Goldberg v Ng

185 CLR 83
69 ALJR 919
132 ALR 57

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(Judgment by: DEANE, DAWSON AND GAUDRON JJ)

GOLBERG & ANOTHER v NG & OTHERS

Court:

Judges:
Deane, Dawson and Gaudron JJToohey J
Gummow J

Judgment date: 3 November 1995

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Judgment by:
DEANE, DAWSON AND GAUDRON JJ

DEANE, DAWSON AND GAUDRON JJ. The first appellant, Mr Harold Goldberg, is a Sydney solicitor. The other appellant, Mrs Yona Goldberg, is his wife. They are the defendants in proceedings brought in the Equity Division of the Supreme Court of New South Wales by the three respondents, Mr Bernard Ng, Hango Holdings Pty Limited ("Hango Holdings") and Ms Cherry Ng, who were former clients of Mr Goldberg. Mr Ng and Ms Ng are brother and sister. Hango Holdings has been described as "their company". It will be convenient to refer to the three respondents collectively as "the Ngs".

In the Supreme Court proceedings, the Ngs allege, among other things, that, at the direction of Mr Goldberg, Mr Ng paid in Hong Kong the sum of $A100,100 to Mrs Goldberg, as agent for Mr Goldberg, on account of legal costs in relation to pending proceedings in the Federal Court in which Mr Goldberg was acting as solicitor for the Ngs. They also allege that Mr Goldberg has failed to account to them for any part of the money so paid. By their defence, Mr and Mrs Goldberg admit that $100,100 was paid to Mrs Goldberg in Hong Kong but claim that the money was paid as the purchase price of a diamond bracelet which Mrs Goldberg sold and delivered to Mr Ng.

The Supreme Court proceedings were originally brought by Mr Ng against Mr Goldberg. Ms Ng and Hango Holdings were added as plaintiffs and Mrs Goldberg was added as a defendant at a subsequent date. After the proceedings had been instituted by Mr Ng, the solicitors for the Ngs encountered difficulty in serving Mr Goldberg. They wrote and delivered a letter dated 14 March 1990 to the Secretary of the Law Society of New South Wales ("the law Society") which, omitting formal parts, read as follows:

"We act for Mr Bernard Ng of 3 Werambie Street, Woolwich and, on his instructions, have commenced proceedings in the Equity Division, against Mr Harold John Goldberg, Solicitor, of 107 Oxford Street, Bondi Junction.

The originating process has not as yet been served as the process server has been unable to effect service, either at Mr Goldberg's office at Bondi Junction or at what our client believed to be his home address at 14 New South Head Road, Vaucluse.

Our client is claiming an account for moneys received on his behalf by Mr Goldberg and, with our client's consent, and at his direction, we are delivering to you, a copy of the Summons and supporting affidavit, as filed in the Court. We repeat, these documents have not as yet, been served on Mr Goldberg. Would you please treat delivery of these documents as constituting notice to the Society of our client's claim against Mr Goldberg, as specified therein."

As the letter indicates, it was accompanied by a copy of the summons and supporting affidavit filed in the equity proceedings.

In subsequent correspondence between the Law Society and the solicitors for the Ngs, it was made clear that the Law Society would, with the full agreement of Mr Ng, treat the above letter as constituting both a formal complaint of professional misconduct against Mr Goldberg and a formal notification under s 80(7) of the Legal Profession Act 1987 (NSW) of a "failure to account" for the amount of $100,100 paid to Mrs Goldberg allegedly as agent for Mr Goldberg. The giving of such a formal notification of "failure to account" was a requisite step in the making of a claim upon the Solicitors' Fidelity Fund under that Act ^[F1] .

On 4 May 1990, the manager of the Fidelity Fund wrote a letter to the solicitors for the Ngs, of which the substance was as follows:

"I note that the matter is presently being investigated as a complaint by the Society's Professional Conduct Department. I will continue to liaise with that Department concerning progress of the matter.

