The defendants (Amcor) sought to use the letter of advice in cross examination and objection was made to that use by the plaintiff under s118 of the Evidence Act 2008 (Vic) (the Evidence Act) and s138 of the Evidence Act. Amcor said that it could use the letter by reason of the plaintiff acting inconsistently with the maintenance of a claim of privilege by the following conduct:
- The letter of advice was received by two third parties.
- The letter of advice was listed in a supplementary affidavit of documents and the plaintiff did not object to it being listed in that document.
- The letter of advice was referred to in the opening address of Amcor's senior counsel and the plaintiff did not object to it being referred to.
s122 provides as follows:
(1) This Division does not prevent the adducing of evidence given with the consent of the client or party concerned.
(2) Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120.
(3) Without limiting subsection (2), a client or party is taken to have so acted if-
(a) the client or party knowingly and voluntarily disclosed the substance of the evidence to another person; or
(b) the substance of the evidence has been disclosed with the express or implied consent of the client or party.
(4) The reference in subsection (3)(a) to a knowing and voluntary disclosure does not include a reference to a disclosure by a person who was, at the time of the disclosure, an employee or agent of the client or party or of a lawyer of the client or party unless the employee or agent was authorised by the client, party or lawyer to make the disclosure.
(5) A client or party is not taken to have acted in a manner inconsistent with the client or party objecting to the adducing of the evidence merely because-
(a) 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; or
(iv) if the client or party is a body established by, or a person holding an office under, an Australian law-to the Minister, or the Minister of the Commonwealth, the State or Territory, administering the law, or part of the law, under which the body is established or the office held; or
(b) of a disclosure by a client to another person if the disclosure concerns a matter in relation to which the same lawyer is providing or is to provide, professional legal services to both the client and the other person; or
(c) of a disclosure to a person with whom the client or party had, at the time of the disclosure, a common interest relating to the proceeding or an anticipated or pending proceeding in an Australian court or a foreign court.
(6) This Division does not prevent the adducing of evidence of a document that a witness has used to try to revive the witness's memory about a fact or opinion or has used as mentioned in section 32 (Attempts to revive memory in court) or 33 (Evidence given by police officers).Burden of proof on claims for privilege and waiver
Vickery J reviewed authorities on the burden of proof in asserting privilege and said that it is the party seeking to persuade the Court that privilege has been lost that bears the burden of proof under s122:
Pursuant to s 122 of the Evidence Act, the burden of proof is on the party seeking to persuade the court that the privilege has been lost. It is therefore for that party to prove the circumstances in fact exist to justify such a finding. As Rein AJ observed in Sharjade Pty Ltd v RAAF Landings: "The party claiming privilege does not bear the onus of excluding waiver of the privilege. Where it is alleged that privilege has been waived, the party alleging waiver carries the onus of establishing waiver". In support of this proposition, Nine Films & Television Pty Ltd v Ninox Television Pty Ltd, and Rich v Harrington were referred to. His Honour also referred to the observations of Campbell J in Re Doran Constructions Pty Limited (in Liquidation), his Honour observed, "It is the party who asserts that there has been a waiver who bears the onus of satisfying the court about each of the elements in s 122(2)".Amcor submitted that s 122(5) has the effect of reversing the burden of proof and at  Vickery J agreed with this.
In my opinion the intention of sub-s (5) is to shift the onus of proof to the claimant of the privilege. It does not remain with the party asserting the loss of privilege to disprove the qualifications expressed in the sub-section. This is because the matters referred to in paragraphs (a), (b) and (c) of sub-s (5) are likely to be matters in most cases which are solely known to the claimant of the privilege and would thereby fall uniquely within the province of proof of that party and the associates of that party. They are matters not likely to be known to the other party and, in the usual case, would not be likely be able to be controverted by the other party.At  and  Vickery J then set out the order in which the matters concerning privilege and its waiver are to be proved:
24 In my opinion once the privilege has been established, any question of waiver should be determined on the balance of probabilities on evidence which is sufficiently clear and unequivocal. In this regard, reference is made to the observations of Tamberlin J in Nine Films & Television Pty Ltd v Ninox Television Limited.
