PK v THE SALESIAN SOCIETY INCOPRORATED [2025] SASC 208

Applicant: PK Counsel: MR D CAMPBELL SC WITH MR J RONALD - Solicitor: KEN CUSH & ASSOCIATES Respondent: THE SALESIAN SOCIETY INCOPRORATED Counsel: MR A HARRIS KC WITH MS H VEALE AND MS M SCANLON - Solicitor: COLIN BIGGERS & PAISLEY LAWYERS Applicant: DM Counsel: MR D CAMPBELL SC WITH MR J RONALD - Solicitor: KEN CUSH & ASSOCIATES Respondent: THE SALESIAN SOCIETY INCOPORATED Counsel: MR A HARRIS KC WITH MS H VEALE AND MS M SCANLON - Solicitor: COLIN BIGGERS & PAISLEY LAWYERS Applicant: MP Counsel: MR D CAMPBELL SC WITH MR J RONALD - Solicitor: KEN CUSH & ASSOCIATES Respondent: THE SALESIAN SOCIETY INCORPORATED Counsel: MR A HARRIS KC WITH MS H VEALE AND MS M SCANLON - Solicitor: COLIN BIGGERS & PAISLEY LAWYERS Hearing Date/s: 01/12/2025 File No/s: CIV-21-000022, CIV-21-000021, CIV-24-005444 A SUPREME COURT OF SOUTH AUSTRALIA (Civil: Application) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. PK v THE SALESIAN SOCIETY INCORPORATED, DM v THE SALESIAN SOCIETY INCORPORATED, MP v THE SALESIAN SOCIETY INCORPORATED [2025] SASC 208 Decision of the Honourable Justice B Doyle 23 December 2025 PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - INTERLOCUTORY PROCEEDINGS - DISCOVERY AND INTERROGATORIES EVIDENCE - ADMISSIBILITY - EXCLUSIONS: PRIVILEGES - CLIENT LEGAL PRIVILEGE - LOSS OF PRIVILEGE - GENERALLY The applicants make claim against the respondent in respect of sexual abuse alleged to have been suffered by them in 1971 at Salesian College Port Pirie. They allege that the perpetrator (‘Coffey’) had previously abused children at a college run by the respondent in Victoria. The applicants filed a Notice to Produce requiring the respondent to produce various items. There is a dispute about the respondent’s claim of legal professional privilege over a transcript of an interview between a partner of Monahan and Rowell and a Salesians priest dated 21 March 2005 (‘interview transcript’) and the documents comprising the file of Monahan and Rowell in respect of a matter involving a claim by an individual against the respondent arising from the conduct of Coffey in Victoria (‘M&R file’). -- 1 of 35 -- The respondent’s insurer (‘CCI’) produced the interview transcript in an answer to a subpoena issued to it in later Victorian proceedings against the Marist Brothers. The applicants contend that to the extent there was a shared privilege between CCI and the respondent in respect of the interview transcript and the documents comprising the M&R file, it was a common interest privilege, and that the privilege has been waived. Held, upholding the respondent’s objection to the inspection by the applicants of the documents: 1. the interview transcript and the M&R file documents are the subject of joint privilege; 2. the respondent has not engaged in conduct which results in privilege having been waived. Observations on the difference between joint privilege and common interest privilege. Civil Liability Act 1936 (SA) s 50W; Limitation of Actions Act 1958 (Vic) 27QD; Uniform Civil Rules 2020 (SA) r 74.4(1), referred to. Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd [2011] SASC 90; Bulk Materials (Coal Handling) Services Pty Ltd v Coal & Allied Operations Pty Ltd (1988) 13 NSWLR 689; Farrow Mortgage Services Pty Ltd (in liq) v Webb (1996) 39 NSWLR 601; Glencore International AG v Commissioner of Taxation of the Commonwealth of Australia (2019) 265 CLR 646; Mercantile Mutual Insurance (NSW Workers Compensation) Ltd v Murray [2004] NSWCA 151; Thiess Contractors Pty Ltd v Terokell Pty Ltd [1993] 2 Qd R 341, applied. Australian Competition and Consumer Commission v Cadbury Schweppes Pty Ltd (2009) 174 FCR 547; Baker v Campbell (1983) 153 CLR 52; Bennett v Chief Executive Officer of the Australian Customs Service (2004) 140 FCR 101; Blatch v Archer (1774) 98 ER 969; Cadbury Schweppes Pty Ltd v Amcor Limited [2008] FCA 88; Carter v Managing Partner, Northmore Hale Davey and Leake (1995) 138 CLR 121; Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501; Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341; Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543; Dingwall v Commonwealth of Australia (1992) FCR 521; DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 384; Eastmark Holdings Pty Ltd v Kabraji (No 3) [2012] NSWSC 1463; Elders Forestry Ltd v Bosi Security Services Ltd (No 2) [2010] SASC 226; Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49; Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; Glencore International AG v Commissioner of Taxation of the Commonwealth of Australia (2019) 265 CLR 646 ; GLJ v Trustees of the Roman Catholic Church for Diocese of Lismore (2023) 280 CLR 442; Goldberg v Ng (1995) 185 CLR 83; Grant v Downs (1976) 135 CLR 674; Groom v Crocker [1939] 1 KB 194; Harman v Secretary of State for Home Department [1983] 1 AC 280; Hearne v Street (2008) 235 CLR 125; Legal Services Commission v JHW (2012) 223 A Crim R 534; Lombe v Pollak [2004] FCA 264; Marshall v Prescott [2013] NSWCA 152; New South Wales v Betfair Pty Ltd (2009) 180 FCR 543; Newcrest Mining (WA) Ltd v Commonwealth of Australia (1993) 40 FCR 507; R v Financial Services Authority [2012] 1 All ER 1238; Southern Waste ResourceCo Pty Ltd v Adelaide Hills Region Waste Management Authority [2019] SASC 190; Spedley Securities Ltd v Bank of New Zealand (1991) 26 NSWLR 711; State Bank of South Australia v Smoothdale (No 2) Ltd (1995) 64 SASR 224; State of South Australia v Barrett (1995) 64 SASR 73; TerraCom Ltd v Australian Securities and Investments Commission (2022) 401 ALR 143; Tirango Nominees Pty Ltd v Dairy Vale Foods Ltd (No 2) (1998) 83 FCR 397; Trans Tasman Energy Group Pty Ltd v South Australia [2025] SASC 134; Treasury Wine Estates Ltd v Maurice Blackburn Pty Ltd (2020) 282 FCR 95; Valentini (a pseudonym) v Trustees of the Marist Brothers (Costs) [2022] VSC 550; Yokogawa Australia Pty Ltd v Alstom Power Ltd (2009) 262 ALR 738, discussed. -- 2 of 35 -- PK v THE SALESIAN SOCIETY INCORPORATED, DM v THE SALESIAN SOCIETY INCORPORATED, MP v THE SALESIAN SOCIETY INCORPORATED [2025] SASC 208 Civil—interlocutory application 1 B DOYLE J: The applicant (‘PK’) makes claim against the respondent (‘Salesians’) in respect of sexual abuse by a person known as Brother Coffey (‘Coffey’) in 1971 when PK was a student at Salesian College in Port Pirie (‘Salesians Port Pirie’). 2 The applicant’s matter is being managed concurrently with two other matters that are to be heard together at a single trial. In the other two matters, the applicants (‘MP’ and ‘DM’) similarly make claims against the respondent based upon the conduct of Coffey in 1971 at Salesians Port Pirie. 3 The applicants in each case contend that abuse by Coffey sounds in liability on the part of the respondent in three ways: first, as a result of direct liability, on the footing that the respondent owed a duty of care to protect the applicant from harm and failed in its duty by not taking steps that would have prevented the harm occurring; secondly, by reason that Coffey’s conduct is a breach of a non-delegable duty of care owed by the respondent; and, thirdly, on the basis of vicarious liability. 4 As part of its direct liability case, and having potential relevance to other aspects of the claims, including claims for aggravated or exemplary damages, the applicants allege that the respondent knew or ought to have been aware that, before moving to Port Pirie, Coffey had sexually abused students at a college run by the Salesians known as ‘Rupertswood’ at Sunbury in Victoria. 5 In PK’s case, there is an additional issue relevant to liability. In 2004, he entered into a Deed of Release with the respondent pursuant to which he was paid $40,000 inclusive of costs and gave a release in favour of the respondent in respect of any claims. The Deed was governed by the law of Victoria. 6 PK makes application in these proceedings for the Deed to be set aside either pursuant to s 27QD of the Limitation of Actions Act 1958 (Vic) or, alternatively, s 50W of the Civil Liability Act 1936 (SA), on the basis that it is just and reasonable to do so in circumstances where, at the time, PK’s claim was statute-barred, the sum paid was ‘derisory’ and the respondent’s conduct was misleading in that it did not reveal its state of knowledge concerning Coffey’s conduct. 7 On 29 September 2025, the applicant filed a Notice to Produce in each proceeding requiring production at the trial of itemised documents. There is a dispute, which all parties join in seeking to have resolved prior to the commencement of the trial, effectively on an interlocutory basis, concerning whether the respondent must produce for inspection: -- 3 of 35 -- [2025] SASC 208 B Doyle J 2 • a transcript of an interview between Mr Patrick Monahan (a partner of the firm Monahan and Rowell) and Father Alan McDonald (‘Fr McDonald’) (of the Salesians) dated 21 March 2005 (‘interview transcript’); and • documents comprising the file of Monahan and Rowell in respect of a matter involving a claim by an individual (‘PO’) against the Salesians arising from conduct of Brother Coffey at Rupertswood (‘M&R file’). 8 The interview transcript is one of the documents on the M&R file. 9 The respondent makes a claim of legal professional privilege over these documents. This on the basis that the interview transcript was prepared for the purposes of advising both Catholic Church Insurance (‘CCI’) and its insured (the respondent) in relation to the claim against the respondent and that the documents on the M&R file were prepared for the purpose of advising CCI and the respondent about a claim by PO. 10 The applicants contend that if the documents were once the subject of legal professional privilege, the privilege is no longer able to be maintained by the respondent. 11 In the case of the interview transcript, the applicants contend that: • at most, the documents were the subject of a common interest privilege as between CCI and its then insured, the respondent; • by producing the interview transcript in response to a subpoena in later Victorian proceedings concerning the Marist Brothers, without a claim of privilege, CCI waived privilege in the document; • the respondent and/or its solicitors had notice of the fact that the interview transcript had been produced and failed to take active steps to claim privilege or secure the return of the document; and • in all the circumstances, any common interest privilege has been lost by operation of waiver. 12 In respect of the M&R file, the applicants contend that: • the respondent’s defence of the proceedings, including its opposition to the application to set aside the Deed entered into with PK, is inconsistent with the maintenance of any privilege; and • to the extent that documents on the file are related to the interview transcript, there is an associated or related waiver. -- 4 of 35 -- [2025] SASC 208 B Doyle J 3 13 For the reasons that follow, I conclude that the respondent is entitled to claim privilege in respect of the contentious documents, and I uphold its objection to production (or inspection by the applicants). Evidence 14 The applicant relied upon an affidavit made by Ms Sangeeta Sharmin on 21 October 2025.1 Ms Sharmin is a partner at Ken Cush & Associates (‘KCA’), the firm acting for the applicants in each proceeding in this Court. As will be explained, the same firm acted for other claimants who alleged that they suffered abuse perpetrated by Coffey in Victoria, after he left South Australia. 15 The respondent relied upon affidavits made by Mr Christopher Jones on 14 October 20252 and 24 October 2025.3 Mr Jones is a partner at Colin Biggers & Paisley (‘CBP’). That firm acts for the respondent in the proceedings in this Court. Monahan and Rowell merged with CBP some time ago. 16 There were no objections to the affidavits and no application was made to cross-examine either deponent. In that sense the evidence was unchallenged. However, the parties made submissions about the effect of the evidence including the inferences that could be drawn from it. I set out first the unchallenged chronology of events relevant to the claim of privilege and the question of waiver. 17 The M&R file was produced, subject to the objection to its inspection, and marked for identification.4 Separately, the respondent prepared an itemised index to the M&R file with brief explanatory notes. Factual background 18 The applicants each allege that Coffey lived and taught at Rupertswood from about January 1966 until about January 1971, albeit that he was known as Brother Coffin at that time.5 They allege he abused boys during that period and that members of the Salesian order were made aware or ought to have been aware of this and other inappropriate behaviour on Coffey’s part. 19 Fr McDonald was a priest in the Salesian order or congregation who died in 2011. Amongst other roles, it appears he was rector of Rupertswood including for a period between 1964 and 1969.6 1 Exhibit A1 (‘Sharmin Affidavit’). 2 Exhibit R2 (‘First Jones Affidavit’). 