BT v NSW, BT v Telstra, NSW v BT - [1998] HCATrans 262

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S91 of 1998

B e t w e e n -
BT AUSTRALASIA PTY LTD
First Applicant
BRITISH TELECOMMUNICATIONS PLC
Second Applicant
and
STATE OF NEW SOUTH WALES
Respondent

Office of the Registry
Sydney No S93 of 1998

B e t w e e n -
BT AUSTRALASIA PTY LTD
First Applicant
BRITISH TELECOMMUNICATIONS PLC
Second Applicant
and
TELSTRA CORPORATION LTD
Respondent

Office of the Registry
Sydney No S95 of 1998

B e t w e e n -
STATE OF NEW SOUTH WALES
Applicant
and
BT AUSTRALASIA PTY LTD
First Respondent
BRITISH TELECOMMUNICATIONS PLC
Second Respondent

Applications for special leave to appeal and application for expedition

GLEESON CJ
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 7 AUGUST 1998, AT 12.42 PM

GLEESON CJ: Is it convenient for these three matters to be heard together?

MR G.C. LINDSAY, SC: It is, your Honour. May it please the Court, I appear for the BT Companies who are, in the first two matters, the applicants and in the third matter are the respondents. I appear with MR L.S. EINSTEIN. (instructed by Middletons Moore and Bevins)

MR F.M. DOUGLAS, QC: May it please the Court, I appear in each of the matters for the State of New South Wales with MR W.G. MUDDLE and MR D.R. STACK. (instructed by I.V. Knight, Crown Solicitor’s Office, (New South Wales))

MR J.T. GLEESON: May it please the Court, I appear for Telstra in the second matter. (instructed by Blake Dawson Waldron.

GLEESON CJ: Yes, Mr Lindsay.

MR LINDSAY: Your Honours, the applications arise in the context of some Federal Court proceedings dealing with some extensive commercial litigation. The questions that arise are questions - - -

GLEESON CJ: Can I interrupt you to say that it is fairly obvious that if these applications were successful, that could have a considerable effect upon the progress of that litigation that you have been talking about.

MR LINDSAY: Perhaps so, your Honour, yes. They are matters of importance in the conduct of the proceedings, both at an interlocutory level and at a trial level.

GLEESON CJ: I understood a date has been fixed for the hearing of the action.

MR LINDSAY: Yes, the proceedings at the present are fixed to commence in February. There is some question - - -

GLEESON CJ: It is unlikely that we would hear and determine any appeal between now and then.

MR LINDSAY: Your Honour, we would press on with the application for special leave. We also have an application for expedition but there is at least the possibility - I can put it no higher than that at this stage - that for the reasons independently of the proceedings in this Court, that the proceedings in the Federal Court will not commence in February. There is at least some suggestion, particularly on the part of Telstra, that the proceedings might not be ready for hearing at that time. In those circumstances, we would seek to press on with the applications for special leave in the hope that we might be able to obtain a determination of them.

We appreciate that when one comes to the question of expedition, there are other factors including the extent to which the Court can make the time available.

GLEESON CJ: The litigation has been on foot since, when?

MR LINDSAY: Mid-1995.

GLEESON CJ: Yes. That might be relevant to expedition. Go on, Mr Lindsay.

MR LINDSAY: Thank you, your Honour. Your Honours, the submissions we would be seeking today to make have been reduced to writing and I would touch upon them briefly but hand up, if I can, an outline of argument. Your Honours, the importance of the questions that have been raised have been recognised by each of the judges who have considered the matters and in the document I have handed up your Honours will see that dealt with in paragraph 6. The proceedings came to be before the Full Court pursuant to a grant of leave that was made by Justice Sackville in favour of both Telstra and the government and in granting that leave he said that the issues were both novel and of importance to the case and possibly of general importance.

In the judgment of the dissenting judge in the Full Court, Justice Beaumont, attention was drawn to the divergence of opinion which has taken place in the courts concerning the application and the effect of the Evidence Act and he called for matters to be dealt with. His Honour called for further law reform in the area.

