Case: Spedley Security Ltd (in liq) v Bank of New Zealand (1991) 26 NSWLR 711
Outcome: applied
It is clear nonetheless that the failure to claim privilege can in some circumstances constitute a waiver of privilege. In Spedley Securities Ltd (in liq) v Bank of New Zealand (1991) 26 NSWLR 711 Cole J found that the respondent had waived legal professional privilege because it had failed to make a claim when it knew that a document had been in the hands of the Registrar of the Court, and possibly in the hands of a third party, for a period of twelve days. Cole J observed at 730: 'There seems to me to be no reason in principle why a party may not, by conduct, waive legal professional privilege by omitting to claim that privilege when it is available. There is no distinction in principle between failure to claim legal professional privilege for a document by including it in a list of documents discovered and available for inspection, without claiming legal professional privilege, and on the other hand sitting by and allowing use of the document already in the hands of the other party without claiming legal professional privilege, or omitting to take steps to claim legal professional privilege in respect of the document known to be in the hands of the court, or as here, the liquidator, which it was obviously intended to use. Each constitutes an implicit waiver because it constitutes an abandonment of the claim for protection (regarding abandonment see Attorney-General for the Northern Territory v Maurice (at 498) per Dawson J).' 26 The claimed waiver in the present case relates to documents seized pursuant to two different search warrants which were executed some months apart. The first search warrant was executed on the Concord premises several months before the documents which are the subject of the present application were seized from Dimocks. The second search warrant was executed on the Rosebery premises several months after the Dimocks documents were seized. Different considerations may apply to the documents seized in each of these two searches, and in my opinion it is appropriate that they be considered separately. 27 The warrant at the Concord premises was executed on 20 May 2005 at which time documents 1(b), 1(d), 1(i) and 1(m) were seized. The applicant made no claim for legal professional privilege in relation to those documents at that time or subsequently. In fact, the applicant has never made a claim for legal professional privilege specifically in relation to the documents seized on 20 May 2005. Rather, the claim is made in respect of the documents seized from Dimocks. 28 The search of Dimocks occurred on 11 November 2005, almost six months after the Concord premises had been searched. Mr Dimock made a claim for legal professional privilege at the time of the search and on 18 November 2005, these proceedings were commenced. However, in the preceding six months, the applicant had made no claim for legal professional privilege in respect of the Concord documents, several of which were identical to the Dimocks documents. 29 The applicant submits that she was unaware of her right to claim legal professional privilege. She points out that a copy of the document outlining the right to claim legal professional privilege was given to her husband, but not to her. She submits also that the PSR which was completed in relation to the Concord search did not describe the documents sufficiently, such that it was not clear that the documents seized were documents to which privilege was likely to attach. She submits that in these circumstances, the fact that she took no action to assert a claim for privilege was not inconsistent with the continuance of the privilege. 42 In my opinion, that conduct is inconsistent with the continuation of privilege in the documents seized. I recognise that the right to maintain the confidentiality of legal advice attaches to the applicant rather than to her legal advisor: see Mann v Carnell at [28]. However, in this case, the applicant had instructed Mr O'Brien to advise her in relation to the privilege claim. Mr O'Brien, having knowledge of the seized documents from both Dimocks and the Rosebery premises, did not make a claim for privilege on her behalf. The fact that the documents were being held pending a claim for privilege was drawn to his attention by the facsimile from the AFP. He did not then make a claim for legal professional privilege and accordingly abandoned Robert Norman's claim for privilege. The situation is analogous to that considered by the Supreme Court of New South Wales in Spedley , where Cole J observed at 729: '... I am of the opinion that the conduct of Bank of New Zealand in sitting by with knowledge [that material to which a claim for privilege could be made was being used] ... and yet taking no steps to make a claim of privilege on behalf of Bank of New Zealand ... does constitute waiver of legal professional privilege. Messrs Freehill Hollingdale &amp; Page were advising Bank of New Zealand regarding the $25 million claim. Litigation obviously was a possibility, if not a probability. In those circumstances a solicitor is "the agent of his client in all matters that may reasonably be expected to arise for decision in the cause" (per Denning LJ in Griffiths v Evans [1953] 1 WLR 1424 at 1431 ...).'