Crawford v Quail
[2021] WASC 290
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: CRAWFORD -v- QUAIL [2021] WASC 290
CORAM: HILL J
HEARD: 16 AUGUST 2021
DELIVERED : 24 AUGUST 2021
FILE NO/S: CIV 1037 of 2021
BETWEEN: CATHERINE PATRICIA CRAWFORD
Plaintiff
AND
HIS HONOUR JUDGE HYLTON QUAIL
Defendant
THE STATE OF WESTERN AUSTRALIA
Intervenor
Catchwords:
Practice and procedure – Discovery – Application by plaintiff for court to inspect documents over which privilege is claimed by the defendant and the State – Claim of legal professional privilege in anticipation of litigation – Claim of common interest privilege – Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 26, r 9 and r 12
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Plaintiff | : | G R Donaldson SC & T A Hatelie |
| Defendant | : | E M Heenan |
| Intervenor | : | A J Sefton SC |
Solicitors:
| Plaintiff | : | Fiona Low Barrister & Solicitor |
| Defendant | : | McNally & Co |
| Intervenor | : | State Solicitor's Office |
Cases referred to in decision:
Australian Reliance Group Pty Ltd v Coverforce Insurance Brokers Victoria Pty Ltd [No 3] [2017] WASC 60
AW v Rayney [2010] WASCA 161
AWB Ltd v Cole [2006] FCA 571; (2006) 152 FCR 382
AWB v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30
Balabel v Air-India [1988] 1 Ch 317
Carey v Korda [2012] WASCA 228; (2012) 45 WAR 181
Commissioner of Taxation (Cth) v Pratt Holdings Pty Ltd [2005] FCA 1247; (2005) 225 ALR 266
Commissioner of Taxation (Cth) v Spotless Services Ltd [1996] HCA 34; (1996) 186 CLR 404
CTC Resources NL v Australian Stock Exchange Ltd [2000] WASCA 19; (2000) 22 WAR 48
Dalleagles Pty Ltd v Australian Securities Commission (1991) 4 WAR 325
DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 1191; (2003) 135 FCR 151
Esso Australia Resources Ltd v Commissioner of Taxation (Cth) [1999] HCA 67; (1999) 201 CLR 49
Grant v Downs (1976) 135 CLR 674
Kennedy v Wallace [2004] FCAFC 337; (2004) 142 FCR 185
Lane v Admedus Regen Pty Ltd [2016] FCA 864
Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority [2002] VSCA 59; (2002) 4 VR 332
National Crime Authority v S (1991) 29 FCR 203
Rayney v AW [2009] WASCA 203
Strzelecki Holdings Pty Ltd v Cable Sands Pty Ltd (No 2) [2009] WASC 150
Woodings as liquidator of the Bell Group Ltd and the Bell Group Finance Pty Ltd v WA Glendinning & Associates Pty Ltd [2019] WASC 54
HILL J:
On 21 January 2021, the plaintiff commenced proceedings in this court against the defendant arising from a direction given by the defendant, as President of the Children's Court to the plaintiff, a magistrate in the Children's Court, on 8 December 2020.
These proceedings are being case managed by Justice Allanson and are listed for a five‑day hearing commencing 11 October 2021.
Originally, the parties agreed to provide discovery informally but subsequently filed affidavits of discovery. Orders were made for the State of Western Australia (State) to give notice of any claims of immunity or privilege made over documents in the defendant's list.
The defendant provided informal discovery on 14 June 2021 and filed an affidavit of discovery on 23 July 2021. The plaintiff challenges the claims for privilege by the defendant and the State over a number of documents discovered by the defendant and requests that the court examine each of these documents to determine whether the claims for privilege are well founded.
For the reasons that follow, I do not consider the plaintiff has discharged her evidentiary onus that the claims for privilege made by the defendant and the State are mistaken or unfounded. In these circumstances, I decline to inspect the documents to determine the validity of the claims that have been made. On this basis, I would dismiss the plaintiff's application.
