Buckley v The Herald & Weekly Times Pty Ltd (No. 4)
[2009] VSC 65
•27 February 2009
| Do Not Send for Reporting | ||
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
No. 10170 of 2007
| PETER SEAN BUCKLEY | Plaintiff |
| v | |
| THE HERALD & WEEKLY TIMES PTY LTD (ACN 004 113 937) | First Defendant |
| and | |
| RUSSELL ROBINSON | Second Defendant |
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JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 February 2009 | |
DATE OF JUDGMENT: | 27 February 2009 | |
CASE MAY BE CITED AS: | Buckley v The Herald & Weekly Times Limited and Anor (No. 4) | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 65 | |
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DEFAMATION – Practice – Inspection of discovered documents – Legal professional privilege – Copies of documents downloaded from internet for provision to legal advisers – “Newspaper rule” – Protection of confidentiality of journalists source.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M. Clarke | Francisdaniel Lawyers |
| For the First and Second Defendants | Ms G.L. Schoff | Corrs Chambers Westgarth |
TABLE OF CONTENTS
Legal professional privilege............................................................................................................. 3
The newspaper rule........................................................................................................................... 7
Conclusion........................................................................................................................................... 9
HIS HONOUR:
In this matter, the plaintiff makes application seeking inspection of eight documents of which the defendants have made discovery, but which the defendants object to produce for inspection by the plaintiff. In particular, the defendants have objected to production of two of the documents (documents 69 and 71 in the affidavit of documents) on the grounds of legal-professional privilege; to the production of four documents (documents 64, 65, 66 and 75) on the grounds that production of those documents would reveal, or tend to reveal, a confidential journalistic source; and two documents (documents 70 and 73) on both grounds.
I have already given two previous rulings in this matter, and in a related matter (proceeding No. 8575 of 2008).[1] In addition I have, this day, delivered a ruling in which I have directed that the two proceedings be consolidated.[2] The background to the present application is sufficiently set out in those previous rulings.
[1]Buckley v Herald and Weekly Times Pty Ltd and Anor [2008] VSC 459; Buckley v Herald and Weekly Times Pty Ltd and anor (No. 2) [2008] VSC 475.
[2]Buckley v Herald and Weekly Times Pty Ltd and Anor (No. 3) [2009] VSC 59.
Legal professional privilege
I turn first to the objection by the defendants to production of documents, discovered by them, on the grounds of legal professional privilege. The principles relating to the doctrine of legal professional privilege are not in dispute, and may be summarised shortly. First, the purpose of legal professional privilege is to protect disclosure of confidential communications between a client and the client’s legal adviser.[3] The relevant test is whether the dominant purpose for the creation of the document, which was communicated to the legal adviser, was for the purposes of its use in or in relation to litigation, for the purpose of obtaining legal advice[4]. Thirdly, the dominant purpose is defined as the prevailing or most influential purpose.[5] Fourthly, the onus lies on the party asserting the privilege to establish an appropriate basis for that claim.[6]
[3]See Esso Australia Resources Limited v Commissioner of Taxation (1999) 201 CLR 49, 64.
[4]Ibid, 73; Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority (2002) 4 VR 332, 335-6 [8] – [9] (Batt JA).
[5]Commissioner of Taxation v Pratt Holdings Pty Ltd (2004) 225 ALR 226, 279-80 (Kenny J).
[6]Grant v Downes (1976) 135 CLR 674, 689.
With those principles in mind, I turn to the documents in respect of which legal professional privilege is claimed. It is useful, first, to consider documents 69, 70 and 71. Those three documents comprise a number of hard copy documents, which were downloaded from the internet by the second defendant after the proceeding was commenced. Documents 69 and 70 were downloaded by the second defendant on 14 January 2008, and the documents comprising document 71 were downloaded on 25 January 2008.
The claim for privilege, in respect of those documents, has not been asserted by the defendants in particularly clear terms, largely because of the manner in which the dispute concerning privilege has evolved. In the affidavit of discovery sworn by the second defendant on behalf of the two defendants dated 26 May 2008, there was contained in Schedule 1 Part 2 an omnibus claim for privilege, which includes privilege in respect of documents “ … prepared or brought into existence by or for submission to the legal advisers of the defendant in anticipation of or relating to this proceeding or to proceedings contemplated … “. The plaintiff objected to that claim on the ground that there had not been a proper enumeration of the documents in respect of which privilege was so claimed. Accordingly, the second defendant, Mr Robinson, swore a second affidavit dated 10 December 2008, enumerating the documents in respect of which privilege was claimed. That affidavit did not, however, elaborate the basis of the legal privilege which was asserted over the documents with which this application is concerned. The defendants’ solicitor, Ms Carmel McInerney, has sworn an affidavit dated 20 February 2009. In that affidavit, she has deposed that the three documents were each “printed from the internet by Mr Robinson after the proceeding commenced for the purposes of the litigation.”
