Dunmall v O'SULLIVAN - [2010] WADC 76

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: DUNMALL -v- O'SULLIVAN & ORS [2010] WADC 76

CORAM: PRINCIPAL REGISTRAR GETHING

HEARD: 22 APRIL 2010

DELIVERED : 26 MAY 2010

FILE NO/S: CIV 232 of 2006

BETWEEN: GEOFFREY DUNMALL
Plaintiff
AND
MARY O'SULLIVAN
First Defendant
TERRENCE CONSTRUCTIONS PTY LTD
Second Defendant
SHIRE OF MURRAY
Third Defendant

Catchwords:

Discovery - Inspection - Legal professional privilege - Two purposes, neither dominant, both legal

Legislation:

Nil

Result:

Application for production denied
Privilege upheld

Representation:

Counsel:

Plaintiff:     Mr B P Wheatley
First Defendant             :     Ms A K Farnworth
Second Defendant         :     No appearance
Third Defendant           :     No appearance

Solicitors:

Plaintiff:     Mossensons
First Defendant             :     DLA Phillips Fox
Second Defendant         :     Not applicable
Third Defendant           :     John Eller

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

Attorney-General (NT) v Maurice (1986) 161 CLR 475
Australian Rugby Union Ltd v Hospitality Group Pty Ltd (1999) 165 ALR 253
AWB Ltd v Cole (2006) 152 FCR 382
Baker v Campbell (1983) 153 CLR 52
Bond v West Australian Newspapers Ltd [No 3] [2009] WASC 129
Boyes v Colins (2000) 23 WAR 123
Daniels Corporation International Pty Ltd v Australian Competition & Consumer Commission (2002) 213 CLR 543
Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49
Federal Commissioner of Taxation v Pratt Holdings Pty Ltd (2005) 225 ALR 266
Goldberg v Ng (1995) 185 CLR 83
Grant v Downs (1976) 135 CLR 674
GSA Industries (Aust) Pty Ltd v Constable [2002] 2 Qd R 146
Hoad v Nationwide News Pty Ltd (1998) 19 WAR 468
Korean Air Lines Co Ltd v Australian Competition and Consumer Commission (No 2) [2008] FCA 44
Leader Westernport Printing Pty Ltd (t/a Waverley Offset Publishing Group) v IPD Instant & Duplicating Pty Ltd (1988) 5 ANZ Insurance Cases [60‑856]
Nickmar Pty Ltd v Preservatrice Skandia Insurance Ltd (1985) 3 NSWLR 44
Osland v Secretary, Department of Justice (2008) 82 ALJR 1288
Petersen v Moloney (1951) 84 CLR 91
Pratt Holdings Pty Ltd v Federal Commissioner of Taxation (2004) 136 FCR 357
Quality Publications Australia Pty Ltd v Commissioner of Taxation [2009] FCA 1293
Re: Southland Coal Pty Ltd (Receivers and Managers appointed) (in liq) (2006) 203 FLR
Spark v Iama Ltd [2000] WASC 150
Strzelecki Holdings Pty Ltd v Cable Sands Pty Ltd [No 2] [2009] WASC 150
Techfarm Pty Ltd v AXA Insurance Australia & Anor [2004] WASC 166
Techfarm Pty Ltd v AXA Insurance Australia Ltd [2005] WASCA 151
Trade Practices Commission v Sterling (1979) 36 FLR 244
Wheeler v Le Marchant (1881) 17 Ch D 675
Woodward v Shellab Pty Ltd (t/as Shellabears) & Ors [2009] WADC 74

PRINCIPAL REGISTRAR GETHING: In this application, the plaintiff has sought production of two expert's reports obtained by the first defendant, as well as some photographs of the accident scene the subject of the action. The first defendant resists production on the ground of legal professional privilege. The plaintiff further asserts that the release of an earlier assessor's report containing photographs constitutes an implied waiver of legal professional privilege at least as regards the photographs in the other two reports.
The plaintiff's claim is for damages arising out of injuries which he sustained when a balcony at the first defendant's premises collapsed at a New Year's Eve party on 31 December 2004. The second defendant is alleged to be the builder of the house. The third defendant is the relevant local government authority, who is alleged to have been negligent in approving an unsafe design of the balcony. The action was commenced on 6 February 2006, and has proceeded at a regrettably slow pace due to difficulties in identifying the builder and obtaining information about the balcony as built and its condition at the point of collapse.

