Begley and Anor v Baxters Quarries Pty Ltd and Anor (Privilege)

Case •

[2018] VCC 1662

•

17 October 2018

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE

COMMERCIAL DIVISION
GENERAL CASES LIST

Case No. CI-15-05142

James Francis Begley & Anor Plaintiffs
v
Baxters Quarries Pty Ltd & Anor Defendants

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JUDICIAL REGISTRAR:

Judicial Registrar Burchell

WHERE HELD:

Melbourne

DATE OF HEARING:

10 October 2018

DATE OF JUDGMENT:

17 October 2018

CASE MAY BE CITED AS:

Begley & Anor v Baxters Quarries Pty Ltd & Anor (Privilege)

MEDIUM NEUTRAL CITATION:

[2018] VCC 1662

REASONS FOR DECISION
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Catchwords: Legal Professional Privilege – Subpoenaed documents – Objection by subpoenaed party and party to inspection by other party - sections 118 and 119 Evidence Act 2008 (Vic) – Court’s discretion to inspect documents – Common law principles.

Legislation Cited:     Evidence Act 2008 (Vic)

Cases Cited:Alphington Developments Pty Ltd v Amcor Limited [2018] VSC 293; Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Limited (No 4) [2014] FCA 796; Attorney-General (NT) v Maurice (1986) 161 CLR 475; Bolton v Liverpool Corporation (1833) 1 My & K 88; 39 ER 614; Commissioner of Australian Federal Police v Propend Finance Pty Limited (1997) 188 CLR 501; Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49; Grant v Downs (1976) 135 CLR 674; Hastie Group Ltd (in liq) v Moore [2016] NSWCA 305; New Cap Reinsurance Corp (in liq) v Renaissance Reinsurance Ltd [2007] NSWSC 258; Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357; Vic Kids Property Pty Ltd v Kritsonis & Anor [2018] VCC 891; Waterford v Commonwealth (1987) 163 CLR 54.

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APPEARANCES:

 Counsel Solicitors
For the Plaintiffs J Nixon Aitken Partners Pty Ltd
For the Subpoenaed Parties/Defendants P Duggan Champions Lawyers

JUDICIAL REGISTRAR:

Introduction

  1. This proceeding was commenced on 30 October 2015 and involves a failed proposed joint venture in October 2008 between the Begley interests (James and Ronald Begley) and the Baxter interests (David, Stephen and Brendan Baxter and Baxters Quarries Pty Ltd (as trustee for the Baxters Quarries Unit Trust) and Baxters Concrete Pty Ltd) concerning the extracting and selling of top soil, sand and gravel from a quarry operating under a direct lease from Weather-All Masonry Pty Ltd (Weather-All) located in Wodonga (the Quarry).

  1. The Begleys’ (the plaintiffs’) claims concern discussions and negotiations that took place with the Baxter interests. The plaintiffs contend that from about December 2007 to December 2009, there were negotiations between the parties regarding:

a.    The establishment and conduct of a joint venture conducting an extraction business from the Quarry, including the purchase and transport of plant and equipment for use at the Quarry; and

b.    Once it became apparent that the joint venture would not proceed, regarding compensation payable by the defendants to the plaintiffs.  

  1. The plaintiffs contend that the defendants owed them fiduciary duties by reason of the negotiations concerning the proposed joint venture, and that such duties were breached by the defendants because the Baxter interests entered into a lease with Weather-All and conducted the extraction business at the Quarry from January 2009 to the exclusion of the plaintiffs.

  1. The Begley interests now claim damages against the Baxter interests for repudiation of the proposed joint venture agreement, a taking of accounts for breach of fiduciary duty in relation to the business conducted by the defendants at the Quarry, and reasonable remuneration for work undertaken for the benefit of the Baxter interests.

  1. By Subpoena dated 10 August 2018 addressed to Keating Avery Solicitors, the Baxter interests’ former solicitors, the plaintiffs’ solicitors sought production of three categories of documents. Broadly speaking, the documents encompassed (1) documents from the period 1 July 2007 to 31 December 2009 between Keating Avery and the Baxter interests in relation to the proposed joint venture and any agreement between the Begley interests and the Baxter interests in connection with matters arising out of the proposed joint venture; (2) documents relating to the transfer of the quarry business from Baxter Quarries Unit Trust to Baxter Quarries Pty Ltd; and (3) any agreements for the payment of or obligation to pay for fuel and oil, hire of plant and equipment, administration fees, labour hire, management fees, repairs and maintenance, royalties, subcontractors by Baxter Quarries Unit Trust or Baxter Quarries Pty Ltd or any document evidencing any payment or obligation to pay any of the specified expenses (the Subpoena).

  1. On 3 September 2018, Keating Avery produced some 500 pages to the Court registry in answer to the Subpoena. The defendants’ solicitors informed the Court registry that, by arrangement, Keating Avery had delivered the subpoenaed documents to the defendants’ solicitors’ office for review of which documents produced were the subject of a claim for legal professional privilege. The defendants’ solicitors conducted a review and placed some 53 documents into a sealed envelope marked “Documents from the file of Keating Avery the subject of legal professional privilege”. The defendants objected to the plaintiffs inspecting or copying these documents. Further, the informed the Court registry that the defendants objected to the plaintiffs inspecting and copying the STM legal professional privilege document.

  1. By Subpoena dated 10 August 2018, the plaintiffs’ solicitor further issued a subpoena addressed to the Baxter interests’ accountants, Stewart, Tracy & Mylon (STM Subpoena).

  1. On 3 September 2018, STM produced a USB to the Court registry. By cover letter dated 30 August 2018, STM noted that they had produced the following categories of documents in response to the STM Subpoena:

a.    Item 1 – documents to produce;

b.    Legal professional privilege;

c.    Item 2 – transfer correspondence;

d.    MYOB Accounting Ledgers.

  1. Therefore, STM objected to inspection of the documents category (b) “Legal Professional Privilege”. By letter dated 5 September 2018, STM requested that the items enclosed in the USB under “Legal Professional Privilege” be placed in a sealed envelope and the attachment be deleted from the USB before forwarding to the other parties. The defendants’ solicitor verified that there was only 1 document in the sealed envelope as there was some confusion caused by STM’s letter which referred to “documents” (plural).

10. Procedural orders were made allowing the parties to inspect the documents over which there was no objection and to allow the plaintiff to make any application to inspect the files named “Legal Professional Privilege”. If such an application was made by the plaintiffs, then within 1 week after the application, the defendants were to file and serve an index identifying each documents said to be privileged and the grounds for privilege, together with any affidavit evidence relied upon to support the claim for privilege.

11. By email dated 6 September 2018, the plaintiffs’ solicitor made an application to inspect the documents produced by Keating Avery in respect of which legal professional privilege had been asserted. The objections hearing was listed for 10 October 2018, noting that the proceeding has a trial listed for 12 November 2018. 