Loss of privilege by provision to third parties
25 The question then becomes whether or not the claimant party, in this case Mr Hodgson, has established that he falls within s 122(5) of the Evidence Act.
Vickery J held that the plaintiff discharged his onus under s122(5)(a)(i) that the advice was disclosed in the course of making a confidential communication or preparing a confidential document. Vickery J reviewed the document and at  inferred that by reason of its contents, it was likely that it was communicated in circumstances where there was an implied obligation on the part of the recipient or recipients not to disclose its contents beyond that circle of persons.
Vickery J also held that the plaintiff discharged his onus under s122(5)(b) because the disclosure included advice by a lawyer who provided legal services both to the client and to the first defendant. Vickery J noted at  that for the purposes of s122(5)(b) the 'other person' does not need to 'retain' the lawyer, but the lawyer only needs to provide legal services to both the client and the other person:
38 However on a close reading of s 122(5)(b), it is not a prerequisite for its application that the ‘other person’ referred to needs to retain the lawyer in question in a contractual sense. What the sub-section focuses upon is the provision by the lawyer, either presently or prospectively, of legal services to both the client and the other person.
39 In the circumstances of this case, when Mr Barnes attended the meeting of 4 January 2001 with Mr Hodgson and Mr Dillman, he was clearly there to participate in being provided with professional legal services in the nature of advice and discussion concerning the prospective business enterprise. This was the case, even though on the evidence thus far available in the voir dire, he was not a client of Mr Dillman’s in the sense of being a person who had formally retained Mr Dillman at the relevant time. Nevertheless, sub-s (5)(b) applies to the position of Mr Barnes in this case.
40 In my opinion the Advice of 19 December 2000 was disclosed by Mr Hodgson to Mr Barnes and concerned a matter in relation to which the same lawyer, namely Mr Dillman was providing or was to provide professional legal services to both Mr Hodgson who was the original client and remained the client, and to the other person in this case, Mr Barnes. The content of the Advice and the evidence in the voir dire as to the subject matter of the meeting of 4 January 2001 point inescapably to this conclusion.Improper use of subpoenaed document
A subpoena was issued to a witness, Mrs Hottes, who was directed to provide certain documents to the Court on the first day of trial. The letter of advice was one of these documents. Instead of delivering these documents to the Court, Mrs Hottes delivered them to Amcor's solicitors. Amcor's solicitors then listed these documents in a supplementary affidavit of documents and served this on the plaintiff.
Vickery J noted that r.42.O9(3) of the Supreme Court Rules, provides as follows: 'Subject to this Rule, no person may inspect a document or thing produced unless the Court has granted leave and the inspection is in accordance with that leave.'
At  Vickery J then spelt out the basic rules at common law which underpin the issuing of subpoenas:
(1) A person served with a subpoena to produce, requiring the production of specified documents, must attend at the place directed by the subpoena and produce such of the specified documents which he or she is able to produce, unless he or she can establish some good reason why the documents should not be produced.
(2) Production of documents under subpoena to produce means production to the court, not to a party.
(3) Upon the production of a document to the court, the court takes the document into its custody to use it for the temporary purpose of resolving disputed questions of fact. That power is essential to the proper administration of justice and prevails over private property rights.
(4) The court has a discretion to allow a party to inspect a document that appears to be relevant to the issues, whether or not it is in admissible form.
