Creswick Resources N/L & ORs v Mining Warden of State of VIctoria
[2000] VSC 134
•29/03/2000
| SUPREME COURT OF VICTORIA COMMON LAW DIVISION |
| Not Restricted |
No. 7671 of 1995
| CRESWICK RESOURCES N/L & ORS | Appellants |
| v | |
| MINING WARDEN OF STATE OF VICTORIA & ORS | Respondent |
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JUDGE: | Gillard J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 and 28 March 2000 | |
DATE OF JUDGMENT: | 29 March 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 134 | |
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Appeal from Master – application for further discovery – allegation that privilege not sustainable – question of weight attached to oath – appeal dismissed.
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APPEARANCES: | Counsel | Solicitors |
For the Appellants | Mr W. Alstergren | Michael Brereton & Co |
| For the Respondent | Mr M. Scott | Blake Dawson Waldron |
HIS HONOUR:
This is an appeal from an order made by Master Kings on 20 December 1999 whereby she dismissed a summons filed by the plaintiffs on 24 March 1999 seeking further discovery, specific discovery, and a ruling whether claims of legal professional privilege were sustainable. The plaintiffs filed their notice for appeal on 24 December 1999.
The right to appeal against an order of a Master of this court is conferred by Rule 77.05 of the Rules of Court. It is a re-hearing de novo and hence the court hears the original application afresh, the Master's orders and reasons being irrelevant to the exercise.
Parties
The appellants number seven, three companies and four individuals, ("the appellants").
The defendants number four but that observation is misleading. The first two defendants are public servants, namely the Mining Warden for this State, ("the Warden") and the Head of the Department of Agriculture Energy and Minerals. The third defendant is a composite one described as "the Investor Group" and comprises eleven companies and seven individuals. The fourth defendant is also a composite one known as "the Fortunee Gold Group" and comprise four companies and three individuals. This appeal is concerned with issues arising between the appellants and the Warden.
The proceeding
The plaintiffs instituted two proceedings in October 1995. The first concerned an application pursuant to the Administrative Law Act 1978 which sought orders to the effect that the orders made by the Warden in an inquiry he had conducted that the appellants pay the costs of the other party should be quashed on the grounds of the absence of jurisdiction, bias and abuse of his powers.
An application was made for an order that he provide reasons. On 1 August 1996 Mr Justice Grey granted an order nisi to review the decisions concerning the costs and that the order nisi be heard with the originating motion in the present proceeding. The stay of the implementation of the orders was granted.
The second proceeding which is the present proceeding was an application by originating motion under order 56 for judicial review of the orders made by the Mining Warden. The grounds were amended on 6 October 1995 and these are the grounds in both proceedings. In fact the Warden made two orders, the first ordering the appellants to pay the costs and the second quantifying those costs.
Mr Justice Grey's order also required the Warden to give reasons for his orders and on 17 August 1996 he gave reasons. Subsequently to his reasons being published the appellants made application to further amend their originating motion in this proceeding, which application was granted on 18 October 1996 and shortly thereafter their plaintiffs solicitors filed and served a further amended originating motion. The amendments were substantial.
The amended statement of grounds deleted the references to the Administrative Law Act procedure and sought relief in the nature of certiorari and declarations pursuant to Order 56 of the Rules of Court. Order 56 is concerned with judicial review of inter alia decisions.
There does appear to be some confusion between the two sets of proceedings but at this stage it is unnecessary for me to further consider the other proceeding. I emphasise that the decisions the subject of the judicial review are the orders for costs and quantification of same made by the warden dated 17 July 1995 and 22 September 1995 respectively.
Another matter that must be emphasised at this stage is that the proceeding before the court is for a judicial review of those two decisions and is not an appeal from those decisions. It is apparent from the second amended originating motion and submissions put by counsel for the appellants that the distinction between the two procedures is not always kept in mind.
On 24 March 1999 the appellants issued their summons and on 20 December 1999 the Master dismissed their application for further discovery.
Basic Facts
The basic facts leading to the dispute between the parties and the proceeding before the court can be briefly stated.