12. On 30 September 2018, the defendants’ solicitors filed and served their Notice of Objection (see Annexure A) and an affidavit of Brendan Baxter, a director of Baxter’s Concrete Pty Ltd (the first defendant company) sworn on 27 September 2018. Documents 37 and 51 were provided to the plaintiffs’ solicitors as privilege was no longer pressed over those documents. During the course of the objections hearing, a redacted version of document 53 (the STM document) was provided to the plaintiffs’ solicitor. Legal Professional Privilege was only claimed over paragraph 1 of that document.

13. By email dated 1 October 2018, the plaintiffs’ solicitors wrote to the defendants’ solicitors requesting further information to be provided in respect of the defendants’ Notice of Objection. The description of the documents was “economic” and did not provide the date of the document, the subject matter of the document, if the document was by email, letter or other correspondence, the sender and recipient of the document, if the document was a note of a telephone conversation, the names of the parties to the telephone conversation, if the document was a file note or note of a telephone conversation, the name of the person who made the file note, if the document was a “typed document”, the name of the person who created the document and the title of the document, and if the document contained an attachment, a description of the attachment. 

14. By email dated 5 October 2018, the defendants’ solicitors stated that each of the Keating Avery documents over which legal professional privilege was claimed was produced by that firm (principally Kevin Keating) providing legal advice to the defendants and their agents (typically through the conduit of David, Brendan and/or Stephen Baxter) in connection with their legal dealings with the Begleys. They further claimed that none of the documents “appear from their face to have been circulated to third parties contemporaneously or subsequently”.

15. In relation to document 53, produced by STM, that document was produced by the defendants’ accountants and “is a note of discussion between Kevin Keating and one of the defendants’ financial advisors as to claims made by your clients as at September 2009.”

16. By letter dated 9 October 2018, the plaintiffs’ solicitors referred to the Court’s decision in Vic Kids Property Pty Ltd v Kritsonis & Anor [2018] VCC 891 and offered to adjourn the application to enable the defendants to file further affidavit material deposing to facts to enable them to discharge their onus to establish privilege. The defendants did not take up the plaintiffs’ invitation.

17. The defendants elected to rely on the Notice of Objection, their written outline of submissions and the affidavits of Brendan Baxter sworn on 27 September 2018 and 1 December 2017 to discharge their onus of proof in relation to establishing privilege over the disputed documents.

18. At the outset of the objections hearing, Mr Nixon of Counsel for the plaintiffs requested clarification from the defendants as to the identification of the moving parties to the application in light of the recent decision of Justice Connock in Alphington Developments Pty Ltd v Amcor Limited [2018] VSC 293. His Honour noted that the test to be applied in relation to establishing legal professional privilege is different for the purposes of documents produced in answer to a subpoena in circumstances where section 131A of the Evidence Act 2008 (the Act) is engaged. Sections 118 and 119 of the Act are relevant if the person objecting is the person required to produce the documents pursuant to the subpoena (here, STM and Keating Avery). If the person objecting is not a person producing the documents (here, the defendants), then the common law principles apply.

19. Mr Duggan of Counsel for the objecting parties initially confirmed that he had instructions to appear on behalf of STM and Keating Avery for the purposes of the objections hearing. The oral and written submissions then proceeded on the basis of sections 118 and 119 of the EvidenceAct. However, in reply submissions, Mr Duggan clarified that he also appeared on behalf of the defendants. Therefore, the common law principles are engaged in respect of those parties.

20. In Alphington at [7] and [33]-[34], both parties recognised the difference between the Act and the common law position. That is, that with respect to legal advice privilege, under section 118 of the Act, there are differences with the common law in relation to confidential communications between lawyers or clients and third parties made for the dominant purpose of obtaining legal advice.[1]  

[1]see Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357; and Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Limited (No 4) [2014] FCA 796.

21. At paragraph 34, Justice Connock observed:

“… for protection to be afforded under s 118(a) of the Act, the confidential communication must be between the client and the lawyer, and ‘client’ is defined in s 117 of the Act to include ‘an employee or agent’ of the client. At common law, agency (whether within the meaning of that expression in s 117 of the Act or otherwise) is not required.  As observed in Asahi, the absence of agency does not deny the existence of the privilege attaching to the communication, although its presence ‘may’ fortify it.  In terms of a third party adviser, the important characterisation 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”.  [emphasis added]

22. Given that both the subpoenaed parties and the defendants have objected in the present proceeding, I must apply both the common law and sections 118 and 119 of the Act. This is because sections 118 and 119 of the Act apply only to the adducing of evidence in the relevant proceedings. The common law doctrine of legal professional privilege applies in all other circumstances. It is clear from the decision in Alphington that the statutory concept of agency as opposed to the common law concept of the nature of the third party adviser’s role may give different results in different cases. 

23. The further key differences between the common law and the Act include:

a. the advice privilege at common law does not cover documents or third parties but section 118(c) includes both;

b. the litigation privilege at common law generally does not cover either third party communications or documents but section 119 includes both (even if they were not communicated to the client or his or her lawyer);

c.    unrepresented litigants are given a privilege in the litigation situation;

d. in each case, section 131A overcomes the fact that, unlike the common law, the sections 118 and 119 privileges are restricted to curial proceedings.

Legal Framework

Common Law Principles

24. Both the common law and statute recognise two types of privilege: legal advice privilege and litigation privilege.

25. Common law privilege attaches to confidential communications made between a lawyer and their client when the communication was made for the dominant purpose of giving or obtaining legal advice (advice privilege), as well as communications made for use in existing or contemplated litigation (litigation privilege).[2]

[2]Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49, 64.

26. Legal professional privilege also attaches to communications between a lawyer and third parties when the communication is made for the benefit of the client, with the purpose of preparing for existing or reasonably apprehended litigation[3] as well as attaching to material that records confidential legal advice, including any document that records the work of a lawyer carried out for the benefit of the client, encompassing both advice and confidential legal work.[4] The advice from and the request for advice to the lawyer are privileged.[5]

[3]Commissioner of Australian Federal Police v Propend Finance Pty Limited (1997) 188 CLR 501, 550 per McHugh J.

[4]Commissioner of Australian Federal Police v Propend Finance Pty Limited (1997) 188 CLR 501, 569 per Gummow J.

[5]Bolton v Liverpool Corporation (1833) 1 My & K 88 at 94; 39 ER 614 at 617.

27. The test is “anchored to the purpose for which the document was brought into existence.”[6] The important question to be asked is “what was the intended use (or uses) of the document which accounted for it being brought into existence.”[7] This is to be determined as a question of fact.[8]

[6]Commissioner of Australian Federal Police v Propend Finance Pty Limited (1997) 188 CLR 501, 508 per Brennan CJ.

[7]Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357 at 366; see also Grant v Downs (1976) 135 CLR 674, 692; Commissioner of Australian Federal Police v Propend Finance Pty Limited (1997) 188 CLR 501, 508.

[8]Waterford v Commonwealth (1987) 163 CLR 54, 66.