Relevant procedural background
On 21 January 2021, the plaintiff commenced these proceedings by filing a writ of summons indorsed with an indorsement of claim. The indorsement of claim contends that the defendant had no power to preclude the plaintiff from sitting exclusively as a magistrate in the Children's Court of Western Australia in Perth and had no power to direct that the plaintiff be transferred back to the Magistrates Court of Western Australia.
The writ of summons was preceded by a letter from the plaintiff's solicitor to the defendant dated 23 December 2021, enclosing a copy of advice the plaintiff received from senior counsel. The letter stated that the defendant's purported termination of the plaintiff's capacity to sit as a magistrate of the Children's Court as and from 22 January 2021 was unlawful and that grounds existed for the plaintiff to commence proceedings seeking declaratory or prerogative orders if she was denied the opportunity to continue to sit as a magistrate. The penultimate paragraph of the letter stated:
[H]er Honour has no great desire to commence proceedings concerning these matters, but, I am instructed to state, will do so if necessary.
On 29 January 2021, by consent, the State was granted leave to intervene in the proceedings. The State Solicitor signed the memorandum of consent orders on behalf of the State. On the same date, the defendant filed a notice of intention to abide by the decision of the court. This notice was signed by the State Solicitor as solicitor for the defendant.
On 8 March 2021, the plaintiff filed an amended writ of summons and a statement of claim. The amendments expanded the claim to include a pleading that the direction by the defendant was made for an improper purpose.
On 26 March 2021, the defendant's notice of intention to abide by the decision of the court was ordered to be withdrawn. On 16 April 2021, McNally & Co filed a memorandum of appearance on behalf of the defendant.
On 26 May 2021, orders were made by consent for the parties to provide informal discovery of categories of documents which occurred in June 2021.
On 7 July 2021, the State was granted leave to withdraw its memorandum of appearance in these proceedings.
On 23 July 2021, the defendant filed an affidavit of discovery. The affidavit was in the standard form required by the Rules of the Supreme Court1971 (WA) (Rules). Relevantly, for the purposes of this application, the affidavit included a list 1B which set out the documents the defendant objects to producing in whole or in part and the basis for the objection. Documents 249 and 258 are subject to a claim for public interest immunity. In respect of the remaining documents, the claim for privilege is made on one of three grounds. First, that the document was for the dominant purpose of obtaining legal advice and in contemplation of anticipated litigation.[1] Second, the document was created for the dominant purpose of providing legal advice and for the purpose of pending litigation.[2] Third, the document was created for the dominant purpose of obtaining legal advice.[3]
[1] Documents 255, 256, 257, 271, 272, 273, 283, 284, 285, 288, 290.
[2] Documents 291, 292, 293, 295, 303, 308, 309, 310, 312, 313, 314, 316 ‑ 318, 320 ‑ 324, 327, 328, 330, 343, 344, 353. At the hearing, the plaintiff did not press the court to inspect document 353 (ts 98).
[3] Document 338.
In respect of 13 documents, the previous claim for legal professional privilege that had been made informally was not maintained.[4] These documents are primarily communications between the defendant and the Attorney‑General or the defendant and the Solicitor‑General. All but two of these documents pre‑date the letter from the plaintiff's solicitors.
[4] Documents 191, 192, 194, 195, 212, 215, 216, 217, 219, 232, 245, 264, 266.
In accordance with the orders of the court, on 26 July 2021, the State filed an affidavit which annexed a schedule of the documents which the State objected to being produced to the plaintiff for inspection. The basis for the objection was that the documents were subject to a claim for legal professional privilege 'jointly held by the State and the defendant'.[5] The claim for privilege was made on two grounds. First, that the document was for the dominant purpose of obtaining legal advice and in contemplation of anticipated litigation.[6] Second, the document was created for the dominant purpose of the conduct of these proceedings.[7]
[5] Affidavit of Christopher Gordon Mofflin filed 26 July 2021 [5].
