrne J. in Torcasio Developments Pty. Ltd..  The terms in which the proposition is stated in those cases are respectively:

"I think it would be consistent with Attorney-General for the Northern Territory v. Maurice to formulate the principle in Thomason in this way.  If a party, by pleadings or evidence, expressly or impliedly makes an assertion about the content of confidential communications between that party and a legal adviser, then fairness to the other party may mean that this assertion has to be taken as a waiver of any privilege attaching to the communication."

and:

"... it is only where the client directly or indirectly puts in issue the substance of the privileged communication that the privilege is lost and then only insofar as it is necessary to do justice between the parties."

In oral argument before this Court counsel for the appellant were content to rely on the proposition stated in those passages and to contend that the legal advice specifically referred to in the answers to interrogatories came within that proposition.  It is therefore unnecessary for this Court to consider whether a principle may be stated more broadly than this.  For their part counsel for the respondents did not contest the correctness of the proposition stated in either of the above passages but contended that the facts in this case did not bring it within that proposition.  This question was dealt with by the learned primary Judge in the following terms:

"It is not possible in my view however to read into paragraph 5(b) or the answers to interrogatories an assertion, express or implied, about the content of confidential communications.  There is nothing in the plain words of paragraph 5(b) that could lead to that construction, and the first defendant was of course required to answer the interrogatories."

The reference to paragraph 5(b) is a reference to paragraph 5(b) of the defence which I have earlier set out.

The question before this Court therefore is whether, by their conduct, the respondents have, expressly or impliedly, made an assertion about the content of the legal advice referred to in the answers to interrogatories.  In my view that question requires an affirmative answer.

For the first time in their answers to interrogatories the respondents have revealed that they intend to rely on advices of the Director of Prosecutions, in the case of the first and second respondents, and also of the Solicitor-General in the case of the second respondent, as reasonable causes for their belief or suspicion, before the appellant's arrest, that he had committed the crime and so as justifying the arrest and imprisonment of the appellant.  There can be no doubt that, had they pleaded these advices as justification, as they should have, the onus being on them to prove justification, they would thereby have waived the privilege for they would thereby have impliedly asserted that the contents of those advices supported the arrest and imprisonment.  By making that assertion in their answers to interrogatories, the respondents have, for the first time, indicated that that is, in effect, the case which they should have pleaded.  Fairness requires, in those circumstances, that waiver of the privilege should be imputed to them.

Against that conclusion Mr. Keane Q.C., S.G. for the respondents advanced two submissions.  First he submitted that the answers are not a present assertion about the content of the legal advice referred to in them;  they do no more, he submitted, than indicate that, if and when the action comes to trial, that assertion will be made.  Secondly he submitted that fairness, which is the determining factor in deciding whether the privilege had been impliedly waived, requires that the disclosure relied on to constitute the waiver should be voluntarily made.  Here, he submitted it was not because the answers were made under compulsion.

The first of these contentions has been answered, I think, in what I have already written.  The assertion made in the answers to interrogatories is one which should have been made in the respondents' defence.  It is therefore properly characterized as, in effect, particularizing that defence in respect of matters the onus of proving which is on the respondents.

For the second of these contentions, the respondents relied on the decision of the High Court in Goldberg v. Ng (1995) 185 C.L.R. 83.  That case and Attorney-General (N.T.) v. Maurice (1986) 161 C.L.R. 475 established that, in considering the question of imputed waiver, the governing consideration is whether fairness requires that the privilege should cease whether the person otherwise entitled to the privilege intended that result or not.  In Goldberg Deane, Dawson and Gaudron JJ. in their joint judgment stated the principle in the following way:

"The circumstances in which a waiver of legal professional privilege will be imputed by operation of law cannot be precisely defined in advance.  The most that can be done is to identify a number of general propositions.  Necessarily, the basis of such an imputed waiver will be some act or omission of the persons entitled to the benefit of the privilege.  Ordinarily, that act or omission will involve or relate to a limited actual or purported disclosure of the contents of the privileged material.  When some such act or omission of the person entitled to the benefit of the privilege gives rise to a question of imputed waiver, the governing consideration is whether 'fairness requires that his privilege shall cease whether he intended that result or not'."

It is true that, in Goldberg, a relevant factor in determining whether it was fair to impute waiver of the privilege was whether disclosure to a third party of documents in respect of which privilege was claimed was voluntary.  No doubt that will often be a relevant factor.  But that does not mean that, where the disclosure is compelled, that disclosure cannot be used to impute waiver.  In the present case, had the advices of the third respondent and the Solicitor's-General been pleaded as reasonable cause for the belief or suspicion of the first and second respondents that the appellant had committed the crime, the privilege would undoubtedly have been waived.  It would plainly be unfair if that result did not follow when reliance for that purpose on those advices is revealed, for the first time, in answers to interrogatories, notwithstanding that they were given under compulsion.