Evidence Act

  1. The relevant provisions of the Evidence Act are sections 118 and 119:

118 “Evidence is not to be adduced if, on objection by the client, the court finds that the adducing of evidence would result in the disclosure of:

(a) a confidential communication made between the client and a lawyer; or

(b) a confidential communication made between 2 or more lawyers acting for the client; or

(c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person;

for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.”

119 “Evidence is not to be adduced if, on objection by the client, the court finds that the adducing of evidence would result in the disclosure of:

(a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made; or

(b) the contents of a confidential document (whether delivered or not) that was prepared;

for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.”

Factual Background

29. The parties referred to the material before the Court in the application by the plaintiffs to substitute Baxters Quarries Pty Ltd (as trustee for the Baxters Quarries Unit Trust) as first defendant in place of Baxters Concrete Pty Ltd. 

30. Brendan Baxter, a director of Baxters Quarries, deposed in his 1 December 2017 affidavit that he:

“… attended a meeting with the plaintiffs and a representative of Weather-All Masonry Pty Ltd (Weather-All) and others including David Baxter at a hotel owned by Weather-All interests in about October 2008 regarding a proposed joint venture between the Baxter and Begley families in extracting topsoil, sand and gravel from the Land. Agreement was not reached.  One major point of contention was the plaintiffs insistence that they must have the right to extract and sell material from the Land independent of the proposed joint venture and for their sole benefit. This had been a point of ongoing disagreement between the plaintiffs and representatives of the Baxter interests. Shortly before the conclusion of that meeting my father David Baxter stated in response to a refusal by one or other of the plaintiffs to agree on that point words to the effect of “then we are out”. The meeting then concluded.”

31. Brendan Baxter’s affidavit in support of the objections hearing referred to and repeated the ‘discussions between the Baxter and Begley families about a proposed joint-venture” which “came to an end in about October 2008”. Prior to this meeting, he had engaged Keating Avery as lawyers to act on behalf of the Baxter family interests and to provide them with advice as to the proposed joint venture.

32. Brendan Baxter further deposed that:

“shortly after the meeting in October 2018 I formed the view that it was more likely than not that legal proceedings would be instituted against one or other of the Baxter Interests (by which I mean David Baxter, Stephen Baxter and/or one of the companies controlled by them) arising out of the discussions that had taken place and works performed by the Begley Interests (by which I mean the plaintiffs and/or one or other companies controlled by them) in transporting some plant and equipment from Collector to Wodonga unless a release of any claims the Begley Interests may have arisen out of those matters was achieved.”

33. Brendan Baxter said that he “consulted Keating Avery and sought legal advice on behalf of the Baxter Interests with a view of procuring a Release from the Begley Interests.” He deposed that he first sought such advice in about November 2008. He and his father, David Baxter, provided Keating Avery with further oral instructions on 9 December 2008 for the purpose of compromising anticipated proceedings and procuring a release.

34. On 23 January 2009, Keating Avery received a letter from Trivett Keating (the lawyers then acting on behalf of the Begley Interests) stating that “it is now common ground that the proposed Joint Venture between the Begley’s (sic) and the Baxters has failed.” The objecting parties relied on this letter as evidence of the possibility of litigation and noted the reference to the defendants’ solicitors in the further amended statement of claim. 

35. Brendan Baxter deposed in his second affidavit that he reviewed the Notice of Objection and believes that the actual basis for each of the documents set out is true and correct. The plaintiffs’ complained about the quality of this hearsay evidence as Brendan Baxter was not the author of the specified documents. It was thus difficult to have regard to all of the circumstances in which the document was made and its nature. Usually the person making or commissioning the document in question would provide the factual background to the subjective purpose to determine whether the privileged purpose was the dominant purpose of enabling the client to obtain legal advice or for the purpose of actual or contemplated litigation. 

36. In relation to the STM document (number 53) Brendan Baxter deposed that they were a firm of accountants engaged on behalf of the Baxter Interests and that “there were not infrequently confidential communications between Keating Avery and STM as was necessary for STM to discharge its duties to the Baxter Interests.” 

Analysis   

37. It was common ground between the parties that the party claiming the privilege bears the onus of proof.[9] Both parties noted the “economy of the description” of the documents in the Notice of Objection. Justice Connock in Alphington observed that there must be provision of adequate reasons for the grounds of privilege so as to distinguish between claims under section 118 and 119 of the Act or the common law basis upon which privilege was being claimed (advice privilege or litigation privilege).

[9]Hastie Group Ltd (in liq) v Moore [2016] NSWCA 305.

38. The sufficiency of the basis upon which the claim for privilege is asserted must be adequately disclosed without compromising the privileged content as:

“The effect of a successful claim of privilege is often that information which may be vital and relevant to the proper administration of justice is suppressed. Hence it is important to ascertain whether there are worthwhile rationales behind each head of privilege such that each privilege can be defended against the valid competing claims of the proper administration of justice.”[10]

[10]Sue McNicol, ‘Implications of the Human Right Rationale for Legal Professional Privilege – The Demise of Implied Statutory Abrogation?’ in P Mirfield and R Smith (eds), Essays for Colin Tapper (2003) 48, 1.

39. The plaintiffs’ counsel submitted that the objecting parties had failed to discharge the onus by establishing relevant facts from which the Court could determine the basis for the claim for privilege and whether the claim was capable of being asserted. The plaintiffs’ primary position was that the objections be dismissed, or alternatively, in circumstances where the documents had been produced to the Court, they were available for inspection at the discretion of the Court to consider the documents on their face and determine, as best it could, whether the documents were privileged.

40. In my view, although there is an absence of satisfactory affidavit evidence provided by the objecting parties and the inadequate reasoning stating the grounds for the claim for privilege given the economic descriptions of the relevant documents in the Notice of Objection, it is possible to infer from the uncontentious fact that Keating Avery were the then solicitors acting for the defendants, and the dates of and parties to the relevant communications, to determine, on inspection of the documents, whether they were for a privileged purpose.

Discretion of the Court to inspect

41. Document 1 is an email chain between Brendan Baxter of Baxters Concrete and Kevin Keating of Keating Avery dated 19 June 2013 at 7:40am and 8:23am in relation to the subject “Trust Deeds and Contracts”. The claim for privilege is legal advice, not anticipated or actual litigation (alternatively, section 118(a) of the Act). The email is a confidential communication between the client and lawyer for the dominant purpose of providing legal advice to the client in respect of the Trust Deed and Contract referred to therein. It is advice as to what should be prudently and sensibly done in a relevant legal context, that is, relating to the obtaining of legal advice concerning the Trust Deed and negotiations for a Contract.

42. Document 2 is a letter dated 24 May 2013 from Kevin Keating of Keating Avery to Brendan Baxter of Baxters Concrete in relation to the subject “Purchase from Weather-All Masonry Pty Ltd”. The claim for privilege is legal advice, not anticipated or actual litigation (alternatively, section 118(a) of the Act). This is a confidential communication between the client and lawyer for the dominant purpose of providing legal advice to the client in respect of the Contract referred to therein. It is advice as to what should be prudently and sensibly done in a relevant legal context, that is, relating to the obtaining of legal advice concerning the negotiations for a Contract.