I believe it would be premature at this stage to invite your client to lodge a formal claim on the Fidelity Fund as the matter would have to be deferred pending the outcome of the aforesaid investigations. To avoid unnecessary duplication, I therefore refrain from furnishing a claim form to you at this stage. Nevertheless, should you require a claim form at this time, same will be forwarded to you on request.

I note that in relation to the Solicitors' Fidelity Fund, your position is protected in view of the furnishing of the notice under Section 80(7) of the Legal Profession Act. There has been no advertisement for claims pursuant to Section 86 of the Legal Profession Act and accordingly there is no time limit for lodgement of the claim at this stage.

I will certainly notify you in the event that the Society does publish an advertisement for claims."

On 14 May 1990, Ms Shirvington, a solicitor in the Law Society's Professional Conduct Department, wrote in the following terms to the solicitors for the Ngs:

"I have now had two lengthy conferences with Mr Goldberg in relation to this matter and he has forwarded me quite a number of documents which I have perused.

Mr Goldberg is to forward me a written response but because of the current proceedings between your client and himself (in respect of which I understand he has not yet been served) he will not authorise the Society to make a copy of his response available to you. That is reasonable given that the matters in dispute in the proceedings are identical with the complaint/claim on the Fidelity Fund which you have made on behalf of Mr Ng, based on the material contained in Mr Ng's affidavit in support of summons.

On receipt of Mr Goldberg's written response and in accordance with the usual procedure, I will prepare a report for the Complaints Committee's consideration. I feel I am at liberty to say at this point that Mr Goldberg appears to have an answer to the complaint. There are inconsistencies which will need to be dealt with by the Court between Mr Goldberg's stated position and that of Mr Ng and the Committee may be of the view that the file should be closed but you may refer the matter back to us if appropriate at the conclusion of the proceedings."

As that letter indicated, the Law Society did not make available to Mr Ng or the Ngs' solicitors any of the material furnished to the Law Society by Mr Goldberg in support of his answer to the complaint. Nor did the Law Society, either then or subsequently, provide any information about the precise nature of that answer.

On 25 September 1990, Ms Shirvington wrote to the Ngs' solicitors advising that the "matter" had "now been referred to the Complaints Committee for consideration". On 23 November 1990, Ms Shirvington wrote in the following terms to the Ngs' solicitors:

"I refer to previous correspondence and advise that the investigation of this complaint has been completed and the Society's Complaints Committee has resolved to dismiss it on the grounds that it does not involve a question of professional misconduct or unsatisfactory professional conduct.

The reasons for this decision are as follows:-

1. As the matter is now presented the Committee was not satisfied that there was any evidence of professional misconduct or unsatisfactory professional conduct.

2. The complainant should pursue his own remedies as his solicitors have indicated.

The Society's file will now be closed and the complainant has been informed of the existence of the Legal Profession Conduct Review Panel, which at the complainant's request has the power to undertake a review of the Society's treatment of the complaint.

May I take this opportunity to thank you for your assistance in dealing with this complaint."

In circumstances where the summons and supporting affidavit, of which copies had been delivered to the Law Society, alleged a failure by Mr Goldberg to account for over $100,100 paid to him (through his wife as agent) as a solicitor on account of legal costs, it is difficult to understand what was meant by the assertion, in the above letter, that the complaint "does not involve a question of professional misconduct or unsatisfactory professional conduct". Nor is it apparent what was meant by the statement that the Committee was not satisfied that there was any evidence of professional misconduct or unsatisfactory professional conduct "[a]s the matter is now presented". Be that as it may, it is clear that the letter from the Law Society was intended to be seen, and was seen by the solicitors for Mr Ng, as a rejection of the complaint of misconduct against Mr Goldberg and as a denial, at least at that stage, of any entitlement by Mr Ng to payment from the Solicitors' Fidelity Fund.

The proceedings in the Equity Division of the Supreme Court continued. As has been indicated, Ms Ng and Hango Holdings were added as plaintiffs and Mrs Goldberg was added as a defendant. Mr Goldberg, in addition to denying that the amount of $100,100 had been paid to him, cross-claimed for an amount of "$146,273.50, less such sums as the Taxing Officer might properly deduct therefrom" on account of unpaid costs.