In the majority judgment in the Full Court recognition was given to the fact that their Honours’ principle or the principle they enunciated went beyond the decided authority in this Court, that is it went beyond Maurice and Goldberg v Ng and, in those circumstances, the novelty of the principle that has been enunciated, in our submission, as well as its importance, is quite clear.

The issues that arise, in our submission, are those concerning issue waiver, the question whether there has been or could be any imputed waiver of privilege where there has been no disclosure or use of privileged material. In our submission, there simply cannot be any waiver of privilege

under the law whether one regards the law as the common law modified or not modified by the Evidence Act or under the Evidence Act and that is a question which, in our submission, is quite important.

Also, in the context of the Evidence Act, assuming that is to be the relevant source of the law, section 122(1), in our submission, is inconsistent with there being any imputation of waiver. On the facts in this case, it has been found that on BT’s part, the privilege holder’s part, there has been no intention to waive and, in our submission, the findings of fact also demonstrate that there has been no disclosure of privileged material and there has been no use of privileged material. In those circumstances, in our submission, there simply cannot be any imputation of waiver on accepted principles and we would invite your Honours to review the judgments below on that basis.

The particular judgments of the majority are predicated upon the mere pleading of reliance upon misrepresentations in the context of a section 52 Trade Practices Act case. There has been no pleading of the fact or content of any legal advice and, in our submission, it simply cannot be said that that bare allegation of reliance on a misrepresentation can give rise to any waiver of privilege. But this judgment, if allowed to stand, will have significant effects on the conduct of litigation generally because of the uncertainty of the principle that has been enunciated by the majority and because of the difficulty in ever being able to predict what will be the principle to govern a waiver of privilege in circumstances where there has been no dealing with privilege.

GLEESON CJ: We think we would like to hear what the respondents have to say, Mr Lindsay. Yes, Mr Douglas.

MR DOUGLAS: Your Honour, there is no doubt the question which was raised in Adsteam is a matter of some importance but it is not a matter which arises directly on this appeal. The applicant in these proceedings conceded the correctness of that decision in the proceedings below, both before Justice Sackville and before the Full Bench. In reality, the only real question which arises here is the proper construction of section 120(1) of the new Evidence Act. If the Court is of the view that is a question of sufficient importance for the matter to come up here, well then, obviously, that is something I cannot say much about.

McHUGH J: I am afraid almost every question raised by that Act may be of sufficient importance to come up here.

MR DOUGLAS: I mean, the question really is whether this is a suitable vehicle to do it. One may have thought that a more suitable vehicle would be one where one has a clear-cut dichotomy between dominant and sole purpose tests so that one can test the question. This is a case which could be decided in the High Court on the basis that Justices Lehane and Branson were correct in their interpretation of section 122(1) as to the meaning of “consent” so that your Honours ought not have to then get into the question as to whether the provisions of the Evidence Act apply derivatively in the period prior to the adducing of evidence at the trial.

So, from that perspective you have a large piece of litigation which is likely to be derailed, one would have thought, if these applications were to be successful. There is evidence before the Court of the amount of time which the parties have devoted to it.

GLEESON CJ: You say “likely to be derailed”. How long has it been on the rails so far?

MR DOUGLAS: It seems to have been moving along, your Honour, but rather slowly.

GLEESON CJ: Yes, chugging along.

MR DOUGLAS: But obviously a matter of this nature is naturally complex and is only going to be made more complex by a number of interlocutory appeals coming up to this Court.

GLEESON CJ: BT is the moving party in the litigation, is it not?

MR DOUGLAS: It is the moving party and it has effectively sued us claiming breach of contract and saying that we made a number of representations to them.

GLEESON CJ: Presumably somebody who has an interest in the litigation coming on without ageing too greatly - - -

MR DOUGLAS: I am not sure about that, your Honour.

GLEESON CJ: Presumably somebody has made an assessment that what is involved in the orders for production or examination of the particular documents, the subject of this dispute, is of sufficient importance to warrant the necessary delay that will result from a grant of special leave.