(5) A party having a legitimate forensic purpose in seeing a document will not ordinarily be denied inspection by the circumstance of the document not being admissible in evidence.At  Vickery J then noted how seriously the Court treats compliance with the procedures for issuing subpoenas by considering the sanctions for breach of them:
60 The seriousness with which the Court views these procedures is underlined by the sanctions that are open to be applied in the event of their breach. First, disobedience of a subpoena is a prima facie contempt of court. Second, procuring a person to disobey a subpoena is an interference with the administration of justice and is a contempt of court in itself. Third, a subpoena served in another State pursuant to the Service and Execution of Process Act 1992 (Commonwealth) under s 29, if not complied with, may be enforced by warrant of apprehension issued by the court of the place of issue of the subpoena, pursuant to s 37(1) of that Act.Vickery J held that the conduct of Amcor's solicitors was improper. His Honour considered that if Mrs Hottes delivered the documents personally to Amcor's solicitors then the solicitors should have instructed her to deliver the documents to Court or, if the documents were posted to them, then Amcor's solicitors should either have returned them or delivered them to the Court themselves. Vickery J said that at no stage was it permissible for Amcor's solicitors to examine the documents without an Order for them doing so (at  to ):
61 In this case it was at the very least improper for the solicitors for Amcor to have inspected the documents the subject of the subpoena addressed to Mrs Hottes before obtaining any order from the Court permitting this to occur. It would also have been improper for the solicitors to have given the impression to Mrs Hottes that she should deliver the documents to them in the first instance if that in fact occurred, however I make no finding on that issue.
62 The proper advice to Mrs Hottes which ought to have been given by the solicitors for Amcor whether she sought it or not, was to have instructed her to deliver the subpoenaed documents to the Court on the due date for the return of the subpoena namely 16 May 2011. Alternatively, if the documents had been posted by Mrs Hottes to the Amcor solicitors, it was their duty to either return them to her with appropriate instructions as to how she should comply with the subpoena, or take immediate steps to have the documents delivered directly to the Court. In either case, and under no circumstances, it is permissible for solicitors or lawyers to examine the documents delivered to them produced on a subpoena or make use of them in any way, without first obtaining a court order to do so.Loss of privilege by not objecting to the inclusion of the evidence in an affidavit of documents
Amcor asserted that by not objecting to the discovery of privileged documents (which were improperly produced to Amcor's solicitors by Mrs Hottes) the plaintiff was acting inconsistently with the maintenance of a claim of privilege and the privilege was lost.
Vickery J considered the options available to the plaintiff to object to the production of a privileged document, including an injunction when the affidavit of documents was served. However His Honour considered that the plaintiff's objection during cross examination was adequate and held that the failure to object when the affidavit of documents was served was not inconsistent with the maintenance of an objection to privilege (at  to ):
63 In this case it may have been open to the lawyers acting for Mr Hodgson to seek an order by way of an injunction in relation to the subpoenaed documents which had been improperly dealt with by the solicitors for Amcor. Reference in this regard is made to the observations of Slade LJ in Guinness Peat Properties v Fitzroy Robinson Partnership with whom Woolf LJ and Sir George Waller agreed at pp.1045-1046. Slade LJ made the following observation:
64 However in this case no criticism can be levelled at Mr Hodgson's lawyers for not taking such a course. An injunction sought on equitable grounds is discretionary and there could have been no guarantee that it would have resulted in relief which would have been of practical benefit to Mr Hodgson in the circumstances. The documents in respect of which privilege is claimed namely the advice of 19 December 2000 had been inspected by the solicitors for Amcor. That would have been made plain to Mr Hodgson’s lawyers following service upon them of Amcor’s supplementary affidavit of documents dated 12 May 2011. This position could not be reversed by any court order.I do not think that after inspection, that is of a privilege document, has taken place in the course of discovery the court is inevitably and invariably powerless to intervene by way of injunction in the exercise of the court's equitable jurisdiction exemplified by the cases of Ashburton, Goddard and Herbert Smith, if particular circumstances warrant it and such intervention is justified on equitable grounds.
65 In a practical sense an acceptable approach for Mr Hodgson's lawyers was for Mr Hodgson through his lawyers to object to the document being adduced in evidence through cross-examination. This is what he has done.