On 29 April 1991, the Ngs' solicitors caused to be issued, in the equity proceedings, a subpoena to produce documents addressed to "The Secretary, Law Society of New South Wales" and requiring the production of:

"All documents including (but without limiting the generality of the foregoing) correspondence, files, file notes, minutes and records of conversations or proceedings relating to the complaint to the Society by Bernard Ng regarding Harold John Goldberg, Solicitor, and concerning the accounting by Mr Goldberg to Mr Ng for moneys paid to him or his agent by Mr Ng in or about February 1989."

On 8 May 1991, the Law Society filed a Notice of Motion seeking an order that the subpoena be set aside. The Notice of Motion came before the Registrar in Equity who declined to grant the relief sought. A further Notice of Motion filed by the Law Society for review of the decision of the Registrar was heard and dismissed by a Master in Equity. A notice of appeal from the decision of the Master was filed by the Law Society. It came on for hearing before Powell J. The Law Society submitted that the subpoena was tantamount to the seeking of discovery from a stranger to the litigation and that, in any event, the Society was entitled to resist the subpoena on the ground of "public interest immunity". Powell J rejected both submissions and dismissed the appeal. The subpoena was then answered and the Law Society produced to the court four bundles of documents. The relevant documents for present purposes are those which were contained in what was described as Bundle A and which included two statements prepared by Mr Goldberg together with some annexed documents including "a draft brief" ^[F2] . The circumstances in which those statements were prepared by Mr Goldberg and provided to the Law Society will be subsequently explained. Access to the relevant documents was withheld from the Ngs pending the outcome of other proceedings and any appeal.

The Law Society did not apply to the Court of Appeal for leave to appeal from Powell J's decision. However, Mr and Mrs Goldberg did apply for such leave. Leave to appeal was granted. In the meantime, Mr and Mrs Goldberg had instituted proceedings in the Equity Division of the Supreme Court seeking a declaration that the documents which Mr Goldberg had provided to the Law Society of New South Wales, and which were covered by the description of documents contained in the subpoena served upon the Law Society, were protected from compulsory disclosure by legal professional privilege. Those proceedings came on for hearing before Young J who found that the documents had initially been protected by Mr Goldberg's legal professional privilege but that that privilege had been waived by his delivery of them to the Law Society. Accordingly, Young J refused the declaratory relief sought and ordered that the legal representative of the Ngs have access to the relevant documents. Mr and Mrs Goldberg sought and obtained leave to appeal from the judgment of Young J to the Court of Appeal.

The Court of Appeal (Kirby P, Mahoney and Clarke JJA) heard the two appeals together ^[F3] . The appeal from the judgment of Powell J, raising an issue of public interest immunity, was unanimously dismissed. No appeal has been brought to this Court from the judgment or order of the Court of Appeal in that regard. The appeal from the decision of Young J was, by majority (Mahoney and Clarke JJA; Kirby P dissenting), also dismissed. The present appeal to this Court is brought by Mr and Mrs Goldberg from the judgment and order of the Court of Appeal dismissing that appeal. Accordingly, the present appeal is concerned only with the issue of legal professional privilege.

In the Court of Appeal, Kirby P concluded that Young J had correctly held that, putting to one side the question of waiver, the documents supplied by Mr Goldberg to the Law Society had been protected by Mr Goldberg's legal professional privilege. Mahoney and Clarke JJA found it unnecessary to decide that question, being prepared to assume that the documents had initially been so protected. The conclusion or assumption to that effect is challenged by the Ngs on the appeal to this Court pursuant to a Notice of Contention filed on their behalf. For their part, Mr and Mrs Goldberg challenge the conclusion of the majority of the Court of Appeal that Mr Goldberg had waived the privilege.

Were the documents initially protected by privilege?