MR DOUGLAS: Your Honour, one should not assume that simply because BT is a moving party that they are necessarily anxious to get the matter on, but I will just leave that hanging in the air. Secondly, we do have a cost claim. Thirdly, we do have a contract in which it is said that they did

not rely upon any representations made by us. They were represented by a major firm of solicitors in this State and we were also represented by a major firm of solicitors in this State. The production of these documents will go to the legal advice which BT, a very large telecommunication company, received in relation to the insertion of that particular provision into the contract. They say that Thomason’s Case and the cases which follow it do not go that far. We say they do. That is not a point, as we would see it, which is appropriate for special leave here. It seems to us that the only question really is this question of construction of section 122.

GLEESON CJ: And the associated question of what is involved in issue waiver?

MR DOUGLAS: Yes. Yes, that is a matter which has not yet come up this far, I must concede that. There is no case in the High Court which has considered Thomason’s Case - its full implications but, I mean, it has been referred to without demur in a number of decisions in this Court and it has never been suggested to be wrong and it contains within it an obiter dictum to the effect that one can always cross-examine in undue influence cases on what advice you receive from a solicitor. Sir Frederick Jordan said he has never known that proposition to be contradicted. Now, that is a case which was decided in the 1930s.

McHUGH J: That may be because in a particular context the question of the legal advice is at the heart of the issue in a case like this.

MR DOUGLAS: I am reminded - I mean, it really is a factual question though, that is, whether the legal advice that was relevant is a factual question and ultimately this Court is really embarking if it goes into the imputed waiver cases into a consideration of that issue which - - -

McHUGH J: I am not sure that the judgments below treat it as purely a factual question.

MR DOUGLAS: They certainly look at it in terms of section 122(1) and what is involved in implied imputed within the concept of “consent” within that section. Otherwise, we would say, they have looked upon it as a factual question. I think I have really said what I can say, your Honour.

GLEESON CJ: Thank you, Mr Douglas. Yes, Mr Gleeson.

MR GLEESON: I would ask your Honours to go to the application book at page 122. At about point 3 there is a quote from your Honour’s judgment in Benecke’s Case.

GLEESON CJ: That was a very straightforward case factually. That was a case in which a litigant was saying that she had been misled by her senior counsel when she settled the case and she claimed that the one time to be able to make her assertion to the court as to the way in which she was misled by senior counsel and claimed legal professional privilege to prevent senior counsel giving her version of events.

MR GLEESON: Yes, that is so, your Honour. Your Honour used there the words:

the appellant herself lifted the veil of secrecy by giving the version of the communications.

What the majority has done in the paragraph that follows is to say that the same underlying principle of fairness applies in a different situation but a related one where one party tenders an issue and where the legal communications are so bound up with that issue as a matter of fact that the court’s fact-finding process in respect to that issue would be seriously compromised if the privilege could continue.

Now, we would see that as being entirely consistent with the Beneke decision. The veil has been lifted - - -

McHUGH J: At the moment, I do not, Mr Gleeson. It seems to me far removed and the judgments below, if they are correct, have the potential to make great inroads into legal professional privilege.

MR GLEESON: Your Honour is aware that in various decisions of the State courts, referred to in the judgments below, there has been a consistent approach taken that the fairness principle can apply in this situation.

GLEESON CJ: Yes, but it is a question of the reach of the fairness principle. If you look at the actual cases in which the fairness principle had been applied they are pretty obvious cases, are they not?

MR GLEESON: Yes. Your Honour, in Adsteam itself, the earlier Full Court looked at virtually all of the earlier cases and analysed them and said that they correctly fell within the concept of consent under the Evidence Act and they included some cases fairly similar to the present, such as Hongkong Bank in the Victorian Supreme Court which was a case of representation alleged reliance. The legal advice being bound up in the reliance. Your Honours, that is in the application book at page 49.

GLEESON CJ: Mr Gleeson, I am wondering if this is a convenient time to adjourn.

MR GLEESON: If your Honour pleases.

MR DOUGLAS: Your Honour, if I can mention one matter: there are two related appeals and I have dealt with them both on the same basis, if the Court had wished to raise any matter with me about that.

GLEESON CJ: I assumed that. Whatever the outcome of the application, it will be the same in all matters, will it not?

MR DOUGLAS: I suppose I should say this, your Honour, that if special leave were not granted in the first one, that is BT’s application, we would not press our application for special leave.