3 Exhibit R3 (‘Second Jones Affidavit’). 4 Exhibit MFI-R4. 5 The respondent’s defences are to the effect that Coffey undertook two years of his ‘Tirocinium’ through placement at Rupertswood in 1969 and 1970. 6 Sharmin affidavit, [47], Exhibit L. -- 5 of 35 -- [2025] SASC 208 B Doyle J 4 20 The applicants each allege that Coffey abused boys Salesians Port Pirie in 1971, where he was a teacher, sports master and sports coach.7 21 It appears that in 1971, a complaint was made to the South Australian Police in Port Pirie by a student of Salesians Port Pirie and that Coffey was charged with and pleaded guilty to one count of indecent assault. 22 From 1972, it appears Coffey was employed as a teacher at a catholic secondary school for boys in Victoria known as ‘Marist Brothers College’. By 1980 he became headmaster of that school. In 1994, further charges were laid in respect of sexual offending in Victoria in 1974 and 1975 against students of Marist Brothers, to which Coffey pleaded guilty. Yet further charges were subsequently laid and were the subject of guilty pleas, including, in 2007, further criminal charges in relation to offences in Port Pirie in 1971. Coffey has since died.8 23 In or about October 2003, one of the applicants, PK, made disclosure to the Professional Standards Office of the Catholic Diocesan Centre, Adelaide, of alleged abuse by Coffey at Salesians Port Pirie. The respondent agreed to fund psychological counselling for PK. In or about August 2004, PK entered into the Deed described earlier. 24 On or around 9 March 2005, Mr Monahan of Monahan and Rowell was engaged by Salesians’ insurer CCI, to act on behalf of the Salesians in respect of a claim made by a claimant in relation to alleged abuse by Coffey at Rupertswood.9 Mr Jones’ evidence, having reviewed the file of that matter relating to Monahan and Rowell’s instructions from CCI, is in these terms:10 Without waiving any client legal privilege, I can say that Monahan and Rowell had been engaged by CCI to act on behalf of the Salesians in respect of that claim for the purposes of obtaining legal advice and it was in that context that all work was undertaken on the file, including the obtaining of witness statements. … As I described above …, Mr Monahan (PJM) undertook investigations into a claimant’s allegations on the instructions of CCI in order to provide legal advice in relation to the claim. As a part of those investigations, Mr Monahan conducted an interview with Fr McDonald (deceased) on 21 March 2005. … 7 Each of the applicants alleges that he was abused by Coffey. One of the applicants (DM), also alleges that he was abused by two other men. 8 These matters, which emerge from the decision in Valentini (a pseudonym) v Trustees of the Marist Brothers (Costs) [2022] VSC 550 at [2]-[10] (Forbes J), have not been the subject of evidence and are included for narrative purposes only. 9 First Jones Affidavit, [24]. 10 Frist Jones Affidavit, [25], [34], [36]. -- 6 of 35 -- [2025] SASC 208 B Doyle J 5 It is plain from my reading of the Transcript that the interview with Fr McDonald was conducted for the dominant purpose of advising CCI and its insured, the Salesians, in relation to any risks on legal liability and the impact, if any, on that particular claim. 25 Mr Jones has affirmed that the file was opened on or about 15 March 2005 and closed on or about 25 May 2006.11 26 The index to the file prepared by the respondent identifies the name of the claimant (PO) and reveals that there were communications between Mr Monahan (and in some instances his secretary) and Mr Joe Bucci of CCI and Father Ian Murdoch (‘Fr Murdoch’), who is referred to in the index as the representative of Salesians providing direct instructions in relation to the claim by PO. There are references to a mediation and ultimately a settlement of PO’s claim. I was informed that Salesians have made discovery of PO’s original notice of claim, and some other documents which may be relevant to the issues in these proceedings, the originals of which are not privileged. 27 In recent years, KCA has acted for five claimants in matters against the Trustees of the Marist Brothers in the Victorian Supreme Court arising from allegations of abuse by Coffey at Marist Brothers. KCA has also acted for some 11 claimants in matters against Salesians, commenced in the Victorian Supreme Court but transferred to the South Australian Supreme Court. 28 On 16 March 2022, in one of the Victorian proceedings, KCA filed a subpoena for production addressed to CCI. In that context, CCI was represented by Gilchrist Connell Lawyers. CBP was acting for Marist Brothers in the Victorian Supreme Court matters. The partner with the conduct of those matters was Ms Vanessa Kemp, not Mr Jones. 29 On 1 April 2022, Gilchrist Connell sent correspondence to the Court requesting an objection hearing in connection with the subpoena. On 13 April 2022, part production of documents was made by CCI and there were discussions about a timetable for the objections to remaining documents. An objection hearing proceeded before a Judicial Registrar on 20 April 2022. Judgment was reserved. On 21 April 2022, Gilchrist Connell communicated on CCI’s behalf that it withdrew its objection to the subpoenas served in the proceedings and did not require a ruling. Counsel for the defendant (Marist Brothers) sent an email confirming that it also withdrew its objection.12 30 The documents then produced on 21 April 2022 included the interview transcript as well as a transcript of interview between PJM and Fr Murdoch (the Provincial of the Salesians) dated 9 April 2003.13 11 Second Jones Affidavit, [4], as corrected during the hearing: Transcript of hearing on 1 December 2025 (‘Transcript’) at 7.16. 12 Sharmin Affidavit, Exhibit A1. 13 Sharmin Affidavit, [18]. -- 7 of 35 -- [2025] SASC 208 B Doyle J 6 31 Mr Jones’ evidence is that CCI never made contact with him, in his capacity acting for the Salesians on the instructions of CCI or in any capacity, in relation to any subpoena issued against Salesians in the Victorian proceedings.14 32 Ms Sharmin annexed the interview transcript to an affidavit she affirmed on 26 April 2022 (‘April affidavit’) which was prepared for the purposes of an argument to the effect that the discovery by the defendant (Marist Brothers) was inadequate.15 33 Tuesday, 26 April 2022 was in fact the first day of trial with respect to the Victorian proceedings. Part of the transcript of hearing of that day was tendered.16 The claimants’ counsel, Mr Campbell SC, made submissions which alluded to the asserted incompleteness of discovery by reference to ‘what’s in the Catholic Church Insurance documents’. He took the judge to ‘the 21 March document’ which he explained was an interview between Mr Monahan and Fr McDonald. Counsel went on to allude to part of the content of the interview transcript, submitting:17 And he, if Your Honour goes forward to p3, was asked about Coffee [sic], ‘and what do you remember of him?’ ‘I remember there was some problem up there’, this is at Rupertswood, ‘and he was accused of some sex problems, I’m not sure, but I think I might have driven him down to the Provincial … (reads) … through his solicitor – Jim Caroll’, Your Honour, was the head of acting head of the order that I referred to before who gave evidence – ‘managed to get things fixed up somehow or other so that there wasn’t any colossal newspaper business and all of the rest of it. Jim Caroll would remember that much better. Have you spoken to him about it? Yes, I have spoken to him about it’. We have not received any documents relating to any conversation with Father Jim Caroll, notwithstanding the provision of this and a related communication in 2003. And Your Honour will then see that he was the Rector at Sunbury for part of the time when Coffee was there. It continues on in similar vein, and it relates to a claim that was then under consideration, there had been an omission to not remove the name on p5, but at least that informs Your Honour about the nature of the claim. I don’t think for present purposes I need to take Your Honour directly to the other transcript at the moment. But I can tell Your Honour that contained in the documents as well is reference, we have to put it off on the affidavit, but there is reference to the yearbooks because there was a testing of the memory of Father McDonald as to the years and whether the head of the order at that point or the person in charge was the one who mentioned it or it was someone else. So that the yearbooks were to be provided to Mr [Monahan] by the Salesians, none of those have been produced. No year books have been produced by subpoena. None of this material that I’ve just taken Your Honour to has been produced by the Salesians, notwithstanding that copies of the transcript was provided to them. HER HONOUR: So the copy of the transcripts originated from the solicitors? MR CAMPBELL: Catholic Church Insurance. 14 Second Jones Affidavit, [11]. 15 Sharmin Affidavit, [16]. 16 Sharmin Affidavit, Exhibit C. 17 Pages 11-12 of the transcript of the hearing. -- 8 of 35 -- [2025] SASC 208 B Doyle J 7 HER HONOUR: Yes, but the original document would have been a document with the solicitors who were conducting the enquiries on their behalf. MR CAMPBELL: Yes, so that no doubt Catholic Church Insurance was apprised of all this information in relation to indemnity questions, and that’s it happened to be on their file. Now, Your Honour will note from the very beginning of my instructing solicitor’s affidavit that originally we were met fierce resistance in relation to the subpoena. It was listed for argument before the Registrar who reserved his decision, prior to the decision being delivered both the Catholic Church Insurance and the defendant then withdrew their objection sand we got documents in two tranches, one on Thursday afternoon and one on Friday afternoon and that’s how all of this comes to pass. 34 At 1.19 pm the same day, Ms Sharmin sent an email to Father William Matthews of the Salesians (‘Fr Matthews’) with respect to compliance under subpoenas that had been issued to Salesians in November 2020. 35 Ms Sharmin requested compliance with the subpoenas and provided a ‘Dropbox’ link enclosing examples of documents which (she asserted) ought to have been produced by reference to documents that had been produced by CCI. An urgent response was requested.18 36 The text of the email was as follows. Good afternoon SECI 2020 01507 BLT (a pseudonym) vs Trustees of the Marist Brothers SECI 2020 01510 Tristan Moss (A Pseudonym) vs Trustees of the Marist Brothers SECI 2020 01512 Kirby Affini (a pseudonym) vs Trustees of the Marist Brothers SECI 2020 01513 Foster Valentini (a pseudonym) vs Trustees of the Marist Brothers SECI 2020 01515 Nathan Ansel (A Pseudonym) v Trustees of the Marist Brothers We refer to the above matters. We note the attached Subpoena to Produce was served on 6 November 2020 and on around 20 December 2020, documents were produced to the Court. Across 21 and 22 April 2022, Catholic Church Insurance produced documents in each of these matters. It now appears that not all documents responsive to the subpoena schedule have been produced by the Salesians. In particular, we note: 1. There are extensive victims who were abused by Coffey while he was a Salesians Brother and the documents relating to these victims have not been produced; 2. There are witness statements relating to the above; 3. There are transcripts we are aware of which relate to interviews investigating the above; and 18 Sharmin Affidavit, [31], Exhibit D. -- 9 of 35 -- [2025] SASC 208 B Doyle J 8 4. There are numerous yearbooks referred to relating to Coffey’s time at Rupertswood which have not been produced. We attach some documents produced by CCI by way of example only and note that these would clearly fall within the subpoena schedule issued to the Salesians of Don Bosco and it is evident that not all documents have been produced: [A Dropbox link then appeared] The hearing listed for these matters commenced before the Honourable Justice Forbes today. The above issue and the non-compliance was raised with her Honour. As a result, we would appreciate if you would seek urgent instructions as to the above. We propose any additional documents required to be produced under the subpoena to produce dated 6 November 2020 be produced to the Supreme Court of Victoria urgently tomorrow. Please confirm by return email so that we may provide an update to her Honour. 