On 20 March 1995 the then Minister for Energy and Minerals requested Mr Kevin Ryan, State Mining Warden, pursuant to s.98 of the Mineral Resources Development Act 1990 that he examine the concerns, "of Mr R. Cosgrave and Mrs T. Cosgrave in relation to the marking out, exploration and/or mining of the land the subject of applications by Creswick Resources N/L and associated companies".
The Minister went on to request that he examine, "Claims by those companies that Mr T. P. Mulavey is not a director nor an employee nor an associate of the company or associated companies, and that they have not had any dealings with him in relation to the project". The Minister may refer a matter to a Mining Warden for investigation, report and recommendation pursuant to s.98 of the Act. Section 99 sets out the powers of the Warden in relation to investigating the dispute. He is entitled to conduct a hearing, and if he does so s.100 sets out the duties and powers concerning the hearing.
On 11 April 1995 the Warden retained Blake Dawson Waldron, ("BDW") solicitors, to act as counsel assisting the inquiry and also to assist him with the investigation. Between that date and 13 June 1995 the Warden and the solicitors gathered information and investigated the matters referred to the Warden and on 13 June 1995 he held the first day of a public hearing.
The Warden had called a directions hearing on 28 April 1995 and gave directions with respect to written submissions and written responses. He gave notice to all interested parties and on the first day of the hearing five sets of parties including the appellants were represented by legal representatives. The appellants submitted that the Warden should disqualify himself by reason of bias and this application was refused. Later on that day the appellants made an ex parte application for an interim injunction to this Court to restrain the Warden from proceeding with his investigation but it failed allegedly due to a lack of material.
On the next day, 14 June 1995 the appellants withdrew their applications for mining licences and their counsel informed the Warden that since there was no longer any dispute he should discontinue the hearing. He in fact did stop the hearing and adjourned the matter to Melbourne to 22 June 1995.
The Warden made it clear that he would entertain an application for costs from any interested party. On 22 June 1995 the warden decided to discontinue the public hearing but stated that he would continue with his investigation which he in fact did. He stated that he would entertain any application for costs and he directed the parties to make written submissions in relation to costs.
Section 104 of the Act gives the warden the discretion as to costs and that discretion includes a power to determine by whom, to whom and to what extent the costs are to be paid. By reason of s.104(2) a determination by him as to costs may be enforced as if it were an order made by the Magistrates' Court in a civil proceeding.
After receiving submissions he made an order on 17 July 1995 which provided that the appellants were jointly and severally liable to pay costs of the Department of Agriculture Energy and Minerals, the two groups who were joined as composite defendants in the present proceeding and also his costs which were all to be assessed by him. He directed that each party whose costs were to be paid was to lodge and serve a bill in taxable form for solicitor/client costs assessed on Scale D of the County Court Rules and invited the appellants to lodge and serve on the relevant party a notice setting out any objections to the bills by 1 July 1995. He further adjourned the proceeding.
The appellants did serve the written objections on 1 July 1995, and the other parties responded. The proceeding eventually came back before the Warden on 22 September 1995 and after hearing submissions made the following orders with respect to quantum –
(i) $13,045.40 to be paid to the Department.
(ii) $29,992.31 to be paid to the Investors Group.
(iii) $28,855.25 to be paid to Fortunee Gold Group.
(iv) $105,670.56 to be paid in relation to the Warden's costs including the costs of BDW.
The appellants objected to paying the costs on a number of grounds and sought relief in the nature of certiorari and declarations pursuant to Order 56, in effect seeking to quash the decision. They issued their proceedings on 6 October 1995.
The Warden refused to give reasons for his decision and ultimately as a result of an order of this court he provided reasons on 17 September 1996. As I have stated, this caused the appellants to amend their statement of grounds for the second time and it is that amendment which sets out the grounds relied upon.
Rule 56.01(4) of the Rules of the Court obliges the appellants to state the grounds upon which the relief is sought. The amended originating motion states the grounds in some detail with particulars, however in some respects the grounds are too general and lack sufficient particularity.
An application was made to a Master of this court pursuant to Rule 29.07(2) for an order for discovery of relevant documents. The application was refused on 21 October 1996 and the appellants appealed. The appeal came on before Mr Justice Hampel. His Honour held that there were good reasons why discovery should be ordered and he allowed the appeal and made an order for discovery on 28 February 1997.