GLEESON CJ: No, I have assumed that they all stood or fell together. Very well, we will adjourn until 2.15.

AT 12.58 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.14 PM:

GLEESON CJ: Yes, Mr Gleeson.

MR GLEESON: Your Honours, there were four matters further I wished to put in support of the proposition that there is not sufficient doubt in respect of this judgment. The first submission is that the judgment is based upon a finding of fact, unchallenged, that the legal advice is likely to have contributed to the state of mind alleged. That finding of fact is found in the primary judge’s decision at page 43 to 45. On page 43, between lines 25 and 40, the trial judge indicated that BTA was advised by solicitors for over a year. Indeed, there was a negotiating team for this very contract where the solicitors were part of the BTA negotiating team, and he found in the course of those negotiations the particular clauses in the agreement were discussed between the various members of the team, that is, both the lawyers and the lay officers.

His Honour then set out the contractual acknowledgments which, in essence, were BTA acknowledged that the government had not made representations to them on the very matters that are now the subject of the section 52 claim.

At the bottom of page 44, his Honour set out some of the many alleged representations and your Honours will see they relate back to the acknowledgment. The trial judge then made a further finding which is at pages 58 and 59. On page 58, at lines 16 to 20:

There is therefore little doubt that the content of any legal advice relating, for example, to the effect of the acknowledgments in the TDN Agreement or the relationship between representations and the terms of the TDN Agreement, could be material to any assessment of the reliability of evidence by BT’s officers as to their state of mind.

And on the top of page 59, lines 9 and 10:

I do not think that the fact that legal advice received by BT’s officers is likely to be material to their state of mind on issues pleaded by BT -

So, it is not simply a case of plaintiff asserts section 52 action. In this case there is a finding of fact that the legal advice is likely to be material to the reliance case.

Your Honours, the second matter I wish to put is that the decision of the majority is consistent with the earlier issue waiver cases, and could I give your Honours two examples? The first is the decision in Ampolex which is conveniently summarised at page 54, lines 36 to 50. Because of the findings of fact to which I have - - -

McHUGH J: I must say when I read that passage I immediately thought to myself, “This may well make this case a special leave case”. You, no doubt, rely strongly on that particular passage.

MR GLEESON: Yes.

McHUGH J: The question is, is it right?

MR GLEESON: I understand that, your Honour. The submission I simply seek to put is that statement in Ampolex, in similar terms, has been adopted in the State courts in at least four States, and I will put this submission, bold as it may seem: to my knowledge that is the way trial litigation works in the various courts of this country; whether it be a section 52 case, a Contracts Review Act case, a certificate of guarantee case. In general, if a client comes to their lawyer and says, “I want to run that sort of case where I am going to expose my state of mind”, the advice ordinarily will be - I put this - “If you do that the necessary consequence is you will have consented to or waived the privilege you would otherwise have. You don’t have to start that case. That is a voluntary action.”

McHUGH J: There may be a lot of bad legal advice out there in the community.

MR GLEESON: The submission I want to put to follow that up, your Honour, is that legal advice reflects a very fair, proper and just proposition. For this reason: BT is not obliged to try and seek a large sum of money from the State and from Telstra, but if it chooses to do that and to say to the Court, “This was my state of mind”, then if you know that part of that stage of mind is formed by legal advice, BT is, in effect, saying, on the one hand, “Give us a fair hearing about this issue we tender”, but on the other hand, “We will hold back factual material which goes to the heart of that issue we tender.”

GLEESON CJ: Slightly different legal advice but advice that might have the same practical effect would be to say to the client, “You can start a case like that if you want, but if you claim privilege for the legal advice you will have a devastating comment against you at the end of the argument.”

McHUGH J: What I was just going to put to you, the tribunal of fact might refuse to act on your state of mind if you refuse to disclose what your legal advice was.

MR GLEESON: Your Honour has said in Giannarelli that you cannot draw a direct inference as to the content of the advice from the fact that you claim the privilege. It is true you can indirectly, perhaps, reach the same result, depending upon what other evidence you lead. But the submission I put is a case may well be decided on a false basis where the judge says, “I can’t draw the inference against BT because they are the privilege holder. I’m therefore not sure what was in that advice. I’m left, on the balance of probabilities, with a view that I believe their witnesses; I award them substantial damages.” Now, that, we say, is an unfair unjust result and it is a proper exception to privilege because it can be stated in advance.