43. Document 3 is a handwritten file note of a telephone message left by David Baxter to Kevin Keating of Keating Avery dated 20 October at 2:10pm. On the face of the document, it appears that this is a communication between the client and lawyer with the purpose of preparing for reasonably apprehended litigation with a request for advice (alternatively, section 119). I infer that the 20 October date is in the year of 2008 and the communication falls within the timeframe deposed to in paragraphs 5 and 6 of Brendan Baxter’s second affidavit.

44. Document 4 is a letter dated 15 October 2008 from Kevin Keating of Keating Avery to David Baxter of Baxters Concrete in relation to the subject “B & B Quarries”. The claim for privilege is legal advice, and anticipated or actual litigation (alternatively, sections 118(a) and 119(b) of the Act). This is a confidential communication between the client and lawyer for the dominant purpose of providing legal advice to the client in respect of licence transactions concerning B & B Quarries referred to therein and for the purpose of preparing for a reasonably anticipated dispute with the Begleys.

45. Document 5 is a handwritten file note dated 25 September 2008 and 26 September 2008 at 3:20pm to David Baxter in relation to “Trivetts Letter”. The further amended statement of claim alleges that Ron Trivett was the Begley’s then solicitor. I infer that the claim for privilege is legal advice, and anticipated or actual litigation (alternatively, sections 118(a) and 119(b) of the Act). This is a confidential communication between the client and lawyer for the dominant purpose of providing legal advice to the client and obtaining instructions in respect of licence transactions concerning Trivett’s letter referred to therein and for the purpose of preparing for a reasonably anticipated dispute with the Begleys.

46. Document 6 is a letter from Brendan Baxter of Baxters Concrete to Kevin Keating dated 12 August 2008 in relation to the subject of the lease between B & B Quarries (Vic) Pty Ltd and Weather-All Masonry Pty Ltd. The claim for privilege is legal advice, not anticipated or actual litigation (alternatively, section 118(a) of the Act). This is a confidential communication between the client and lawyer for the dominant purpose of the lawyer providing legal advice to the client in respect of the lease referred to therein. It is advice as to what should be prudently and sensibly done in a relevant legal context, that is, relating to the obtaining of legal advice concerning the negotiations for a lease. The request for advice from the lawyer is privileged.

47. Document 7 is a typed document in relation to expenses for the period 28 July 2008 to 15 August 2008. The Notice of Objection states that this document “constitutes instructions given to lawyer for the purpose of obtaining advice in relation to anticipated legal proceedings”. However, on the face of the document, and the evidence before me, I am unable to determine the purpose for which the communication was made or the document created. The stated ground for the claim for privilege is a mere assertion that is not verified on oath or properly particularized. The onus of proof has not been made out in respect of document 7 pursuant to the Act or common law.

48. Document 8 is a letter from Kevin Keating of Keating Avery to David Baxter of Baxters Concrete dated 16 November 2010 in relation to the subject of “The Begley Family – B & B Quarries”. I infer that the claim for privilege is legal advice, and anticipated or actual litigation (alternatively, sections 118(a) and 119(b) of the Act). This is a confidential communication between the client and lawyer for the dominant purpose of providing legal advice to the client concerning the Trivett’s 9 December 2009 letter referred to therein and for the purpose of preparing for a reasonably anticipated dispute with the Begleys.

49. Document 9 is a letter from Kevin Keating of Keating Avery to David Baxter of Baxters Concrete dated 17 March 2010 in relation to the subject of “The Begley Family”. The Notice of Objection states that this is a letter of “advice from lawyer in relation to anticipated legal proceedings”. In my view, the communication is not between the client and lawyer for the dominant purpose of providing legal advice to the client but rather is transactional and not related to the obtaining of legal advice. The onus of proof has not been made out in respect of document 9 pursuant to the Act or common law.

50. Document 10 is a letter from Kevin Keating of Keating Avery to David Baxter of Baxters Concrete dated 20 November 2009 in relation to the subject of “The Begley Family”. The Notice of Objection states that this is a letter of “advice from lawyer in relation to anticipated legal proceedings”. In my view, the communication is not between the client and lawyer for the dominant purpose of providing legal advice to the client but rather is transactional and not related to the obtaining of legal advice under section 118. The lawyer refers to a communication made to Trivett, the plaintiffs’ then solicitors and encloses a copy of the letter dated 18 November 2018 sent to Trivett, and therefore cannot be privileged as it was disclosed to the other side. The onus of proof has not been made out in respect of document 10 pursuant to section 119(b) of the Act or common law as I am not satisfied that the document is confidential in nature.

51. Document 11 is a handwritten file note of a telephone message left by Stephen Baxter to Kevin Keating of Keating Avery dated 11 December at 2:30. On the face of the document, it appears that this is a communication between the client and lawyer with the purpose of preparing for reasonably apprehended litigation with a request for advice (alternatively, section 119). I infer that the 11 December date is in the year of 2008 (or later) and the communication (or document) falls within the timeframe deposed to in paragraphs 5 and 6 of Brendan Baxter’s second affidavit.

52. Document 12 is a letter from Kevin Keating of Keating Avery to David Baxter of Baxters Concrete dated 11 December 2009 in relation to the subject “The Begley Family”. I infer that the claim for privilege is legal advice, and anticipated or actual litigation (alternatively, sections 118(a) and 119(b) of the Act). This is a confidential communication between the client and lawyer for the dominant purpose of providing legal advice to the client concerning the Trivett’s 9 December 2009 letter referred to therein and for the purpose of preparing for a reasonably anticipated dispute with the Begleys.

53. Document 13 is a handwritten file note re “David Baxter” dated 18 November 2009 at 12:15pm. The Notice of Objection states that this is a “record of instructions received by lawyer in relation to anticipated legal proceedings”. However, on the face of the document, it is not apparent that this is a communication between the client and lawyer with the purpose of preparing for reasonably apprehended litigation with a request for advice (alternatively, section 119(b)). The Court is unassisted by any evidence to cast light on the circumstances in which the document came into existence or who created the document. The purpose for which the communication is made or the document is created cannot be proved by mere assertion. The onus of proof has not been made out in respect of document 13 pursuant to the Act or common law.

54. Document 14 is a cover letter from Kevin Keating of Keating Avery to David Baxter of Baxters Concrete dated 16 November 2009 in relation to the subject “the Begley Family” and attaches a “without prejudice save as to costs” letter from Keating Avery to Trivett Keating dated 20 October 2009. I infer that the claim for privilege is legal advice, and anticipated or actual litigation (alternatively, sections 118(a) and 119(b) of the Act). This is a confidential communication between the client and lawyer for the dominant purpose of providing legal advice to the client concerning a reasonably anticipated dispute with the Begleys. The communication falls within the timeframe deposed to in paragraphs 5 and 6 of Brendan Baxter’s second affidavit.