It follows in my view that each of the documents referred to in the answers to interrogatories as having been relied on for that purpose should be produced and I would so order.  It does not appear to be disputed that these include all of the documents referred to in the draft minutes of order forwarded to the Court by counsel for the appellant.

The respondents contend that the documents produced should exclude those documents that have come into existence solely for the purpose of this litigation, those which have already been produced for inspection and those which have been subject to a claim for public interest  immunity.  I agree although it seems unlikely that any of the documents ordered to be produced will come into any of these categories.

In my view the appellant should have the costs of this appeal and his costs below.  Although the argument here and below was stated more broadly than was necessary for the appellant's success it is plain from the passage quoted from his Honour's reasons that the narrower argument on which the appellant succeeded was advanced below at least in the alternative.

I would therefore make an order in terms of the minutes attached to these reasons.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

No. 4786 of 1988

Appeal No. 1225 of 1998

BETWEEN:

PETER JOHN BAYLISS

(Plaintiff) Appellant

AND:

ROBERT BERNARD CASSIDY

(First Defendant) First Respondent

AND:

NEVILLE JOHN HARPER

(Second Defendant) Second Respondent

AND:

DESMOND GORDON STURGESS

(Third Defendant) Third Respondent

AND:

STATE OF QUEENSLAND

(Fourth Defendant) Fourth Respondent

 MINUTES OF ORDER

1. Appeal allowed.
2. Set aside that part of the order of Helman J. referred to in the notice of appeal.
3. Order that:

1. the First Respondent do produce for inspection to the Solicitors for the Appellant all documents containing, recording or evidencing (in whole or part):

1. the advice from the Director of Prosecutions referred to in paragraph 10(f)(vi)(B)(viii) of the First Respondent's Answers to Interrogatories sworn on 11th May 1994 (herein called "the First Respondent's Answers to Interrogatories");
2. the advice from the Director of Prosecutions referred to in paragraph 10(h)(ii)(h) of the First Respondent's Answers to Interrogatories;
3. the advice from the Director of Prosecutions referred to in paragraph 10(h)(iii)(h) of the First Respondent's Answers to Interrogatories;
4. the advice from the Director of Prosecutions referred to in paragraph 11(g)(ii)(h) of the First Respondent's Answers to Interrogatories;
5. the advice from the Director of Prosecutions referred to in paragraph 11(g)(iii)(h) of the First Respondent's Answers to Interrogatories;
6. the advice from the Director of Prosecutions referred to in paragraph 12(b)(iv)(C)(r) of the First Respondent's Answers to Interrogatories;
7. the advice referred to in paragraph 13(b)(i) of the First Respondent's Answers to Interrogatories;
8. the advice referred to in paragraph 13(b)(ii) of the First Respondent's Answers to Interrogatories;
9. the advice from the Director of Prosecutions referred to in paragraph 15(b)(iv)(r) of the First Respondent's Answers to Interrogatories;
10. the advice from the Director of Prosecutions referred to in paragraph 15(c)(ii)(r) of the First Respondent's Answers to Interrogatories;
11. the advice given by the Director of Prosecutions to the First Respondent referred to in paragraph 16(c)(i) of the First Respondent's Answers to Interrogatories;
12. the:

1. facts and information conveyed by the First Respondent to the Director of Prosecutions;  and
2. legal advice

referred to in paragraph 16(c)(ii) of the First Respondent's Answers to Interrogatories;

13. the advice from the Director of Prosecutions referred to in paragraph 16(c)(v)(r) of the First Respondent's Answers to Interrogatories;
14. the advice from the Director of Prosecutions referred to in paragraph 16(c)(vi)(r) of the First Respondent's Answers to Interrogatories;

2. the Second Respondent do produce for inspection to the Solicitors for the Appellant all documents containing, recording or evidencing (in whole or part):
   1. the:
      1. discussions with the Director of Prosecutions;  and
      2. legal advice

referred to in paragraph 15(c)(i) of the Second Respondent's Answers to Interrogatories sworn on 16th May 1994 (herein called "the Second Respondent's Answers to Interrogatories");

2. the legal advice of:
   1. the Director of Prosecutions;  and
   2. the Solicitor-General

referred to in paragraph 15(d)(ii) of the Second Respondent's Answers to Interrogatories;