First defendant's claim for legal professional privilege

At a directions hearing on 19 January 2010, I made a direction that the first defendant file and serve an affidavit of specific discovery relating to any photographs of the balcony after its collapse and any documents regarding the repair of the balcony after its collapse. The order was made in the context of prior orders for the parties to exchange their expert evidence on liability. The plaintiff sought the additional information in order to place a comprehensive brief before its expert.
In an affidavit sworn 9 February 2010, the first defendant deposed that she had been in possession of documents relating to the repairs of the balcony, but that she was no longer in possession of those documents, and did not know their location. She also deposed (at par 4):
"My solicitors have in their possession 60 photographs of the balcony after its collapse. The 60 photographs were taken for the dominant purpose of obtaining legal advice and for use in legal proceedings. I claim privilege over these photographs."
At a directions hearing on 31 March 2010, the plaintiff sought production of the photographs, along with three reports referred to in the Defendant's Amended Informal List of Discoverable Documents dated 31 December 2006. The three reports are:
(a)a report prepared by McLarens Young International dated 7 January 2005 ("McLarens Report");
(b)a report prepared by B G & E Pty Ltd dated 3 March 2005 ("BGE Report"); and
(c)a report prepared by G Hughes and Associates dated 8 March 2005 ("Hughes Report").
I adjourned the hearing of this issue to a special appointment on 22 April 2010, and granted the first defendant leave to file an affidavit in support of her claim.
A copy of the McLaren's Report was subsequently produced.
The first defendant filed an affidavit of Amelia Kate Farnworth in support of its claim for privilege. Ms Farnworth is a solicitor employed by the first defendant's current solicitors. Annexed to the affidavit is a copy of a letter dated 31 January from solicitors for the plaintiff to GIO Insurance Claims, giving notice of his claim. GIO General Ltd ("GIO") is the first defendant's insurer.
Ms Farnworth the relevantly deposed as follows:
"6I have reviewed the documents on Dibbs Barker's file and, on the basis of the contents of those documents (which, to the extent the first defendant has claimed legal professional privilege over those documents, privilege is not waived), I believe:
6.1On 14 January 2005, GIO instructed Dibbs Barker Gosling (as they were then known) to act for the first defendant and to provide it with advice in relation to (among other things) the cause of the accident and whether the first defendant had any legal liability as a result of the accident.
6.2On 31 January 2005, the solicitors for the plaintiff wrote to GIO and put GIO on notice that the plaintiff intended to make a claim for compensation in relation to injuries he suffered as a result of the accident. A copy of the letter from Mossensons to GIO dated 31 January 2005 is attacked to this affidavit and marked 'AKF1'.
6.3On 2 February 2005, Dibbs Barker Gosling wrote to G Hughes and Associates in connection with the plaintiff's claim for damages. In response to that letter, G Hughes & Associates sent a report to Dibbs Barker Gosling dated 8 March 2005, this report being the document the plaintiff seeks production of in paragraph 2(b)(iii) of her minute of proposed orders dated 31 March 2010. The report included 12 photographs of the collapsed balcony taken by a representative of G Hughes & Associates after receiving Dibbs Barker Gosling's letter dated 2 February 2005.
6.4On 7 February 2005, Dibbs Barker Gosling wrote to B G & E Pty Ltd in connection with the plaintiff's claim for damages. In response to that letter, B G & E Pty Ltd sent a report to Dibbs Barker Gosling dated 3 March 2005, this report being the document the plaintiff seeks production of in paragraph 2(b)(iii) of her minute of proposed orders dated 31 March 2010. The report included 12 photographs of the collapsed balcony taken by a representative of G Hughes & Associates after receiving Dibbs Barker Gosling's letter dated 2 February 2005.
6.5On 8 April 2005, Carla Kovacevic, a solicitor employed by Dibbs Barker Gosling, attended the first defendant's premises and took 27 photographs of the collapsed balcony.
6.6Of the 60 photographs to which the first defendant deposed in the first defendant's affidavit sworn on 9 February 2010:
6.6.1the first defendant has since waived her claim of legal professional privilege over 15 of those photographs on the basis that they were not brought into existence for the dominant purpose of obtaining legal advice or use in anticipated legal proceedings
6.6.2a further 12 were photographs taken by G Hughes & Associates to which I deposed in paragraph 6.3 above
6.6.3a further 6 form part of the report prepared by B G & E Pty Ltd dated 3 March 2005; and
6.6.4the remaining 27 were the ones taken by Carla Kovacevic on 8 April 2005."
The plaintiff filed an affidavit in relation to the issue of privilege, sworn 21 April 2010. He annexes to this affidavit a letter from Dibbs Barker Gosling (the first defendant's former solicitors) dated 8 March 2005 in which the author states that the firm did not receive a copy of the plaintiff's letter dated 31 January 2005 until 24 February 2005. The plaintiff thus disputes the assertion in Ms Farnworth's affidavit that the BGE Report and the Hughes Report were commissioned in response to notice of his claim.
At the hearing on 22 April 2010, I formed that view that, in all the circumstances, it was appropriate that I inspect the documents the subject of the privilege, the relevant letters of instruction and any other documents which the first defendant considered relevant in order for the Court to obtain a complete and accurate understanding of the instructions given to the first defendant's then lawyers by GIO. Authority for this approach includes: Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49, at 70 [52]; Grant v Downs (1976) 135 CLR 674 at 677, 689. I also granted the parties leave to file supplementary submissions.
The first defendant subsequently provided me with copies of the following documents:
(a)letter dated 14 January 2005 from GIO to Dibbs Barker Gosling;
(b)letter dated 2 February 2005 from Dibbs Barker Gosling to G Hughes & Associates ("Hughes");
(c)fax dated 7 February 2005 from Dibbs Barker Gosling to Bruechle Gilchrist & Evans ("BGE");
(d)the Hughes Report;
(e)the BGE Report; and
(f)the 27 colour photographs referred to at paragraph 6.5 of Ms Farnworth's affidavit.

