Goldberg v Ng [1995] HCA 39

Goldberg v Ng [1995] HCA 39

The majority (Deane, Dawson and Gaudron JJ) held that provision of the privileged documents to the Law Society by Mr Goldberg, in the context of related proceedings and for the purpose of rebutting allegations made by his former clients, created a situation in which fairness required an imputed waiver of privilege. The privileged material was then to be made available to the former clients in the equity proceedings, as the documents had been used (to the solicitor's advantage) before the Law Society in a closely related dispute. Thus, waiver was imputed as a matter of law, and privilege in the documents was lost as against the former clients. Toohey and Gummow JJ dissented, holding that...

Jurisdiction
Australia
Procedural Posture
Appeal / High Court on Appeal From the New South Wales Court of Appeal
Outcome
Appeal dismissed with costs
Legal Topics
['legal Professional Privilege' 'waiver of Privilege' 'implied Waiver' 'limited Waiver' 'subpoena' 'public Interest Immunity' "solicitors' Conduct"]
['equity' 'professional Regulation' 'evidence'] ['legal Professional Privilege' 'waiver of Privilege' 'implied Waiver' 'limited Waiver' 'subpoena' 'public Interest Immunity' "solicitors' Conduct"]

Case Brief

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Procedural Posture

Appeal / High Court on Appeal From the New South Wales Court of Appeal

Legal Issues

  1. 1 ['Whether disclosure of documents by a solicitor to the Law Society constituted a waiver of legal professional privilege as against former clients in related litigation' 'Whether privilege claimed over documents created for litigation with former clients was lost through limited or imputed waiver upon disclosure to an investigatory body' 'Whether fairness required imputed waiver in the circumstances']

Ratio Decidendi

The majority (Deane, Dawson and Gaudron JJ) held that provision of the privileged documents to the Law Society by Mr Goldberg, in the context of related proceedings and for the purpose of rebutting allegations made by his former clients, created a situation in which fairness required an imputed waiver of privilege. The privileged material was then to be made available to the former clients in the equity proceedings, as the documents had been used (to the solicitor's advantage) before the Law Society in a closely related dispute. Thus, waiver was imputed as a matter of law, and privilege in the documents was lost as against the former clients. Toohey and Gummow JJ dissented, holding that...

Court Disposition

Appeal dismissed with costs

Orders

  • ['Appeal dismissed with costs']