37 It appears that five subpoenas were attached to the email. The email did not, however, contain the April affidavit. That affidavit was not otherwise served on Salesians.19 38 Ms Sharmin’s affidavit includes a ‘screenshot’ of the contents page of the ‘Dropbox’ link, which I take to mean a reproduction of the image that would have been seen by the recipient of the email if they clicked on the Dropbox link. The screenshot shows a list of eight files or items. The last item on the list, which was a reference to the interview transcript involving Fr McDonald, is: Transcript of Telephone Interview Between PJM & Priest (redacted) – 21.03.2005.pdf 39 On 28 April 2022, Ms Sharmin received an email response from Father (Rev) Joseph Lee (‘Fr Lee’) of the Salesians Province Centre (copied to Fr Matthews and Mu Laing Thein) in these terms: Dear Sangeeta Mu and I refer to your colleagues emails below with the various court documents. We appreciate that, thank you. Having looked at the five subpoenas, I can see that the range of documents sought is vast and on reflection will likely take us longer than midday tomorrow to comply, and I would be grateful if I could please call you to clarify what documents it is that you seek, as that could assist us in speeding up the process of our ability to comply with the subpoenas. Is there a number that I can call you on today? Thank you and kind regards, Joseph […] 19 Second Jones Affidavit, [7]. -- 10 of 35 -- [2025] SASC 208 B Doyle J 9 40 Ms Sharmin spoke to Fr Lee and was advised that he would talk to Mu about the request and was not advised at any point in time that there were lawyers assisting with respect to the subpoena production.20 41 On 12 May 2022, the Victorian proceedings were at day 6 of trial. On that occasion, Mr Bongiorno, for the defendants, made reference to the April affidavit, in articulating the defendant’s opposition to a foreshadowed application to cross- examine Ms Kemp, who had apparently sworn an affidavit in respect of the complaint of inadequate discovery. Mr Bongiorno said: By way of background, I wish to just set out some steps, if I may. On 26 April the plaintiff filed an affidavit of Ms Sharman. What that did was it essentially exhibited certain correspondence regarding discovery in the matter. In response – before I actually outline that – although an affidavit had been filed there was no application, nor was there otherwise any articulation of precisely what the plaintiff was seeking. That said, on 10 May the defendant filed an affidavit of Ms Kemp. That affidavit addressed, among other things, what depositories had been searched for the defendant to comply with its discovery obligations. I’ll take Your Honour to each of those affidavits in a moment, so we have put on our position as to what we’ve done in response to our discovery obligations. Yesterday, we received a letter stating that Ms Kemp should be available for cross- examination on her affidavit, and that the deponent of two previous affidavits of documents also be available for cross-examination. Put succinctly, our position with respect to any proposed application to cross-examine either of those people is opposed, because there’s no application, leave is required, and it’s unclear for what purpose any such cross- examination would take place. So that’s an outline as to what’s happened. If I could take the court to the affidavits to which I’ve just referred, the first is the affidavit of Ms Sharman. … Essentially what that affidavit does by way of paragraph 18 is probably the first place to go, is a subpoena was served upon Catholic Church Insurance, and some documents were obtained thereby. Now, it’s not in the body of the affidavit, but I’ll take Your Honour to some correspondence in a moment, and the gist of the complaint is, the received documents from CCI, ‘we haven’t received them from you, ergo, therefore, you have been delinquent in your discovery’. We say that that logic is flawed, and Ms Kemp deposes as to why that would be. Obviously it does not follow that the assured holds the same documents as the insurer. I’m not sure, and I could be guessing something, at paragraph 19, of Ms Sharman’s affidavit, to certain documents that were obtained from CCI. An examination of those documents illustrates that they’re Salesians’ documents, and we are the Marist Brothers. And so that’s that affidavit … 42 Ms Sharmin’s affidavit attaches a screenshot that suggests that Mr Jones remotely attended the hearing on that day.21 43 It was on the following day, 13 May 2022, that Mr Campbell SC formally opened the claimants’ case. In the course of doing so he referred to the 20 Sharmin Affidavit, [33]. 21 Sharmin Affidavit, [35], Exhibit G. -- 11 of 35 -- [2025] SASC 208 B Doyle J 10 April affidavit, although no reference was made to the interview transcript itself.22 Ms Sharmin’s affidavit includes a screenshot that suggests that Mr Jones remotely attended the hearing on that day. 44 Mr Jones’ evidence is that whilst he did ‘log on’ that day, he did not do so under the instructions of Salesians or for any purpose other than to observe the proceedings out of interest. He had the live stream going whilst he undertook other work in the office. It did not occur to him that he should be listening out for references to potentially privileged materials of Salesians, and he did not do so.23 45 On 16 May 2022, a ‘Supplementary Key Documents Folder’ was sent to the chambers of the presiding judge, with the parties copied to the email. The index includes a reference to the interview transcript and records that it was produced by CCI.24 46 The five claims settled on various dates between 27 April 2022 and 17 May 2022. It follows that the interview transcript was never tendered at trial. 47 On 14 July 2022, an application was made by the claimant’s solicitors and counsel in the Victorian proceedings to be released from the Harman obligation in relation to documents obtained in those proceedings so that they could be used in proceedings in the Supreme Court of South Australia.25 The application was served upon Salesians as an interested party. CBP represented Salesians and made submissions on its behalf with respect to the application. 48 Ms Sharmin affirmed an affidavit on 22 August 2022 (‘August affidavit’) which appears to have referred to the interview transcript and other documents.26 This document and supporting submissions were served on Salesians and provided to Mr Jones in his capacity as solicitor on the record for Salesians in the South Australian proceedings.27 Mr Jones caused to be prepared submissions on behalf of Salesians in which objection was taken to two interview transcripts being the subject of a release from the Harman obligation.28 49 It appears that, following conferral, the parties ultimately submitted minutes of order on 26 August 2022 indicating their consent to a release being given in respect of eight of ten categories of documents, and not including the interview transcript. As Forbes J’s reasons record:29 The Salesian Society Incorporated (Salesians) was given leave to and did make submissions in respect of the summons. It did not oppose release in respect of eight documents, but did 22 Sharmin Affidavit, [36]-[38], Exhibit H. 23 Second Jones Affidavit, [9]. 24 Sharmin Affidavit, Exhibit B. 25 Sharmin Affidavit, [23], First Jones Affidavit [7], Valentini (a pseudonym) v Trustees of the Marist Brothers [2022] VSC 505 at [1] (Forbes J). 26 First Jones Affidavit, [8], Sharmin Affidavit, [23]. 27 First Jones Affidavit, [8]-[9]. 28 First Jones Affidavit, [11]. 29 Valentini (a pseudonym) v Trustees of the Marist Brothers [2022] VSC 505 at [4] (Forbes J). -- 12 of 35 -- [2025] SASC 208 B Doyle J 11 oppose the remaining two. Consequent on receiving those submissions, the plaintiff and respondent provided minute of consent orders limiting the release to those eight documents. The Salesians opposed the remaining two documents on the basis that they had been produced by CCI without notification to the Salesians in circumstances where the documents are likely subject to common interest legal professional privilege, which the Salesians had not waived. In those circumstances, the question of privilege ought most appropriately be heard and determined as part of the South Australian proceedings and the documents be produced through the court processes in the ordinary way. 50 There was no oral hearing in relation to the Harman release application and Mr Jones has deposed that the August affidavit of Ms Sharmin was not formally read or received into evidence on that application.30 51 Mr Jones has deposed that:31 It was not until I received Ms Sharmin’s affidavit of 22 August 2022 and its annexures, that I became aware that the Interview Transcripts had been produced to the Court in answer to a subpoena issued to CCI in the Marist Brother Proceedings, and that KCA sought access to the above ten documents, including the Interview Transcripts. Prior to the Documents being produced: a. neither I nor Salesians were informed of the subpoena; b. neither I nor Salesians were informed of any objection hearing occurring; and c. neither I nor the Salesians were informed that CCI had produced the Documents and had done so without making any claim for legal professional privilege over them. 52 Mr Jones’ evidence about Salesians’ knowledge was elaborated upon in an earlier affidavit sworn by him in September 2022 in a South Australian proceeding which was ultimately resolved.32 He said that:33 … upon receiving Ms Sharmin’s affidavit of 22 August 2022 at 5.58 pm that evening, I forwarded a copy of the documents to Rev Fr Joseph Lee SDB of the Professional Standards Office of the Salesians, requesting an opportunity to discuss with him the affidavit, its annexures, and the submissions. I received a response from Fr Lee the following morning (23 August 2022) at 8.28 am, advising me that he was overseas but would make time to phone me. He duly telephoned me around lunchtime my time. During that discussion, we talked through the documents that had been exhibited to Ms Sharmin’s affidavit and I raised with Fr Lee that the first and last documents were, in my view, documents over which the Salesians had a valid claim for privilege and that I was surprised that they had even been produced by CCI. Fr Lee sounded to me to be equally surprised that apparently privileged documents had been produced. I am now unable to remember precisely the words which were used in the conversation with Fr Lee … However, I can say that Fr Lee did not say anything which suggested that 30 Second Jones Affidavit, [8]. 31 First Jones Affidavit, [13]-[14]. 32 First Jones Affidavit, [20]. 33 First Jones Affidavit, [19], quoting an affidavit sworn in CIV-20-005157. -- 13 of 35 -- [2025] SASC 208 B Doyle J 12 he was aware prior to my speaking with him that apparently privileged documents had been produced by CCI in the Marist Brothers Proceedings. I have recently spoken to Fr Lee since this issue has arisen in these proceedings. I do not waive privilege over conversations between Fr Lee and myself in relation to this matter but I am informed by Fr Lee and verily believe to be true that prior to my conversation with him […], Fr Lee was unaware that the first and last documents had been produced by CCI in the Marist Brothers Proceedings without a claim of privilege being made in respect of them. I am further informed by Fr Lee and verily believe to be true that in late April 2022, he received an email from KCA that included a dropbox link to documents [that] had been produced by CCI pursuant to a subpoena in the Marist Brothers Brothers Proceedings, which he now understands included the two relevant privileged documents, but that he could not now recall whether he looked at the documents included in the dropbox link given that his focus at that time was responding to KCA’s request for the Salesians to produce further documents pursuant to a subpoena served on the Salesians in the Marist Brothers Proceedings. 53 One further matter by way of background may be noted. Mr Jones has affirmed that CCI no longer provides instructions in relation to matters involving the Salesians, and Mr Jones has received instructions directly from the Salesians on most matters since the end of 2022.34 The interview transcript 54 There is no dispute that, even though it may have been undertaken for the purposes of a claim made concerning Coffey’s conduct at Rupertswood, the interview transcript is of potential relevance to the three proceedings in this Court. 55 The real question is whether, on the footing that the discussion with Fr McDonald (and the transcript of the discussion) attracted legal professional privilege, that privilege has been waived or otherwise lost. 56 That invites consideration in the first instance to the nature of the privilege in question and, to the extent that there was a shared privilege between CCI and its insured, Salesians, that was a joint privilege or a common interest privilege. That is because, as was recognised in Farrow Mortgage Services Pty Ltd (in liq) v Webb35 (‘Farrow Mortgage Services’) in the case of joint privilege, ‘all to whom it belongs must concur in waiving it’.36 57 Before turning to questions about ‘shared privileges’ and questions of waiver in that context, it is helpful to commence by stating some basic propositions about legal professional privilege and waiver. Legal professional privilege 58 Legal profession privilege arises in relation to confidential communications between a lawyer and client, confidential communications between a lawyer and third parties when they are made for the benefit of a client, and confidential 34 Second Jones Affidavit, [10]. 