The documents in question are not before this Court. However, it is common ground that they are the documents in Bundle A produced to Powell J and that they comprise two statements or "proofs of evidence" ^[F4] of Mr Goldberg and the annexures thereto. Those statements were prepared by Mr Goldberg for the solicitor retained by him in relation to the dispute with the Ngs. The first statement of seventy-two pages was apparently prepared before Mr Goldberg was aware of the institution of the equity proceedings against him by Mr Ng and in anticipation of proceedings by Mr Goldberg against the Ngs in relation to the legal costs which he claimed were owing to him. The second statement was a supplementary statement, prepared at the request of the solicitor, after Mr Goldberg became aware of the institution of the proceedings against him. It deals with matters not covered in the first statement. Clearly, those two statements, being communications between a party to anticipated or actual litigation and his solicitor for the purposes of the litigation, were, if confidential, prima facie protected by legal professional privilege. Indeed, as we followed the argument, it was effectively common ground that, subject to the particular matters mentioned below and the question of waiver, the statements were protected from production for inspection by Mr Goldberg's legal professional privilege.

It was submitted on behalf of the Ngs that, quite apart from any question of waiver, Mr Goldberg was not entitled to claim legal professional privilege in relation to the two statements for the reason that those statements covered professional communications which had occurred between the Ngs and Mr Goldberg during the period in which Mr Goldberg had acted for the Ngs as their solicitor. As we followed it, that submission is based upon three distinct, but related, arguments. The first argument is to the effect that the two statements, being concerned with dealings between Mr Goldberg and the Ngs, lacked the degree of confidentiality necessary to support legal professional privilege as against the Ngs. Upon analysis, however, there is no substance in that argument. As has been said, the two statements were prepared for the purpose of being submitted to the solicitor retained by Mr Goldberg in relation to anticipated proceedings against the Ngs or actual proceedings instituted against him by the Ngs. Their confidentiality for present purposes lies in their character as statements of Mr Goldberg's personal version of relevant events prepared for his own solicitor, including, presumably, his comments on the Ngs' claim that he had failed to account for a large sum of money which had been, at his direction, paid to his wife on his behalf on account of legal fees.

The second argument is a broad one to the effect that a solicitor who is a defendant in proceedings instituted against him or her by a former client in relation to matters arising from their former professional relationship is not entitled to legal professional privilege even in respect of confidential communications made between the solicitor and his or her own legal representative retained for the purposes of those proceedings. Any privilege enjoyed by such a solicitor in relation to the subject- matter of such communications is, so the argument proceeds, confined to what can be justified "on the basis ... of public interest immunity". Again, however, there is no substance in the argument. It is now settled law in this country that legal professional privilege is a substantive general principle which plays an important role in the effective and efficient administration of justice by the courts ^[F5] . Like other principles reflecting traditional common law rights, it is only to be abolished or cut down by clear statutory provision ^[F6] . It has never been seen, at least in this country, as subject to an exception depriving a solicitor of the benefit of legal professional privilege in relation to proceedings in which he or she is sued by a client. Nor, in our view, is there any reason of principle or policy which would justify the introduction of such an exception. To the contrary, and quite apart from ordinary considerations of fairness, the efficient administration of justice by the courts would be impeded if a solicitor sued by a client were, by the judicial creation of such an exception, placed at significant risk of forensic prejudice unless he or she either appeared in person or withheld written instructions from his or her legal representative.

The Ngs' third argument against the initial existence of legal professional privilege is more narrowly confined. It is to the effect that the two statements or proofs of evidence, at least to the extent that they deal with professional communications between Mr Goldberg as solicitor and the Ngs as clients, are the subject of the Ngs' own legal professional privilege. The effect of that is, so the argument proceeds, that the statements cannot be privileged against production for inspection by the Ngs. The answer to that third argument is an amalgam of the answers to the first two arguments. It is that Mr Goldberg's legal professional privilege in the two statements arises not from their character as a record of what transpired between the Ngs and himself but from their character as statements of his own version of events (and of his defence) which were prepared for communication to his own legal representative for the purposes of anticipated or actual legal proceedings between himself and the Ngs. In circumstances where Mr and Mrs Goldberg are seeking to protect confidentiality, it is not to the point that the statements contain information about communications which are the subject of the Ngs' own legal professional privilege and of which they might be entitled to prevent disclosure by Mr Goldberg to a third party. In any event, in the context of what is said below about imputed waiver, it would seem apparent that the Ngs have waived legal professional privilege in respect of the relevant communications by instituting proceedings against Mr and Mrs Goldberg based on an arrangement (ie about the payment of the moneys in Hong Kong) alleged to have arisen out of those communications.

