Case: Adelaide Steamship Co Ltd v Spalvins (1998) 81 FCR 360
Outcome: followed
I would simply note in passing that this affidavit does not suggest, expressly or impliedly, that the decision to join Mr Turnbull was the subject of, or was contributed to by, legal advice from Williams &amp; Hughes let alone did it "put in issue ... advice received": Adelaide Steamship Co Ltd v Spalvins (1998) 81 FCR 360 at 372. However, it does indicate that instructions were given to join Mr Turnbull. And as the joinder motion filed on 31 August 2006 by Williams &amp; Hughes illustrates, those instructions were acted on. 32 The challenge to the privilege claim is put on four discrete bases. They are that: (i) by putting in issue his state of mind in applying to join Mr Turnbull, Mr Gurtler has waived privilege in respect of that matter ("issue waiver"); (ii) by disclosing he instructed his solicitors, Williams &amp; Hughes, to apply to join Mr Turnbull, he has waived privilege in those instructions ("disclosure waiver")' (iii) there is a prima facie case that the substantial purposes of the legal advice was for Hillcrest's own purposes, and hence was not subject to any privilege claimed by Mr Gurtler ("Hillcrest pursuing its own purposes"); and (iv) there is a prima facie case that the communications with Williams &amp; Hughes concerning the joinder were in pursuance of a deliberately improper purpose and as such were not protected by legal professional privilege ("the fraud/improper purpose exception"). 35 What is notable of issue waiver cases, as the Full Court indicated in Rio Tinto (at [47]), is their fact specific character. Nonetheless, observations in that case on the joint judgment of Kiefel and Finn JJ in Spalvins are appropriate to the present matter. In Spalvins Kiefel J and I said (at 371-372): "The usual type of case said to illustrate issue waiver at common law is one in which, in order to establish a particular right, claim, or defence a party who previously has been legally advised, or has provided advice, needs to show that the advice so given did, or did not, have a particular character, for example that it was or was not negligent where the claim is for professional negligence against the adviser: see Kershaw v Whelan [1996] 1 WLR 358; that it was not based on full information or was not meaningful, in an undue influence claim: see Inche Noriah v Shaik Allie Bin Omar [1929] AC 127 at 130-131; see also Bester v Perpetual Trustee Co Ltd [1970] 3 NSWR 30 and Brusewitz v Brown [1923] NZLR 1106 or that it did not address or properly address a matter which, if addressed or properly addressed, would defeat or call into question the right or claim asserted as in claims where the applicant has to demonstrate he or she acted with or without adequate knowledge of a matter: see Thomason v Campbelltown Municipal Council (1939) 39 SR (NSW) 347; Hongkong Bank of Australia Ltd v Murphy [1993] 2 VR 419; Pickering v Edmunds (1994) 63 SASR 357. In other words the cases are ones in which, in the substantive proceeding brought, the privilege holder has put in issue the very advice received. We observe in passing that it is questionable whether advice can properly be said to be in issue in a proceeding merely because it may be relevant to an issue in it: see Rhone-Poulenc Rorer Inc v The Home Indemnity Company (3 rd Cir 1994) 32 F (3d) 851 at 863; save, perhaps, where the proceeding is between client and legal adviser and the advice is relevant to the adviser's defence of that proceeding: see Lillicrap v Nalder &amp; Son [1993] 1 WLR 94; 1 All ER 724. 36 The Full Court in Rio Tinto said of this (at [53]-[54]): "... this correctly summarises the effect of previous authorities, such as Thomason, United States Surgical and Benecke . Referring to the observation of Kirby J in Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd [1996] HCA 15 ; (1996) 137 ALR 28 at 34; [1996] HCA 15 ; 70 ALJR 603 at 607; [1996] HCA 15 that a mere reference to legal advice will not amount to disclosure, the Spalvins court found that, for the most part, the ASC had done no more than this and had not, therefore, waived privilege. Although the Full Court was necessarily guided by the authorities prior to Mann , there is little, if anything, in the passage quoted above that would require modification to take account of Mann . It is plain enough that the majority in Mann also saw the 'issue waiver' cases as a species of waiver, to which the same basic principle applied. Their Honours' analysis in Spalvins emphasises, as does the majority in Mann , that waiver comes about because the privilege holder's conduct is inconsistent with the continued confidentiality of the communication because he or she has put in issue the character or contents of the communication in pursuing a right or claim , or has created a situation where another party must reasonably do so by way of a defence." (Emphasis added)