Brewer v Colonial Portfolio Services Ltd
[2004] WASC 153
BREWER & ANOR -v- COLONIAL PORTFOLIO SERVICES LTD & ORS [2004] WASC 153
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASC 153 | |
| Case No: | CIV:2538/2001 | 22 JUNE 2004 | |
| Coram: | MASTER SANDERSON | 8/07/04 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Defendants to provide copies of documents | ||
| A | |||
| PDF Version |
| Parties: | KEVIN CHARLES BREWER DIANNE MERRILYN BREWER COLONIAL PORTFOLIO SERVICES LTD (ACN 066 649 241) WESTGATE PROPERTY INVESTMENTS PTY LTD (ACN 008 713 175) SAVOY MANAGEMENT PTY LTD (ACN 008 684 820) ANDREW PAGE IAN WILSON |
Catchwords: | Practice and procedure Party filing amended list of documents to claim privilege over documents not said to be privileged in earlier affidavits Whether privilege attached Whether copies of documents available to other party |
Legislation: | Nil |
Case References: | Commissioner of Australian Federal Police & Anor v Propend Finance Pty Ltd & Ors (1997) 188 CLR 501 Re Briamore Manufacturing Ltd (In Liq) (1986) 3 All ER 132 Land Corporation of Canada v Puleston (1884) WN 1 Williams v Grainger [2000] WASC 89 R v IRC; Ex parte Taylor [1989] 1 All ER 906 Esso Australia Resources Ltd v Commissioner of Taxation (Cth) (1999) 201 CLR 49 Geneva Finance Ltd (Receiver and Manager Appointed) v Boys [2001] WASC 348 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- DIANNE MERRILYN BREWER
Plaintiffs
AND
COLONIAL PORTFOLIO SERVICES LTD (ACN 066 649 241)
WESTGATE PROPERTY INVESTMENTS PTY LTD (ACN 008 713 175)
First Defendants
SAVOY MANAGEMENT PTY LTD (ACN 008 684 820)
Second Defendant
ANDREW PAGE
Third Defendant
IAN WILSON
Fourth Defendant
(Page 2)
Catchwords:
Practice and procedure - Party filing amended list of documents to claim privilege over documents not said to be privileged in earlier affidavits - Whether privilege attached - Whether copies of documents available to other party
Legislation:
Nil
Result:
Defendants to provide copies of documents
Category: A
Representation:
Counsel:
Plaintiffs : Mr S G Leslie
First Defendants : Ms F A Skrzypek
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
Solicitors:
Plaintiffs : Wilson & Atkinson
First Defendants : Minter Ellison
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
Case(s) referred to in judgment(s):
Commissioner of Australian Federal Police & Anor v Propend Finance Pty Ltd & Ors (1997) 188 CLR 501
Re Briamore Manufacturing Ltd (In Liq) (1986) 3 All ER 132
(Page 3)
Case(s) also cited:
Land Corporation of Canada v Puleston (1884) WN 1
Williams v Grainger [2000] WASC 89
R v IRC; Ex parte Taylor [1989] 1 All ER 906
Esso Australia Resources Ltd v Commissioner of Taxation (Cth) (1999) 201 CLR 49
Geneva Finance Ltd (Receiver and Manager Appointed) v Boys [2001] WASC 348
(Page 4)
1 MASTER SANDERSON: This application raises a question as to the entitlement of a party who has inspected documents to obtain copies of those documents. The facts giving rise to this application are somewhat complicated, but must be set out in some detail if the nature of the application is to be understood. Oddly enough, the facts of the case itself are in no way relevant. It is the circumstances surrounding the discovery process which are both complicated and relevant.
2 It is convenient to set out the relevant circumstances by reference to various affidavits and submissions. The starting point is the affidavit of Frances Angela Skrzypek, sworn 10 June 2004. Ms Skrzypek is a solicitor who has conduct of the action on behalf of the first defendants. I will quote selectively from her affidavit. (In various paragraphs which appear below, Ms Skrzypek has referred to exhibits to her affidavit. These references have been omitted as they are, for present purposes, irrelevant. Also omitted are headings which introduce but do not add to certain paragraphs of the affidavit.)
"3. Except where I state otherwise, I provide the following background material, which I believe to be true, from various ASIC searches, Department of Land Information searches, from court documents filed by the parties to this action and from documents listed in Part 1 of the First Schedule of the list of documents discovered by the first-named first defendant in the affidavit of discovery of Kelvan William O'Connor sworn 30 January 2004.
