TALBOT V. NRMA LIMITED

HIS HONOUR: Objection is now taken to RJT5, which is part of Exhibit PX1, on the ground of legal professional privilege.

I have not looked at the document, but I am told it comprises legal advice provided to the NRMA, to which Mr Talbot has had access as a director of the NRMA. In those circumstances, prima facie it is privileged and the privilege is that of the NRMA and the objection would be upheld.

Mr Shand has referred me to section 121(3) of the Evidence Act, which states that privilege would not prevent the producing of evidence of a communication or document which affects the rights of a person. In my opinion, that cannot mean a communication or document that is relevant to a right of a person because that would virtually eliminate the legal professional privilege as a ground for non-admission of evidence. In my opinion, that must mean a communication or document that affects in some fairly direct way what are the actual rights and perhaps also duties of a person.

It seems to me arguable that a communication to a director of legal advice given to the company could affect the content of that director's duties in relation to the company. At this stage I do not see that the content of Mr Talbot's duties would be affected by this advice in a way that is relevant to anything I have to decide, particularly as the reasonableness of his actions are not at this stage to be determined. If there is an issue as to the bona fides of his actions, then I will return to consider that matter further.

Mr Shand also relied on s.122(4), dealing with disclosure with the expressed or implied consent of the client or parties to another person. In my opinion, the disclosure of legal advice given to a company, to members of the board of that company, for the purposes of their dealing with that advice as directors of the company, does not fall within disclosure with the expressed or implied consent of the client or parties to another person. The disclosure is to an officer of the company, acting as an officer,and I do not think that kind of disclosure is intended by the words "to another person".

At this stage I would exclude RJT5 from the evidence.