66 Still less in my opinion is the failure to take any step following the service of Amcor's supplementary affidavit of documents of 12 May 2011 to be taken as conduct which is inconsistent with the maintenance of the privilege over the 19 December Advice. I find that the privilege has not been lost for this reason.Loss of privilege by not objecting to use of evidence in opening
Vickery J noted that senior counsel for the plaintiff did not object to Amcor's counsel reading the advice during the opening. At  Vickery J said that objection may be taken of another party's opening in exceptional circumstances and where the situation clearly demands that this occur in the interests of justice. At  Vickery J considered that the plaintiff's counsel had no duty to object at this stage (even though it would have been properly made at that point) and that it was proper to wait for the time when the evidence was to be adduced to raise the objection:
68 Senior Counsel for Amcor commenced his opening of the Amcor case on 16 May 2011. During the course of his opening he referred to the Advice of 19 December 2000. Indeed he read the body of the Advice to the Court. Counsel for Mr Hodgson did not object to this course.Exclusion of improperly obtained evidence under s138
69 Although I probed Senior Counsel for Mr Hodgson during the course of argument in this matter as to why he did not take such a step, I am satisfied that he neither had any obligation to object to the opening nor was this axiomatic in the circumstances.
70 In exceptional circumstances, opposing counsel may object to aspects of the other party's opening in the course of its delivery. However, this is a course which is not to be encouraged. It should only be exercised where the situation clearly demands that this occur in the interests of justice. Further, if exercised, the objection remains under the direction and control of the court.
71 In the present case, the position with regard to the Advice of 19 December 2000 having improperly come into the possession of the Amcor parties and being examined by them could not, in a practical sense, be recovered even at the stage of the opening of Amcor's case.
72 The Amcor opening of the Advice, in the circumstances of this case, was an exceptional circumstance which would have justified counsel for Mr Hodgson objecting, if he had elected to do so. However, he had no duty to take the objection. It was equally open for him to make a tactical decision not to object during the opening, reserving his position to object to the document being adduced into evidence pursuant to s 118 of the Evidence Act, at a later time, if Amcor sought to take that step. This course has now been taken by Mr Hodgson’s counsel, and properly taken in my view.
At  Vickery J noted that there is no discretion under s122 to deal with a disclosure which, although inadvertent or induced by trickery, amounts to a loss of privilege. Vickery J then considered whether the document would be excluded under s138 which gives the Court such a discretion. s138 provides as follows:
(1) Evidence that was obtained-At  Vickery J said that the document should not be admitted in any event as it was obtained improperly:
(a) improperly or in contravention of an Australian law; or
(b) in consequence of an impropriety or of a contravention of an Australian law-
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning-
(a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or
(b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.
(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account-
(a) the probative value of the evidence; and
(b) the importance of the evidence in the proceeding; and
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and
(d) the gravity of the impropriety or contravention; and
(e) whether the impropriety or contravention was deliberate or reckless; and
(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
Further, I consider in this case that fairness requires that Mr Hodgson not be disadvantaged by the improper conduct I have described. In this case, s 138 of the Evidence Act applies. The evidence in the form of the Advice was obtained improperly and is not to be admitted. I find against the position that the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in this fashion. In arriving at this conclusion, I take into account, amongst other things, the gravity of the impropriety described, being one of the factors which may be taken into account pursuant to s 138(3).Hodgson v Amcor is a useful ruling on evidence because of the range of topics it deals with. Given the range of topics it is surprising that the judgment only comes to 22 pages in length.
An important lesson from Hodgson v Amcor is that practitioners need to make sure that a witness who incorrectly responds to a subpoena by giving the documents to a party (instead of the Court) is properly directed to give the documents to the Court. At no stage is a party permitted to inspect a subpoenaed document without an order permitting them to do so. If the party improperly inspects and uses the document, then the Court is likely to denounce that conduct and this may result in the party being prevented from using that document as evidence.
Hodgson v Amcor also suggests that the Court takes a strict approach when assessing the circumstances which could amount to a loss of privilege. Here the Court did not consider that a loss of privilege occurred when the privileged document was referred to in an opponent's affidavit of documents or in the opening address. Vickery J considered that it was perfectly acceptable to wait for an objection to be made during cross examination.