3. the legal advice of:
   1. the Director of Prosecutions;  and
   2. the Solicitor-General

referred to in paragraph 21(b)(iv) of the Second Respondent's Answers to Interrogatories;

4. the legal advice of:
   1. the Director of Prosecutions;  and
   2. the Solicitor-General

referred to in paragraph 24(b)(ii) of the Second Respondent's Answers to Interrogatories;

3. the Third Respondent do produce for inspection for inspection to the Solicitors for the Appellant all documents containing, recording or evidencing (in whole or part):
   1. the advice given by him to the First Defendant, referred to in paragraph 3(b)(iii) of the Third Respondent's Answers to Interrogatories sworn on 12th May 1994 (herein called "the Third Defendant's Answers to Interrogatories");
   2. the advice given by him to the First Defendant, referred to in paragraph 3(b)(iv) of the Third Respondent's Answers to Interrogatories;
   3. the advice given by him to the First Defendant, referred to in paragraph 3(b)(vii) of the Third Respondent's Answers to Interrogatories;
   4. the advice given by him to the Second Defendant, referred to in paragraph 5(a) of the Third Respondent's Answers to Interrogatories;
   5. the words:
      1. said to the Third Respondent;  and
      2. said by the Third Respondent

in the conversation referred to in paragraph 7(b)(ii) of the Third Respondent's Answers to Interrogatories;

4. the Fourth Respondent do produce for inspection to the Solicitors for the Appellant all documents containing, recording or evidencing (in whole or part):
   1. the advice from the Director of Prosecutions referred to in paragraph 50(h)(viii)(G) of the Further and Better Answers to Interrogatories sworn on behalf of the Fourth Respondent by Bernard Barry Smith on 7th March 1994 (herein referred to as "the Fourth Respondent's Answers to Interrogatories");
   2. the:
      1. discussions;  and
      2. legal advice

referred to in paragraph 51(g)(iv) of the Fourth Respondent's Answers to Interrogatories;

3. the advice provided by the Director of Prosecutions to N. J. Harper referred to in paragraph 62(d)(ii) of the Fourth Respondent's Answers to Interrogatories;
4. the advice of the Director of Prosecutions to N. J. Harper referred to in paragraph 62(d)(iii) of the Fourth Respondent's Answers to Interrogatories;
5. the advice of the Director of Prosecutions to R. B. Cassidy referred to in paragraph 63(g)(i) of the Fourth Respondent's Answers to Interrogatories;
6. the:
   1. information provided by R. B. Cassidy to the Director of Prosecutions;  and
   2. advice

referred to in paragraph 63(g)(ii) of the Fourth Respondent's Answers to Interrogatories;

7. the:

1. communications between R. B. Cassidy and the Director of Prosecutions;  and
2. the legal advice

referred to in paragraph 63(g)(iii) of the Fourth Respondent's Answers to Interrogatories;

8. the advice provided to R. B. Cassidy by the Director of Prosecutions referred to in paragraph 63(g)(ix)(vii) of the Fourth Respondent's Answers to Interrogatories;  and
9. the advice provided to R. B. Cassidy by Mr. Sturgess Q.C., Director of Prosecutions, referred to in paragraph 63(h)(v)(l) of the Fourth Respondent's Answers to Interrogatories.

Provided however that the documents hereby ordered to be produced not include any documents that have come into existence solely for the purpose of this litigation, any documents which have already been produced for inspection or any documents which have been subject to a claim for public interest immunity in the affidavits of documents already filed.

4. The respondents pay the appellant's costs of appeal and of the hearing before Helman J. so far as they were relevant to paragraph 2 of the Summons.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 1225 of 1998

Brisbane

Before Davies J.A.

McPherson J.A.

Williams J.

[Bayliss v. Cassidy & Ors.]

BETWEEN:

 PETER JOHN BAYLISS

(Plaintiff) Appellant

AND:

 ROBERT BERNARD CASSIDY

(First Defendant) First Respondent

AND:

 NEVILLE JOHN HARPER

(Second Defendant) Second Respondent

AND:

 DESMOND GORDON STURGESS

(Third Defendant) Third Respondent

AND:

 STATE OF QUEENSLAND

(Fourth Defendant) Fourth Respondent

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered 11 March 1998

I have had the advantage of reading the reasons of Davies J.A., with which I agree, as I also do with the orders he proposes for disposing of this appeal, including the order as to costs..