55. Document 15 is a handwritten file note dated 19 October 2009 attention “Brendan Baxter”. On the face of the document, it appears that this is a communication between the client and lawyer with the purpose of preparing for reasonably apprehended litigation with instructions given in relation to an anticipated proceeding (alternatively, section 119(b)). The date of the communication falls within the timeframe deposed to in paragraphs 5 and 6 of Brendan Baxter’s second affidavit.

56. Document 16 is a handwritten file note dated 15 October 2009 to “David Baxter”. On the face of the document, it appears that this is a communication between the client and lawyer with the purpose of preparing for reasonably apprehended litigation with instructions given in relation to an anticipated proceeding (alternatively, section 119(b)). The date of the communication falls within the timeframe deposed to in paragraphs 5 and 6 of Brendan Baxter’s second affidavit.

57. Document 17 is a draft “without prejudice save as to costs” letter from Keating Avery to Trivett Keating dated 7 October 2009 marked “Draft for Client’s Approval” with handwritten annotations and a facsimile time stamp of 7 October 2009 at 12:13pm stamped “Keating Avery”. The Notice of Objection states that the letter contains “instructions received by lawyer in relation to anticipated legal proceedings”. There is no admissible evidence before the Court as to the author of the hand written annotations contained in document 17. Even if I assume the handwriting belongs to one of the members of the Baxter family, the authorities state that a communication between a solicitor and client in which the client instructs the solicitors to repeat to the other side are not confidential and therefore not privileged (see Conlin v Conlons Ltd [1952] 2 All ER 462 at 466). The handwriting does not seek legal advice but rather settles the draft letter addressed to the plaintiffs’ then solicitor. Therefore, pursuant to sections 118 and 119 and the common law, the communication cannot be confidential as the contents were disclosed or involves communications in which the client is instructing his solicitor to repeat to the other side. Document 17 therefore is not privileged.

58. Document 18 is a cover letter from Kevin Keating of Keating Avery to David Baxter of Baxters Concrete dated 7 October 2009 in relation to the subject of “The Begley Family” together with an attachment being a draft “without prejudice save as to costs” letter from Keating Avery to Trivett Keating dated 7 October 2009 in relation to the subject “The Baxter Family – The Begley Family The Weather-All Quarry” with the notation “draft for client’s approval”. The Notice of Objection states that this document “provides legal advice and seeks instructions from lawyer in relation to anticipated legal proceedings”. The solicitor’s draft of the attached letter is privileged even if the document is not communicated to the client.[11] The cover letter records the work of a lawyer carried out for the benefit of the client and requests instructions to finalise the draft letter attached. The cover letter therefore is a confidential document that was prepared for the dominant purpose of the client being provided with professional legal services relating to an anticipated proceeding under common law and section 119(b) of the Act.

[11]Attorney-General (NT) v Maurice (1986) 161 CLR 475 per Dawson J (at 496); New Cap Reinsurance Corp (in liq) v Renaissance Reinsurance Ltd [2007] NSWSC 258 at [34].

59. Document 19 is a draft letter from Kevin Keating of Keating Avery to Trivett Keating dated 16 September 2009 in relation to the subject of “The Baxter Family – The Begley Family The Weather-All Quarry - without prejudice save as to costs” with the notation “draft for client’s approval”. The Notice of Objection states that this document is a “draft letter prepared by lawyer in relation to anticipated legal proceedings”. The solicitor’s draft of the attached letter is privileged (alternatively section 119(b) of the Act).

60. Document 20 is a hand written file note dated 29 September 2009 noting “Attc Brandan, David, Stephen Baxter”. The Notice of Objection states that this is a “draft letter prepared by lawyer in relation to anticipated legal proceedings”. On the face of the document, this appears to be a misdescription as the file note appears to record instructions by the lawyer received by the Baxter family in relation to anticipated legal proceedings (alternatively section 119(b) of the Act).

61. Document 21 is a hand written undated document. The Notice of Objection asserts that it is a “file note” and contains “instructions by the lawyer received in relation to anticipated legal proceedings”. However, on the face of the document, it is not apparent that this is a communication between the client and lawyer with the purpose of preparing for reasonably apprehended litigation with instructions given in relation to an anticipated proceeding (alternatively, section 119(b)). The Court is unassisted by any evidence to cast light on the circumstances in which the document came into existence or who created the document. The purpose for which the communication is made or the document is created cannot be proved by mere assertion. The onus of proof has not been made out in respect of document 21 pursuant to the Act or common law.

62. Document 22 is a cover letter from Kevin Keating of Keating Avery to David Baxter of Baxters Concrete dated 16 September 2009 in relation to the subject of “The Begley Family” together with an attachment being a draft letter from Keating Avery to Trivett Keating dated 16 September 2009 in relation to the subject “The Baxter Family – The Begley Family The Weather-All Quarry” with the notation “draft for client’s approval” with some hand written annotations. The Notice of Objection states that this document is a “letter prepared by lawyer in relation to anticipated legal proceedings”. The solicitor’s draft of the attached letter is privileged.[12] The cover letter records the work of a lawyer carried out for the benefit of the client and requests instructions to finalise the draft letter attached. The cover letter therefore is a confidential document that was prepared for the dominant purpose of the client being provided with professional legal services relating to an anticipated proceeding under common law and section 119(b) of the Act.

[12]Attorney-General (NT) v Maurice (1986) 161 CLR 475.

63. Document 23 is a hand written undated document entitled “Begley Claim”. The Notice of Objection asserts that this is a “file note” and a “document prepared in relation to anticipated legal proceedings”. However, on the face of the document, it is not apparent that this is a communication created for the dominant purpose of preparing for reasonably apprehended litigation or a confidential document prepared for the dominant purpose of the client being provided with professional legal services relating to anticipated proceedings (alternatively, section 119(b)). The Court is unassisted by any evidence to cast light on the circumstances in which the document came into existence or who created the document. The purpose for which the communication is made or the document is created cannot be proved by mere assertion. The onus of proof has not been made out in respect of document 23 pursuant to the Act or common law. Alternatively, the communication cannot be confidential as the contents were disclosed in correspondence to the plaintiffs’ solicitor.

64. Document 24 is a handwritten file note dated 14 September 2009 entitled “Attc Baxter Boys”. The Notice of Objection describes this document as a “file note” and “record of instructions received by lawyer in relation to anticipated legal proceedings”. On the face of the document, given the date of the document and its content, this is a communication between the client and lawyer made for the dominant purpose of obtaining legal advice as well as communications made with the purpose of preparing for reasonably apprehended litigation with instructions given in relation to an anticipated proceeding (alternatively, sections 118(a) and 119(b)).