[6] Documents 288, 290, 291.
[7] Documents 308, 310, 313, 317, 318, 320 ‑ 324, 327, 328, 330, 338, 343, 344.
On 13 August 2021, following receipt of the plaintiff's submissions on this application, the State filed a further affidavit updating this schedule.[8] The updated schedule clarified two matters. First, the Solicitor‑General was, at all times, counsel for the State (and not the defendant) and second, that the State's ground for objection of the documents was legal professional privilege jointly held by the State and the defendant, alternatively common interest privilege. The common interest was particularised as being the 'common interest in relation to the statutory framework and the law relating to the powers of the President to manage judicial matters and the defence of legal proceedings by the plaintiff which were then anticipated or had been commenced'.
[8] Affidavit of Christopher Gordon Mofflin filed 13 August 2021.
Application by plaintiff
The plaintiff challenges the claim for privilege that is made in respect of all documents in Pt 1B of the defendant's affidavit of discovery, apart from documents 249, 258 and 353.
Senior counsel for the plaintiff submitted that the court should be sceptical of the claims for privilege made by the defendant and should inspect the documents for itself. The primary basis for this submission was that the defendant had withdrawn its claim for privilege that had been previously made over a number of documents as referred to in [14] above. The plaintiff submitted that no claim of privilege should ever have been made over these documents. In addition, senior counsel contended that the State Solicitor's Office and the Solicitor‑General had administrative responsibilities in respect of the courts. On this basis, it could not be said that every communication the defendant had with them was properly the subject of a claim for privilege.
In relation to the documents that predate the commencement of these proceedings, the plaintiff submitted that it could not be said that these communications 'were in contemplation of litigation'. Senior counsel for the plaintiff emphasised that no affidavit had been filed by the defendant attesting to when the defendant considered it was likely that litigation was anticipated.
In respect of the documents over which common interest privilege was claimed, senior counsel referred to [10(b)] of the amended statement of claim which pleads what the plaintiff contends are the substantial purposes of the defendant's directions. While the defendant and the State may have a common interest in the proper construction of the relevant legislation, senior counsel submitted that the defendant and the State did not have a common interest in defending the claims specifically raising the conduct of the defendant.
The application is opposed by both the defendant and the State.
The defendant relied on his affidavit of discovery filed 23 July 2021. The primary basis for his opposition to the application is that the plaintiff has not discharged her evidentiary onus that the defendant's claims for privilege are unfounded or mistaken. Counsel for the defendant emphasised that the plaintiff had not adduced any evidence to contradict the statements made by the defendant in his affidavit of discovery. Counsel for the defendant noted that the claims for privilege were in relation to documents which:
(a)post‑dated the letter from the plaintiff's solicitor on 23 December 2020 and that, on an objective consideration of this letter, litigation was anticipated from that date; and
(b)were before the amendments to the statement of claim in March 2021 (save for 2 documents).
In opposing the application, the State relied on the affidavits of Christopher Gordon Mofflin, a solicitor employed by the State Solicitor's office, filed 26 July 2021 and 13 August 2021. Senior counsel for the State submitted that the descriptions of the documents over which privilege was claimed in the affidavit of Mr Mofflin filed 13 August 2021 were sufficient to discharge the onus of establishing the claims that were made. Specifically, the State emphasised that at the relevant times of these documents, the State Solicitor's Office was acting for both the defendant and the State. In relation to the communications with the Solicitor‑General, who, at all times, was senior counsel for the State, the State confirmed that these documents were the subject of a claim for common interest privilege as both the State and the defendant had a common interest in defending the allegations made by the plaintiff concerning the relevant statutory framework of the courts. The State emphasised that after the plaintiff amended her claim on 8 March 2021 to include allegations concerning conduct of the defendant, on 16 March 2021, the defendant retained separate representation. The last of the documents over which privilege is claimed is dated 12 March 2021.