The basis for treating the privileges otherwise attaching to a confidential communication (such as legal advice) is said here to be “fairness” to the other party.  See Standard Chartered Bank of Australia Ltd.  v. Antico (1993) 36 N.S.W.L.R. 87, 94-95, and Torcasio Developments Pty. Ltd. v. County Park Developments Pty. Ltd. (unrep. Byrne J., S.C. Vic. Sept. 9, 1991).  As a criterion for decision, “fairness” has always seemed a somewhat imprecise guide because, like the Chancellor’s foot, it is a largely the product or impression of a subjective state or attitude of mind which has a propensity to vary greatly from one individual to another.

It occurs to me to say, however, that at least part of the reason for withdrawing the benefit of privilege in cases like this is to safeguard against the possibility of abuse or error by the person claiming it.  That is what has influenced the result in a number of analogous instances in which a document is ordered to be produced.  For example, a witness who claims to refresh his memory from a contemporaneous note or document is bound to permit counsel for the opposite party to inspect it without his being required to put it in evidence in his own case.  See King v. Bryant (No. 2) [1956] St.R.Qd. 570, 583, where Stanley J. cited the explanation given by Wigmore as the justification for this practice; which is that “as by this opportunity of inspection the opponent is guarded against imposition clearly apparent, so by cross-examination based on the paper he may further detect circumstances not appearing on the surface, and may expose all that detracts from the weight of testimony ...”.  A similar point was made by the Full Court of Victoria in R. v. Alexander & Taylor [1975] V.R. 741, 749-750, where it was said:

“in many cases it would be impossible properly to assess the value of the witness’s evidence, or to test it in cross-examination, without reference to the original record from which the witness says that he speaks.  For example, the record itself could have been dishonestly fabricated, or in his oral evidence the witness could have accidentally or deliberately misstated its contents, and an opposite party ought to have full opportunity of investigating these possibilities ...”.

So also where a party is subjected to detailed cross-examination about his having made prior statements in a particular document, and he agrees that he did so, cross-examining counsel may be required by his opponent to produce the whole statement for inspection even if legal professional privilege would otherwise have attached to it.  It would, said Denning L.J. in Burnell v. British Transport Commission [1956] 1 Q.B. 187, 190:

“... be most unfair that cross-examining counsel should use part of the document which was to his advantage and not allow anyone, not even the judge or the opposing counsel, a sight of the rest of the document, much of which might have been against him”.

The reason, it may be inferred, is to ensure that the cross-examiner does not select entries out of context that might be misleading if the full text is not available for inspection: R. v. McGregor [1984] 1 Qd.R. 256, 265.  See also General Accident Fire & Life Assurance Corporation Ltd. v. Tanter [1984] 1 W.L.R. 100.

Similarly, in the present case, the defendants seek to justify their actions, which according to the plaintiff amounted to or included false imprisonment and malicious prosecution, by reference to legal advice.  Using malicious prosecution as the example here, it will be necessary for the plaintiff to establish among other things that the prosecution brought against him was initiated or carried out without reasonable or probable cause, which has been held to mean “an honest belief in the guilt of the accused ... founded upon reasonable grounds, of the existence of a state of circumstances, which ... would reasonably lead ... to the conclusion that the person charged was probably guilty of the crime imputed”.  See Hicks v. Faulkner (1881) 8 Q.B.D. 167, 171, approved in Herniman v. Smith [1938] A.C. 305.

On that issue the onus of proof rests on the plaintiff, which is no doubt why, for the most part, it does not  appear as a defence affirmatively raised in the defendants’ pleadings, but is latent in the form of general denial put forward in para.10 of the amended defence.  In the language of pleading, this denial involved a form of “negative pregnant” with an affirmative of which particulars should have been given: cf. Johnston v. Sewell [1962] Q.W.N. 36.  Even in the absence of particulars, it plainly is an issue in the action, to which interrogatories could and legitimately have been directed.  By that process, it has now emerged that the defendants seek to sustain their case of reasonable and probable cause, and of absence of malice, affirmatively on the basis of  legal advice given preparatory to or in connection with the prosecution in question.  There is no substance in the complaint that they were obliged by compulsory process to reveal the existence of the advice. They could equally have been required to do so by an order for particulars.