35 (1996) 39 NSWLR 601. 36 (1996) 39 NSWLR 601 at 608 (Sheller JA, with whom Waddell AJA agreed). -- 14 of 35 -- [2025] SASC 208 B Doyle J 13 material that records the work of a lawyer carried out for the benefit of a client unless the client has consented to disclosure. To be protected by the privilege, a communication must be made for the dominant purpose of contemplated or pending litigation or for obtaining or giving legal advice.37 59 Legal professional privilege has been described as a right which is fundamental to persons and to our legal system. It is a substantive right founded upon a matter of public interest, and not merely an aspect of curial procedure or a rule of evidence.38 It facilitates the application of the rule of law.39 60 The ‘right’ in question is a right to resist compulsory disclosure of information or a right to decline to disclose or allow to be disclosed a confidential communication or document to which the privilege attaches, and so understood it is an immunity.40 Reflecting its substantive nature, it is available in non-curial contexts.41 61 A person who was entitled to rely upon privilege as a ground to resist compulsory disclosure may lose that right or immunity by performing an act which the court perceives, where necessary informed by considerations of fairness, to be inconsistent with maintaining the confidence preserved by the privilege.42 This is the doctrine of waiver. 62 Waiver may occur if a party deploys the fact of having received and acted in accordance with advice, or seeks to deploy the gist or part of the content of advice, for forensic advantage.43 The unfairness (and, critically, the resultant inconsistency) of seeking to gain an advantage in such a case, whilst at the same time attempting to shield the content of it from examination, is what results in the conclusion of waiver. 63 There may also be a waiver where a party adopts a position, or takes a step in proceedings, which impliedly makes an assertion about their state of mind, if fairness to the other party requires that it be permitted to scrutinise any advice that 37 Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 (‘Propend’) at 550 (McHugh J), Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 (‘Esso’) at [61] (Gleeson CJ, Gaudron and Gummow JJ). 38 Baker v Campbell (1983) 153 CLR 52 (‘Baker v Campbell’) at 64 (Gibbs CJ), 106 (Brennan J), 113 (Deane J), 122 (Dawson J), Glencore International AG v Commissioner of Taxation of the Commonwealth of Australia (2019) 265 CLR 646 (‘Glencore’) at [21] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ). 39 Carter v Managing Partner, Northmore Hale Davey and Leake (1995) 138 CLR 121 at 127 (Brennan J), 161 (McHugh J), Esso at [35] (Gleeson CJ, Gaudron and Gummow JJ). 40 Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 (‘Daniels Corporation’) at [9]-[11] (Gleeson CJ, Gaudron, Gummow and Hayne JJ), Glencore at [22]-[26] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ). 41 Baker v Campbell, Daniels Corporation. 42 Goldberg v Ng (1995) 185 CLR 83 at 106 (Toohey J), Mann v Carnell (1999) 201 CLR 1 (‘Mann v Carnell’) at [29] (Gleeson CJ, Gaudron, Gummow and Callinan JJ). 43 Bennett v Chief Executive Officer of the Australian Customs Service (2004) 140 FCR 101, cf. Eastmark Holdings Pty Ltd v Kabraji (No 3) [2012] NSWSC 1463 at [122] (Hallen J). -- 15 of 35 -- [2025] SASC 208 B Doyle J 14 may have had a bearing on that state of mind.44 However, waiver can only occur in proceedings where the issue is raised by the party otherwise entitled to the privilege; it cannot be foisted upon the party by an opponent’s pleadings.45 64 Whether the provision by one party to the other of witness proofs, affidavits or expert reports (in compliance with a direction for the filing and service of evidence that may be relied upon at trial) results in waiver of any privilege in the material (prior to its deployment at trial) has been a controversial question. 65 On one view, the documents have been prepared for the dominant purpose of use in legal proceedings and, because they have only been disclosed in order to comply with an order of the court, there has been no voluntary act inconsistent with the maintenance of the privilege, and will be no such act until the step is taken to rely upon the evidence at trial.46 On the other (now prevailing) view, the disclosure is voluntary in the relevant sense because it is for the party to choose whether they wish to have the option of relying on the evidence. And as a Full Federal Court said:47 … if the privilege is to protect the confidential communication between one party and that party’s legal advisers as to the evidence that might be led at trial, the very giving of such information to the opposing party flies in the face of the rationale for the continued existence of the litigation privilege. 66 On this view, it is a separate question whether the material, produced to comply with a court order, may be used by the party’s opponent for purposes unconnected with the litigation.48 67 A failure to assert the privilege in circumstances that are inconsistent with its continuance may result in waiver. Thus it was observed that if it had been open to a company to claim privilege in the context of a liquidator’s examination, the failure by a company’s solicitors whilst present at an examination at which 44 DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 384 (‘DSE v Intertan’) at [58] (Allsop J), Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341 at [72] (Kenny, Stone and Edmonds J). 45 DSE v Intertan at [6]-[7] (Allsop J), Lombe v Pollak [2004] FCA 264 at [36] (Jacobson J), Trans Tasman Energy Group Pty Ltd v South Australia [2025] SASC 134 at [120] (Stanley J). 46 See, eg, State Bank of South Australia v Smoothdale (No 2) Ltd (1995) 64 SASR 224. 47 Australian Competition and Consumer Commission v Cadbury Schweppes Pty Ltd (2009) 174 FCR 547 at [64] (Mansfield, Kenny and Middleton JJ). At first instance, Gordon J (at [15]-[17]) considered that if the other party could tender the evidence as an admission, and it was therefore in the other side’s power to destroy the privilege entirety, it could no longer be said that the original holder could reasonably expect any continued confidentiality. She said that the existence of the privilege could not be made to turn on whether the other side in fact placed the document into evidence or used it for examination; either legal privilege existed or it did not, and either the client controlled it or they did not. Gordon J said: ‘In other words, once it is found that the original holder of the privilege cannot control further dissemination of the document, the privilege is destroyed as a matter of law without further inquiry into whether the communication was in fact disseminated’ (Cadbury Schweppes Pty Ltd v Amcor Limited [2008] FCA 88). 48 Unless tendered, or the opponent obtains relief from the implied obligation, the general proposition is that they cannot. This does not reflect legal professional privilege, but rather the implied obligation or undertaking considered in Harman v Secretary of State for Home Department [1983] 1 AC 280 and more recently by the High Court in Hearne v Street (2008) 235 CLR 125. -- 16 of 35 -- [2025] SASC 208 B Doyle J 15 company officers were questioned with reference to privileged documents, would constitute waiver.49 68 Whilst the disclosure of otherwise privileged material to an opponent in litigation may, on the basis described above, amount to a waiver of privilege, there are numerous circumstances in which the disclosure of material to others, on a confidential basis, will not have that consequence. For instance, a company may disclose confidential advice to directors, employees or agents without loss of the privilege.50 That is in effect a disclosure amongst those who represent and comprise the embodiment of the client.51 It is generally only disclosure to a ‘stranger’ that may amount to waiver.52 Disclosure of privileged material to an expert or other witness on a confidential basis will not generally involve waiver unless and until the expert or witness uses the material in giving their evidence.53 69 As well, disclosure to another party with a relevant ‘common interest’ will not without more amount to waiver54 (disclosure as between the holders of a joint privilege is a fortiori). Further disclosure (to a third party) by the party who shares the common interest may give rise to a waiver on the part of the original privilege holder.55 As mentioned earlier, however, if the privilege is joint, waiver (vis-à-vis third parties) requires the concurrence of all joint holders. 70 The relationship of insurer and insured will usually involve a sufficiently common interest, but whether it may also give rise to a joint privilege is a question to which I will return. 71 Where a person who was entitled to rely upon privilege is seeking not to resist compulsory disclosure, but to restrain another party from using information or a document comprising or disclosing the content of a confidential communication to which privilege attached, including by seeking an order for the return or destruction of the document, the juridical basis for the relief that may be granted is not the privilege itself, for the privilege is not an actionable right. That was made clear by the Court’s decision in Glencore International AG v Commissioner of Taxation of the Commonwealth of Australia56 (‘Glencore’). In an appropriate 49 Spedley Securities Ltd (in liq) v Bank of New Zealand (1991) 26 NSWLR 711 at 729-730 (Cole J). A failure to object to any questioning about the fact of speaking to a lawyer may not, however, amount to waiver: see, eg, Southern Waste ResourceCo Pty Ltd v Adelaide Hills Region Waste Management Authority [2019] SASC 190 at [75] (Hinton J). 50 See, eg, State of South Australia v Barrett (1995) 64 SASR 73. 51 cf. in the case of a body politic, Mann v Carnell at [33] (Gleeson CJ, Gaudron, Gummow and Callinan JJ). 52 This expression is used in J D Heydon, Cross on Evidence (13th Australian ed) at [25010]. 53 See, eg, Dingwall v Commonwealth of Australia (1992) 39 FCR 521 at 524-525, (Foster J), Tirango Nominees Pty Ltd v Dairy Vale Foods Ltd (No 2) (1998) 83 FCR 397 at 400 (Mansfield J). In this Court, of course, there is an additional obligation to provide certain communications with an expert irrespective of whether the expert ultimately uses the material contained in the communications: r 74.4(1) of the Uniform Civil Rules 2020 (SA). 54 See, eg, Thiess Contractors Pty Ltd v Terokel Pty Ltd [1993] 2 Qd R 341 at 343 (Derrington J). 55 J D Heydon, Cross on Evidence (13th Australian ed) at [25010], Ligertwood & Edmond, Australian Evidence (2012, 6th ed) at [5.56]. 56 (2019) 265 CLR 646. -- 17 of 35 -- [2025] SASC 208 B Doyle J 16 case, equity may intervene to protect a breach of confidence. The availability of an injunction in aid of an equitable claim of that kind may depend upon whether the information remains confidential and whether the conscience of the recipient of the information is affected. That may invite close attention to the circumstances in which they came to receive the information.57 72 Where a document comprising or recording a privileged communication is inadvertently disclosed in a legal proceeding, the Court’s procedural powers may provide a sufficient juridical basis for an order requiring the return of documents.58 The position may be otherwise if the party to whom the documents have been disclosed has been placed in a position, as a result of the disclosure, where it would be unfair to order the return of the privileged documents. In taking such considerations (said to be analogous to equitable considerations) into account, ‘no narrow view is likely to be taken of the ability of a party, or the party’s lawyers, to put any knowledge gained to one side’. That will be so in the conduct of complex litigation ‘unless the documents assume particular importance’.59 Shared privileges 73 Whilst the expression ‘common interest privilege’ is sometimes used in a way which may embrace within it relationships of ‘joint privilege’, the authorities generally recognise that there are important conceptual distinctions between these ‘shared privileges’. 74 Indeed, on one view, ‘common interest privilege’ is not so much concerned with recognising multiple privilege-holders as it is with furnishing a defence (or exception) to the assertion (or proposition) that disclosure by the privilege holder to another party amounts to a waiver.60 That view was encapsulated by Barrett JA in Marshall v Prescott,61 when he said:62 Normally, disclosure of protected content by the holder of the privilege causes the privilege to be lost … Where there is, in relation to actual or pending litigation (or its course or outcome), a commonality of interest between, on the one hand, a party to the litigation who is also the holder of the privilege and, on the other, the person to whom disclosure of the privileged content is made by that person for a purpose relevant to that litigation, the commonality of interest supplies a rational basis for inferring an intention that the party’s privilege should be maintained, even though the subject matter of the disclosure has passed into the hands of the other person. 