According to the authenticated order he required the following discovery to be provided, "On or before 4 p.m. on 11 April 1997 the firstnamed defendant make discovery to the plaintiffs of documents relating to the inquiry to be conducted by the firstnamed defendant, the subject of this proceeding". This order seems to require the Warden discover all documents relating to the inquiry that he made pursuant to the reference by the Minister which seems far too wide, bearing in mind the issues on the judicial review which were concerned with the two decisions concerning costs.
The parties returned before His Honour and sought a substitution of that order by consent, which His Honour granted on 12 March 1997 and the order was expressed to be in these very wide terms, "On or before 4 p.m. on 23 April 1997 the first defendant make discovery to the plaintiffs of all documents in his possession custody or power:
(a) relating to any questions raised by the second further amended originating motion between the parties and any affidavit (including the exhibits thereto) filed in this proceedings;
(b) referred to and/or comprised in:
(i) the bill of costs comprised in exhibit 33 to the affidavit of Chris Karamountzos sworn 6 October 1995;
(ii) the report, (including exhibits thereto exhibited as KTR1 to the first defendant's affidavit sworn 27 November 1996;
(iii) the first defendant's statement of his reasons dated 17 October 1996 exhibited as "B" to the affidavit of Chris Karamountzos sworn on 8 October 1996;
(iv) the public file referred to in paragraph 4 of the affidavit of Nigel David Stobart sworn on 21 November 1996."
The order went on to provide that the discovered documents should be made available for inspection. It can be seen that the order is extremely wide and would require many documents to be discovered which upon a proper analysis could not be used on the judicial review instituted by the appellants.
Judicial Review and Discovery
On a judicial review the Court is exercising its common law jurisdiction, the procedure which is subject to the Rules of Court, see Order 56. The jurisdiction is different to an appeal. The judicial review procedure is concerned with the legality of what was done by the Warden with respect to his two decisions for costs and is not concerned with the merits of the decisions under review. This is to be contrasted with an appeal where the question usually is whether the decision is right or wrong, whereas the question on a judicial review is whether the decision is in accordance with the law. As I have said, order 56 is concerned with procedure.
It does in fact abolish the remedies in the nature of the old prerogative writs but nevertheless preserves the jurisdiction of the court to make prerogative writ type orders. It is clear that the Rules do not affect the common law jurisdiction of the court, and it is equally clear that this court has jurisdiction to make an order in the form similar to the old prerogative writ of certiorari.
The scope of the jurisdiction was recently discussed by the High Court in Craig v South Australia (1994) 184 CLR 163 at 175-76. In a joint judgment the court said:
"Where available certiorari is a process by which a superior court in the exercise of original jurisdiction supervises the acts of an inferior court or tribunal, it is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs it merely enables the quashing of an impugned order or decision upon one or more of a number of distinct established grounds. Most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness or fraud and the error of law on the face of the record. Where the writ is sought on the ground of jurisdictional error, breach of procedural fairness or fraud, the superior court entertaining an application for certiorari can subject to applicable procedural and evidentiary Rules, take account of any relevant material placed before it.
In contrast, where relief is sought on the ground of error of law on the face of the record, the superior court is restricted to 'the record' of the inferior court or tribunal and the writ will enable the quashing of the impugned order or decision only on the ground that it is affected by some error of law which is disclosed by that record.
The above summary identification of the grounds upon which the prerogative writ of certiorari may properly issue glosses over a number of difficulties about the contents of the grounds. Two of those difficulties are of direct relevance in the present case where it is argued that the alleged error on the part of the trial judge was either jurisdictional error or error of law on the face of the record for the purposes of certiorari.
The first relates to what relevantly constitutes jurisdictional error, the second is what constitutes the record for the purpose of determining whether there is error of law on the face of the record."
Sometimes there is a controversy about what constitutes a record because the Rules do require, as did the old common law, the production of the record. Here there are two decisions for costs, the first which ordered the appellants pay the costs and the second quantifying same. There is no difficulty in determining what the orders are which are the subject of the review. I refer to what the High Court said in Craig's case and I emphasise that the jurisdiction is not appellate, nor does it enable this court to substitute for the decisions made decisions which this court thinks should have been made.