Senior counsel for the State submitted that the plaintiff had not discharged her evidentiary onus to support her view that the claims for privilege were not well founded. On this basis, it was contended the plaintiff's application ought be dismissed.
Legal principles
A party who is claiming legal professional privilege carries the onus of establishing the claim is well founded. In claiming privilege, they are required to:
(a)list each communication the subject of the claim for privilege;
(b)state the form in which each communication is contained, stored or recorded, whether it is an original or a copy and the date when each was made;
(c)identify the persons between whom the communication or communications were made; and
(d)provide evidence as to the basis of the claim for legal professional privilege.[9]
[9] Rayney v AW [2009] WASCA 203 [42] citing with approval National Crime Authority v S (1991) 29 FCR 203, 212; Kennedy v Wallace [2004] FCAFC 337; (2004) 142 FCR 185 [13].
The plaintiff's application is brought pursuant to O 26 r 9 of the Rules which entitles the court on an application by a party to make an order for inspection of documents. Under O 26 r 12 of the Rules, the plaintiff bears the evidentiary onus to show that the defendant's claim of privilege is unfounded or mistaken.[10] In discharging this onus, the plaintiff is not restricted to reliance on her own affidavits; she may rely on all of the evidence that is before the court.[11] What is required to establish a claim for privilege varies depending on the nature of the document and the basis for the claim. Where a document is described as being a confidential communication between a party and their solicitor, this will be capable of sustaining a claim for legal professional privilege.[12]
[10] CTC Resources NL v Australian Stock Exchange Ltd [2000] WASCA 19; (2000) 22 WAR 48 [33] ‑ [34].
[11] Carey v Korda [2012] WASCA 228; (2012) 45 WAR 181 [70].
[12] Carey v Korda [71].
Where a claim for legal professional privilege is in dispute, a court may inspect the documents in question. As was stated by the Court of Appeal in AW v Rayney:[13]
Although a court should not be hesitant to exercise its power of inspection, ordinarily this power is exercised after the court has examined the material filed by the person claiming the privilege and served on the other party or parties, and the court entertains a doubt as to whether the claim for privilege has been made out or wishes to inspect the documents for the purpose of confirming its view.
[13] AW v Rayney [2010] WASCA 161 [138].
In the absence of any evidence to support the challenge to the claim of privilege, it is not sufficient for a party to challenge the claim and have the court inspect documents to determine whether the claim is valid.[14] In these circumstances, the claim for privilege will be sustained.[15]
Legal professional privilege
[14] CTC Resources NL v Australian Stock Exchange Ltd [37].
[15] Rules of the Supreme Court 1971 (WA), O 26 r 12(1).
Legal professional privilege takes one of two forms: advice privilege or litigation privilege. Legal advice privilege covers communications between a lawyer and their client if they are confidential and for the dominant purpose of giving or obtaining legal advice. Litigation privilege covers confidential communications made, after litigation is commenced or is contemplated, between a lawyer and their client or third parties for the dominant purpose of the litigation.
In considering whether a communication is privileged, the relevant issue is the dominant purpose for which the communication was made.[16] Dominant purpose does not mean the primary or substantial purpose,[17] but the prevailing or most influential purpose.[18] If there are two purposes for which the document came into existence which are of equal weight, neither is dominant and the document is not privileged from production.[19]
[16] Esso Australia Resources Ltd v Commissioner of Taxation (Cth) [1999] HCA 67; (1999) 201 CLR 49 [61] (Gleeson CJ, Gaudron and Gummow JJ), [173] (Callinan J).
[17] Grant v Downs (1976) 135 CLR 674, 678 (Barwick CJ).
[18] Commissioner of Taxation (Cth) v Spotless Services Ltd [1996] HCA 34; (1996) 186 CLR 404, 416.
[19] AWB Ltd v Cole [2006] FCA 571; (2006) 152 FCR 382 [106] citing with approval Commissioner of Taxation (Cth) v Pratt Holdings Pty Ltd [2005] FCA 1247; (2005) 225 ALR 266 [30] (Kenny J).