Taking into account the two affidavits of documents, and the affidavit of Ms McInerney, I am prepared to accept that the defendants have deposed that the three documents were downloaded from the internet by Mr Robinson for the purposes of the communication of those documents by him to the defendants’ legal advisers for use in the present litigation, or for obtaining advice in this litigation. Indeed Mr Clarke, who appeared for the plaintiff, did not appear to argue to the contrary.
Rather, Mr Clarke submitted that the matters so deposed to on behalf of the defendants did not establish that the documents in question were the subject of legal professional privilege. He submitted that it is not sufficient, in order to invest a document with privilege, that it be submitted by a litigant to its legal advisers. In support of that submission, he referred to the following passage from the judgment of Tamberlin J in Mundraby v Commonwealth of Australia:[7]
Ligertwood, at p.271, points out that communications and documents which have an existence independent of the litigation process cannot be made the subject of privilege merely by being placed in the lawyer’s adversary brief. Similarly, it can be said that a document which comes into existence independently of the litigation process cannot be brought under the cover of legal professional privilege simply by being affixed to a privileged statement. Ligertwood goes on to say that, just as the communications privilege does not extend to pre-existing unprivileged material, by analogy, neither does the litigation privilege.
[7][2001] FCA 884; (2001) 184 ALR 737, [7].
In my view, the answer to Mr Clarke’s submission is to be found in the decision of the majority of the High Court in Commissioner of Australian Federal Police v Propend Finance Pty Ltd,[8] to which Ms Schoff, who appears on behalf of the defendants, drew my attention. In that case, the Australian Federal Police, in execution of a search warrant, seized documents from the office of a solicitor, including copies of documents the originals of which were not privileged. The solicitor claimed legal professional privilege in respect of those documents. The majority of the High Court held that legal privilege attaches to a copy document which is provided to a lawyer, if the copy was made solely for the purpose of obtaining legal advice or solely for the use in legal proceedings, even where the original document was not the subject of that privilege.[9] I interpolate that that case pre-dated the decision of the Court in Australia Resources Limited v Commissioner of Taxation[10], in which the Court held the applicable test was the dominant purpose test, not the sole purpose test. Nevertheless, the principle enunciated by the High Court, in Propend’s case, holds good for this case.[11] The relevant statement of principle is found in the following passage from the judgment of Brennan CJ:[12]
The test is anchored to the purpose for which the document was brought into existence; the use to which a document is put after it is brought into existence is immaterial. So, on a strictly logical application of the test, if a copy is made solely for the purpose of providing it to a legal adviser in order to obtain legal advice or for use in connection with apprehended litigation, the copy would be privileged.
[8](1997) 188 CLR 501.
[9]Page 508 (Brennan CJ); 544-5 (Gaudron J); 552-4 (McHugh J); 571 (Gummow J); 587-8 (Kirby J).
[10](1999) 201 CLR 49.
[11]See, for example, Sugden v Sugden (2007) 70 NSWLR 301, 314 [65,66] (McDougall J); Barnes v Commissioner of Taxation [2007] FCAFC 88, [5] (Tamberlin, Stone and Slopsis JJ).
[12]At 508.
As I have stated, the two affidavits of documents, and the affidavit of Ms McInerney, satisfy me that the copy documents, which constitute documents 69, 70 and 71 of the defendants’ discovery, were downloaded from the internet for the dominant (indeed sole) purpose of communication to the legal advisers for the defendants’ use in, or obtaining advice in respect of, these proceedings, which were already commenced at the time at which the three documents were downloaded. It follows, accordingly, that the defendants have made out a sufficient basis to claim legal professional privilege in relation to those three documents.
The defendants have also claimed legal professional privilege in respect of document 73, which consists of a “handwritten list of names”. In her affidavit, Ms McInerney states that that document is a handwritten list of names written by Mr Robinson, and provided to his lawyers for the provision of the litigation. The names on the list are Mr Robinson’s confidential sources. At the insistence of Mr Clarke, I was provided with a folder of each of the documents, in respect of which privilege has been claimed on behalf of the defendants. My examination of that document bears out the matters so deposed to by Ms McInerney. Accordingly, I uphold the claim by the defendants for legal professional privilege in relation to that document.