(a) Between 27 May 1998 and 29 June 2000, the first-named first defendant, Colonial Portfolio Services Ltd ('Colonial'), was a co-owner of Rockingham City Shopping Centre ('Centre') with various others, including the second-named first defendant, Westgate Property Investment Pty Ltd ('Westgate').
(b) Colonial and Westgate ('Owners') were co-owners of the Centre from 27 May 1998 to 30 April 1999.
(c) During the time that Colonial and Westgate were the Owners of the Centre, the second defendant, Savoy Management Pty Ltd ('Savoy') was the Owners' manager of the Centre.
(Page 5)
- (d) Westgate and Savoy were, and still are, related companies.
(e) The third defendant, Andrew Page ('Mr Page') and the fourth defendant, Ian Wilson ('Mr Wilson') were employees of Savoy when Westgate and Savoy were the Owners of the Centre.
(f) Westgate disposed of its interest in the Centre on 30 May 1999 and at the same time Savoy ceased to manage the Centre.
(g) From 1 May 1999 until in or about January 2003, the Centre was managed by Colonial Property Management (Vic) Pty Ltd ('Colonial Property Management Vic'). After that date Colonial Property Management (WA) Pty Ltd became the Owners' Centre manager.
(h) Colonial and Colonial Property Management Vic and Colonial Property Management WA are related companies.
(i) Colonial ceased being an owner of the Centre on 29 June 2000.
(j) Colonial Property Management Vic continued to manage the Centre for the then new owners of the Centre, Perpetual Nominees Limited and Emergency Services Superannuation Board ('Current Owners'), until Colonial Property Management WA commenced managing the Centre in or about January 2003.
(k) On or about 3 March 2003 Gandel Retail Management Pty Ltd ('Gandel') took over management of the Centre for Current Owners.
(l) The plaintiffs commenced this action by writ on 4 October 2001.
(m) Colonial was served with the writ in or about October 2002, at which time Colonial Property
(Page 6)
- Management managed the Centre for the Current Owners.
- (n) Colonial entered an appearance in the action on 18 October 2002.
- 4. From on or about 11 October 2002 until about 3 March 2003, I took instructions on behalf of Colonial from Ian Spackman ('Mr Spackman'). Mr Spackman informed me, and I believe it to be true, that:
(a) he was, during that time, Retail Property Asset Manager for Colonial First State Property ('CFS');
(b) CFS was, and still is, concerned with managed property investments, with interests in the Centre;
(c) before he was appointed as Retail Property Asset Manager for CFS, he had been the Centre Manager of the Centre which job he started on or about 1 June 1999.
5. In or about December 2002 and January 2003, Mr Spackman made arrangements for files containing documents relating to the plaintiffs' action held at the Centre to be provided to me. They were provided with the consent of the Current Owners of the Centre. Any relevant documents then in Colonial's possession were discovered by Colonial ('First Discovered Documents') in the affidavit of discovery of Kelvan William O'Connor sworn 6 May 2003 ('First Affidavit of Discovery').
6. Colonial subsequently discovered further relevant documents ('Second Discovered Documents') provided to it by Gandel with the consent of the Current Owners. That further discovery was under the affidavit of discovery of Kelvan William O'Connor sworn 18 September 2003 ('Second Affidavit of Discovery').
7. On 2 July 2003, Mr Leslie of the plaintiffs' solicitors inspected the First Discovered Documents at Minter Ellison's offices.
(Page 7)
- 8. I had a number of communications in or about July and August 2003 with Mr Mark Feikema, Gandel's legal counsel. Mr Feikema informed me, and I believe it to be true, that the Current Owners were concerned about disclosure to the plaintiffs of information ('Sensitive Information') contained in their documents ('Current Owners' Documents') which they considered commercially sensitive and/or confidential. The Current Owners considered Sensitive Information to include such information as:
(a) leasing related material, especially financial terms and details of breaches;
(b) that collected from tenants of the Centre, such as monthly sales and turnover figures, or derived from such material collected from tenants of the Centre.
Mr Feikema expressed the view that information collected by owners of the Centre from tenants of the Centre, such as monthly sales and turnover figures, was confidential as between each tenant and the owners. He informed me that the Current Owners were concerned about the risk to them of claims of breach of confidence, particularly from existing tenants of the Centre, if the plaintiffs were given unfettered access to the Current Owners' Documents.