Relevant law

"Legal professional privilege is a rule of substantive law which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings": Daniels Corporation International Pty Ltd v Australian Competition & Consumer Commission (2002) 213 CLR 543 at 552 [9]; Esso (supra) at 73 [61]; Strzelecki Holdings Pty Ltd v Cable Sands Pty Ltd[No 2] [2009] WASC 150, at [15]. In Esso, the majority, Gleeson CJ, Gaudron and Gummow JJ, at 68 – 69, 73 ([46], [61]) approved the following statement of principle by Barwick CJ in Grant v Downs (supra) 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."
The issue of the onus of establishing that the communication falls within the privilege was considered by Beech J in Strzelecki (supra) in the following terms (at [16] - [20]):
"There is authority that the party claiming privilege bears the onus of establishing that the communication occurred, or the document was brought into existence, for the dominant purpose of giving or obtaining legal advice: AWB v Cole [44(1)]; Seven Network Ltd v News Ltd [2005] FCA 142 [7]. The defendant accepts that it bears this onus.
However, the position as regards onus may not be so clear. There is authority that in an application under O 26 r 12 of the Rules of the Supreme Court 1971 (WA), the applicant bears at least an evidentiary onus to displace the claim to privilege: see CTC Resources NL v Australian Stock Exchange Ltd [2000] WASCA 19; (2000) 22 WAR 48 [33] - [35]; Brambles Holdings Ltd v WMC Engineering Services Pty Ltd (1995) 14 WAR 239, 246 - 247 (Owen J), cf 240 - 241 (Kennedy J) and 243 (Rowland J); Southern Equities Corporation Ltd v Western Australian Government Holdings Ltd (1993) 10 WAR 1, 5, 16, 22.
In any event, I do not rest my decision on any question of onus. Assuming, favourably to the plaintiff, that the onus rests entirely on the defendant, for the reasons to be given I am satisfied that the claim to privilege is sustained.
Any such onus on the defendant may be discharged by evidence as to the circumstances and context in which the communications occurred or the documents were brought into existence, or by evidence as to the purposes of the person who made the communication, authored the document or procured its creation. The onus might also be discharged by reference to the nature of the documents, supported by argument or submissions: Grant v Downs [1976] HCA 63; (1976) 135 CLR 674, 689; AWB v Cole [44(1)].
A claim of privilege will not be established by a mere assertion, in general terms, that communications were undertaken for the purpose of obtaining or giving legal advice, without any statement as to the subject matter of the advice said to have been sought: see AWB v Cole [44(3)] and authorities there cited."
The Court must look at all the circumstances objectively to determine whether privilege exists: Grant v Downs at 682 – 683; Techfarm Pty Ltd v AXA Insurance Australia & Anor [2004] WASC 166 at [30]; Techfarm Pty Ltd v AXA Insurance Australia Ltd [2005] WASCA 151 at [10], [14]. The Court is not bound by assertions made after the event that documents were brought into existence for the purpose of obtaining legal advice or by any other verbal formulae or incantations: Grant v Downs at 689; Techfarm (supra) at [30]; Techfarm (CA) (supra),at [10], [14].
Photographs may be the subject of legal professional privilege, the key issue being the purpose for which they were brought into existence: Bond v West Australian Newspapers Ltd[No 3] [2009] WASC 129 at [17] and by analogy to video surveillance, Boyes v Colins (2000) 23 WAR 123.