The newspaper rule
As I have stated, the defendants also object, at this stage, to the production of four documents on the basis that production of those documents to the plaintiff would reveal, or tend to reveal, the second defendant’s sources. The defendants rely on the well-known decision of the High Court in John Fairfax & Sons Limited and anor v Cojuangco.[13] In that case the High Court held that the “newspaper rule” is not a rule of evidence, but a rule of practice. The Court held that the rule is such that, generally, a journalist will not be compelled to disclose his or her sources of information, in the absence of special circumstances to the contrary.[14] In essence, a defendant is not compelled to disclose a source, at an interlocutory stage, in the absence of special circumstances indicating that such disclosure, at that stage, is necessary in the interests of justice.[15]
[13](1988) 165 CLR 346.
[14]Page 354, 356; see also Hodder v Queensland Newspapers Pty Ltd [1994] 1 Qd R 49, 53 – 55 (Fitzgerald P); 58 (Davies JA and Byrne J); Lew v The Herald & Weekly Times Limited [1999] 1 VR 313.
[15]John Fairfax & Sons Limtied v Cojuangco (above), 356.
In the present case, Mr Clarke drew my attention to a number of particulars provided in respect of the defence of justification pleaded on behalf of the defendants. It is not necessary for me to set those particulars out in full. The point made by Mr Clarke is that in each of the particulars, the defendants indicate that they will be relying on conduct by the plaintiff in respect of an employee, or employees, of a hair salon then conducted by the plaintiff. In essence, Mr Clarke submitted to me that unless the documents, in respect of which privilege is claimed, are disclosed, the defendants will be taken by surprise at trial, because they will not know the identity of those employees. He submitted that the defendants would thereby suffer detriment, because they would not be able to investigate whether the employee or employees concerned had a motive to make accusations, implicating the plaintiff in the conduct attributed to him in the articles, which are the subject of these proceedings.
In my view, the argument thus made by Mr Clarke is, with respect, misconceived. First, it is based on an assumption that the employees, referred to in the particulars of the defence, were the source of the documents to which the defendants seek to apply the newspaper rule. Accepting that assumption for the purposes of this decision, the argument, in simplest form, is based on the proposition that the defendants wish to inspect the documents, not to ascertain their contents, but, rather, to ascertain the source of allegations contained in the articles, which are the subject of these proceedings. That submission, self‑evidently, is not a submission necessitating, or even justifying, an order for production of the documents in respect of which the newspaper rule has been invoked. Mr Clarke did not seek to submit to me that, if the plaintiff were not provided with a copy of the documents, at the interlocutory stages of these proceedings, the plaintiff would thereby sustain any disadvantage or injustice in the proceeding. In other words the plaintiff does not seek inspection of the documents in order to be appraised of the contents of those documents. Rather the plaintiff seeks production of the documents for a different purpose, namely to ascertain the source of allegations made against the plaintiff. In my view, that proposition reinforces the objection made by the defendants to production of those documents at this stage of the proceedings. Accordingly, and consistently with the principles stated by the High Court in Cojuangco’s case, at this stage I refuse to make an order requiring that the defendants produce documents 64, 65 and 66 to the plaintiff for his inspection. In reaching that conclusion, I have inspected the three documents, and I am satisfied that production of them, or any more precise description of them, might tend to reveal the identity of a source of information provided to the second defendant.
In reaching that conclusion, I emphasise that the ruling I have made in respect of those documents only applies to the claim by the plaintiff to inspect documents 64, 65 and 66 at this interlocutory stage of the proceedings. In Cojuangco, the High Court expressed the “newspaper rule” as one which applies to interlocutory proceedings in defamation (and related) actions. I express no view as to whether the defendants should be required to produce the documents, so discovered, to the plaintiff at a later stage in the proceeding.
The final document which requires consideration is document 75. The objection taken to production of that document is because part of it has been highlighted, and the highlighting might tend to reveal confidential sources of the second defendant. Having inspecting the document, I uphold that objection. However, in the course of submissions, Ms Schoff stated that it would be possible to produce a copy of that document, without the highlighting. Accordingly, while I uphold the claim for privilege in respect of the original of the document which is highlighted, the defendant should produce to the plaintiff, for his inspection, an unhighlighted copy of the document.
Conclusion
In conclusion I therefore uphold the defendants’ claim for legal professional privilege in relation to documents 69, 70, 71 and 73. I also agree that the production of document 73 would tend to reveal confidential sources. In addition I uphold the defendants’ objection to the production of documents 64, 65 and 66 on the grounds that production of those documents would tend to reveal the confidential source of the second defendant . I also uphold the defendants’ objection to producing document 75 as highlighted, because the highlighting would tend to reveal confidential sources. As indicated in submissions, the defendants will, however, provide to the plaintiff a copy of the document without highlighting.
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