This brings me to the question of discovery. Rule 29.01 only applies to a proceeding commenced by a writ or a proceeding which has been otherwise commenced which continues as a writ by reason of an order made under Rule 4.07(1).
What flows from this is made apparent by Rule 29.02, namely that where pleadings between parties are closed then discovery is to be made, "relating to any question raised by the pleadings". This proceeding has not been issued by a writ nor has any order been made under Rule 4.07(1). There are no pleadings. Hence the right to discovery given by the order is not available.
However, under Rule 29.07(2) the court may at any stage order any party to make discovery of documents and this sub-Rule gives power to order discovery in a proceeding such as the present. However, the right to discovery is not as of right.
The difficulty with the present matter is that because there are no pleadings it is difficult to determine what the issues are and these must be identified primarily by reference to the originating motion and to a lesser extent the affidavits filed in the proceeding. Indeed, it is well established by the authorities on this Rule that discovery should only be ordered in special cases, see In Re Borthwick (1948) Ch 645 at 649 and National Mutual Life Nominees v Co-operative Farmers [1976] VR 634.
I think it is unfortunate in the present case that no thought was given to the terms of the originating motion as amended and whether the grounds specified could be argued on the judicial review. The result has been that the discovery process has taken a long time, generated much documentation, a number of applications and involved much expense. I was informed that there are some 75 lever arch folders of documents with about 15,000 pages that have been discovered. The discovery process has got out of hand in this proceeding due in the main to the generality of the grounds and the width of the order made by consent by Justice Hampel.
In proceedings where there are no pleadings and discovery is demanded in the interests of justice sometimes the only source to determine the issues is the affidavits filed by the parties but if this is the only source, discovery should be confined to identified issues. Here the originating process must set out the grounds and the issues can to some extent be defined by them. In my opinion it is unnecessary to go to the affidavits to define the issues, but again the court should identify the issues which are the subject of discovery based on the originating motion.
In so doing the court keeps discovery within reasonable bounds and also rules out issues which are raised in the originating process but which are expressed too widely or have no substance. Mr Scott of counsel for the Warden submitted that the court could at this late stage confine the discovery, but so long as the order of Justice Hampel remains it must be obeyed. Even if I had the power which I doubt, it is now too late to rein in this discovery, especially as I propose to hear the case next month.
In considering the amended statement of grounds, it must be borne in mind the true nature of the judicial review and secondly, the decisions which are subject to review are those made with respect to the costs and quantification. A perusal of the amended statement of grounds and some of the appellants' submissions suggests they are seeking to open up a full investigation of the inquiry commenced by the Warden and the public hearing which was aborted by the appellants withdrawing their applications for mining licences. It is doubtful that they can do this as it is the cost orders which are under attack.
However, this present appeal must be determined in accordance with the wide orders made by Justice Hampel with respect to full discovery.
Amended Statement of Grounds
An order is sought quashing the decisions of the Warden in relation to the costs. The grounds are set out in the amended originating motion and they number four and particulars are given.
The first ground asserts that he made the decision in the absence of jurisdiction or alternatively in an erroneous exercise of jurisdiction. It is hard to see on what basis it can be argued that he had no jurisdiction because clearly he did. The second part asserts that it was made in an erroneous exercise of jurisdiction. The particulars refer to other grounds later stated and are not enlightening as to the basis for this assertion.
The second ground is he conducted the inquiry and made the decision while affected by actual or ostensible bias or in the alternative in denial of natural justice to the appellants. There is some confusion about this ground. The particulars make it clear that an attack is being made on his conduct of the inquiry, and in particular the Warden continuing the inquiry and after concluding the public hearing.
This ground to say the least is confused. I again emphasise that the decisions under review relate to costs and quantification. One matter that will have to be addressed by the appellants on the hearing of the judicial review is an argument that no further complaint was made concerning the warden hearing the costs application on the ground of perceived bias. No application was made to prohibit him from continuing. The question of waiver will loom large.
The third ground asserts that the Warden made decisions concerning the inquiry in circumstances of unfairness. The particulars refer to the Warden making available information to the press and others. At the hearing of this proceeding the appellants will have to address what they mean by unfairness and whether that does per se constitute a basis for judicial review.