65. Document 25 is a typed undated document entitled “The Begley – Baxter joint Venture – Begley Compensation” with handwritten annotations. The Notice of Objection describes the document as a “file note” and a “Document marked up by lawyer in relation to anticipated legal proceedings”. However, on the face of the document, it is not apparent that this is a document prepared for the dominant purpose of the client being provided with professional legal services in relation to an anticipated proceeding (alternatively, section 119(b)). The Court is unassisted by any evidence to cast light on the circumstances in which the document came into existence or who created the document. The purpose for which the communication is made or the document is created cannot be proved by mere assertion. The onus of proof has not been made out in respect of document 25 pursuant to the Act or common law.

66. Document 26 is a letter from Kevin Keating of Keating Avery to David Baxter of Baxters Concrete dated 8 September 2009 in relation to the subject “The Begley Family”. I infer that the claim for privilege is legal advice, and anticipated or actual litigation (alternatively, sections 118(a) and 119(b) of the Act). This is a confidential communication between the client and lawyer for the dominant purpose of providing legal advice to the client concerning the Trivett’s 20 May 2009 letter referred to therein and for the purpose of preparing for a reasonably anticipated dispute with the Begleys.

67. Document 27 is a handwritten note dated 9 June 2009 at 1:35pm with the heading “TI Brendan Baxter”. The Notice of Objection describes the document as a “file note” and a “record of instructions given to lawyer in relation to anticipated legal proceedings”. On the face of the document, it appears that this is a communication between the client and lawyer with the purpose of preparing for reasonably apprehended litigation with a request for advice (alternatively, section 119). I infer from its contents and the date that the communication falls within the timeframe deposed to in paragraphs 5 and 6 of Brendan Baxter’s second affidavit.

68. Document 28 is a handwritten file note of a telephone message left by David Baxter to Kevin Keating of Keating Avery dated 16 July at 12:00pm regarding “Begley matter”. On the face of the document, it appears that this is a communication between the client and lawyer with the purpose of preparing for reasonably apprehended litigation with instructions given in relation to an anticipated proceeding (alternatively, section 119). I infer from the contents that the communication falls within the timeframe deposed to in paragraphs 5 and 6 of Brendan Baxter’s second affidavit.

69. Document 29 is a letter from Kevin Keating of Keating Avery to Trivett Keating dated 5 June 2009 in relation to the subject of “The Baxter Family – The Begley Family The Weather-All Quarry - without prejudice”. The Notice of Objection states that this document is a “draft letter prepared by lawyer in relation to anticipated legal proceedings”. Unlike document 19, the document on its face does not contain the notation “draft for client’s approval” or any identification that it is a solicitor’s draft. It is not apparent that this is a communication created for the dominant purpose of preparing for reasonably apprehended litigation or a confidential document prepared for the dominant purpose of the client being provided with professional legal services relating to anticipated proceedings (alternatively, section 119(b)). The Court is unassisted by any evidence to cast light on the circumstances in which the document came into existence or who created the document. The purpose for which the communication is made or the document is created cannot be proved by mere assertion. The onus of proof has not been made out in respect of document 29 pursuant to the Act or common law, and on its face, appears to be a communication that cannot be confidential as the contents were disclosed in correspondence to the plaintiffs’ solicitor.

70. Document 30 is a letter from Kevin Keating of Keating Avery to David Baxter of Baxters Concrete dated 5 June 2009 in relation to the subject of “The Begley Family – The Weather-All Quarry” omitting the enclosed letter to Trivett Keating. The Notice of Objection describes this document as a “letter” and “letter to client providing legal advice as to anticipated legal proceedings”. This is a confidential communication between the client and lawyer for the dominant purpose of providing legal advice to the client concerning the letter to Trivett referred to therein and for the purpose of preparing for a reasonably anticipated dispute with the Begleys (alternatively, sections 118(a) and 119(b) of the Act).

71. Document 31 is a handwritten file note of a telephone message left by David Baxter to Kevin Keating of Keating Avery dated 29 May at 9:50 regarding “Begley matter” and a note dated 3/6 to “David”. On the face of the document, it appears that this is a communication between the client and lawyer with the purpose of preparing for reasonably apprehended litigation with instructions and advice given in relation to an anticipated proceeding (alternatively, section 119). I infer from the contents that the communication falls within the timeframe deposed to in paragraphs 5 and 6 of Brendan Baxter’s second affidavit.

72. Document 32 is a handwritten file note dated 26 May 2009 entitled “Attc Brendan + David Baxter”. The Notice of Objection describes this document as a “file note” and a “record of instructions received by lawyer in relation to anticipated legal proceedings”. On the face of the document, given the date of the document and its content, this is a communication between the client and lawyer made for the dominant purpose of obtaining legal advice, as well as communications made with the purpose of preparing for reasonably apprehended litigation with instructions given in relation to an anticipated proceeding (alternatively, sections 118(a) and 119(b)).

73. Document 33 is a handwritten note dated 25 May 2009 at 12:00 with the heading “TI David Baxter”. The Notice of Objection describes the document as a “file note” and a “record of instructions given to lawyer in relation to anticipated legal proceedings”. On the face of the document, it appears that this is a communication between the client and lawyer with the purpose of preparing for reasonably apprehended litigation with instructions given in relation to an anticipated proceeding (alternatively, section 119). I infer from its contents and the date that the communication falls within the timeframe deposed to in paragraphs 5 and 6 of Brendan Baxter’s second affidavit.

74. Document 34 is a letter from Kevin Keating of Keating Avery to David Baxter of Baxters Concrete dated 21 May 2009 in relation to the subject “The Begley Family” omitting the attachment said to be a letter from Trivett Keating dated 20 May. The Notice of Objection describes this document as a “letter” and “letter from lawyer seeking instructions as to anticipated legal proceedings”. I infer that the claim for privilege is on the basis of a confidential communication between client and lawyer and a confidential document prepared for the dominant purpose of the client being provided with professional legal services in relation to anticipated or actual litigation (alternatively, sections 118(a) and 119(b) of the Act). This is a confidential communication between the client and lawyer for the dominant purpose of providing the client with legal services in relation to anticipated proceedings and seeks instructions from the client concerning the Trivett’s 20 May 2009 letter referred to therein and for the purpose of preparing for a reasonably anticipated dispute with the Begleys.

75. Document 35 is a handwritten note dated 15 May 2009 at 8:30 with the heading “TI David Baxter”. The Notice of Objection describes the document as a “file note” and a “record of instructions given to lawyer in relation to anticipated legal proceedings”. On the face of the document, it appears that this is a communication between the client and lawyer with the purpose of preparing for reasonably apprehended litigation with instructions given in relation to an anticipated proceeding (alternatively, section 119). I infer from its contents and the date that the communication falls within the timeframe deposed to in paragraphs 5 and 6 of Brendan Baxter’s second affidavit.

76. Document 36 is a handwritten note dated 24 April 2009 with the heading “TI Brendan Baxter”. The Notice of Objection describes the document as a “file note” and a “record of advice provided to lawyer in relation to anticipated legal proceedings”. On the face of the document, this is a confidential communication between the client and lawyer for the dominant purpose of providing legal advice to the client concerning a reasonably anticipated dispute with the Begleys (alternatively, section 119). The communication falls within the timeframe deposed to in paragraphs 5 and 6 of Brendan Baxter’s second affidavit.