In the result, the arguments advanced on behalf of the Ngs in support of the submission that the relevant documents were never protected by legal professional privilege cannot be sustained. It follows that the contents of the body of the two statements or proofs of evidence were, when prepared, protected by Mr Goldberg's legal professional privilege. In a situation where there is no detailed description before the Court of the annexures to the first of the two statements ^[F7] , it is not possible to express a firm view about whether all of the documents were so protected. The argument in this Court has, however, proceeded on the basis that no relevant distinction is drawn between the body of the two statements and any other relevant documents. In those circumstances, the appropriate course to be followed is that adopted by the majority in the Court of Appeal, namely, to proceed on the assumption that all of the documents were initially so protected.

Waiver

It is clear that there has been no express or intentional general waiver by Mr Goldberg of legal professional privilege in the present case. Any waiver of the privilege as against the Ngs, if there has been one, must have resulted from Mr Goldberg's disclosure of the relevant documents to an officer (Ms Shirvington) of the Law Society. That disclosure was for the limited purpose of dealing with inquiries made on behalf of the Law Society in relation to the complaint which had been made against Mr Goldberg by Mr Ng and was on the express basis that the documents would not be shown to anyone else. It could not properly be seen as constituting an express or intentional general waiver of legal professional privilege ^[F8] or as destroying the confidentiality which is necessary for its maintenance. Accordingly, if there was a waiver of the privilege as against the Ngs, it was a waiver imputed by operation of law in the particular circumstances.

Imputed waiver

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" ^[F9] . That does not mean, however, that an imputed waiver must completely destroy the privilege. Like an express waiver, it can be limited so that it applies only in relation to particular persons, materials or purposes.

In Attorney-General (NT) v. Maurice ^[F10] , it was accepted in all judgments that the question whether a limited disclosure gives rise to an implied or imputed waiver of legal professional privilege ultimately falls to be resolved by reference to the requirements of fairness in all the circumstances of the particular case. Thus, Gibbs CJ saw the decided cases as establishing that ^[F11] :

"... the question whether a waiver should be implied depends on whether it would be unfair or misleading to allow a party to refer to or use material and yet assert that that material, or material associated with it, is privileged from production".

Mason and Brennan JJ explained the doctrine of implied or imputed waiver as follows ^[F12] :

"An implied waiver occurs when, by reason of some conduct on the privilege holder's part, it becomes unfair to maintain the privilege. The holder of the privilege should not be able to abuse it by using it to create an inaccurate perception of the protected communication. Professor Wigmore explains:

'[W]hen his conduct touches a certain point of disclosure, fairness requires that his privilege shall cease whether he intended that result or not. He cannot be allowed, after disclosing as much as he pleases, to withhold the remainder.' (Wigmore, Evidence in Trials at Common Law (1961), vol 8, par 2327, p 636.)

In order to ensure that the opposing litigant is not misled by an inaccurate perception of the disclosed communication, fairness will usually require that waiver as to one part of a protected communication should result in waiver as to the rest of the communication on that subject-matter: see Great Atlantic Insurance Co v. Home Insurance Co ^[F13] .

Hence, the implied waiver inquiry is at bottom focused on the fairness of imputing such a waiver."