Finally, it is asserted that by reason of his reasons for decision dated 17 September 1996 the Warden made procedural and substantive errors of law and again one can only observe that the balance of ground 4 which appears to be in the form of particulars does not seem to be all that relevant to the costs decisions.
It will be seen from this brief summary of the grounds of the proceeding that there is some confusion of thought involving the jurisdiction of the Court on an application such as this. As I stated a number of times in course of submissions the court is concerned with the discretion exercised by the mining warden concerning costs and their quantification and whether he has followed the proper procedures and acted in accordance with the law in making his decisions.
The discovery is concerned with documents relating to these issues; they are general and expressed in wide terms. At the hearing the appellants will have to define precisely the errors which empower the court to exercise its common law jurisdiction.
Grounds for Further Discovery
The appellants rely upon a substantial number of affidavits in support of their application. The issues on the application can be best understood by first referring to two letters written by the appellants' solicitors dated 18 August 1998 and 2 March 1999 respectively.
The latter attaches some six schedules which identify a legal issue form, the date and description of the document and the date and description of the document sought. The letter explains the schedules. It is the documents referred to in the letter of 18 August 1998 and the six schedules to the second letter which are the subject of the summons for further discovery.
At this stage it is appropriate to briefly state the role of BDW in the investigation. Their role is set out in two documents, one prepared by them and a report of the warden. They were retained by the Warden to assist him in performing his reference and, as such he delegated to them his authority to gather information and investigate. They also provided him with assistance in performing his role, but in addition on occasions they provided him with legal advice and in so doing documents were produced and exchanged.
When acting in the latter capacity, BDW were acting as solicitors and the relationship between them and the warden was solicitor/client. As many documents were generated the solicitors utilised a litigation support process which resulted in a legal issues form being prepared for each document. The forms were discovered.
Another matter has to be mentioned. Leading to the public hearing in June 1995 BDW prepared a public hearing file containing many documents which were open to inspection by interested parties. The file has been discovered.
Later in the course of inspection of documents by the appellants lawyers, a list was produced which disclosed in excess of some 530 documents said to have been in the public file whereas the file discovered contained some 132 documents. It is this list which encouraged the appellants to seek further documents.
The extensive affidavit material can be narrowed down to the letters and schedules just mentioned and the two affidavits of Ms Fiona Glenn, the solicitor handling the matter at BDW, who swore affidavits on 1 April 1999 and 20 April 1999 respectively. Attached to the first affidavit are seven schedules, the first IA dealing with the 114 documents referred to in the appellants' solicitor's letter of 18 August 1998 and the schedules, 1-6 (inclusive) dealing with the six schedules to the letter of 2 March 1999.
The said schedules in the column headed "Status", state the ground for non-production of the documents, namely already discovered and a reference, not located or does not exist or privileged. Ms Glenn explained the status entries in her affidavit on 1 April 1999 as follows, "The BDW schedules include a column titled 'Status'. In that column the word 'privileged' indicates that the document has been discovered and the Mining Warden has claimed privilege over the document. Where a document number is provided this indicates that the document has been discovered, no privilege has been claimed and the document number is the number given to that document in the Mining Warden's affidavit of documents sworn on 2 May 1997.
The phrase, "not located" indicates that a document has not been located in the Mining Warden's discovery including the privileged documents. This suggests either the legal issues form referring to the particular document contained an erroneous description or that the document never existed or that if it did exist it has been lost or destroyed. In some cases, given the description of the document a privilege claim may be made over the document if it were to be located."
The appellants sought to rely upon an affidavit of Sarah Louise Fregon, a solicitor employed by the appellants' solicitors sworn 23 March 2000. This affidavit was not before the Master, and the appellants need special leave. The Warden opposed the admission of the affidavit, one of the grounds was that his legal advisers did not have sufficient time to consider the matters raised.
At the beginning of the second day of the hearing the Warden's counsel filed an affidavit in response from Ms Glenn. I have carefully considered both affidavits and am prepared to grant the leave sought. I do not think the Warden is prejudiced by that course as much of what Ms Fregon deposes to can be gleaned from the documents before the court in any event.