77. Document 37 is a letter from Kevin Keating of Keating Avery to Trivett Keating dated 16 April 2009 in relation to the subject of “The Baxter Family – The Begley Family The Weather-All Quarry”. The claim for privilege was not pressed by the objecting parties.

78. Document 38 is a handwritten file note of a telephone message left by David Baxter to Kevin Keating of Keating Avery dated 16 April at 11:30 and a note from Kevin to David Baxter at 1:25pm regarding “Quarry”. The Notice of Objection describes this document as a “note of telephone conversation” and “records instructions provided to lawyer in relation to anticipated legal proceedings”. On the face of the document, it appears that this is a communication between the client and lawyer with the purpose of preparing for reasonably apprehended litigation with instructions given in relation to the letter referred to therein (alternatively, section 119). I infer from the contents of the document that the 16 May date is in the year 2009 and the communication falls within the timeframe deposed to in paragraphs 5 and 6 of Brendan Baxter’s second affidavit.

79. Document 39 is a cover letter from Kevin Keating of Keating Avery to David Baxter of Baxters Concrete dated 16 April 2009 in relation to the subject of “The Begley Brothers – the Weather-All Quarry” together with an attachment being a draft letter from Keating Avery to Trivett Keating dated 16 April 2009 in relation to the subject “The Baxter Family – The Begley Family The Weather-All Quarry” with the notation “draft for client’s approval”. The Notice of Objection states that this document is a “letter from lawyer seeking instructions in relation to anticipated legal proceedings”. The solicitor’s draft of the attached letter is privileged even if the document is not communicated to the client.[13] The cover letter records the work of a lawyer carried out for the benefit of the client and requests instructions to finalise the draft letter attached. The cover letter therefore is a confidential document that was prepared for the dominant purpose of the client being provided with professional legal services relating to an anticipated proceeding under common law and section 119(b) of the Act.

[13]Attorney-General (NT) v Maurice (1986) 161 CLR 475 per Dawson J (at 496); New Cap Reinsurance Corp (in liq) v Renaissance Reinsurance Ltd [2007] NSWSC 258 at [34].

80. Document 40 is a handwritten file note of a telephone message left by David Baxter to Kevin Keating of Keating Avery dated 15 April at 4:05 and a note from Kevin to David Baxter at 4:40 regarding “Quarry”. The Notice of Objection describes this document as a “note of telephone conversation” and “record of instructions provided to lawyer and advice given in relation to anticipated legal proceedings”. On the face of the document, it appears that this is a communication between the client and lawyer with the purpose of preparing for reasonably apprehended litigation with instructions and advice given in relation to an anticipated proceeding (alternatively, section 119). I infer from the contents that the communication falls within the timeframe deposed to in paragraphs 5 and 6 of Brendan Baxter’s second affidavit.

81. Document 41 is a handwritten note with two entries dated 23 March 2009 with the heading “TI Brendan Baxter”. The Notice of Objection describes the document as a “file note” and a “record of instructions provided to lawyer in relation to anticipated legal proceedings”. On the face of the document, this is a confidential communication between the client and lawyer for the dominant purpose of obtaining legal advice concerning a reasonably anticipated dispute with the Begleys (alternatively, section 119). The communication falls within the timeframe deposed to in paragraphs 5 and 6 of Brendan Baxter’s second affidavit.

82. Document 42 is a cover letter from Kevin Keating of Keating Avery to David Baxter of Baxters Concrete dated 19 March 2009 in relation to the subject of “The Begley Family” omitting the enclosed letter to Trivett Keating dated 2 February. The Notice of Objection describes this document as a “letter” and a “letter to client in relation to anticipated legal proceedings”. This is a confidential communication between the client and lawyer for the dominant purpose of providing legal advice to the client concerning the letter to Trivett referred to therein and for the purpose of preparing for a reasonably anticipated dispute with the Begleys (alternatively, sections 118(a) and 119(b) of the Act).

83. Document 43 is a handwritten note dated 16 March 2009 with the heading “TI Brendan Baxter”. The Notice of Objection describes the document as a “file note” and a “record of legal instructions provided to lawyer in relation to anticipated legal proceedings”. On the face of the document, this is a confidential communication between the client and lawyer for the dominant purpose of providing instructions to obtain legal advice concerning a reasonably anticipated dispute with the Begleys (alternatively, section 119). The communication falls within the timeframe deposed to in paragraphs 5 and 6 of Brendan Baxter’s second affidavit.

84. Document 44 is a handwritten file note of a telephone message left by David Baxter to Kevin Keating of Keating Avery dated 25 February at 11:55 regarding “Baxter’s Concrete”. The Notice of Objection describes this document as a “note of telephone conversation” and “record of instructions provided to lawyer and advice given in relation to anticipated legal proceedings”. On the face of the document, it appears that this is a communication between the client and lawyer with the purpose of preparing for reasonably apprehended litigation with instructions and advice given in relation to an anticipated proceeding (alternatively, section 119). I infer from the contents that the communication falls within the timeframe deposed to in paragraphs 5 and 6 of Brendan Baxter’s second affidavit.

85. Document 45 is a letter from Kevin Keating of Keating Avery to Trivett Keating dated 2 February 2009 in relation to the subject of “The Baxter Family – The Begley Family The Weather-All Quarry”. The Notice of Objection states that this document is a “draft letter prepared by lawyer in relation to anticipated legal proceedings”. Unlike document 19, the document on its face does not contain the notation “draft for client’s approval” or any identification that it is a solicitor’s draft. It is not apparent that this is a communication created for the dominant purpose of preparing for reasonably apprehended litigation or a confidential document prepared for the dominant purpose of the client being provided with professional legal services relating to anticipated proceedings (alternatively, section 119(b)). The Court is unassisted by any evidence to cast light on the circumstances in which the document came into existence or who created the document. The purpose for which the communication is made or the document is created cannot be proved by mere assertion. The onus of proof has not been made out in respect of document 29 pursuant to the Act or common law and, on the face, appears to be a communication that cannot be confidential as the contents were disclosed in correspondence to the plaintiffs’ solicitor.

86. Document 46 is a handwritten file note of a telephone message left by David Baxter to Kevin Keating of Keating Avery dated 2 February at 9:55 regarding “Begleys”. The Notice of Objection describes this document as a “note of telephone conversation” and a “record of instructions provided to lawyer and advice given in relation to anticipated legal proceedings”. On the face of the document, it appears that this is a communication between the client and lawyer with the purpose of preparing for reasonably apprehended litigation with instructions given in relation to an anticipated proceeding (alternatively, section 119). I infer from the contents that the communication falls within the timeframe deposed to in paragraphs 5 and 6 of Brendan Baxter’s second affidavit.