If BT goes to their lawyers back in 1992 and says, “Please provide me with advice about this contract we’re about to enter”, prima facie, they will have privilege. If they ask their lawyer, “In what circumstances might we lose it?”, the answer given by this judgment is quite clear: “If you tender an issue which necessarily involves this piece of advice, you will lose that privilege.”

McHUGH J: Yes, but, for example, there are many other forms of privilege in which you can get the same result, unfair as though it may seem to many. Take public interest immunity. A government is involved. There may be documents which are protected by public interest immunity. In other words, they are entitled to litigate the case without the public interest immunity privilege being destroyed. It is the same with informer’s privilege.

MR GLEESON: The question is whether the party such as BT can tender an issue which the trial judge accepted and the Full Court also accepted would be decided on the basis of comprised fact finding.

GLEESON CJ: Mr Gleeson, I am not quite sure of what the boundaries of what are sometimes called “the fairness test” might be when you are asking for the purposes of the common law whether privilege has been waived but what has fairness to do with consent?

MR GLEESON: In the cases such as Benecke’s Case, the notion is that if you chose to - - -

GLEESON CJ: Which was not a consent case.

MR GLEESON: Can I deal with it this way, your Honour: in your Honour Justice McHugh’s judgment in Carter’s Case you stated the principle in a summary form at the beginning that privilege is lost in circumstances where there is consent to the tender of the material. Now, that has turned out to be prescient in the sense that section 122 has chosen “consent” and that is the language we are debating. But when one picks up cases like Maurice and Goldberg which use “waiver” rather than “consent”, they say that there must be conduct from which it can be “inferred or implied or imputed” - that is the language - that a certain consequence will follow, namely, lose of the privilege.

Now, “waiver” is the common law language; “consent” is section 122, but they are coming back to a similar notion. In the Goldberg and Maurice case it is fairness which says if you disclose half you must be required to disclose all. In that case, if someone takes the BT stance and says, “I only want to disclose half. I very carefully have kept back the balance”, the law says fairness does not permit the partial disclosure without disclosing the whole.

GLEESON CJ: Take the simplest and most obvious example of a case where the privilege is lost, to use a neutral word. If a client sues his solicitor for negligence. Perfectly obviously the client cannot claim legal professional privilege and silence the solicitor from making a response to the allegation of negligence, but what is the principle on which that operates? No one doubts what the result is but what is the reason for the result?

MR GLEESON: The reason is that there has been voluntary and deliberate action by the client which is the tender of a particular issue for determination by the court, the issue being negligence or not. The question then is how far does fairness require that the loss of privilege go? In that situation the cases have gone the furthest and said you in fact waive privilege in legal advice in respect of prior transactions from the same lawyer and that is that it is felt unfair that the lawyer cannot use the material from the prior occasion to cross-examine the client and show, for instance, “Had I given you now the advice you claim you should have been given, you would not have acted any differently to that you did.” So that it is a combination of deliberate conduct plus the law, operating on a principle of fairness in advance, determining the category of privilege that must be taken to be lost.

McHUGH J: When did people start talking about this concept of fairness and unfairness in this context, because I have to say it is new to me, and as the Chief Justice pointed out in a lecture some years ago, fairness has not traditionally been a common law conception?

MR GLEESON: Your Honour, it is littered through Goldberg’s Case and Maurice’s Case. Not that it is fairness in a particular case which is balanced up in a weighing exercise but that when a principle is stated in advance, the underlying notion is one of fairness.

McHUGH J: But, see, in that context, one is dealing with communication; one is relying on part of a communication and is not prepared to allow the balance of the communication to be tendered in evidence. In that situation, the court says, “Well, you can’t rely on it”. But you want to take that principle in these cases such as Ampolex and apply it in a different field altogether. They say, “If you want to talk about X, because legal advice is relevant to X, therefore you can’t rely on your privilege in relation to this matter.”

