Bushtown Holdings Pty Ltd v Conlan - [1999] WASC 150

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: BUSHTOWN HOLDINGS PTY LTD -v- CONLAN & ANOR [1999] WASC 150

CORAM: MASTER SANDERSON

HEARD: 20 AUGUST 1999

DELIVERED : 30 AUGUST 1999

FILE NO/S: CIV 1603 of 1998

BETWEEN: BUSHTOWN HOLDINGS PTY LTD
Plaintiff
AND
JOHN JAMES JOSEPH CONLAN
Defendant
JULIE MAREE CARTER
Defendant To Counterclaim

Catchwords:

Practice and procedure - Claim of privilege of certain diaries - Litigation privilege - "Sole purpose" test - Inspection by Court

Legislation:

Nil

Result:

Inspection by Court ordered

Representation:

Counsel:

Plaintiff:     Mr P A Kyle
Defendant:     Mr D L Jones
Defendant To Counterclaim :     Mr P A Kyle

Solicitors:

Plaintiff:     Kyle & Co
Defendant:     John Muller & Associates
Defendant To Counterclaim :     Kyle & Co

Case(s) referred to in judgment(s):

Attorney General (NT) v Maurice (1986) 161 CLR 475
Bushtown Holdings Pty Ltd v Conlan & Anor [1999] WASC 123
Grant v Downes (1976) 135 CLR 674
Henley v Henley (1955) P 202
Rumping v DPP [1964] AC 814

Case(s) also cited:

Minter v Priest [1930] AC 558
Mulley v Manifold (1959) 103 CLR 341
National Employers Mutual General Insurance Association Ltd v Waird (1979) 141 CLR 648
State Energy Commission v Griffin Coal Mining Co Ltd, unreported; SCt of WA; Library No 5882; 9 May 1985