75 Put another way, confidential disclosure of privileged communications to another person is not relevantly inconsistent with the maintenance of 57 Glencore at [6], [19], [22], [26], [34], [37], [39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ). 58 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303 (‘Expense Reduction Analysts’) at [51]-[63] (French CJ, Kiefel, Bell, Gageler and Keane JJ). 59 Expense Reduction Analysts at [49] (French CJ, Kiefel, Bell, Gageler and Keane JJ). 60 cf. Elders Forestry Ltd v Bosi Security Services Ltd (No 2) [2010] SASC 226 at [25]-[26] (Kourakis J). 61 [2013] NSWCA 152. 62 [2013] NSWCA 152 at [65] (McColl and Ward JJA agreeing). -- 18 of 35 -- [2025] SASC 208 B Doyle J 17 confidentiality in the communications if the person shares the requisite common interest. 76 Joint privilege, by contrast, is a reflection of the proposition that legal professional privilege may be held (or owed) jointly when two or more persons who need not be, though often are, in a formal legal relationship, such as a partnership or joint venture, jointly retain the same lawyer or, even though there is no joint retainer, have a joint interest in the subject matter of the communication in issue at the time it comes into existence.63 77 Pointing up the potential significance of the distinction for the purposes of waiver, the author of the Australian edition of Cross on Evidence states:64 Where ‘joint privilege’ exists in relation to advice given to joint clients, each must waive the privilege.65 Where ‘common interest privilege’ exists, normally66 all persons sharing the common interest must join in the waiver, so that while waiver by one does not automatically bring waiver by others, fairness may require this result in particular circumstances. It has been said that this ‘follows from the nature of the common interest privilege, with the identity of interest meaning that each holder of the privilege is exposed to the consequences of the acts of the other. If, in prosecuting the interest for the benefit of both one holder waives legal professional privilege, fairness may well require that the act impact upon the other’.67 Sheller JA said:68 If in principle legal professional privilege vested in a party is not lost by dissemination of the contents of confidential documents to others with a common interest, I think that fairness, in many cases, will require that the privilege not be lost because one of those parties, be it the provider or the recipient, is minded to waive it. Once parties with a common interest have exchanged or provided one to another the contents of communications with legal advisers about the subject of their common interest, the question of whether the privilege is lost with its waiver by one must be determined by asking whether the waiver has made it unfair for the other parties with a common interest to maintain the privilege. This requires account to be taken of such matters as the circumstances in which the privileged communication took place and came to be exchanged and provided to others. 78 The relevant principles were conveniently summarised by White J in Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd69 (‘Alliance Craton’) in these terms: 63 Desiatnick, Legal Professional Privilege in Australia (2025, 4th ed) at p 256, referring, inter alia, to R v Financial Services Authority [2012] 1 All ER 1238 at [16] (Burnett J) and Farrow Mortgage Services at 608 (Sheller JA, Waddell AJA agreeing). 64 J D Heydon, Cross on Evidence (13th Australian ed) at [25015] (internal cross-references omitted). 65 Global Funds Management (NSW) Ltd v Rooney (1994) 36 NSWLR 122 at 134 (Young J), Farrow Mortgage Services Pty Ltd v Webb (1996) 13 ACLC 1329 at 1333 (NSW SC), Pioneer Concrete (NSW) Pty Ltd v Webb (1995) 18 ACSR 418 at 424 (NSW SC), Farrow Mortgage Services Pty Ltd (in liq) v Webb (1996) 39 NSWLR 601 at 608 and 618-619 (CA). 66 The principle of waiver is ‘to be sparingly applied’: Newcrest Mining (WA) Ltd v Commonwealth (1993) 40 FCR 507 at 509. 67 Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1995) 37 NSWLR 405 at 413, discussing Newcrest Mining (WA) Ltd v Commonwealth (1993) 40 FCR 507. 68 Farrow Mortgage Services Pty Ltd (in liq) v Webb (1996) 39 NSWLR 601 at 619-620. 69 [2011] SASC 90 at [54]-[61]. -- 19 of 35 -- [2025] SASC 208 B Doyle J 18 Joint Privilege – The Principles Alliance relied on the statement of Sheller JA in Farrow Mortgage Services Pty Ltd (in liq) v Webb70 regarding joint privilege: Two or more persons may join in communicating with a legal adviser for the purpose of retaining his or her services or obtaining his or her advice. The privilege which protects these communications from disclosure belongs to all the persons who joined in seeking the service or obtaining the advice. The privilege is a joint privilege. So is it also if one of a group of persons in a formal legal relationship communicates with a legal adviser about a matter in which the members of the group share an interest. Communications by one partner about the affairs of the partnership or a trustee about the affairs of the trust are examples. Implicit in the relationship is the duty or obligation to disclose to other parties thereto the content of the communication. Accordingly no privilege attaches to such communications as against others who, with the client, share an interest in the subject matter of communication. But the parties together are entitled to maintain the privilege “against the rest of the world”: Phipson, par 20-28 and par 28-29. Logically the joint nature of the privilege means that all to whom it belongs must concur in waiving it. Theirs is one inseverable right.71 This passage from Farrow has been adopted, or referred to with approval, in a number of subsequent decisions including Yunghanns v Elfic Pty Ltd;72 Mercantile Insurance (NSW Workers Compensation) Ltd v Murray73 and Shreuder v Murray (No 2).74 Sheller JA referred to two circumstances in which a joint privilege may arise: when two or more persons join in communicating with their legal advisors for the purpose of retaining their services or obtaining their advice; or when one of a group of persons in a formal legal relationship communicates with the legal advisor about a matter in which the members of the group share an interest. Quasar and Heathgate submitted that in the second of these alternatives, an obligation by one member of a group to disclose its communications with a legal advisor about a matter of shared interest to the other members of the group was a necessary and additional element for the existence of the joint privilege. Alliance, on the other hand, submitted that such an obligation was of a consequential kind, ie, it arose from the circumstance that one of a group in a formal legal relationship had sought legal advice on a matter in which all group members shared an interest. This difference led to some debate at the hearing about what Sheller JA had intended to convey by the quoted passage. In Winterthur Swiss Insurance Company v AG (Manchester) Ltd (in liq),75 Aikens J observed: The cases have refused to be prescriptive about the circumstances in which the two parties will have a sufficient “common interest” in the particular communications concerned. The issue has to be decided on the facts of the individual case.76 70 (1996) 39 NSWLR 601. 71 Ibid at 608. 72 [2000] VSC 113; (2000) 1 VR 92. 73 [2004] NSWCA 151 at [43]. 74 [2009] WASCA 145 at [9], [64]-[65]; (2009) 260 ALR 139 at 142, 152-3. 75 [2006] EWHC 839. 76 Ibid at [80]. -- 20 of 35 -- [2025] SASC 208 B Doyle J 19 This passage suggests that it will not be all cases in which two parties in a legal relationship will have the requisite common interest. Similarly, in Commercial Union Assurance Co PLC v Mander,77 Moore-Bick J observed: [T]he right to obtain disclosure of documents in this context depends upon their having been obtained by one party in furtherance of a joint interest, and in that sense on behalf of all those who share it. In a case where the documents contain legal advice that joint interest must exist at the time the advice is sought … .78 Given that the joint privilege arises from both the nature of the relationship between the parties in any given circumstance, and the purpose of the communication with the legal advisor, it is to be expected that, while a joint privilege will arise in many cases in which parties are in a formal legal relationship, it may not be all. This impression is confirmed by the paragraphs in the 14th edition of Phipson on Evidence to which Sheller JA referred: No privilege attaches to communications between solicitor and client as against persons having a joint interest with the client in the subject-matter of the communication, eg as between partners; a company and its shareholders; trustee and cestui qua trust; lord and tenants of a manor as to customs of a manor; a lessor and lessee as to production of the lease; reversioner and tenant for life as to common title; two persons stating a case for their joint benefit; or a husband and wife who are not genuinely, but collusively, in contest. Nor does any privilege attach as between joint claimants under the same client – eg between claimants under a testator as to communications between the latter and his solicitor. Thus where two persons agree to divide the profits made by one of them on contracts made with third parties, the person who does not make the contracts is entitled to production from the person who does of, for example, the opinions of counsel relating to litigation between the contractor and a third party. But where the communications relate to matters outside the joint interest, they are privileged even as against a person bearing the expense of the communication – eg communications between a plaintiff corporation and its solicitors, against a defendant ratepayer as to matters not connected with the rates; or between a company and its solicitors consisting of confidential advice to the former in an action against a shareholder; or between a trustee and his solicitor as against the cestui qua trust, where the communication is not made for the former’s guidance in the trust, but to enable him to resist litigation by the latter; or where it concerns his character, not as trustee, but as mortgagee of the client.79 (Emphasis in original) (Citations omitted) Phipson also observed that the joint interest which will give rise to a joint privilege in the communications of one member of a group with a legal advisor is not a rigidly defined concept.80 77 [1996] 2 Lloyd’s Rep 640. 78 Ibid at 645-6. 79 M N Howard, Peter Crane and Daniel A Hochberg, Phipson on Evidence (Sweet & Maxwell, 14th ed, 1990) at 20-8. 80 Ibid at 20-9. -- 21 of 35 -- [2025] SASC 208 B Doyle J 20 Finally, I note that Alliance’s submission would, in effect equate the circumstances in which a joint privilege arises with those in which the courts have found the existence of common interest privilege,81 whereas the two concepts are conceptually distinct. In these circumstances, I do not accept the submission of Alliance that, in relation to the second of the two alternatives identified by Sheller JA, the Court’s satisfaction that two persons were in a formal legal relationship and that the communication of one concerned a matter of common interest, will be sufficient for the privilege to be joint. I will proceed on the basis that a joint privilege will arise when one of a group of people in a formal legal relationship communicates with a lawyer for the purpose of obtaining or receiving legal advice about a matter in which the members of the group share an interest, and when there is implicit in the relationship between the group members a duty or obligation to disclose to the other members the content of the communication. 79 As his Honour’s analysis makes clear, even though some authorities posit the question whether a sufficient ‘common interest’ arises in order to justify what is in substance a ‘joint privilege’, the two concepts remain distinct. Consistent with White J’s approach, it is better to speak of a ‘joint interest’ in those cases. 80 What is required is a characterisation of the relationship between the putative joint interest holders vis-à-vis the receipt of legal advice. The mere fact that there may be circumstances in which the putative joint interest holders’ interests might diverge is not, in and of itself, decisive. It may be that, up to that point, they have agreed to share with each other any legal advice received, and, explicitly or implicitly, that neither of them may unilaterally waive the privilege as against outsiders to the relationship. 