In determining the dominant purpose of a document, the starting point is to ask what the intended use or uses of the document was and why it was brought into existence. Ordinarily, the relevant purpose is that of the author of the document, although this is not invariably the case.[20] The dominant purpose must be determined objectively, having regard to the evidence, the nature of the documents and the submissions of the parties.[21] The question as to whether a document was brought into existence for the dominant purpose of obtaining legal advice is a question of fact.[22]
[20] Grant v Downs, 677 (Barwick CJ).
[21] Commissioner of Taxation (Cth) v Pratt Holdings Pty Ltd [30].
[22] AWB Ltd v Cole [102].
In considering whether a communication is seeking or giving legal advice, the court should not take a narrow view.[23] In this regard, legal advice is not confined to providing advice on the law but includes advice 'as to what prudently and sensibly should be done in the relevant legal context.'[24] As Allsop J stated in DSE (Holdings) Pty Ltd v Intertan Inc, it will be rare that a communication between a client and lawyer, once retained, is not connected with the request or provision of legal advice.[25]
When is litigation anticipated or contemplated?
[23] Dalleagles Pty Ltd v Australian Securities Commission (1991) 4 WAR 325, 333.
[24] Balabel v Air-India [1988] 1 Ch 317, 330; cited with approval in DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 1191; (2003) 135 FCR 151 [21], [25] ‑ [71] (Allsop J). See also Strzelecki Holdings Pty Ltd v Cable Sands Pty Ltd (No 2) [2009] WASC 150 [24] ‑ [25] (Beech J).
[25] DSE (Holdings) Pty Ltd v Intertan Inc [51], [52], [71]; cited with approval in AWB v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30 [48].
Litigation is reasonably anticipated or contemplated if it is likely or reasonably probable that litigation will be commenced. That is, there must be a real prospect, as distinct from a mere possibility, of litigation. However, this does not require the commencement of litigation to be more likely than not.[26]
Common interest privilege
[26] AW v Rayney [190] citing with approval Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority [2002] VSCA 59; (2002) 4 VR 332 [17], [19].
Common interest privilege applies where material subject to legal professional privilege in the hands of one person is provided to another who has a presently existing common interest in the subject matter of the privilege. A common interest in the outcome of the litigation will be sufficient to enable any party with that interest to rely on it.
In Lane v Admedus Regen Pty Ltd, McKerracher J summarised the elements that were required in order for common interest to apply:[27]
(a)the relevant communication must be subject to legal professional privilege;
(b)the interest said to be common must be identified; and
(c)the exchange of the information or advice, subject to legal professional privilege must relate to that interest.
[27] Lane v Admedus Regen Pty Ltd [2016] FCA 864 [27].
Common interest privilege is not a separate privilege; it is an exception to the general rule that legal professional privilege does not attach to communications with third parties. For that reason, the relevant communication must be privileged to deserve protection under a claim of common interest privilege.[28]
[28] Woodings as liquidator of the Bell Group Ltd and the Bell Group Finance Pty Ltd v WA Glendinning & Associates Pty Ltd [2019] WASC 54 [158]
In considering whether a claim for common interest privilege can be maintained, the essential question is 'whether the nature of their mutual interest in the context of their relationship is such that the party to whom the documents are passed receives them subject to a duty of confidence which the law will protect in the interests of justice'.[29] This is a two‑step process. The first step is to determine whether the document would be privileged in the hands of the person communicating the information if no disclosure had been made. If it is, the second step is to consider the relationship between the parties and whether it is sufficiently close such that the transmission of the documents should not be held to be an implied waiver.[30]
[29] Woodings as liquidator of the Bell Group Ltd and the Bell Group Finance Pty Ltd v WA Glendinning & Associates Pty Ltd [159].
[30] Woodings as liquidator of the Bell Group Ltd and the Bell Group Finance Pty Ltd v WA Glendinning & Associates Pty Ltd [160].