MASTER SANDERSON: This is another instalment of an argument over discovery between the defendant and the defendant to counterclaim. On 10 August 1999 I determined that certain of the diaries of the defendant to counterclaim covering the years 1995, 1996 and 1997 were discoverable in these proceedings: see Bushtown Holdings Pty Ltd v Conlan & Anor [1999] WASC 123. I left open the question of whether or not such diaries were privileged from production, pending the filing of an affidavit discovering the diaries. (In my earlier decision on this matter I refered to the defendant as "Conlan" and the defendant to counterclaim as "Carter". I will adopt that nomenclature throughout these reasons.) Carter filed an affidavit verifying a list of documents sworn 17 August 1999. This affidavit is not in a conventional form - that is to say, it is not in a form of a usual discovery affidavit. It goes to some lengths to explain why privilege is claimed. Nonetheless, it serve the purpose of discovering on oath the diaries and sets out the basis of the claim for privilege. No issue was taken by counsel for Conlan as to the form of the affidavit. The question then for determination is whether the diaries should be made available for inspection of whether they are covered by privilege. (I will refer to the "diaries" to cover all three diaries that have been discovered. Neither counsel suggested that discovery should be limited to some but not all of the diaries.)
In my earlier reasons for decision I set out the relationship between Conlan and Carter and the nature of the dispute that forms the basis of these proceedings. I also concluded that, based upon the evidence before the court, the diaries related to a matter in issue between the parties and were therefore discoverable. I do not propose to repeat anything I said in that earlier decision but simply build upon what is contained therein. However, it is necessary to say something about the affidavit material which was filed in relation to the earlier application. It bears upon the question of whether privilege properly attaches to the diaries.
Carter claims that the privilege is based on so‑called litigation privilege. That is to say, the diaries were brought into existence for the sole purpose of use in litigation: see, generally, Grant v Downs (1976) 135 CLR 674, where the majority, Stephen, Mason and Murphy JJ, set the limits of litigation privilege in the following way (at 688):
"All that we have said so far indicates that unless the law confines legal professional privilege to those documents which are brought into existence for the sole purpose of submission to legal advisers for advice or for use in legal proceedings the privilege will travel beyond the underlying rationale to which it is intended to give expression and will confer an advantage and an immunity on a corporation which is not enjoyed by the ordinary individual. It is not right that the privilege can attach to documents which, quite apart from the purpose of submission to a solicitor, would have been brought into existence for any other purposes in any event, and then without attracting any attendant privilege. It is true that the requirement that documents be brought into existence in anticipation of litigation diminishes to some extent the risk that documents brought into existence for non‑privileged purposes will attract the privilege but it certainly does not eliminate that risk. For this and the reasons we have expressed earlier we consider that the sole purpose test should now be adopted as the criterion of legal professional privilege."
The adoption of this sole purpose test stands in contrast to the rather broader so‑called dominant purpose test favoured by Barwick CJ in the same case. His Honour would have adopted the following test (at 677):
" … a document which was produced or brought into existence either with the dominant purpose of its author, or of the person or authority under whose direction, whether particular or general, it was produced or brought into existence, of using it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation, at the time of its production in reasonable prospect, should be privileged and excluded from inspection."
By contrasting these two passages, the requirements of the sole purpose test are well illustrated. It is a test which is very limited in its scope. It clearly anticipates that material which is incidental to, but not directly brought into existence for the sole purpose of litigation, is not privileged. It may be that the dominant purpose for the whole of the material may be litigation. But it is only that material which relates directly or solely to the litigation which attracts privilege.
In her affidavit, Carter details matters relating to her marriage to one Gary Harlen. It seems she was married to Harlen between 1981 and 1993 and that there were three children of the marriage. Carter and Harlen separated in 1993 and from that date onwards there have been disputes in the Family Court. It is unnecessary to detail these disputes, save to say that they have involved custody and maintenance and they appear to have been particularly bitter. As yet, these disputes are unresolved and a custody battle still rages. Carter says that it is in the context of this dispute that she began to keep a diary. Her evidence can perhaps best be summarised by quoting the following paragraph of her affidavit (par 7):
"The solicitor [acting for Carter in Family Court proceedings] requested me to keep a detailed record of events relevant to issues between Harlen and myself or which would relate to the marriage, custody of and access to the children, child support or property settlement as well as the violence I had suffered at the hands of Harlen. As a result, and in accordance with that advice I started keeping a detailed diary of these events and have done so ever since April 1994. These events dominated my life for at least two years and still regularly impinge on my life because of continuing disputes with Harlen regarding the children and their custody and maintenance and restraining orders."
If that were the only evidence, it might well be that the diaries would satisfy the sole purpose test and might well be privileged from production. But the evidence goes further. Paragraph 13 of Carter's affidavit is in the following terms:
"There are occasional references in my diaries to the Defendant. We had both a personal and a business relationship during the period 1994 to 1997. In the main references to the Defendant relate to personal matters and occasionally a passing reference to the Plaintiff's business. In so far as the references touch upon facts the subject of these proceedings they relate solely to my own case and do not relate to the Defendant's case or impeach my own or the Plaintiff's case."
Clearly, matters which relate to Carter and the plaintiff's business cannot satisfy the sole purpose test. It is not suggested by Carter that such references have anything to do with the Family Court matters between her and Harlen. This is also borne out by the affidavit of Carter sworn 19 April 1999 in opposition to application for discovery of specific documents. In particular, the two annexures to that affidavit make it plain that the entries in the diaries do not relate solely to the Family Court proceedings with Harlen. They are of a more general nature and prima facie they cannot satisfy the sole purpose test.
There are two further matters which require comment. The first was a general submission by Carter's counsel that, given the private nature of these diaries, I should exercise a broad discretion and decline to make them available for inspection. As I understood the submission, it was not based upon any particular head of privilege but was rather more a submission based upon some general inherent power of the court. I fully appreciate Carter's desire to have diaries which record the most intimate details of her life and her thoughts and feelings protected from scrutiny by anyone. It is also the case that the courts and the legislature have been sensitive to protect from disclosure documents which arise in the context of family proceedings: see s 18 of the Family Law Act 1975; Henley v Henley (1955) P 202. But there appears to be no general power to protect documents by way of privilege simply because they arise in the context of a family dispute: see Rumping v DPP [1964] AC 814. Whatever may be my views on the subject, it is not open to me, sitting as a Master of this Court, to create some head of privilege as yet unknown to the law in exercise of the inherent powers of the court.
The second matter concerns the question of waiver. As I have indicated the affidavit of Carter sworn 19 April 1999 had as annexures two entries from her diary. During the course of submissions I raised with Carter's counsel the prospect that the inclusion of these two entries in Carter's affidavit amounted to a waiver of privilege express or implied. Counsel made the point that there was certainly no intention to generally waive privilege and fairness did not require that, these two entries having been disclosed, the whole of the diaries needed to be disclosed: see Attorney General (NT) v Maurice (1986) 161 CLR 475. In reply, counsel for Conlan did not address this issue. In my view, the limited disclosure by Carter in her affidavit of 19 April 1999 is not such as to amount to an implied waiver of privilege. The disclosure is so limited that, despite use of these entries to support her position, I am not satisfied that fairness would require the whole of the diaries to be disclosed. Given this was not a point developed by Conlan's counsel, I need say nothing further on the issue.
Having determined there is doubt with respect to the claim for privilege it is a question of how to proceed from this point. Counsel for Conlan submitted that the position was so clear that an order for inspection on an unrestricted basis ought be made. Because of the sensitive nature of the material involved, I am of the view that the better course is for me to order production of the diaries and for me to inspect them. In doing so, I am adopting the approach commended by the High Court in Grant v Downs (supra). The majority said (at 688 ‑ 689):
"It is well accepted that the court in allowing production and inspection of documents exercises a judicial discretion. In so doing it needs to scrutinise with care claims of privilege made on the ground now under consideration. It is for the party claiming privilege to show that the documents for which the claim is made are privileged. He may succeed in achieving this objective by pointing to the nature of the documents or by evidence describing the circumstances in which they were brought into existence. But it should not be thought that the privilege is necessarily or conclusively established by resort to any verbal formula or ritual. The court has power to examine the documents for itself, a power which has perhaps been exercised too sparingly in the past, springing possibly from a misplaced reluctance to go behind the formal claim of privilege. It should not be forgotten that in many instances the character of the documents the subject of the claim will illuminate the purpose for which they were brought into existence."
I propose, then, to order that the diaries be produced to the court for inspection. Once I have had the opportunity to inspect the diaries I will finally deal with the claim by Carter for privilege. I will hear the parties as to the precise form of the orders.