New South Wales Supreme Court

Shiree Donna WILESMITH v CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS [2006] NSWSC 936 (15 September 2006)

Last Updated: 22 September 2006

NEW SOUTH WALES SUPREME COURT

CITATION: Shiree Donna WILESMITH v CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS [2006] NSWSC 936



CURRENT JURISDICTION: Common Law - Administrative Law List

FILE NUMBER(S): 13579 of 2004

HEARING DATE{S): 11 September 2006

DECISION DATE: 15/09/2006

PARTIES:
Shiree Donna WILESMITH (Plaintiff)
CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS (Defendant)

JUDGMENT OF: Associate Justice Malpass

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 13579/04

LOWER COURT JUDICIAL OFFICER: Howe AR

COUNSEL:
Mr E. G. Romaniuk (Plaintiff)
Mr P. T. Taylor SC (Defendant)

SOLICITORS:
Farrell Lusher (Plaintiff)
Hunt & Hunt (Defendant)


CATCHWORDS:
Reviewor Appeal; legal professional privilege; waiver; r. 31.2 (evidence tobe given by affidavit); filing and service of affidavit; compulsion oflaw.

ACTS CITED:
Limitation Act 1969 (NSW); Uniform Civil Procedure Rules 2005 (NSW); Evidence Act 1995 (NSW).

DECISION:
Decision and orders made by Assistant Registrar Howe on 13 April 2006 are set aside.
Defendant to have access to relevant documents. Plaintiff to pay costs of both Notices of Motion.


JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST


Associate Justice MALPASS


15 September 2006



13579 of 2004 Shiree Donna WILESMITH v CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS


JUDGMENT

1 These proceedings were commenced by Summons. The plaintiff now relies on a Further Amended Summons. It seeks relief under the Limitation Act 1969 (NSW) (including ss 58& 60 G). The proceedings arise out of sexual abuse of the plaintiffby her stepfather during the 1980's. Both were members of the defendant.

2In support of the claim for relief, the plaintiff has filed and servedaffidavits. The affidavits contained material dealing with, inter alia,her knowledge and belief concerning a claim for damages against thedefendant. It would seem that it was intended that they be adduced inevidence in chief at any hearing and that this was done on legal advice.

3Although the proceedings have been in the List on many occasions, theSummons is yet to come to hearing. Presently it is being delayedbecause of a dispute concerning waiver of privilege.

4 Mr Gaylerof Farrell Lusher is presently the solicitor for the plaintiff. Hecommenced acting in or about September 1999. It appears that SimoneQuilligan of McLaughlin's has also acted for her in the past (inrespect of a claim for compensation in the Victims CompensationTribunal).

5 The contents of the plaintiff's affidavits revealthat, prior to 13 January 2004, there had been some contact between theplaintiff and Mr Gayler concerning advice on the question of theliability of the defendant. Paragraph 5 of an affidavit sworn on 5 July2005 (the affidavit) deposes to advice given to her by Mr Gayler on 13January 2004 and as to knowledge and belief she had about the liabilityof the defendant prior thereto.

6 By subpoena, the defendant hassought production of documents from the plaintiff's legal advisors.Documents have been produced and there is now a dispute as to access.The plaintiff maintains her claim for privilege in respect of materialprior to 13 January 2004.

7 The defendant filed a Notice ofMotion on 7 April 2006 seeking access. The application was heard byAssistant Registrar Howe. He had before him, inter alia, two affidavitssworn by the plaintiff on 28 October 2004 and 5 July 2005. Theapplication was determined by him on 13 April 2006.

8 Thedefendant argued before the Assistant Registrar that the plaintiff'slegal professional privilege had been waived. The Registrar held thatthis was not so and denied access to the defendant.

9 The defendant has filed a further Notice of Motion. It seeks relief pursuant to Division 5 of r. 49 of the Uniform Civil Procedure Rules 2005 (NSW). Thequestion of whether the remedy thereby provided can now be accuratelydescribed as a review (as opposed to an appeal) has been the subject ofjudicial comment. At least to a substantive degree, the rules treat itas an appeal. For present purposes, the question was not regarded asrequiring further consideration.

10 There was also someinitial expression of concern as to whether or not an Associate Justicehas jurisdiction to hear the application. This concern appeared toevaporate and the parties acceded to the application being heard by me.

11Largely, other relevant matters may be found in the Registrar's reasonsfor decision. It is unnecessary to repeat them in this judgment.

12The court has been referred to a number of decisions concerning thematter of waiver of privilege. There is no significant dispute as towhat is said in these cases. The narrow area of dispute concerns theirapplication to the circumstances of this case. I shall briefly refer tocertain of the matters that were pressed on behalf of the plaintiff.

13Some comfort was sought to be taken by reason of the words "my ownbelief" appearing in paragraph 5 of the affidavit. As I understand whatwas being put, it was being emphasised that this was her personalbelief only. In my view, those words do not assist the plaintiff. Thewords comprise merely one of the matters deposed to by her in respectof her relevant knowledge. The issue is her knowledge and that mattercannot be divorced from any legal advice that she has been given.

14 The plaintiff seeks comfort also in provisions contained in Part 31 of the Uniform Civil Procedure Rules.That part contains provisions that deal with the manner in whichevidence is to be given. Rule 31.2 prescribes the manner where, interalia, the proceedings are commenced by Summons. The provision is in thefollowing terms:-

"r 31.2 Evidence of witnesses at other hearings
31.2Subject to rule 31.1 evidence in chief of any witness at any hearingmust be given by affidavit unless the court orders otherwise."


15 This provision is said to have the effect of "compulsion of law", within the meaning of s.122[2](c) of the Evidence Act 1995 (NSW) (which deals with the adducing of evidence by a client or party).

16The argument proceeds to the effect that, inter alia, what appears inparagraph 5 of the affidavit has been disclosed under compulsion oflaw. I do not accept that argument.

17 The plaintiff was notlegally compelled to either give the evidence or to swear theaffidavit. She was not compelled by law to say what appears inparagraph 5. Rule 31.2 merely requires her to put in affidavit form anyevidence in chief that she may wish to adduce in a trial. Thisobligation is subject to an "otherwise" order by the court.

18 I should add that, if the plaintiff's argument be correct, the rule would have extraordinary and unintended consequences.

19With respect to Assistant Registrar Howe, I have come to a differentview on the question of waiver. I consider that the claim for legalprofessional privilege made in respect of documents prior to 13 January2004 has been waived.

20 The decision and orders made byAssistant Registrar Howe on 13 April 2006 are set aside. The defendantis to have access to the relevant documents. If need be, the defendantis to prepare short minutes of order. The plaintiff is to pay the costsof both Notices of Motion.

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LAST UPDATED: 21/09/2006