Common interest privilege does not apply where the interests of the two parties are potentially adverse to each other.[31]
[31] Australian Reliance Group Pty Ltd v Coverforce Insurance Brokers Victoria Pty Ltd [No 3] [2017] WASC 60 [14].
Disposition
Before turning to consider the documents specifically, it is necessary to deal with a general submission made by the plaintiff which applies to all of the documents. The plaintiff submitted that the court should be sceptical of the claims for privilege made by the defendant and inspect all of the documents over which privilege was claimed to assess whether the claim was well‑founded. The plaintiff did not adduce any evidence to support this submission or to support her assertion that the claims for privilege made were mistaken or ill-founded. The basis for this submission was that in the informal list of documents, a claim of legal professional privilege was made over a number of documents which was not maintained in the affidavit of discovery. Two examples were provided to me: both of which were communications between the Attorney‑General and the defendant.[32]
[32] Documents 194, 212.
While I accept that a claim for legal professional privilege could not be maintained over these documents, I do not consider that the only inference that can be drawn from the claim initially being asserted is that privilege has been claimed inappropriately in relation to the remaining documents or there is a risk this occurred. I consider that the more likely inference to be drawn is that the withdrawal of the claim for privilege over these documents reflects a more careful consideration given to the claims of privilege at the time of affirming the affidavit of discovery.
Ultimately, it is not necessary to reach any concluded view on this matter. It is sufficient for the purposes of this application that I do not consider that this, by itself, is sufficient to discharge the plaintiff's evidentiary onus of establishing the defendant's claim for privilege is mistaken or unfounded. I now turn to consider the specific documents over which privilege has been claimed.
Documents 255, 256, 257, 271, 272, 273, 283 ‑ 285
Each of these documents were sent prior to the commencement of the litigation. The defendant asserts that each of these documents is subject to a claim of legal professional privilege on the basis that they were documents for the dominant purpose of obtaining legal advice and in contemplation of anticipated litigation.
The documents fall into three categories:
(a)emails between the defendant and Mr Egan, the State Solicitor (documents 256, 257, 271 and 273);
(b)email between the defendant, Mr Egan and Mr Thomson SC, the Solicitor‑General (document 255); and
(c)emails between the defendant and Mr Thomson SC, the Solicitor‑General (documents 272, 283, 284, 285).
The first of these documents (document 255) is dated 24 December 2020. The last (document 285) is dated 21 January 2021 at 10.54am.
In my view, for the following reasons, I consider that objectively, on a review of the circumstances that existed at least from 23 December 2020, at that time there was a real prospect that litigation would be commenced by the plaintiff against the defendant. First, on 8 December 2020, the defendant wrote to the plaintiff purporting to terminate the plaintiff's capacity to sit as a magistrate of the Children's Court as and from 20 January 2021 and directing that as from this date the plaintiff would be transferred back to the Magistrates Court. The nature of this correspondence was, in common experience, of a nature that often leads to litigation. Second, following receipt of this letter, the plaintiff immediately instructed both a solicitor and senior counsel to provide her with advice on the letter. The instruction of senior counsel, in particular, is an objective indication that there was a real prospect that litigation would be commenced. Third, on 23 December 2020, the plaintiff's solicitor wrote to the defendant contending that the defendant's purported termination of plaintiff's capacity to sit as a magistrate of the Children's Court was unlawful, that there were grounds to commence proceedings and that the plaintiff would do so if required. The tone and contents of the letter, viewed objectively, were such that unless the defendant withdrew his direction to the plaintiff, litigation almost certainly would follow.
Emails between the defendant and Mr Egan
The defendant has claimed privilege over these documents as being communications between him and the State Solicitor (who became his solicitor) for the dominant purpose of obtaining legal advice.
The plaintiff submitted that the defendant had not explained or clarified the basis on which the State Solicitor could act for both the defendant and the State or how the relationship of solicitor and client came about. It is apparent from an examination of the court file that the defendant appointed the State Solicitor to act on his behalf prior to the submission of a notice to abide by the outcome of the proceedings.