MR GLEESON: It is a little closer than just being relevant to X. It is bound up in the factual subject. Can I give an example? If, in this case, BT goes to its lawyers during the course of this case and says, “This is what I thought back in 1992. Please give me legal advice on that now.”, on the current common law authorities they would not lose privilege in that merely by bringing this case because that is treated as being a separate and later communication. What they lose, on the existing authorities, is the privilege over the legal communications, as the majority said, which are contemporaneous with and bound up in the factual issue that they tender. So that the BT witness simply cannot get into the box and say, “My state of mind was X” and withhold the material which shows the state of mind may well have been Y.

Your Honour, we put it on the basis that that is a proposition that is commonly accepted across these cases. There is no case that we are aware of in Australia on the common law which has said, “We find that principle unsatisfactory.” None of those cases at first instance have been overturned on appeal, and it is a sound principle which should not be and does not require to be reviewed in this context.

GLEESON CJ: There is a step involved, is there not, from saying you can look at the pleadings and just by looking at the pleadings in this case you can tell that there has been a consent to revelation of the legal advice? There is a gap between that and conducting the case in such a manner as by filing witness statements or affidavits or giving evidence that would produce that consequence.

MR GLEESON: It is correct, your Honour, that in some cases you can determine the consent solely from the pleadings. When this present case came before Justice Sackville it had been running for two years and one had many, many witness statements filed by BT under the usual compulsory order. It was on the basis of those statements and the surrounding evidence that his Honour was able to make a finding which was perhaps earlier than one might normally make it, namely, at a trial, that he was satisfied that it was likely that the legal advice had contributed to the state of mind. Had we not that finding, we would not have been within the Ampolex principle.

That is essentially the only point that separated the judges in the Full Federal Court. Justice Beaumont said, “I’m not sure that reliance is central to a section 52 case. I am happy you can impute a waiver and the privilege may well be lost in the trial but not yet.”

GLEESON CJ: Yes. What Justice Beaumont was saying, as I would understand it, is: “There’s going to be a nice tactical decision that the applicants are going to have to make as to the way they run this trial and as to what evidence they can call without waiving privilege but they haven’t done it merely by filing this pleading.”

MR GLEESON: And what his Honour, with respect, overlooked at that point was the factual finding of the trial judge which was the basis of the majority’s decision. It is at the very end of the majority’s judgment, your Honours. It is page 126, at point 3, the majority came back to that factual finding as being a foundation for saying at this point in the case there was now a consent.

McHUGH J: Does this principle upon which you rely only apply when the party who claims privilege is the moving party? Is that part of the principle?

MR GLEESON: The principle as stated by Justice Giles in Ampolex which is the one commonly followed in New South Wales, currently has that limitation in it and Justice Giles left open what would be the position in the other case. It may be a fraction wider than that because there are certain cases where it is necessarily implicit in the case the plaintiff frames that a particular - - -

McHUGH J: I understand that but it must have some ramifications, must it not? Supposing somebody goes to a solicitor and says, “I want to take this taxation step. Would I be breaching the law or not?”, and advice is given. The client goes ahead. Later the client is prosecuted for defrauding the Commonwealth. The client’s state of mind is clearly a relevant issue. Does that mean that the legal advice that the client got can be given against him? Can the solicitor be required to give evidence as to the client’s state of mind?

MR GLEESON: In your Honour’s example, the moving party in the court action is - - -?

McHUGH J: Would be the Crown.

MR GLEESON: - - - the Crown. The answer to that would be no, because that is outside this principle.

McHUGH J: So, it depends on whoever is the moving party. It does not seem a very satisfactory legal test.

MR GLEESON: Your Honour, that is part of the consideration in coming to whether there has been the appropriate consent for the waiver. What I wish to say was that in Thomason’s Case the court said that where you bring a common law action for damages and the standard sort of defence that might ordinarily be available is, “You’ve signed away your rights under the Workers Compensation Act, then a plaintiff in that case is inviting, in effect, that sort of defence, so that when that defence comes, the plaintiff will have waived the privilege in legal advice the plaintiff received in signing up under the Workers Compensation Act. So, it is not simply on a strict view of the pleadings in all cases. The present is a simple case because it is clear BT has tendered the issue, not us, but it may extend beyond that, depending

on the limits of consent in the particular case. Those are my submissions, your Honour.