Deane J wrote ^[F14] :

"Waiver of legal professional privilege by imputation or implication of law is based on notions of fairness. It occurs in circumstances where a person has used privileged material in such a way that it would be unfair for him to assert that legal professional privilege rendered him immune from procedures pursuant to which he would otherwise be compellable to produce or allow access to the material which he has elected to use to his own advantage. Thus, ordinary notions of fairness require that an assertion of the effect of privileged material or disclosure of part of its contents in the course of proceedings before a court or quasi-judicial tribunal be treated as a waiver of any right to resist scrutiny of the propriety of the use he has made of the material by reliance upon legal professional privilege."

Dawson J wrote ^[F15] :

"... it is clear enough that an implied waiver may be required by fairness notwithstanding that it was not intended. It would not be fair to allow privilege to be waived with respect to a portion of a document or a conversation without requiring disclosure of the rest of it, at least if the document or conversation dealt with the one subject-matter: see Burnell v. British Transport Commission ^[F16] and Great Atlantic Insurance Co v. Home Insurance Co ^[F17] . So much may be obvious, but legal professional privilege is concerned with protecting the confidentiality of a relationship and if that confidentiality is abandoned by a particular disclosure it may be necessary in fairness, whether further disclosure was intended or not, to require disclosure extending beyond the particular communication: see Wigmore on Evidence (McNaughton rev 1961), vol VIII, par 2327. The cases are not entirely consistent and perhaps what is fair by way of disclosure must ultimately depend upon the relevant circumstances."

The claim that there had been a waiver of legal professional privilege in Attorney-General (NT) v. Maurice had been advanced before Maurice J, sitting as the Aboriginal Land Commissioner, in proceedings under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) relating to an Aboriginal land claim. The basis of the alleged waiver was the tender of a claim book at an earlier stage of the proceedings before Maurice J's predecessor as Aboriginal Land Commissioner. However, we do not read the judgments in that case as suggesting either that a claim for waiver of legal professional privilege made in a proceeding before a court or quasi-judicial tribunal must be based upon conduct occurring in that proceeding or, for that matter, upon conduct occurring in, or in anticipation of, any proceeding before a court or other tribunal. Be that as it may, we are firmly of the view that where two or more distinct proceedings or procedures are related in the sense that there is general correspondence between the parties and they arise out of either the same dispute or closely connected disputes, conduct in relation to one proceeding or procedure, whether anticipated or already commenced, can found an imputed waiver for the purposes of all proceedings and procedures. The two distinct proceedings between the Ngs and the Goldbergs in the Equity Division of the Supreme Court and the proceeding or procedure consequent upon Mr Ng's complaint to the Law Society against Mr Goldberg were all related proceedings or procedures in that sense. There was general correspondence between the parties and they arose out of the same dispute about the nature and effect of the payment of the $100,100 paid by Mr Ng to Mrs Goldberg in Hong Kong.

It follows that the critical question in the present case is whether Mr Goldberg's disclosure of the privileged documents to the Law Society gave rise to a situation where ordinary notions of fairness required that he be precluded from asserting that those documents were protected from production for inspection by the Ngs in the related equity proceedings between the Ngs and the Goldbergs. In order to answer that question, it is necessary to identify the circumstances of the disclosure in somewhat more detail.

Circumstances of the disclosure

On or about 30 April 1990, Mr Goldberg received a telephone call from Ms Shirvington who informed him that a complaint had been made against him by Mr Ng and that the Law Society had a copy of a summons and supporting affidavit which Mr Ng said he was attempting to serve on Mr Goldberg. An appointment was made for Mr Goldberg to see Ms Shirvington at the Law Society's office on or about 1 May 1990. At the time, Mr Goldberg had, as has been indicated, already retained a solicitor (Mr Swaab) to act for him in relation to the dispute with the Ngs and in relation to proceedings which Mr Goldberg was intending to initiate in respect of allegedly unpaid professional fees. The first statement of seventy-two pages had been prepared by Mr Goldberg for Mr Swaab in relation to that dispute and those anticipated proceedings. After receiving Ms Shirvington's telephone call, Mr Goldberg telephoned Mr Swaab and told him of the conversation which he had had. Mr Swaab advised him that, after the summons and affidavit had been received, it would be necessary for Mr Goldberg to prepare a supplementary statement for Mr Swaab "covering anything not in [the] first statement".

