Armstrong v McIntosh [No 3]
[2019] WASC 396
•5 NOVEMBER 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: ARMSTRONG -v- MCINTOSH [No 3] [2019] WASC 396
CORAM: LE MIERE J
HEARD: 30 OCTOBER 2019
DELIVERED : 5 NOVEMBER 2019
FILE NO/S: CIV 1120 of 2018
BETWEEN: PAUL ANDREW ARMSTRONG
Plaintiff
AND
GREGORY MCINTOSH
Defendant
Catchwords:
Practice and procedure - Inspection of documents produced by subpoena - Legal professional privilege - Litigation privilege - Whether emails comprising confidential communications between plaintiff and a third party made for the dominant purpose of use in litigation - Whether court may inspect the relevant documents in ruling on contested privilege claim - Whether emails comprising confidential communications between plaintiff and a third party are the subject of joint privilege - Turns on own facts
Legislation:
Nil
Result:
Documents labelled CG‑8 are privileged
Documents labelled CG‑3 are not privileged and may be inspected by the defendant
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr M C Goldblatt |
| Defendant | : | Mr N D C Dillon |
Solicitors:
| Plaintiff | : | Carmel Galati |
| Defendant | : | Hager Grubb & Partners Lawyers |
Case(s) referred to in decision(s):
Esso Australia Resources Ltd v Commissioner of Taxation (Cth) (1999) 201 CLR 49
Grant v Downs (1976) 135 CLR 674
Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority (2002) 4 VR 332
Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357
Trade Practices Commission v Sterling (1979) 36 FLR 244
LE MIERE J:
Summary
At the request of the defendant the court issued a subpoena to Woodside Energy Ltd on 9 September 2019. Woodside produced documents in answer to the subpoena. The plaintiff and his sister, Ms Armstrong, claim legal professional privilege in respect of a number of the documents produced. For the reasons which follow, I find that the documents labelled CG‑8 are privileged, the documents labelled CG‑3 are not privileged and may be inspected by the defendant.
Outline of the action
The plaintiff is the brother of the defendant's former wife, Ms Armstrong. The plaintiff complains of four text messages sent by the defendant to a friend of the defendant, Simon Quayle, which the plaintiff says are defamatory of him. The plaintiff claims damages for defamation, and an injunction restraining the defendant from repeating or republishing the allegedly defamatory imputations, arising from each of the publications complained of.
The defendant and Ms Armstrong were married on 31 August 2014. They separated on 11 November 2016. On 3 August 2017, Ms Armstrong commenced proceedings against the defendant in the Family Court of Western Australia in which she sought a property settlement. On 10 November 2017, the Family Court, by consent, made orders in respect of a financial settlement between the defendant and Ms Armstrong. The defendant and Ms Armstrong are now divorced.
The text messages, which give rise to this action, were sent by the defendant to Mr Quayle between 4 May 2017 and 3 July 2017.
The plaintiff and Ms Armstrong caused the court to issue the writ of summons in this matter on 29 January 2018. Ms Armstrong has taken no part in the proceeding subsequent to the issue of the writ. On 29 January 2019 Ms Armstrong filed a notice discontinuing the action against the defendant.
The documents
The documents produced by Woodside have been inspected by Ms Galati, who is the solicitor for the plaintiff, and Ms Armstrong. Ms Galati has sworn an affidavit in support of the claim for legal professional privilege by the plaintiff and Ms Armstrong.[1] Ms Galati has sworn that she has been informed by the plaintiff or Ms Armstrong, and believes, the following matters.
1.Once discussions between Ms Armstrong and the defendant, regarding their financial aspects of their separation, began to deteriorate in March 2017, she sought the assistance of her brother, the plaintiff, to help her in her discussions with the defendant and, subsequently, in her instruction of solicitors in attempting to resolve the issues and the proceedings instituted in the Family Court.
2.Ms Armstrong sought legal advice regarding her separation from the defendant initially from solicitor, Adam Spashett.
3.Ms Armstrong briefed Culshaw Miller around May 2017, but later in 2017 she instructed Klimek & Wijay (K&W) to represent her in relation to her separation from the defendant.
4.The plaintiff accompanied Ms Armstrong to her meeting with Mr Spashett for preliminary advice, to her first meeting with Culshaw Miller and subsequently to her first meeting with K&W.
5.Ms Armstrong provided the plaintiff, by email, with copies of legal advice she received from the respective firms of solicitors so that he could advise her in relation to the legal advice she had received and also assist her with the further instructions she should give to her solicitors.