87. Document 47 is a handwritten file note of a telephone out by “Alexis” to David Baxter dated 2 February 2009 at 9:05. The Notice of Objection describes this document as a “note of telephone conversation” and a “record of advice provided to client by lawyer in relation to anticipated legal proceedings”. There is no evidence before the Court to the effect that “Alexis” was the client’s lawyer. The onus of proof has not been made out in respect of document 29 pursuant to the Act or common law, and on the face appears to be a communication that cannot be confidential as the contents are purely transactional. The claim also fails under section 119(a) as it does not satisfy the statutory requirements of a confidential communication between the client and another person for the dominant purpose of providing the client with legal services in relation to anticipated proceedings.

88. Document 48 is a facsimile dated 2 February 2009 at 9:10 of a letter from Keating Avery to Trivett Keating dated 2 February 2009 in relation to the subject “The Baxter Family – The Begley Family The Weather-All Quarry” with the notation “draft for client’s approval”. The Notice of Objection states that this document is a “draft letter prepared by lawyer in relation to anticipated legal proceedings”. The solicitor’s draft of the letter is privileged even if the document is not communicated to the client,[14] alternatively it falls under section 119(b) of the Act.

[14]Attorney-General (NT) v Maurice (1986) 161 CLR 475 per Dawson J (at 496); New Cap Reinsurance Corp (in liq) v Renaissance Reinsurance Ltd [2007] NSWSC 258 at [34].

89. Document 49 is a handwritten note dated 29 January 2009 at 12:10pm with the heading “TI David Baxter”. The Notice of Objection describes the document as a “file note” and a “record of instructions provided to lawyer in relation to anticipated legal proceedings”. On the face of the document, this is a confidential communication between the client and lawyer for the dominant purpose of providing instructions to obtain legal advice concerning a reasonably anticipated dispute with the Begleys (alternatively, section 119). The communication falls within the timeframe deposed to in paragraphs 5 and 6 of Brendan Baxter’s second affidavit.

90. Document 50 is a cover letter from Kevin Keating of Keating Avery to David Baxter et al of Baxters Concrete dated 27 January 2009 in relation to the subject of “Begley Brothers – The Weather-All Quarry” with omitted attachments being a letter from Ron Trivett dated 22 January 2009 and a copy of the initial reply letter from Keating Avery to Trivett Keating. The Notice of Objection states that this document is a “letter from lawyer seeking instructions in relation to anticipated legal proceedings”. The solicitor’s draft of the attached letter is privileged even if the document is not communicated to the client.[15] The copy of the Trivett’s letter was brought into existence for the purpose of the client obtaining legal services in relation to anticipated proceedings. The cover letter records the work of a lawyer carried out for the benefit of the client and requests instructions to finalise the draft letter attached. The cover letter therefore is a confidential document that was prepared for the dominant purpose of the client being provided with professional legal services relating to an anticipated proceeding under common law and section 119(b) of the Act.

[15]Attorney-General (NT) v Maurice (1986) 161 CLR 475 per Dawson J (at 496); New Cap Reinsurance Corp (in liq) v Renaissance Reinsurance Ltd [2007] NSWSC 258 at [34].

91. Document 51 is a letter from Kevin Keating of Keating Avery to Trivett Keating dated 27 January 2009 in relation to the subject of “The Baxter Family – The Begley Family The Weather-All Quarry”. The claim for privilege was not pressed by the objecting parties.

92. Document 52 is a handwritten file note dated 9 December 2008 entitled “Attc David & Brendan re Begleys”. The Notice of Objection describes this document as a “file note” and a “record of instructions received by lawyer in relation to anticipated legal proceedings”. On the face of the document, given the date of the document and its content, this is a communication between the client and lawyer made for the dominant purpose of obtaining legal advice as well as communications made with the purpose of preparing for reasonably apprehended litigation with instructions given in relation to an anticipated proceeding (alternatively, sections 118(a) and 119(b)).

93. Document 53 is a handwritten file note entitled “Baxters Concrete P/L” dated 15 September 2009 produced by the defendants’ accountant’s STM pursuant to the STM Subpoena. The defendants have provided a redacted copy of the document but maintain their claim for privilege over paragraph 1 of the file note. The Notice of Objection describes the document as a “record of advice given by lawyer in relation to anticipated legal proceedings”. Paragraph 9 of the second Baxter affidavit deposes that for the purposes of a strong relationship between STM and the Baxter Interests, “there were not infrequently confidential communications between Keating Avery and STM as was necessary for STM to discharge its duties to the Baxter Interests”. 

94. Counsel for the objecting parties submitted that the document on its face is a file note of a discussion between an STM representative and expressly records legal advice (with financial implications) given to the defendants. The disclosure of that advice to the defendants’ accountants was in confidence and must be inevitably inferred for the purpose of the defendants getting legal advice from lawyers conversant with the defendants’ finances from discussions with the defendants’ accountants.

95. Under section 119(a) of the Act, the confidential communication can be made between a lawyer acting for the client and another person for the dominant purpose of the client being provided with professional legal services relating to anticipated proceedings. The authorities indicate that “there should be sufficient evidence which provides directly or by inference that the dominant purpose for the communication was for the relevant client to be given or obtain legal advice”.[16] The relevant communication is between the lawyer and the client’s accountant. There is no evidence before the Court from either STM or Kevin Keating about the dominant purpose for the relevant confidential communication and whether it was to provide the client with professional legal services relating to an anticipated proceeding. The claim under the Act must fail.

[16]Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Ltd (No 4) [2014] FCA 796 per Beach J at [38]-[40].

96. At common law, agency (whether within the meaning of that expression in section 117 of the Act or otherwise) is not required. A communication between a solicitor and a third party may be privileged if it could be established that they were prepared for the dominant purpose of giving or obtaining legal advice. Justice Finn in Pratt Holdings held at [41]-[43]:

“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. 

For the law to provide such an incentive not to utilise the services of third parties in such circumstances is to undercut the privilege itself. It would not facilitate access to effective legal advice nor would it facilitate effective communication with legal advisers for the purpose of obtaining legal advice.” [emphasis added]

97. On the face of the document, the communication by the lawyer to the accountant was not to enable the principal to make the communication necessary to obtain the legal advice it required. Mr Nixon of Counsel for the plaintiffs submitted, and I accept, that the defendants’ own affidavit evidence supports the proposition that the dominant purpose of the communication was for an accounting purpose, and not for providing the client with legal services relating to anticipated proceedings or for the provision of legal advice to the client. On the face of the document, the communication made between the lawyer and accountant was for an accounting purpose to inform the Baxter interests’ accountant of a contingent liability. Therefore, the claim for privilege fails at common law.

Conclusion

98. The objecting parties’ claim for privilege is upheld on each document save for numbers 7, 9, 10, 13, 17, 21, 23, 25, 29, 45, 47, and 53. 

99. I will hear the parties as to the form of appropriate orders and as to the question of costs.

- - -

Certificate

I certify that these 31 pages are a true copy of the reasons for the decision of Judicial Registrar Burchell delivered on 17 October 2018.

Dated: 17 October 2018.

Larissa Travassaros

Associate to Judicial Registrar Burchell


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