9. On 22 August 2003 I spoke to Mr Leslie when he attended Minter Ellison's office to undertake a further inspection of the First Discovered Documents. I informed Mr Leslie of the issue of confidentiality and commercial sensitivity of certain First Discovered Documents and other relevant documents, which had subsequently come into Colonial's possession ('Affected Documents').
10. By letter dated 22 August 2003 the plaintiffs requested copies of certain of the First Discovered Documents, including two Affected Documents.
11. On 27 August 2003 I sent a fax to the plaintiffs' solicitors, marked for Mr Leslie's attention. In that fax I confirmed
(Page 8)
- our discussion of 22 August 2003 and sought the plaintiffs' indulgence while I sought instructions from Colonial regarding the Affected Documents.
- 12. By letter dated 29 August 2003 from the plaintiffs' solicitors, the plaintiffs' solicitors granted Colonial a 21-day indulgence in relation to providing copies of the two Affected Documents.
13. Between 1 September 2003 and 26 September 2003 I was engaged in discussion with Mr Feikema of Gandel on behalf of the Current Owners, for the purpose of developing an access regime to the Affected Documents for the plaintiffs and/or their solicitors which was suitable to the Current Owners.
14. On 22 September 2003, Colonial filed its Second Affidavit of Discovery.
15. On 26 September 2003, the Current Owners, through Mr Feikema, informed me that the Current Owners had withdrawn their consent for Colonial to hold any of the Current Owners' Documents and Mr Feikema directed Minter Ellison:
(a) not to disclose to the plaintiffs any of the Current Owners' Documents, or any copy of them, before they were returned to the Current Owners; and
(b) to return all of the Current Owners' Documents to the Centre as soon as possible
('Direction').
16. On 30 September 2003 I informed Mr Feikema that the plaintiffs' solicitors had already inspected the First Discovered Documents and that they had been provided with copies of the Current Owners' Documents as requested, save for two documents requested because those documents contained Sensitive Information.
17. On 30 September 2003, on behalf of Colonial, I sought the Current Owners' consent to Colonial retaining copies of the Current Owners' Documents for the purpose of this
(Page 9)
- action. I informed the Current Owners, through Mr Feikema, that as the copies of the Current Owners' Documents which Colonial sought to bring into existence ('Copy Documents'), would be documents created for the sole purpose of this litigation, Colonial was entitled to claim legal professional privilege over them. If Colonial claimed privilege over such documents, those documents would be protected from inspection by other parties to the action, unless the privilege was waived by Colonial or overruled by an order of the court.
- 18. The Current Owners subsequently gave their consent to Colonial to create the Copy Documents. Their consent was given on the proviso that legal professional privilege was claimed over any Copy Documents which contained Sensitive Information, so they would be protected from inspection by other parties to the action.
19. On 14 October 2003, in a telephone conversation with Mr Leslie of the plaintiffs' solicitors, I informed him that:
(a) the Current Owners' Documents had been in Colonial's possession with the consent of the Current Owners;
(b) the Current Owners had now withdrawn their consent for Colonial to hold the Current Owners' Documents;
(c) the Current Owners had directed that the Current Owners' Documents be returned to the Centre; and
(d) Colonial or their lawyers, Minter Ellison, were not permitted to allow the plaintiffs to inspect the Current Owners' Document or any copy of them before they were returned to the Centre.
20. By fax dated 23 October 2003 to the plaintiffs' solicitors, I confirmed that the Current Owners had directed that the Current Owners' Documents be returned to them and that Colonial would be preparing a further affidavit of discovery in respect of the Current Owners' Documents no longer in its possession.
(Page 10)
- 21. Between the date that the Current Owners granted their consent to Colonial to create the Copy Documents and 11 November 2003, I arranged for the Copy Documents to be created.
22. On 12 November 2003, the Current Owners' Documents were returned to the Centre.
23. By faxed letter dated 25 November 2003, Mr Leslie of the plaintiffs' solicitors wrote seeking further and better discovery from Colonial in respect of the First and Second Affidavits of Discovery and formally requested access to the Second Discovered Documents.
24. By fax dated 28 November 2003, amongst other things, I informed the plaintiffs' solicitors that the Current Owners' Documents were no longer in Colonial's possession.