6.Ms Armstrong and the plaintiff exchanged emails discussing the legal advice she received from the respective firm of solicitors and the further instructions to be given to the solicitors.
7.The plaintiff has treated the communications between him and Ms Armstrong in relation to the legal advice she was receiving from the firms of solicitors and the instructions to be given to them as being confidential to the two of them.
[1] Affidavit of Carmelina Galati in support of application to object to production of certain documents produced under subpoena sworn 25 October 2019 and attachments CG‑1 to CG‑8.
Ms Galati has inspected the documents produced by Woodside. She identified a number of documents in relation to which the plaintiff and/or Ms Armstrong claim legal professional privilege.
The defendant does not dispute the claims to legal professional privilege, except in relation to three categories of documents identified by Ms Galati and labelled CG‑2, CG‑3 and CG‑8. The plaintiff and Ms Armstrong do not press their claim for legal professional privilege in relation to the CG‑2 documents. Thus, the issue to be decided is whether or not the CG‑3 and CG‑8 documents are the subject of legal professional privilege.
CG‑3 documents
Ms Armstrong claims legal professional privilege in respect of the CG‑3 documents. Ms Galati says that from her inspection of the documents, the CG‑3 documents comprise confidential communications between the plaintiff and Ms Armstrong, in which legal advice from Culshaw Miller and K&W to Ms Armstrong, in relation to her separation from the defendant and the financial settlement of their separation, the anticipated Family Court proceedings and the conduct of those proceedings is discussed, and advice provided by the plaintiff in relation to further instructions to be given by Ms Armstrong to her solicitors to obtain advice or provide legal services, the disclosure of which would reveal the legal advice and the instructions.
Ms Galati has provided a list of the CG‑3 documents. There are 11 documents. Each document is an email from the plaintiff to Ms Armstrong or from Ms Armstrong to the plaintiff. Ms Galati says that each email discusses instructions to and/or advice from her legal advisor.
At common law, litigation privilege attaches to confidential communications passing between a legal advisor or client and a third party if made for the dominant purpose of using them in relation to, litigation, then existing or reasonably anticipated.[2] In Trade Practices Commission v Sterling[3] Lockhart J said that legal professional privilege extends to communications passing between the party and a third person (who is not the agent of the solicitor to receive the communication from the party) if they are made with reference to litigation either anticipated or commenced, and at the request or suggestion of the party's solicitor; or even without any such request or suggestion, they are made for the purpose of being put before the solicitor with the object of obtaining his advice or enabling him to prosecute or defend an action.[4]
[2] Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority (2002) 4 VR 332, 334 ‑ 335; Trade Practices Commission v Sterling (1979) 36 FLR 244.
[3] Trade Practices Commission v Sterling (244).
[4] Trade Practices Commission v Sterling (245 ‑ 246).
In Pratt Holdings Pty Ltd v Commissioner of Taxation[5] the Full Court of the Federal Court extended advice privilege to confidential communications between a client and a third party made for the dominant purpose of the legal advisor providing advice to the client, notwithstanding that the third party is not an agent of the client or legal advisor. Finn J explained:
To deny that a third party is an agent in such circumstances does not, though, provide a sufficient or principled reason for denying privilege to the documentary communication (or contents) it has authored. The important consideration in my view is not the nature of the third party's legal relationship with the party that engaged it but, rather, the nature of the function it performed for that party. If that function was to enable the principal to make the communication necessary to obtain legal advice it required, I can see no reason for withholding the privilege from the documentary communication authored by the third party. That party has been so implicated in the communication made by the client to its legal adviser as to bring its work product within the rationale of legal advice privilege.
There are, in my view, clear reasons of policy that support extending the privilege to such third party authored documentary communications. Whether a natural person or a corporation, a party seeking to obtain legal advice may not have the aptitude, knowledge, skill and expertise, or resources to make adequately, appropriately or at all such communication to its legal adviser as is necessary to obtain the advice required. Such is commonplace today where advice is sought on complex and technical matters. To deny that person the ability to utilise the services of a third party to remedy his or her own inability or inadequacy unless he or she is prepared to forego privilege in the documents prepared by the third party, is to disadvantage that person relative to another who is able adequately to make the desired communication to a legal adviser by relying upon his or her own knowledge, resources, etc.[6]
[5] Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357.
[6] Pratt Holdings Pty Ltd v Commissioner of Taxation [41] ‑ [42].