From December 2020 until a date between 8 and 16 March 2021, I accept that the State Solicitor was acting for the defendant in advising him in relation to the plaintiff's claim. For that reason, a description of a document in terms that it is a communication between the defendant and the State Solicitor for the dominant purpose of obtaining legal advice is capable of sustaining a claim for legal professional privilege.
For these reasons, I do not consider the plaintiff has discharged her evidentiary onus to show the claim over documents 256, 257, 271 and 273 is mistaken or ill‑founded.
Email between the defendant, Mr Egan and Mr Thomson SC
The defendant has claimed privilege over this document as being a communication for the dominant purpose of obtaining legal advice. It was sent the day after the defendant received the letter from the plaintiff's solicitors.
It is clear from the amended schedule of documents filed by the State that the Solicitor‑General was not retained to act as counsel for the defendant but was counsel for the State.[33] This is consistent with the terms of s 9(1) of the Solicitor‑General Act 1969 (WA).
[33] Affidavit of Christopher Gordon Mofflin filed 13 August 2021, 'CGM-3'.
For this reason, it is necessary to consider whether the email is subject to common interest privilege. In doing so, I adopt the two‑step process referred to above. On the first step, for the reasons set out above at [45], I consider an email from the defendant to Mr Egan would be privileged if it had not been forwarded to Mr Thomson SC.
Turning then to the second step, it is necessary to consider the relationship between the defendant, Mr Egan and Mr Thomson SC. For the following reasons, I accept that the relationship between them is sufficiently close such that the provision of an email by the defendant to Mr Thomson SC of a communication between the defendant and his solicitor should not be held to be an implied waiver. First, the letter from the plaintiff's solicitor was sent to Mr Thomson SC as well as to the defendant. This indicates the plaintiff considered the State, and more specifically Mr Thomson SC as Solicitor‑General, had an interest in the dispute. Second, the issues raised by the plaintiff's solicitor in her correspondence went beyond the capacity of the plaintiff to sit as a magistrate in the Children's Court. This correspondence referred to the conduct of the plaintiff and whether the purported direction had an impact on the 'justice system more generally'. In raising issues concerning other courts and the justice system more generally, the State, and their counsel, had a sufficiently close interest in the subject matter of the dispute. Third, the mutual interest of the defendant and the State in addressing these issues is such that I consider Mr Thomson SC received the email subject to a duty of confidence which the law will protect.
For these reasons, I do not consider the plaintiff has discharged her evidentiary onus to show the claim of common interest privilege over document 255 is mistaken or ill‑founded.
Emails between the defendant and Mr Thomson SC
Document 272 is an email from the defendant to Mr Thomson SC forwarding an email from the defendant to Mr Egan. I consider that this email is subject to common interest privilege for the same reasons as set out above at [51] ‑ [53].
Document 283 contains a confidential communication between the defendant and his then solicitor, the State Solicitor. For the following reasons, similar to those above, I do not consider the plaintiff has discharged her evidentiary onus to show the claim of common interest privilege is mistaken or ill‑founded. First, if the communication was from the defendant to his legal adviser, this description is capable of sustaining a claim for legal professional privilege. Second, the Solicitor‑General, as counsel for the State, had a sufficiently close relationship with the defendant and his solicitor, for the reasons set out above at [51] ‑ [53].
Documents 284 and 285 contain partial redactions. The redactions mask confidential communications from the defendant to the State Solicitor and Mr Thomson SC.[34] For the reasons set out at [56], I do not consider the plaintiff has discharged her evidentiary onus to show the claim of common interest privilege is mistaken or ill‑founded.
Documents 288, 290, 291 ‑ 293, 295, 303, 308 ‑ 310, 312, 313, 314, 316 ‑ 318, 320 ‑ 322, 323, 324, 327, 328, 330, 338, 343, 343
[34] Affidavit of the defendant filed 23 July 2021, Part 1B.