By reference to the schedules one can trace through the dispute concerning the documents and it is convenient to deal with each schedule separately.
Schedule 1A
This schedule itemises 114 different documents - see letter of 18 August 1998 from appellants' solicitors. A perusal of the schedule shows that the documents can be divided up into three categories, namely those protected by privilege, those not located and those which have already been discovered in respect of which a document number is given.
With respect to the last category there is no dispute between the parties that those documents have been discovered. The appellants have identified these documents by reference to the legal issues form. According to the affidavit of Ms Glenn sworn 1 April 1999 a reference to "not located" indicates the document has not been located in the Warden's discovery.
The complaint made by the appellants is that there is no evidence as to when these documents were last in the possession or control of the warden but in my view the explanation given by Ms Glenn is satisfactory in the circumstances. It is nearly impossible to say when a document was last in possession of a party when there is grave doubts whether it ever existed. In my opinion the appellants' complaint falls within the trivial class when considering the number of documents that have been disclosed in the present proceeding.
This brings me to the question of privilege. It is the question which is at the heart of the appellants' application. The general rule is that legal professional privilege protects disclosure of communications made confidentially between the client and his legal adviser for the purpose of attaining or giving legal advice or assistance. Further, it is recognised that a copy of a document provided to legal advisers for the obtaining of advice is also privileged.
More recently the High Court in Esso Australia Resources Ltd v The Commissioner of Taxation [1999] 74 ALJR 339 held that the communication is privileged from discovery if the communication was brought into existence for the dominant purpose of obtaining legal advice. This changed the former law which required that it be brought into the existence for the sole purpose of obtaining legal advice.
Mr Alstergren of counsel for the appellants admitted that the claim for privilege sworn to by the Warden and supported by the solicitor, Ms Glenn, should not be accepted on its face value for a number of reasons. The general rule is that a court should accept as conclusive the sworn evidence of a claim for privilege, and accordingly the appellants here have to show there is no basis for the claim for privilege or raise a substantial doubt as to whether it is sustainable.
Mr Alstergren emphasised that BDW were retained by the Warden to assist him in carrying out his investigation. In this sense they are not retained in their capacity to provide confidential legal advice but to perform tasks which the Warden would have had to perform himself. I accept that this is so. However, BDW, if in the course of an investigation are requested to provide confidential legal advice then their relationship to the Warden changes. In other words they do wear two caps at different times.
One might think with the benefit of hindsight that it would have been more prudent for the Warden to have obtained his legal advice elsewhere but no doubt there were good practical reasons why he sought legal advice from the firm that was assisting him with his investigation. There would be a considerable saving of cost because of their knowledge of the investigation.
I accept that there was at certain times a relationship of solicitor/client between BDW and the warden and I am further prepared to accept that on occasions professional legal advice was provided. Mr Alstergren did not refer the court to any authority which said that in those circumstances a Warden could not become a client of the solicitors and in my opinion it all depends upon the particular circumstances. If the particular circumstances establish the seeking of legal advice then the relationship of solicitor and client would be established.
Mr Alstergren referred me to a number of references in various reports, one of which emanated from BDW which showed that the tasks entrusted to BDW, and he emphasised that in none of these reports was any reference made to BDW providing legal advice, though in one report there was a reference and the letter of advice was produced. He also submitted that the evidence showed that some documents were received as part of the investigation and could hardly thereafter be the subject of privilege even though they may have been used in giving legal advice.
He further submitted that some documents by their very description in schedule 1A could not have been the subject of professional legal advice. By way of example some documents predated the reference to investigation and the retainer of the solicitors. However, as I pointed out in the course of argument, it did not follow that those documents may not have been passing between the solicitor and the warden in respect to legal advice.
I have carefully considered the reasons advanced by Mr Alstergren and they do not persuade me that I should not accept the evidence given on oath by the Warden and supported by the solicitor, Ms Glenn, which establishes legal professional privilege. One could not say from the description of the document that it could not have been provided to the solicitors for the purposes of professional legal advice.