GLEESON CJ: Yes, thank you.

In each of these three matters the Court considers there should be a grant of special leave to appeal.

Do you want to make an application for expedition now?

MR LINDSAY: We wish to make an application for expedition, your Honour, and I would seek to rely on an affidavit of Alan Max Friedlander of 30 July 1998, for that purpose.

GLEESON CJ: Now, where do we find that?

MR LINDSAY: Your Honours, I regret to say it is probably not in the application book. It was filed - - -

GLEESON CJ: Is it in these folders that you handed up?

MR LINDSAY: I cannot say. I do not know, your Honour.

GLEESON CJ: Why do you not state, in a summary form, the basis on which you seek expedition and in the course of doing that tell us why we should grant expedition in a case that has spent so long in the list already.

MR LINDSAY: The matter that is presently before the Court has not been the subject of any delay. The principles - - -

GLEESON CJ: No, but if the litigation is urgent, why has it not been on and over long since?

MR LINDSAY: Because the applications, the motions, effectively, which gave rise to the present dispute where motions on the other side of the record and they were filed late last year; heard this year in March, and we have dealt with it expeditiously since that date.

GLEESON CJ: What was the date of commencement of the proceedings?

MR LINDSAY: It was 2 August 1995.

GLEESON CJ: So, they were commenced more than three years ago?

MR LINDSAY: The proceedings were.

GLEESON CJ: Yes. Well, why have they taken so long to come on?

MR LINDSAY: The proceedings have a degree of complexity. From our point of view, enormous resources have been dedicated to getting the case on as quickly as possible. The State certainly has an affidavit to the same effect. The proceedings involve great complexity and the particular issues that are the subject of the special leave grant are issues which will continue to need to be addressed in the preparation and in the trial. There has been no delay on our side of the record. The proceedings are presently listed to commence in February though there are further directions hearings where that may be reviewed, but the sooner we are able to have a final determination of the principles governing privilege, the sooner we will be able to make sure that the proceedings do not go off the rails, and that is something which is very important, certainly to us and I believe to the other parties as well. But certainly to us.

GLEESON CJ: Is there anything you wish to say, Mr Douglas?

MR DOUGLAS: Your Honour, we support the application for expedition. We did in fact file in the earlier application before Justice Kirby an affidavit of my instructing solicitor, Bernadette June Grant, which had annexed to it one of her offsiders, Matthew Saxon White, which was filed in the Federal Court of Australia in the proceedings before Mr Justice Sackville and in that affidavit it is outlined the amount of money which the State has spent on these proceedings so far where they are a defendant and now being sued for of well in excess of $100 million, possibly close to $200 million. The matter has been going on for several years.

GLEESON CJ: Exactly.

MR DOUGLAS: The pleadings have just been amended against us. But the problem about the litigation, it involves a State and all of its associated agencies and we have had to give discovery on behalf of all of those agencies in relation to this matter. We have had to take statements of evidence from persons who are involved in the communication side of those agencies. That has involved a huge amount of work at a huge amount of cost. There are a number of people who are engaged by the State at the present time full time who are not permanent employees of the State but who are paralegals brought in for the purposes of this case. If the case, in fact, goes off into the never-never, the skills of those persons may inevitably be lost.

GLEESON CJ: It is not a question of going off into the never-never, it is a question of taking its ordinary course in the list.

MR DOUGLAS: I understand that, your Honour.

GLEESON CJ: I have no doubt that the case will have devoted to it all the legal attention it requires.

MR DOUGLAS: Yes, I can see that, your Honour. But speaking from our perspective, we wish to get the matter on because we want to have this matter dealt with. Whatever this Court can do - and we understand the importance of the questions which are before it and its busy lists - to expedite the hearing of the applications which are before it would be something which the State of New South Wales would be very grateful for, bearing in mind all of the logistical difficulties which I have referred to.

GLEESON CJ: Does anybody else like to say anything?

MR GLEESON: We have no submission, your Honour.

GLEESON CJ: Yes, the matter will take its ordinary course in the list. We will adjourn to reconstitute.

AT 2.37 PM THE MATTER WAS CONCLUDED