Finn J then went on to consider whether the third party communications in that case had been prepared with the dominant purpose of it being, or being part of, the client's communication to its legal advisor to obtain legal advice. In the course of that consideration Finn J said:
Thirdly, notwithstanding the principal's stated purpose in having a documentary communication brought into existence, the principal may have so conducted himself or herself in the matter as to indicate that the intended use of the document authored by the third party was not its communication to the legal adviser as the principal's communication, but rather it was to advise and inform the principal concerning its subject matter, with the principal then determining (a) in what manner, if at all, the whole or part of the document would be used by the principal in making its own communication or (b) the purpose(s) for which the document could or should be used. The less the principal performs the function of a conduit of the documentary information to the legal adviser, the more he or she filters, adapts or exercises independent judgment in relation to what of the third party’s document is to be communicated to the legal adviser, the less likely it is that that document will be found to be privileged in the third party’s hands. This will be because the intended use of the document is more likely to be found to be to advise and inform the principal in making the principal’s communication to the lawyer (whether or not that communication embodied wholly or substantially the content of the document) and not to record the communication to be made.[7]
[7] Pratt Holdings Pty Ltd v Commissioner of Taxation [47].
In this case, the emails between the plaintiff and Ms Armstrong were not made for the dominant purpose of use in relation to, the Family Court litigation then reasonably anticipated. The emails, or the matters communicated in them, were not made for the purpose of being put before Ms Armstrong's legal advisor with the object of obtaining her advice or enabling the legal advisor to prosecute the anticipated Family Court proceeding. The emails were made for the purpose of the plaintiff advising and informing Ms Armstrong of the plaintiff's opinion of the instructions she should give to her legal advisor, with Ms Armstrong then exercising her own judgment and determining her own communication to her legal advisor. The intended use of the communications was to advise and inform Ms Armstrong in making her communications to her legal advisor, whether or not those communications embodied wholly or substantially the content of the plaintiff's communications. For those reasons I am not satisfied that the emails are privileged.
In ruling on a contested privilege claim the court may inspect the relevant documents.[8] If the power of inspection is to be exercised, the privilege claim may be determined by a judge other than the trial judge. However, both parties invited me to inspect the disputed documents, notwithstanding that I will be the trial judge. I determined to take that course because the trial is to commence shortly and referring the privilege claim to another judge would cause undue delay in resolving the privilege claim.
[8] Grant v Downs (1976) 135 CLR 674, 677, 689; Esso Australia Resources Ltd v Commissioner of Taxation (Cth) (1999) 201 CLR 49, 70.
My inspection of the CG‑3 documents confirms that they are not privileged. Where the disputed emails are part of an email thread, which includes emails from or to Ms Armstrong's legal advisor, the emails between Ms Armstrong and her legal advisor remain privileged.
CG‑8 documents
The CG‑8 documents are different. Ms Galati describes them as comprising confidential communications between the plaintiff and Ms Armstrong, in which they discuss the legal advice Ms Galati provided to them in relation to the allegedly defamatory publications by the defendant of, and concerning, the plaintiff and Ms Armstrong which Ms Galati provided to them, and communications between the plaintiff and Ms Armstrong in which they discuss providing Ms Galati with further instructions, both before and after the commencement of these proceedings, the inspection of which would reveal privileged communications.
Ms Galati has provided a list of the CG‑8 documents. There are 22 documents. The defendant does not press to inspect documents 15 to 22. The documents in dispute, 1 to 14, consist of emails between Ms Armstrong and the plaintiff discussing instructions and/or providing legal advice from Ms Galati.
Where two persons communicate with a legal advisor for the purpose of obtaining that legal advisor's advice the communications are the subject of joint privilege. A joint interest privilege may co‑exist with a common interest privilege.
In this case, the plaintiff and Ms Armstrong jointly retained Ms Galati to advise them in relation to reasonably anticipated litigation and subsequently in prosecuting that litigation. The plaintiff and Ms Armstrong had a common interest in the litigation and its subject matter. The communications between Ms Armstrong and the plaintiff were for the purposes of giving joint instructions to Ms Galati or sharing advice from Ms Galati. They are privileged.
I inspected the CG‑8 documents 1 ‑ 14 to confirm that they consist of communications for the purpose of giving instructions to Ms Galati or sharing advice from her. My inspection confirms that the documents are privileged.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MS
Associate to the Honourable Justice Le Miere5 NOVEMBER 2019
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