In this regard, Mr Scott pointed out that the description of the document in the schedules came from the description adopted by the appellants solicitor in their letter which contained the schedules and therefore the description could be wrong. Mr Alstergren countered this argument by pointing out that the description came from BDW's legal issues form. I accept the latter's argument and I proceed on the basis that the description given is reasonably accurate although recognising that on occasions errors may be made.
Mr Alstergren pointed out that some of the items set out in schedule 1A in respect of which privilege was claimed had been provided on the public file which had been made available to interested parties prior to the public hearing. He identified items 26, 38, 41, 47, 51, 91, 94, 101 and 105 in schedule 1A. It was submitted that the privilege must have been waived.
Mr Scott of counsel who appeared for the Warden submitted that the foundation for the argument was the list of public file documents which was found on inspection and which according to the latest affidavit evidence of Ms Glenn could not be correct. The difference between the actual number of documents in the discovered file, namely 137 and the list which reveals about 520 documents, together with the evidence of Ms Glenn leads to the conclusion that the foundation for the application is indeed moving sands. I am not persuaded by the appellants' submissions that I should go behind the sworn evidence that the documents were used in the course of providing confidential legal advice and that the public file contained any more documents than those discovered.
The appellants failed to establish any basis for further discovery or production of any documents listed in schedule 1A. I should say that in so far as any document in schedule 1A has been produced I accept that another copy may contain advice or be part of the advice given and still retain its privilege. What I have in mind is a copy which contains handwritten notes which are relevant to the giving of professional advice. Some documents fall into that category.
Schedule 1
Schedule 1 comprises some 61 documents and again I divide it up in the same three categories as were the documents in schedule 1A. It is unnecessary to say anything more about those not located or those which had already been discovered and again the argument came back to the question of privilege. Mr Alstergren put the same arguments as he did with respect to schedule 1A and for the same reasons I reject those arguments.
He referred to document 32 and stated the description suggested it could not be privileged. There may be some substance in that argument but I could not say on the evidence before me the document was not the subject of legal advice. By way of example the letter could have been drafted and settled as part of legal advice given by the solicitors.
He complains that items 10, 11, 13 and 15 were inadequately defined but in my view there is a reference to the document and accordingly in my view there is sufficient description to enable the document to be identified. If the legal issues form went no further then that is too bad. I am satisfied the description was acceptable and when all is said and done that is what the form provided.
I may say that Mr Alstergren repeated the submissions that the documents appear to have been more likely generated as a result of the investigation by BDW but the Warden has sworn that they were protected by privilege and I see no inconsistency between the documents being produced in the investigation for legal advice and their role as straight investigators. As I have said, at times BDW acted as solicitors advising their clients.
Schedule 2
This schedule comprises eight documents and is concerned with ASC contact by BDW. Mr Alstergren referred to the Warden's reports and submitted that the privilege was waived because he referred to the ASC documents. The references in the reports do not lead to the conclusion that he was talking about the same documents, indeed in my opinion the probabilities are that he was not. Further, the mere fact that one may make a reference to a document and no more in a report or indeed in a pleading does not mean that the privilege has been waived.
Mr Alstergren also submitted that the description of the documents was inconsistent with any claim for privilege. He again emphasised the role of BDW. I am not persuaded by the description of the documents that the oath of the warden claiming privilege should be displaced. The appellants fail with respect to documents listed in schedule 2.
Schedule 3
This schedule contains 16 documents, most were not pressed. Again the argument came down to a question of privilege. The application related to items 1, 4, 8 and 11. Again Mr Alstergren was left with the description argument. I am not persuaded by this argument, the warden's oath stands.
In respect to item 2 I accept the evidence of Ms Glenn in her affidavit of 16 December 1998, the date is wrong and should read 22 January 1996 which post dated the relevant facts.
Schedule 4
This schedule contains five documents referrable to contact between BDW, the Warden and others concerning Mitsubishi. Mr Alstergren referred to the Warden's report to Parliament and paragraph 5.10 and submitted that the correspondence was referred to and any privilege which had existed had accordingly been waived.
In my opinion, paragraph 5.10 does not appear to be referring to this correspondence but in any even mere references do not necessarily involve a waiver. Again Mr Alstergren relied upon the description argument and again I am not persuaded there is any evidence to displace the oath concerning privilege.