81 This is not to preclude the possibility that the joint interest holders may, as between themselves, agree that one of them is given the power (perhaps subject to express or implied limitations, or on express or implied conditions) to waive the privilege on behalf of them all. That, however, would be a matter of agreement or necessary implication as part of an agreement. It would not convert what would otherwise amount to a joint privilege into a ‘mere’ common interest privilege. Shared privilege and insurance 82 Whether a claim is being defended, or advanced, an insured and their insurer may share an interest in defending or advancing the claim. The potential for a denial of indemnity is one of a number of reasons why their interests may also diverge or conflict. The relationship between insurer and insured will be subject to the terms of any policy (and any statutory overlay), but is generally characterised by duties of good faith. 83 As between insurer and insured, there may be a joint privilege or there may be a ‘mere’ common interest. Some authorities have spoken of a common interest privilege but in circumstances where it was not necessary to consider whether there 81 See, for example, Buttes Gas & Oil v Hammer (No 3) [1981] 1 QB 223; Bulk Materials v Coal and Allied Operations (1988) 13 NSWLR 689; Network Ten Ltd v Capital Television Holdings Pty Ltd (1995) 36 NSWLR 275. -- 22 of 35 -- [2025] SASC 208 B Doyle J 21 was in fact, or (perhaps) as well, a joint interest privilege. In particular, where the question is whether disclosure as between insurer and insured amounts to a waiver of privilege (vis-à-vis a third party), the answer will usually be the same whether there is a joint privilege or a ‘mere’ common interest privilege. 84 In Bulk Materials (Coal Handling) Services Pty Ltd v Coal & Allied Operations Pty Ltd82 (‘Bulk Materials’), the plaintiff constructed a coal preparation plant for the defendant and was anticipating that a cross-claim may be made against it in respect of a dispute about an alleged faulty design, workmanship and materials affecting the reclaimer and stacker tracks. The plaintiff was insured and notified the insurer that a claim might be made against it. The insurer instructed a solicitor who in turn procured a report to be prepared by an independent expert. A final draft of the report was provided to the plaintiff’s solicitors to enable them to prepare a defence to the cross-claim and cross-claim against another party. 85 A party to the litigation alleged that the plaintiff’s copy of the report was not protected by privilege. Giles J reviewed a number of authorities dealing with common interest privilege. He said that:83 In the present case the plaintiff submits that underwriters and the plaintiff had a common interest. While underwriters had not, at the time the copy pages were provided to the plaintiff, decided whether or not to extend indemnity to the plaintiff, there was a likelihood that they would do so, and certainly they had not declined to provide indemnity. They therefore had an interest in seeing the best defence put forward by the plaintiff to the cross- claim made against it by the defendant, and an interest in enabling the plaintiff to put forward in a timely manner the best cross-claim against consultants involved in the project. They had an interest in the most advantageous conduct by the plaintiff of the proceedings then on foot. They had those interests even prior to a decision to afford indemnity, because upon making such a decision they would become subject to the consequences of the steps earlier taken in the conduct of the litigation. Their interests in these respects were identical with those of the plaintiff. These circumstances are apt for the application of a common interest privilege as recognised in Buttes Gas and Oil Co v Hammer (No 3). The communication constituted by the provision of the copy pages by the underwriters … to the plaintiff … was made in furtherance of the common interest of underwriters and the plaintiff. While there is no express evidence that the communication was made under a requirement of confidence it seems to me implicit in the nature of the LAC report from which the copy pages were taken and the purpose for which they were provided to the plaintiff that the plaintiff was to keep them confidential. … While the retention of a common solicitor may be a factor, and in some circumstances a significant factor, in the existence of the common interest, I can not see any reason why it should be essential if the common interest be found elsewhere. 86 Giles J went on to hold that the copy pages from the report held by the plaintiff were privileged and that, as well, the provision of them to the plaintiff by 82 (1988) 13 NSWLR 689. 83 (1988) 13 NSWLR 689 at 695. -- 23 of 35 -- [2025] SASC 208 B Doyle J 22 the underwriters could not amount to a waiver, ‘otherwise a common interest would be self-destructive’.84 87 In Thiess Contractors Pty Ltd v Terokell Pty Ltd85 (‘Thiess’) the plaintiff, a building contractor, sought to recover damages against the defendant in respect of the failure of surface coating constructed by the plaintiff, for which it was liable to the owner. The plaintiff had been insured. The insurer (‘QBE’) had reinsurance and certain questions arose relating to liability under the policy and the contract of reinsurance. QBE sought legal advice and, in conjunction with the solicitor for the other insurers, arranged for the procuring of expert reports in order to provide advice as to the insurers’ respective obligations. 88 The plaintiff’s proceedings were brought pursuant to an arrangement with QBE in which QBE was given the right to conduct the action in its name but it still had an interest in the result. Fresh solicitors were engaged by the insurer to conduct the action in the plaintiff’s name, so that the solicitors represented both the insurer and the plaintiff. 89 A copy of an expert report was provided by the insurer’s former solicitors to the plaintiff’s solicitors without the knowledge or approval of the solicitor for the other insurers who had jointly commissioned it. The defendants to the proceedings sought discovery of the report. The plaintiff and QBE argued that the provision by one person (not a party to the litigation) of a document to another (who is party to the litigation) does not defeat the claim of privilege where the parties have a common interest in the litigation. Further, in respect of its copy, the plaintiff claimed that because it was obtained by it for the purposes of litigation only, it was privileged whether QBE lost its privilege or not. 90 Derrington J said:86 The obvious point of commencement concerns the question whether in respect of the copy provided to the plaintiff there was a retention of privilege by QBE because of common interest. In that respect, Bulk Materials (Coal Handling) Services Pty Ltd v. Coal and Allied Operations Pty Ltd (1988) 13 NSWLR 689 is in point and very similar in detail to the present case. There an underwriter who was liable to indemnify a plaintiff/insured and otherwise had interests in the litigation identical with that party was held to have a common interest privilege in documents and copy documents passing from it to the insured. A similar result in principle based upon circumstances which were generally identical in principle obtained in Guinness Peat Properties Ltd v. Fitzroy Robinson Partnership [1987] 1 WLR 1027; [1987] 2 All ER 716. Both of these cases followed Buttes Gas & Oil Co. v. Hammer (No. 3) [1981] QB 223, where “common interest" privilege was recognised in respect of anticipated litigation in which several persons had a common interest. So in a case such as the present where an 84 (1988) 13 NSWLR 689 at 696. 85 [1993] 2 Qd R 341. 86 [1993] 2 Qd R 341 at 342-343. -- 24 of 35 -- [2025] SASC 208 B Doyle J 23 insurer and an insured have an interest in recovering moneys in the same cause of action, it is a classical case of such a common interest. The contrary argument that could be advanced by the applicants is that although the insurer had the conduct of the action, the insured retained some independent interest in its outcome. This however is not a distinction for the interests need only be common and not necessarily identical, as the applicants’ argument would have it. The result is that QBE has not waived its privilege either in the original report, which was never provided to the plaintiff, or in the copy which was provided to it under the privilege of common interest. Consequently, the application must fail as against both the plaintiff and Q.B.E. Learned counsel for QBE argued further that in any case there was no deemed waiver of privilege because the privilege was joint and so far as the evidence goes, the release of the report was made by one only of the parties who had jointly commissioned it without the knowledge or approval of the other. It is not possible, it was said, for one party to joint privilege to waive it without the consent of the other: Bray on Discovery 427. Because of the above result, it is not necessary to decide this point, but it would seem to be very debatable whether in the circumstances where the act constituting the waiver has occurred, the privilege might at least have been waived as against the party who purported to waive it. Otherwise the system would be open to grave abuse. Of course the party having the joint privilege which did not waive it would not lose its own privilege by the unauthorised act of the other. Because the privilege of common interest protects the copy that passed in the hands of the plaintiff it is also unnecessary to decide the point as to whether a document of a stranger which is otherwise without privilege attracts any privilege in the hands of a party or legal advisor because it has been obtained for the purpose of the litigation. 91 At the time the reports were obtained, they were obtained with coverage issues in mind. It is therefore unsurprising that, as between insurer and insured, common interest privilege, rather than joint privilege, was considered. 92 The observations made by Derrington J about the operation of waiver in the context of the joint privilege between the insurer and other insurers may suggest a variant on the prevailing view that there is one inseverable right, but they were obiter. 93 The decision in Farrow Mortgage Services did not involve insurance, but in outlining the concept of common interest privilege, Sheller JA said that an insured and insurer may have a shared or similar interest in defeating a claim against the insured.87 This was not to suggest that there can never be a joint privilege between insurer and insured; it was simply to observe, as Bulk Materials and a number of earlier English decisions had shown, that there will usually be a sufficient common interest in such a case. 87 (1996) 39 NSWLR 601 at 608. -- 25 of 35 -- [2025] SASC 208 B Doyle J 24 94 The decision in Mercantile Mutual Insurance (NSW Workers Compensation) Ltd v Murray88 (‘MMI v Murray’) confirms that the privilege may be joint. 95 The plaintiff was injured at work. A claim was made against the defendant on the footing it was its employer. Workers compensation was initially paid voluntarily by the insurer on the assumption the plaintiff was deemed to be the defendant’s ‘worker’. A claims assessor was engaged by the insurer for the purposes of providing material to solicitors who were appointed to act for the defendant in the proceedings, albeit it is apparent that, from an early stage, a question arose as to whether the defendant was in fact the employer of the plaintiff, a matter upon which indemnity turned. 96 Later, the insurer withdrew indemnity and the defendant became separately represented. The defendant made a third party claim for indemnity against the insurer. The insurer was initially represented by the solicitors who had originally been appointed by the insurer to act for the defendant but, following the defendant’s objection to that course, the insurer became separately represented. The original solicitors provided the claims assessor’s report (which included a number of privileged witness statements) to the insurer’s new solicitors. 97 The defendant sought to require the return of that material or otherwise restrain its use by the insurer. At first instance it succeeded on the footing that the original solicitors were retained to act exclusively for the defendant, and the defendant had not waived its privilege. 