When Mr Goldberg attended at the Law Society's office, he took with him a copy of the first statement and its annexures and (apparently) some other documents. Young J's findings about what occurred in this first interview with Ms Shirvington are as follows:

"Mr Goldberg had prepared certain papers for the purpose of these proceedings and took copies with him when he went to see 'the lady from the Law Society' who appears to have been one Virginia Shirvington ('VS'). Mr Goldberg's evidence is (page 7 of the transcript) that the lady asked him what the papers were that he had with him. Mr Goldberg replied: 'I do have papers in this file which are relevant to this matter: and the lady said: 'Can we have a look at those?' Mr Goldberg said: 'I have brought them with me to refer if I need to ... I don't have anything to hide. I've already been very full and frank with you because we have now stayed over three hours being asked questions and giving answers. I don't want to have anything in these papers, which includes the things like a statement to my solicitor, given to the Ngs or their company or their legal advisors because you know it's my private confidential matter.' VS said: 'Well we won't give it to anybody else'. VS said: 'I would like to look through those documents' whereupon Mr Goldberg handed them to her saying 'I want to retain my legal professional privilege in regard to these papers' to which VS said 'You do'. Mr Goldberg then said: 'Well in that case in order to be completely frank and free with you and so that it is clear that I have nothing to hide, you can have a look through them.' VS then said: 'We want to keep these. Do you have a copy for yourself and your solicitor?' Mr Goldberg said 'Yes there are other copies. I just picked these up from my solicitor. There are other copies in the file.' VS said: 'Well, we'll keep these and I'll go through them'.

Mr Goldberg denied that the statements were actually prepared for the Law Society. He says that they were prepared so that he could get legal advice.

I should state now that I fully accept Mr Goldberg's evidence."

It should be noted that the reference to "the statements" in the above extract from Young J's judgment should presumably be understood as a reference to the first statement. The second or supplementary statement was not prepared until after the first interview with Ms Shirvington. Mr Goldberg's account of what occurred when that second statement was handed to Ms Shirvington on a subsequent occasion is contained in his affidavit and reads:

"Again, I said to Ms Shirvington words to the effect:

'I've also prepared this statement for my court proceedings. I am prepared to provide it to you on the same basis as the previous one.'

She replied:

'Yes, I understand that.'

It was upon such basis that I made a copy of my supplementary statement available."

The requirement of fairness in the circumstances

In the Court of Appeal, both Mahoney JA and Clarke JA concluded that the effect of the delivery of the relevant documents to the Law Society was that it would be unfair to permit reliance by Mr Goldberg upon legal professional privilege to prevent those documents being made available for inspection by the Ngs. Their Honours approached the question of fairness on the basis that, notwithstanding that it was at the request of Ms Shirvington, Mr Goldberg's provision of the documents to the Law Society had been voluntary. In that, they were fully justified. It is true that the Law Society possessed powers of compulsion ^[F18] . It is also true that a failure by a solicitor to respond adequately to a complaint of professional misconduct might, in some circumstances, be seen by the Law Society as itself constituting such misconduct. The Law Society's powers of compulsion were not, however, invoked in the present case. Nor is there anything to suggest an express or implied threat by the Law Society or by anyone on its behalf that its powers of compulsion would be invoked or that Mr Goldberg would be seen as guilty of professional misconduct if he declined to produce to the Law Society the privileged statements prepared for his own solicitor in relation to his dispute with the Ngs. Certainly, Mr Goldberg did not allege in his affidavit or oral evidence that he had handed over the statements in response to such a real or imagined threat. To the contrary, the plain inference from the evidence is that Mr Goldberg's provision of the two statements to the Law Society was voluntary and for the calculated purpose of demonstrating the reliability of his denial of Mr Ng's allegation of a failure to account. Thus, in the account of the first meeting between himself and Ms Shirvington which is set out in his affidavit, Mr Goldberg swore that he had informed Ms Shirvington that he was "prepared to give" the first statement to her "as I wish to be full and frank - I have nothing to hide". The same inference is at least as plain in the case of the second statement which presumably was expressly directed to Mr Ng's allegations. That second statement was prepared and delivered to the Law Society after the provision of the first statement with a comment by Mr Goldberg to the effect that he was "prepared" to provide it to the Law Society "on the same basis as the previous one".