Schedule 5
This schedule contains 21 items and again the issue is one of privilege. Mr lstergren submitted that the documents could not be privileged because they predated BDW's engagement. I accept the evidence of Ms Glenn in her affidavit of 1 April 1999, where she swore, "I refer to schedule 5 which mainly lists documents which are said to be dated 1 January 1995. None of those documents said to be dated 1 January 1995 which have been located bear a date. It appears that the reference to 1 January 1995 was in error".
Some of the documents are dated after the engagement, the ones which are undated could have been produced after engagement. Mr Alstergren also relied upon the description argument and again I am not persuaded that I should reject the warden's oath.
Schedule 6
This document contains 46 items and putting to one side the documents not located which were not pressed in argument, again the argument is centred on the question of privilege. Mr Alstergren, with some justification, submitted that the court should infer most of the documents were statements taken by persons who were to be witnesses at the public hearing or who were to provide information to the Warden in the course of his investigation.
One may question the relevance in this proceeding to their contents as distinct from the fact that information was provided to the warden, but that is not a matter for resolution at this stage. The order for discovery was wide enough to embrace the witness statements. Mr Alstergren relied heavily on the description and the dates of the documents. The bulk predated the public hearing. He emphasised the predominant role of BDW and submitted the inference was overwhelming that the documents were not created for the giving of advice but were created as part of the investigative role by BDW.
Mr Scott submitted that the oath of his client was paramount and was not open to draw the inference that the documents were in fact witness statements or reports on the facts and were not used for the giving of legal advice. In this regard he drew attention to the affidavit of documents sworn by the Warden and referred to a number of documents which could have been witness statements which were discovered.
As he pointed out, BDW could have interviewed people to gather information to enable it to render legal advice to the Warden and if that was the case then the document would be privileged. He emphasised that the Warden had sworn in his affidavit of 11 November 1997 which was a further affidavit of documents, and in that affidavit he stated his claim for privilege.
He swore, "I rely solely on legal professional privilege as the basis for objecting to production to the documents enumerated in part 2 of schedule 1 of my first affidavit and part 2 of schedule 1 of my supplementary affidavit. The privilege attaching to those documents is apparent from their description. On 20 March 1995 certain matters referred to me by the Minister for Energy and Minerals, as a result of which I commenced an inquiry which culminated in the orders made on 17 July 1995 and 22 September 1995, the subject of this proceeding. The documents contained in folders 1 to 12 were created for the sole purpose of my obtaining legal advice and legal advice being provided to me in relation to my conduct of that inquiry. When I and my legal advisers have reviewed these documents for the purpose of preparing this affidavit it became clear that each document of its class for which privilege is claimed was created solely for the purpose of my obtaining legal advice and legal advice being provided to me and not for the purpose of actual or contemplated litigation. The documents contained in folders 13 to 17 came into existence after the plaintiffs commenced proceeding number 7671 of 1995 ("this litigation"), they were created for the sole purpose of providing legal advice to me and conducting this litigation".
He then went on to give a general description of the folders and some contain documents described as "draft statements, draft summonses ... prepared by my solicitors for the sole purpose of providing legal advice to me". I must confess I had some concern over the documents described in schedule 6 but in the end the question is whether those concerns lead to the conclusion that the Warden's oath should not be accepted. After due deliberation and further consideration I am not prepared to do that. In my view the Warden's clear statement claiming the privilege should be accepted and even though there were fairly good grounds for thinking that the documents came into existence purely in the investigative procedure, I am prepared to accept the oath of the Warden. It follows that the application in respect of schedule 6 documents also fails.
Conclusion
After giving due consideration to the evidence, the law and the submissions I come to the same decision as the Master and accordingly the appeal is dismissed. This proceeding has been set down for hearing on 12 April before me. I add that if in the course of the hearing further evidence is placed before the court which results in the privilege being either waived or alternatively that it was established that the privilege was not properly raised, then it would be open to the appellants to call for those documents.
In other words, this decision does not foreclose the possibility that the appellants may be able to show at a later stage that some of these documents are not privileged, but having said that it would only be on the basis that those documents are relevant to an issue in the proceeding. I will make an order that the appeal be dismissed.
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