98 On appeal, a variety of different contentions were made, including as to whether there was a common interest privilege or a joint privilege in existence. Mason P (with whom Handley JA and Brownie AJA agreed) said: [41] If two persons join in a legal enterprise, the privilege is their joint privilege. From this it follows that the privileged communication may be disclosed to each without breach of privilege, because each client shares an interest in the subject matter of the communication. Joint clients may not maintain privilege against each other (Re Konigsberg (a bankrupt), ex parte the Trustee v Konigsberg [1989] 3 All ER 289 at 297). The parties are together entitled to maintain their privilege against the rest of the world, and this means that waiver by one is insufficient to affect the other’s privilege (see generally Farrow Mortgage Services Pty Ltd (in liq) v Webb (1996) 39 NSWLR 601 at 608A-D and Evidence Act, s122(5)). [42] Joint privilege is distinct from shared or common interest privilege. In the latter situations, disclosure amongst persons with the common interest need not result in a waiver of privilege by the party making it. The party or parties entitled to assert the privilege may still assert it against strangers. [43] An insured and insurer may have a shared or similar interest in advancing a claim on behalf of the insured or in defeating a claim against the insured and this may give rise to a shared or common interest privilege (Bulk Materials (Coal Handling) 88 [2004] NSWCA 151. -- 26 of 35 -- [2025] SASC 208 B Doyle J 25 Services Pty Ltd v Coal and Allied Operations Pty Ltd (1988) 13 NSWLR 689, Farrow Mortgage Services at 608F). [44] But it does not follow that insurer and insured are incapable of jointly retaining a lawyer in circumstances giving rise to a joint privilege. Whether they have done so, or whether the acts of one should merely be seen as in its own interests or merely as agent for the other, depend on the particular facts. These will include the terms of the insurance policy, in particular the terms of any clause dealing with the insured’s duty to assist the insurer. [45] Several cases have considered the question of identifying the client when an insurer appoints a solicitor to defend a claim by a third party against the insured. … [50] The cases support the view that the insurer-retained lawyer assumes a lawyer-client relationship with the insured, but not necessarily to the exclusion of a similar relationship with the insurer (Groom v Crocker [1939] 1 KB 194 at 202-3, 226-7, Brown v Guardian Royal Exchange Assurance plc [1994] 2 Lloyd’s Rep 325 (CA) at 330, State Government Insurance Commission (SA) v Paneros (1988) 48 SASR 349. [51] In the present case, there is nothing in the policy to exclude a solicitor-client relationship as between the insured and the solicitor retained at the request of the insurer. Nor were there any conditions in the insurer’s favour reserving the insurer’s rights or stipulating against the possibility of the insurer having waived its rights to decline cover (cf Sutton, Insurance Law in Australia 3rd ed (1999) p1107). Such stipulations may have offended Part 7 of the Workers Compensation Act. In any event, the litigation of any issue as to waiver lies in the future. … [59] The information gathered by the assessor was subject to client legal privilege at least as regards the insured, but not exclusively so. [60] The claims assessor was undoubtedly retained by the insurer and in its interest (not to the exclusion of the insured’s interest). The assessor visited the insured’s premises and interviewed the insured and others who knew the circumstances of the accident. Information was freely given which was relevant to assessing the nature of the plaintiff’s claim. This included such of the information as related to the issue of whether the plaintiff was a deemed worker, because that had a bearing on the extent of the statutory caps on damages recoverable against the insured and insurer if the insured was liable as an employer. [61] The relevant Employer’s Insurance Policy provided the respondent with insurance as required by Part 7 of the Act. Some of the Policy’s terms and conditions were mandatory. This included the scope of cover, extending to workers who were deemed employed because of Schedule 1 to the Act. Conditions 5 and 6 were in compliance with s159(2) of the Act. These stipulated that the insurer was directly liable to a worker and the worker’s dependents to pay compensation under the Act or any other amount independently of the Act for which the employer/insured was liable and indemnified under the policy (cl 5); and that the insurer was bound by and subject to any judgment given against the employer/insured in respect of any liability for which the insurer was liable to indemnify (cl 6). Clause 11 entitled the insurer to use the name of the employer/insured in respect of anything indemnified under the policy, including the bringing, defending, enforcing or settling of legal proceedings for the benefit of the insurer. The clause also required the employer insured to comply with all reasonable requests by the insurer for information, assistance and documents to enable the insurer to settle or resist a claim. -- 27 of 35 -- [2025] SASC 208 B Doyle J 26 [62] These provisions of the policy reinforce my conclusion that Turks were the solicitor for the insurer as well as the insured, at least until a situation of conflict arose. … [64] In my view, Coorey DCJ erred when he held that the insured could invoke legal client privilege as against the insurer with the consequence that the insurer could be compelled to hand over all copies of the assessor’s report, even the copy sent directly to it on about 2 June 2000. Turks were acting for both insurer and insured in the early stages of the litigation, before any conflict of interest arose. But in any event, the report was commissioned by the insurer, inter alia for its own purposes. When the assessor sent a copy directly to the insurer this involved no breach of duty on the assessor’s or insurer’s part. [65] Since the insurer obtained a copy of the report legitimately, ie without breach of privilege or any fiduciary duty, the processes of the District Court should not have been used to wrest the report from it. [66] Although I disagree with the primary judge’s conclusion and would hold that there was a joint privilege in the report when commissioned, I should indicate that there would undoubtedly have been common interest privilege if (as Coorey DCJ held) the insured was the sole client. The consequence would have been that the privilege would not have been lost merely because copies of the report were sent to the insurer and its solicitor (Moray & Agnew). Nothing however turns upon this, because there is no third party seeking access to the privileged material. Loss of privilege through waiver is not in question. 99 The authors of The Law of Liability Insurance summarise the position in these terms (footnotes omitted):89 If two parties obtain legal advice, the privilege attaching to the communication between them or one of them and the lawyer is joint privilege. It arises if the communication comes into existence in the process of the joint legal representation of parties, such as exists if the insurer retains a solicitor and counsel for the defence of the insured as protection of its own interest under the power given by the policy. An insurer and insured may have a shared or similar interest in advancing a claim on behalf of the insured or in defeating a claim against him, giving rise to shared or common interest privilege, and they may also jointly retain a lawyer in circumstances giving rise to joint privilege. Whether they have done so, or whether the acts of one are merely in its own interests or merely as agent for the other will depend on the particular facts, including the terms of the policy, particularly the insured’s duty to assist the insurer. … A solicitor retained by the insurer to conduct the defence of the insured on his behalf but also on its own behalf in the exercise or performance of its right or obligation under the policy to take over and conduct the defence is the joint solicitor of both parties. This means that any privileged communication raised in his acting for both in this way has the benefit of joint interest privilege against strangers but is not privileged as between themselves, for the lawyer/client relationship assumed with the insured does not necessarily exclude a similar relationship with the insurer. 89 Derrington and Ashton, The Law of Liability Insurance (2025, 4th ed) at [13-129]. -- 28 of 35 -- [2025] SASC 208 B Doyle J 27 100 I would adopt this as a convenient and accurate summary of the principles respecting joint privilege. Consideration 101 Whereas the respondent contends that the interview transcript, prepared in the course of dealing with the claim of PO, attracted a joint privilege, the applicants contend that, at most, there was a common interest privilege. 102 In support of their contentions, the applicants cite Cross on Evidence for the proposition that the relationship between insurer and insured has been held to give rise to common interest rather than joint privilege. However, the passage in question90 simply makes the proposition that an insurer and insured may have a common interest sufficient to defeat the contention that disclosure of a privileged communication by one to the other involves waiver. That does not foreclose the possibility that the work product of a lawyer or communications involving a lawyer may be subject, from the outset, to a joint privilege in favour of insurer and insured. 103 Next the applicants emphasise that even when defending a claim against the insured, the interests of insured and insurer are not identical and may come into conflict. In particular, they emphasise that the nature and extent of the insurance relationship between CCI and the respondent both in 2022 and presently is not the subject of evidence on the application.91 104 In considering these submissions, I bear in mind that the onus of establishing the existence of privilege lies on the party claiming it,92 but that the onus of establishing that it had been waived lies on the applicants.93 And whilst its application might be tempered in an interlocutory context by a need for proportionality, I also bear in mind the general proposition that evidence is to be weighed according to the capacity of a party to adduce it.94 105 The respondent did not put the policy of insurance in evidence on the application. The policy terms might bear on the nature or extent of any potential for a conflict to have emerged. However, the mere fact that there was a potential for the interests of the insurer and insured to conflict does not preclude there having been a joint privilege for so long as there was not a conflict unless, of course, the relevant communication is directed towards advising the insurer or insured about their rights or entitlements vis-à-vis each other about the issue which creates the potential for conflict. 90 The submissions refer to p 671, but the reference appears to be to a passage at [25265] in J D Heydon, Cross on Evidence (13th Australian ed). 91 Applicant’s Reply Summary of Argument dated 5 November 2025, [9]. 92 Grant v Downs (1976) 135 CLR 674 at 689 (Stephen, Mason and Murphy JJ). 93 New South Wales v Betfair Pty Ltd (2009) 180 FCR 543 at [54] (Kenny, Stone and Middleton JJ), Alliance Craton at [42] (White J). 94 Blatch v Archer (1774) 1 Cowp 63; 98 ER 969, GLJ v Trustees of the Roman Catholic Church for Diocese of Lismore (2023) 280 CLR 442 at [58] (Kiefel CJ, Gageler and Jagot JJ). -- 29 of 35 -- [2025] SASC 208 B Doyle J 28 106 Focusing on the time of the preparation of the interview transcript, having reviewed the relevant documents, Mr Jones’ evidence was that: • Monahan and Rowell were engaged by CCI to act on behalf of Salesians in respect of the claim for the purpose of obtaining legal advice; • witnesses were spoken to for that purpose; • the interview with Fr McDonald was conducted for the dominant purpose of advising CCI and its insured, the respondent, in relation to any risks on liability and the impact, if any, on that particular claim. 107 Once those propositions are accepted, in my view the proper inference to be drawn is that the documents in question concern communications in respect of which there was a joint privilege. The mere fact that the interests of CCI and the Salesians were not identical is not fatal to that proposition. They shared a sufficient interest for the purposes of joint privilege. That is to say, they had a joint interest in the question of the risk that Salesians was liable in respect of PO’s claim. The evidence does not support a proposition that advice or privileged documents were shared by CCI with its insured on an ad hoc basis, pursuant to a mere common interest. 108 Nor is this a case where the insurer obtained evidence for the purposes of forming a view about its obligation to indemnify and subsequently shared the material with the insured. 109 On the evidence, the interview was conducted for the purpose of advising both CCI and the Salesians. On the face of it, that entailed sharing information about the interview with both parties, and, whilst it would not have precluded the use of the information by either of them in a dispute inter se, the natural conclusion is that, vis-à-vis strangers, theirs was a joint privilege. 