25. By letter dated 19 January 2004, Mr Leslie of the plaintiffs' solicitors again raised issues in respect of further and better discovery by Colonial and its foreshadowed supplementary discovery.
26. On 21 January 2004 I sent a letter by fax to the plaintiffs' solicitors. On the same day I also arranged for that letter to be hand delivered to the plaintiffs' solicitors. In that letter:
(a) as to Colonial's foreshadowed further supplementary affidavit, I provided to the plaintiffs' solicitors with a draft copy of the same, which I anticipated would be sworn shortly thereafter without changes, upon the return of Colonial's authorised officer;
(b) as to the further and better discovery, as the Current Owners' Documents were no longer in Colonial's possession I suggested that the plaintiffs contact the Current Owners' agent. For this purpose, I provided the plaintiffs with the Current Owners' agent's contact details.
27. On 3 February 2004, Colonial filed and served Colonial's further supplementary affidavit of discovery of Kelvan
(Page 11)
- William O'Connor sworn 30 January 2004 ('Third Affidavit of Discovery'). In Part II of the First Schedule of the list of documents annexed to the Third Affidavit of Discovery, Colonial objected to producing a number of the Copy Documents ('Privileged Documents') which contained Sensitive Information."
3 There is no dispute between the parties as to the facts set out above. Against that background, the plaintiffs sought by application to the Case Management Registrar dated 10 May 2004 the following orders:
"1. The time for bringing this application be extended.
2. Within 10 days of the date of this order the first named first defendant do produce for inspection by the plaintiffs the documents numbered 92 and 229 in annexure A to the affidavit of discovery of Kelvan William O'Connor sworn 6 May 2003, such inspection to be provided by delivering a photocopy of each document to the solicitors for the plaintiffs.
3. Within 10 days of the date of this order the first named first defendant do produce for inspection by the plaintiffs the documents numbered 255 to 324 in annexure A to the affidavit of discovery of Kelvan William O'Connor sworn 18 September 2003, such inspection to be provided by delivering a photocopy of each document to the solicitors for the plaintiffs.
4. In the alternative to orders 1 and 2, within 10 days of the date of this order the first named first defendant do produce for inspection by the plaintiffs the documents numbered 4 to 74 in part 2 of the First Schedule to annexure A to the affidavit of discovery of Kelvan William O'Connor sworn 30 January 2004, such inspection to be provided by delivering a photocopy of each document to the solicitors for the plaintiffs.
5. In the alternative to order 3, within 10 days of the date of this order the first named first defendant do state the contents of the documents numbered 4 to 74 in par 2 of the First Schedule to annexure A to the affidavit of discovery of Kelvan William O'Connor sworn 30 January
(Page 12)
- 2004, by delivering a photocopy of each document to the solicitors for the plaintiffs.
- 6. The plaintiffs shall pay the first named first defendant for the photocopy documents at a rate of 20 cents per page.
7. The first named first defendant do pay the plaintiffs' costs of this application."
4 On behalf of the first defendants, it was said that all of the documents of which the plaintiffs now sought copies, were covered by privilege. It was said that the documents had been copied for the sole purpose of use in legal proceedings and that privilege therefore attached to them. Reference was made to the decision of the High Court in Commissioner of Australian Federal Police & Anor v Propend Finance Pty Ltd & Ors (1997) 188 CLR 501. That decision is, of course, not to be questioned. It is important to note, however, that the privilege in the copied documents is the first defendants' privilege. There is no question of the third party, the owner of the documents, exercising some form of privilege. As between the third party and the plaintiffs, there is no issue which could give rise to litigation privilege. If the documents came into existence for the purpose of the third party seeking advice, then the third party may be able to claim privilege from production - the so-called legal advice privilege. But that is not the position here. The privilege claimed is claimed by the first defendants and it is their right to withhold the documents which they seek to exercise.