There remains for consideration the question whether Mahoney JA and Clarke JA fell into error in concluding that Mr Goldberg's provision of the privileged documents to the Law Society created a situation in which considerations of fairness required an imputed waiver of Mr Goldberg's legal professional privilege in relation to those documents. There are, of course, considerations weighing against that conclusion of their Honours. Among them are general considerations relating to the importance of the part played by legal professional privilege in the administration of justice and particular considerations arising from the sensitivity of the privileged documents and the fact that, on the findings of Young J, the documents were provided to the Law Society on the basis that legal professional privilege in relation to them would be retained. However, in the context of the inference that Mr Goldberg's delivery of the documents to the Law Society was voluntary and for the calculated purpose of assisting him to rebut Mr Ng's complaint, it appears to us that those considerations are outweighed by other considerations which favour their Honours' conclusion. We turn to identify those other considerations.

As has been seen, the proceedings in the Equity Division of the Supreme Court and the Law Society's procedures consequent upon Mr Ng's complaint were but different emanations of the one dispute about the $100,100 which had been paid to Mrs Goldberg in Hong Kong. Indeed, if the outcome of the complaint to the Law Society had been a finding that Mr Goldberg had been guilty of professional misconduct in failing to account to the Ngs for $100,100, it is at least possible that it would have been unnecessary for the Ngs to persist with the equity proceedings ^[F19] . The disclosure of the relevant documents to the Law Society was not restricted to perusal by Ms Shirvington. Clearly, the documents were handed over on the understanding that Ms Shirvington and other officers of the Law Society could make whatever internal use of them was thought appropriate in dealing with the various aspects of Mr Ng's complaint. As has also been seen, the provision of the documents to the Law Society by Mr Goldberg was voluntary and for the calculated purpose of assisting him in having the complaint against him resolved adversely to Mr Ng. Presumably, they played some part in procuring that result. In that regard, it is relevant to note that it has not been suggested that Mr Goldberg provided any other written statement to the Law Society in answer to the complaint against him.

Ordinarily, a party involved in a number of related proceedings or procedures will be able, in one proceeding or procedure, to take advantage of documents or other material which have been utilised by the other party in another of the related proceedings or procedures. That would, presumably, have been the case here if Mr Goldberg had not elected to make use of the privileged documents for the purpose of rebutting Mr Ng's complaint to the Law Society since the Law Society's letter of 14 May 1990 (see above) indicates that the "usual procedure" would have been to require Mr Goldberg to make a "written response" ^[F20] . As Clarke JA pointed out in the Court of Appeal, such a written response would not, if prepared for the purpose of being placed before the Law Society, have been protected by legal professional privilege from production to the Ngs in the equity proceedings. In these circumstances, it would be unfair if the fact that Mr Goldberg saw fit to rely, in answer to Mr Ng's complaint to the Law Society, upon privileged communications to his solicitor in relation to the equity proceedings should have the effect that the Ngs were deprived of access to, and possible use of, the substance of that answer. That unfairness is heightened in the present case where, in the absence of access to the material before the Law Society, one can only speculate about why the Complaints Committee concluded that Mr Ng's complaint that Mr Goldberg had failed to account for $100,100 allegedly paid on account of professional costs did "not involve a question of professional misconduct or unsatisfactory professional conduct" (emphasis added).

The conclusion of the majority of the Court of Appeal that there was an imputed waiver by Mr Goldberg of legal professional privilege in relation to the documents provided to the Law Society was correct. The appeal should be dismissed.