110 In the case of a joint privilege of insured and insurer, it is conceivable that, for the purposes of dealing with the claim the subject of the actual or potential right of indemnity, an insurer may, as part of its role in providing instructions to solicitors dealing with the claim, be given authority by the insured to waive the joint privilege on the insured’s behalf. In the ordinary defence of an insured claim, solicitors acting for an insured on the instructions of an insurer may frequently come into possession of material, or engage in communications, over which a claim of privilege might be made. The material may be patently helpful to the defence of the claim. Or there may be other good reasons why no claim of privilege should be asserted. There may be an argument that, even absent any specific language in the insurance policy, a broad right or power to conduct the defence on the insured’s behalf extends to making decisions that bind both parties with respect to the waiver of privilege.95 The policy might make that explicit, or it 95 cf. Groom v Crocker [1939] 1 KB 194 at 203 (Sir Wilfrid Greene MR). -- 30 of 35 -- [2025] SASC 208 B Doyle J 29 might provide to the contrary. If there was a question in the present case about waiver in the conduct of the defence of PO’s claim, the failure to disclose the policy might take on added significance. It seems to me unlikely, however, that any necessary implication arising from any right to conduct the defence of a claim made against the Salesians by PO would extend to having authority to waive a joint privilege over material that may be prejudicial to Salesians some 15 years or so after PO’s claim had been resolved. Waiver in those circumstances could not be sensibly incidental to resolution of PO’s claim. In those circumstances, the absence of specific evidence about the insurance policy, either at the time of the interview, or in 2022, does not dissuade me from finding that the interview transcript was the subject of joint privilege in favour of the insurer and insured. 111 It follows that, prima facie, both CCI and the respondent were required to waive their joint privilege vis-à-vis any strangers to their relationship. Was the privilege waived? 112 The failure by CCI ultimately to advance a claim of privilege in answer to the subpoena received by it in March 2022 was obviously not inadvertent. For its part, it was a sufficiently deliberate act inconsistent with the maintenance of the privilege. 113 If the respondent had been consulted by CCI about, and not objected to, the course it adopted, there is no question that privilege would have been waived. A failure to assert a claim in a timely fashion with knowledge that the failure to do so would result in the production of privileged documents would amount to a waiver. 114 Here, if there was any conduct capable of amounting to a waiver on the respondent’s part (so as to produce the result that there was a wavier by all joint privilege holders), it was in the conscious failure to take relevant action in the period after CCI produced the document (ultimately without objection) on 21 April 2022. 115 In my view, the fact that a solicitor who in particular matters was instructed to act for the Salesians was remotely accessing hearings in April and May 2022, in the course of which there was a partial revelation of the content of the interview transcript, does not fix Salesians with knowledge that a document in respect of which it could have asserted privilege had come into the possession of a stranger. Mr Jones was not present (in any relevant sense) at the hearing on behalf of Salesians. Further, and in any event, his evidence is that he did not appreciate, prior to receipt of the August affidavit, that the interview transcript had been produced by CCI without a claim of privilege. 116 The email sent to Fr Matthews on 26 April 2022 provided the Salesians with the means of ascertaining that CCI had apparently produced documents over which a claim of joint privilege might have been made, but it was not highly explicit as -- 31 of 35 -- [2025] SASC 208 B Doyle J 30 to that circumstance. (I make that observation without any implied criticism of the author of the email.) 117 The purpose of the email was to encourage Salesians to make further searches in respect of documents within the scope of five subpoenas previously issued to it. The Dropbox link directory would have permitted a reader of the email to ascertain that CCI had produced a transcript of interview involving a priest in 2005. Presumably, clicking on the document would have revealed that it was an interview with Fr McDonald. 118 However, it seems the task of responding to the email fell to Fr Lee, whose response suggests that he was focused upon the question of compliance with the subpoena within a relatively short time frame. 119 When Mr Jones became aware of the affidavit of Ms Sharmin annexing the interview transcript some months later in August 2022, he made contact with Fr Lee. The effect of Mr Jones’ evidence is that Fr Lee sounded surprised that documents over which a claim of privilege could have been made were produced by CCI. He did not say anything consistent with or suggestive of having appreciated that fact some months earlier. Fr Lee then informed Mr Jones in September 2022 that he was not so aware. 120 The fact that, in late August 2022, the Salesians did oppose a release of the Harman obligation on grounds including privilege, whilst hardly definitive, is broadly consistent with it not having made any conscious or deliberate decision at an earlier time not to advance a claim of privilege. 121 I find that Salesians did not engage in any deliberate or conscious conduct or omission inconsistent with the maintenance by them of the confidentiality inherent in Fr McDonald’s interview with Mr Monahan. 122 It remains to be considered whether, quite apart from any inconsistent conduct, the fact that the interview transcript came into the possession of lawyers in the Victorian proceedings who represent the applicants in this proceeding, and were referred to in the course of the Victorian proceedings, and included in a court book, results in a loss of the privilege on the basis that the document is no longer relevantly confidential. 123 The answer to that question, in my view, lies in the distinction recognised by the Court in Glencore between the operation of legal professional privilege as an immunity and the availability of equitable remedies. Equitable relief may cease to be available where another party has, without relevant notice of any iniquity, come into possession of previously confidential privileged material, or where such material has become public so that relief in aid of preserving an equitable obligation of confidence is inappropriate. If a person’s privileged document is surreptitiously copied by a third party and published widely on the internet, there has been no act of waiver on the part of the privilege holder. The loss of confidence -- 32 of 35 -- [2025] SASC 208 B Doyle J 31 may make the taking of active steps to limit publication or use of the content of the document impossible, but, it seems to me, it does not alter the proposition that the original document remains subject to an immunity from compulsory production.96 124 Further, even on the tentative view expressed by Derrington J in the penultimate paragraph of the passage from Thiess extracted earlier, unless the conduct of CCI in waiving privilege was authorised by Salesians, Salesians remained, for its part, entitled to rely on the immunity, unless and until it had engaged in conduct that might amount to waiver. 125 On the view I take, it is therefore not necessary to consider the correctness and applicability of the applicants’ contention97 that the reference in open court to the April affidavit in an interlocutory context results in the document (or some part of it) being ‘in the public domain’ for the purposes of determining whether the Harman obligation ceases. That is a different field of discourse. 126 If, contrary to the view I have expressed, there was no joint privilege, and any privilege was only a common interest privilege, it would not automatically follow from the proposition that CCI, for its part, waived privilege, that the privilege was lost. As the authorities summarised earlier suggest, more analysis would be required.98 In the circumstances, I prefer not to express a view on that hypothesis. The M&R file 127 Generally speaking, there is no dispute that the subject matter of the M&R file is likely to be of sufficient potential relevance and that production would not be excused on the ground of relevance.99 128 The real question is one of waiver. The putative waiver is said to arise because the respondent’s knowledge concerning Coffey’s conduct, either in 1971 or, in respect of PK, at the time the parties entered into the Deed in 2004, is squarely in issue in the proceedings. 129 In my view, the authorities to which I earlier made reference make plain that the mere fact that the pleadings raise an issue to which privileged documents are relevant, even highly relevant, does not result in a waiver of privilege. Waiver will only occur where the privilege holder makes a pleading as to their state of mind, or otherwise conducts the case, so as to make a positive assertion about their state 96 As the decision in Propend illustrates, the mere fact that an identical version of a document is not privileged does not mean that another document (produced on a privileged occasion, namely, for the dominant purpose of use in litigation or for providing advice) may not be privileged. 97 Relying upon Treasury Wine Estates Ltd v Maurice Blackburn Pty Ltd (2020) 282 FCR 95. 98 See also Newcrest Mining (WA) Ltd v Commonwealth of Australia (1993) 40 FCR 507 at 509 (French J). 99 As the respondent’s junior counsel explained during the hearing, to the extent that the respondent raised an objection on the ground of relevance, that was on the basis that the file was only said to be relevant to the question of PK’s claim to set aside the Deed. During the hearing, it was made plain that the M&R file is said to be relevant to a number of issues in each applicants’ claim. The respondent accepted that, on that footing, questions of relevance fell away. -- 33 of 35 -- [2025] SASC 208 B Doyle J 32 of mind, with the result that scrutiny of any advice that may have borne on that state of mind is necessarily invited as a matter of fairness. 130 In my view, the respondent’s defence does not make a positive case as to its state of mind, either in 1971 or 2004. As to 1971, merely to deny particular allegations of knowledge cannot, in my view, amount to conduct inconsistent with the maintenance of privilege over any communication which may shed light on the party’s state of knowledge at an earlier time. And as to 2004, in resisting the setting aside of the Deed, the position is the same.100 131 If, for instance, the respondent were to have pleaded that the settlement sum was reasonable because, at the time of entry into the Deed, it had no knowledge at all of any abuse on the part of Coffey, or perhaps no reason to consider that the abuse was likely to have occurred, the position would be different. And if, at trial, the respondent seeks to conduct a case of that kind, the position may be different and the question of privilege may need to be revisited. The mere fact that it has not been pleaded in those explicit terms would in those circumstances be neither here nor there. 132 However, based upon the pleadings as they stand, I do not consider that the respondent has advanced a case that is inconsistent with the maintenance of confidentiality over its communications with Monahan and Rowell in 2004-2005. Inspection 133 Whilst some doubt has been expressed about whether the Court has power to inspect documents for the purpose of assessing a contention of waiver,101 as distinct from a claim of privilege, I have proceeded on the assumption that such a power exists.102 With respect to the nature of the privilege, had I considered that the applicants were deprived (by the lack of a deponent who might sensibly be cross- examined) of the opportunity to test relevant or ambiguous propositions relevant to that question, I may have been inclined to inspect. However, I did not form that conclusion. 134 With respect to issues of waiver, I did not consider that the content of particular documents was likely to be influential in resolving that issue. I decided not to exercise the power to inspect the documents in question. 100 See, in addition to the authorities referred to earlier at footnotes 44 and 45, Yokogawa Australia Pty Ltd v Alstom Power Ltd (2009) 262 ALR 738 at [36]-[59] (Duggan J, Sulan and Kourakis JJ agreeing). 101 See, eg, Legal Services Commission v JHW (2012) 223 A Crim R 534; [2012] SASCFC 47 at [69], [75] and [81] (Doyle CJ, Vanstone and Anderson JJ). 102 See, eg, TerraCom Ltd v Australian Securities and Investments Commission (2022) 401 ALR 143 at [78] (Stewart J). -- 34 of 35 -- [2025] SASC 208 B Doyle J 33 Disposition 135 I therefore uphold the objections to production (or inspection by the applicants of the documents produced to the Court). I will hear the parties as to costs. -- 35 of 35 --