Language – The Chancellor’s foot

Bayliss v. Cassidy (No. 2) [2000] 1 Qd R 464 at 473:

[When considering waiver of legal professional privilege]

McPherson J.A.:

I have had the advantage of reading the reasons of Davies J.A., with which I agree, as I also do with the orders he proposes for disposing of this appeal, including the order as to costs. The basis for treating the privileges otherwise attaching to a confidential communication (such as legal advice) is said here to be ‘‘fairness’’ to the other party. See Standard Chartered Bank of Australia Ltd v. Antico (1993) 36 N.S.W.L.R. 87, 94–95, and Torcasio Developments Pty Ltd v. County Park Developments Pty Ltd (unrep. Byrne J., S.C. Vic. Sept. 9, 1991). As a criterion for decision, ‘‘fairness’’ has always seemed a somewhat imprecise guide because, like the Chancellor’s foot, it is largely the product or impression of a subjective state or attitude of mind which has a propensity to vary greatly from one individual to another.

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