5 A similar problem arose in Re Briamore Manufacturing Ltd (In Liq) (1986) 3 All ER 132. The facts in that case, as taken from the headnote, were as follows:
"In proceedings to set aside an alleged fraudulent preference the liquidator's solicitor made a mistake in his list of documents for discovery prepared under RSC Ord 24 r 5 (the English equivalent of our discovery order) by including in the list of documents which he did not object to produce a number of letters obtained from third parties for the purposes of the litigation and for which privilege could have been claimed and which should have been included in the list of documents which he objected to produce. The respondent's solicitor was shown copies of the privileged documents when carrying out inspection pursuant to Ord 24 r 9 (the equivalent of our Ord 26 r 8) at the offices of the liquidator's solicitor, and he read
(Page 13)
- them, made notes of their contents and had a photocopy of at least one of them made for him. Although the liquidator's solicitor informed the respondent the following day about the mistake, the respondent's solicitor nevertheless made a formal request for copies of the privileged documents. Ten days later the liquidator's solicitor served a revised list in which the documents in question had been transferred to the list of documents which he objected to produce. On an application by the respondent, the registrar refused to order delivery of the copies of the privileged documents. The respondent appealed."
6 The matter came on before Hoffmann J. His Honour dealt with two questions. First, whether it was open to a party to produce a revised list of documents; or perhaps put more correctly, whether it was open to a party who had not claimed privilege for certain documents, to subsequently amend the list so as to claim privilege. On this question his Honour said (at 133 - 134):
"On the day when inspection took place no objection to production had been made either in accordance with r 5 or in any other way. Objection was made between the inspection and the request for copies, and the question is whether by that time it was too late to correct the error.
It has been submitted on behalf of the respondent that, once the list had been delivered, it was the list for purposes of r 9 and therefore inexorably there was a right to inspect and take copies. The rule makes no provision for an amendment to the list. I doubt whether the irrevocability of the list could be maintained in this extreme form. It seems to me that, at any rate until inspection has taken place, common sense would suggest that there must be a right to correct the list even if only by notifying the other side that there are documents which the litigant objects to produce. It is noticeable that the objection which is referred to in r 9 is confined neither to objections stated in the list, nor indeed to objections on the ground of privilege. Under r 13 the court is not to make any order for the production of documents for inspection unless the court is of the opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs. It is therefore quite conceivable that there may be an objection to production on the grounds that production would not be justified within that rule and not simply on the ground of privilege."
(Page 14)
7 As the facts I have set out above indicate, in this case not only was privilege not claimed over the subject documents, but the plaintiffs' solicitor inspected the documents on two occasions. In my view it is not now open to the first defendants to file an amended list and claim privilege over the documents. They do not have the right to do so under the rules. All that they can do is resist an order for inspection being made under O 26 r 9. In the circumstances, I would not be prepared to deny the plaintiffs an order for inspection. Indeed, as the plaintiffs' solicitor has inspected virtually all of the documents, an order for inspection is not really needed. What is at issue is the right of the plaintiffs' solicitors to obtain copies of the documents.
8 This issue of the right to obtain copies of documents was the second issue which was addressed by Hoffmann J. His Honour said (at 134):
"The problem in this case, however, is that inspection, in the sense of an examination of the documents, had already taken place. The solicitor had acquired knowledge of their contents and had made some notes of what they said. It is accepted that he could give secondary evidence of the contents of those documents, that he could produce the photocopy which he had made and that the liquidator could be cross-examined on them. That, on the face of it, suggests that unless an order for the production of copies is made, the court will be in the position of receiving evidence about the contents of the documents and being able to act on that evidence but not have access to the best evidence, which is the documents themselves. That seems to me to be an illogical position. If the policy of the conduct of litigation requires that the privilege relating to those documents should be preserved, then it would seem that it should be right that nothing at all about the document should be put before the court. On the other hand, if (as is conceded) secondary evidence is going to be admissible, there seems to me to be no logic in the court not seeing the documents themselves.
There is authority which states, as one can see from the reading of r 9, that the right to take copies is ancillary to the right to inspect. Originally, I imagine, the solicitor carrying out inspection or his clerk would himself have copied down at the same time the parts of the documents which he wished to refer to. Again, it is agreed that if the respondent's solicitor had copied the documents himself at the time of inspection, or made more extensive use of the photocopier belonging to the
(Page 15)
- liquidator's solicitors, no objection could now be made. It would seem to me illogical that having carried out the inspection, but not gone through the physical process of making copies at the time, he should now be disentitled from obtaining the best evidence of the documents which he has seen."
9 Nothing more need be said. It is clear from O 26 r 8 that copying of the documents is ancillary to inspection of them. The logic of Hoffmann J's analysis is compelling. The plaintiffs in this case should be entitled to copies of the documents.
10 For these reasons I will make orders in terms of the chamber summons.
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