[22]  Hill J was confronted with a similar question in Carbone v National Crime Authority (1994) 52 FCR 516, and he adopted a robust approach to the answer. He merely said at 529:

"In my view there is no substance in the argument that privilege attaching to witness statements is waived when a copy of those statements is given to the witness. The statement is given to the witness in circumstances of confidentiality and is part of the process of ensuring the accuracy of the statement. It would be nonsense at the one time to maintain that privilege exists in such a statement and on the other hand to assert its waiver once the statement is shown or given to the person who gave it."

[23]  That passage was cited and relied on by Hedigan J in Murphy v FAI General Insurance Co Ltd (unreported, Supreme Court of Victoria, No 8049 of 1994, judgment to September 1997). There the copy of the transcript of an interview conducted instead of an examination pursuant to the provisions of the Corporations Law was sent to the person examined with a request that it be signed and then "please … return the original to us retaining a copy". In that case the principal argument addressed to Hedigan J was that the intention and arrangement to make a copy available constituted an additional purpose so that the "sole purpose" test was not satisfied. But that learned judge held that the approach adopted by Hill J applied also to that situation. Here the argument was limited to the issue of waiver.

[24]  A similar conclusion was reached by Gummow J in Hartogen Energy Ltd v The Australian Gas Light Company (1992) 36 FCR 557. That case was concerned with transcripts of a confidential interview conducted instead of a formal examination under the provisions of the Companies Code. The liquidator's solicitors supplied copies of the transcript to the person examined for his consideration and the making of corrections. At 568 his Honour said:

"There was no express waiver by the applicants of any legal professional privilege. Whether a waiver should be implied depends upon the principles discussed in Attorney-General (NT) v Maurice at 481, 487-488, 493, 497-498. Counsel for the applicants submits that the issue was whether the liquidators had either used the transcript in litigation or in some way otherwise put it into the public domain in a fashion which would make it unfair to allow the maintenance of their claimed privilege. He submitted that, as a matter of fairness, it could not be said that the liquidators had waived privilege in respect of the transcript by the taking of steps whereby copies were supplied, through his solicitors, to Mr Nicholls for his consideration and the making of corrections. I accept those submissions."

[25]  It should also be noted that at 571 that learned judge said that "if a privileged document is in the hands of a third party that does not destroy the privilege, the question being whether the party entitled to the privilege has waived it." That statement was cited with approval by Bainton J in Abigroup Ltd v Akins (1997) 42 NSWLR 623 at 632-633. There the judge went on to say: "There must be some intentional communication amounting to waiver or circumstances in which the law imputes or implies waiver." Abigroup held that delivery of statements pursuant to court directions did not constitute waiver (see on appeal: (1998) 43 NSWLR 539 especially at 552-553).

[26]  However, counsel for the plaintiff contended that the authorities disallowed a claim for privilege made in respect of a copy of a witness statement in the hands of the witness, absent some particular circumstances under which the witness would be obliged to keep the contents confidential. He sought to distinguish Carbone on the ground that the witness statements there were not in the possession of the witness and further on the ground that the remarks quoted did not apply to all cases in which witnesses had been given copies of their statements. The argument for the plaintiff was largely based on observations of McLelland J in Ritz Hotel Ltd v Charles of the Ritz Ltd (1988) 14 NSWLR 132. Before examining that case in some detail it is worth restating some general propositions of law which are relevant.

COMMONWEALTH BANK OF AUSTRALIA v COOKE[1999] QSC 13; BC9900101