Each of these documents were sent after the commencement of these proceedings. The documents fall into four categories:
(a)emails between the defendant and Mr Egan, the State Solicitor (documents 290, 292, 295, 303, 308, 312, 313, 321 and 338);
(b)emails between the defendant, Mr Egan, other members of the State Solicitor's Office and Mr Thomson SC, the Solicitor‑General (documents 288, 291, 293, 309, 310, 314, 316, 317, 318, 320, 322, 323, 324, 328, 330 and 343);
(c)an advice of Mr Thomson SC, the Solicitor‑General (document 327); and
(d)an email chain between the defendant, Mr Egan, Mr Thomson SC and Mr Vandongen SC (document 344).
The first category raises similar issues to the matters set out at [46] ‑ [48] above. The same reasons apply to these documents.
In relation to the second category of documents, it is clear from the authorities cited above, that the relevant time for consideration of whether a common interest exists is the time the correspondence was sent. This is because the issue for determination is whether there is a presently existing common interest. As at the date of the commencement of these proceedings on 21 January 2021, the claim against the defendant concerned the purported direction given by the defendant to the plaintiff and whether that was a lawful exercise of power or whether it was beyond power. For this reason, I accept that as and from 21 January 2021, the interests of the defendant and the State were not in conflict in so far as the proceedings concerned the proper construction of the Children's Court of Western Australia Act 1988 (WA) and the Magistrates Court Act 2004 (WA).
This was the position until the amended writ of summons and a statement of claim were filed on 8 March 2021 which raised specific allegations concerning the defendant's conduct towards the plaintiff. After this, I consider that the interests of the defendant and the State were not completely aligned. This is reflected in what occurred in March 2021, in the withdrawal by the defendant of his notice to abide the decision and the appointment of separate solicitors to act for him.
Each of the documents that fall within the second category were sent after the commencement of the proceedings and prior to the appointment of separate solicitors for the defendant. In my view, for the same reasons as set out at [53], I do not consider the plaintiff has discharged her evidentiary onus to show the claim of common interest privilege is mistaken or ill‑founded.
In respect of the third category, this is an advice of Mr Thomson SC dated 4 February 2021 and is subject to a claim for common interest privilege. From the amended schedule filed by the State, this document is a confidential memorandum of legal advice to the State which was provided to the defendant on a confidential basis.
In considering this document, I adopt the two‑step process referred to at [37] above. On the first step, I consider a confidential advice provided by the Solicitor‑General to the State would be privileged if it had not been forwarded to the defendant. Turning then to the second step, it is necessary to consider the relationship between the defendant and the State. For the reasons set out above at [53], I accept that:
(a)both the defendant and the State had a common interest in considering the issues raised by the plaintiff which concerned both the Children's Court and other courts and the justice system more generally,
(b)the State and the defendant, and their respective counsel and solicitors, had a sufficiently close relationship in the subject matter of the dispute; and
(c)the defendant received the memorandum subject to a duty of confidence.
Finally, in respect of the email chain between the defendant, Mr Egan, Mr Thomson SC and Mr Vandongen SC, it is clear from the defence that was filed by the defendant on 16 April 2021 that Mr Vandongen SC has been retained as senior counsel for the defendant. On this basis, I accept that this is a communication between the defendant, his then solicitor, his new senior counsel and senior counsel for the State. For the same reasons as set out at [64], I consider that this document is subject to a claim for common interest privilege.
For these reasons, the plaintiff has not discharged her evidentiary onus to show the claims for privilege are mistaken or ill‑founded.
Conclusion
For these reasons, I consider that the plaintiff's application ought to be dismissed. Given this, my preliminary view is that costs should follow the event. However, before making orders, I will hear from the parties as to the appropriate orders, including as to the costs of this application.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
HW
Research Associate to the Honourable Justice Hill
24 AUGUST 2021
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