That being so, it appears to me to accord with the principle adopted in the authorities mentioned that it is not open to the defendants to justify their acts by reference to the advice they claim to have received, and at the same time also to rely on legal professional privilege as a basis for refusing to permit the plaintiff to inspect the very material on which they rely for that justification.  Examination of the advice, or the documents in which it is communicated, may yet disclose that the advice did not in fact or in law go the length of supporting the action they took in reliance on it; or that they misconceived its import or effect; or that the facts on which it was premised were not accurately stated to the legal representative who gave it.  Any of these circumstances, if established, would tend to undermine the substance of their defence.  In such circumstances, it would not, on any view, be “fair” to allow the defendants to use legal professional privilege as a shield to prevent the justification on which they rely from being properly tested by the plaintiff at the trial of the action.  Having resolved to make an issue of the existence and effect of the advice as a justification for their acts, they surrendered the confidentiality that might otherwise have attached to it.

In my opinion, having disclosed it, even if under compulsion, in their answers to interrogatories as one of the grounds of their defence, the defendants waived their privilege in respect of it, and are now required to produce for inspection by the plaintiff the documents in which it was communicated to them.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No.1225 of 1998

Brisbane

Before  Davies J.A.

McPherson J.A.

Williams J.

[Bayliss v Cassidy and Ors.]

BETWEEN:

PETER JOHN BAYLISS

(Plaintiff) Appellant

AND:

ROBERT BERNARD CASSIDY

(First Defendant) First Respondent

AND:

NEVILLE JOHN HARPER

(Second Defendant)  Second Respondent

AND:

DESMOND GORDON STURGESS

(Third Defendant) Third Respondent

AND:

STATE OF QUEENSLAND

(Fourth Defendant) Fourth Respondent

REASONS FOR JUDGMENT - WILLIAMS J

Judgment delivered 11 March, 1998

I have had the advantage of reading the reasons for judgment prepared by Davies JA and I am generally in agreement with all that he has said.  I merely wish to add a few remarks of my own.

The appropriate test for determining whether or not a claim of legal professional privilege will protect documents from disclosure is that formulated by Hodgson J in Standard Chartered Bank v Antico (1995) 36 NSWLR 87 at 94-5 and Byrne J in Torcasio Developments Pty Ltd.  v County Park Developments Pty Ltd. (unreported, Supreme Court of Victoria, 9 September 1991).  The relevant passages are set out in full in the judgement of Davies JA.  Indeed, the learned chamber judge from whom this appeal is brought, also accepted that the appropriate test was as stated in those passages.  The principal argument before the chamber judge and this Court on behalf of the appellant-plaintiff was that a much broader test should be applied.  That submission must be rejected.  Insofar as Wardrope v Dunne [1996] 1 Qd.R 224 suggests a broader test than that formulated by Hodgson J and Byrne J it should not be regarded as correctly stating the law.

Because the appellant-plaintiff concentrated on the broader test the attention of the learned chamber judge was not directed to relevant factors with respect to the application of the narrower test to the facts of this case.  At the outset of the hearing of the appeal, counsel for the appellant contended for the broader test, and it was only after the Court indicated a preference for the narrower test that the argument properly focussed on matters relevant thereto. 

I agree with Davies JA that the pleading in paragraph 5(b) of the defence was inadequate.  The broad reference therein to “reasonable cause” was deficient in particularity.  The facts constituting the reasonable cause should have been pleaded either initially or furnished by way of particulars.  Details of the relevant particulars were extracted from the defendants by means of interrogatories.  Once the answers to interrogatories referred to the legal advice relied on by the defendants as founding the “reasonable cause” pleaded in paragraph 5(b) of the defence, the plaintiff became entitled to rely on those answers as remedying the deficiency in the pleading.  Thereafter the defendants were confined to those particulars in their endeavour at trial to establish reasonable cause.  So far as disclosure  of documents is concerned the position is now the same as if the defence had properly particularised the matters allegedly constituting “reasonable cause” by therein referring to the legal advice particularised in the answers to interrogatories.

In those circumstances it matters not that the defendants were obliged to answer the interrogatories.  Davies JA has expanded on the reasoning supporting that conclusion.

For the above reasons I am satisfied that the defendants have made forensic use of the advice which otherwise might be privileged from disclosure.  Leading counsel for the defendants submitted that no such use had yet been made of the material in question; he submitted that it was still an open question whether the defendants would make use of that at the trial.  As I have said, the answers to interrogatories provide the necessary particulars of the allegations in paragraph 5(b) of the defence, and in consequence forensic use has been made of the material.

The appeal should be allowed and the orders made in accordance with the minutes attached to the reasons of Davies J.A. except as to costs.

Because the appellant has contended for a much broader test than the law justifies and because that approach significantly diverted the chamber judge’s attention from critical matters, I would not allow the appellant his full costs of the appeal.  In the circumstances justice would be done by allowing the appellant to recover costs before the chamber judge and 50% of the taxed costs of the appeal.