Review of the privileged documents

The starting point in the analysis of the privileged documents is the letter dated 14 January 2005 from GIO to Dibbs Barker Gosling. The purpose evident from the face of the letter is twofold: to act for GIO and its insured (the first defendant) in relation to any claim made against the first defendant, and to advise GIO on the question of whether GIO should indemnify the first defendant. Significantly, it is evident that at the time the letter was written no decision had been made by GIO to indemnify the first defendant. It is also evident that there was a possible factual basis for GIO to decline to indemnify the first defendant.
By the time that Dibbs Barker Gosling briefed Hughes by letter dated 2 February 2002, it is evident that they has been advised by their insured, the first defendant, that the plaintiff, Mr Dunmall, intended to lodge a claim for damages against her. However, the twin purpose is again evident on the face of the letter.
The issue of purpose is not evident on the face of the facsimile dated 7 February 2005 from Dibbs Barker Gosling to BGE.
It seems to me that the appropriate way to proceed in this case is to analyse whether legal professional privilege could be maintained if each of the two purposes was the only purpose evident on the face of the documents. In relation to this issue, in Techfarm, Master Newnes (as he then was) commented (at [31]):
"It is obvious that a document may come into existence for more than one purpose. Indeed that is implicit in the principle that the dominant purpose must be the giving of legal advice for use in legal proceedings. A loss adjustor's report, for instance, may have been created to find out what happened or for some other purpose associated with the routine commercial assessment or handling of the claim under the policy. In that connection, counsel for the plaintiff referred by way of illustration to Nickmar Pty Ltd v Preservatrice Skandia Insurance Ltd (1985) 3 NSWLR 44, where part of a document of the kind normally prepared and communicated to the insurer for ordinary commercial purposes in connection with the assessment and management of the claim was held not to be privileged, although the maker had been instructed to investigate the matter through solicitors and part of the document was privileged. The privileged part was not available for inspection."
The Court of Appeal endorsed these comments: Techfarm (CA) at [10], [14].
In the relation to the same issue, in Federal Commissioner of Taxation v Pratt Holdings Pty Ltd (2005) 225 ALR 266 at 280 [30], Kenny J comments (at [30]):
"Where two purposes are of equal weight, neither is dominant in the relevant sense. Hence:
(a)a document is not privileged from production where one purpose for its creation is to obtain legal advice, but there is another equally important purpose; and
(b)if the decision to bring the document into existence would have been made irrespective of any intention to obtain legal advice, the purpose of obtaining legal advice cannot be the dominant purpose for the making of the document."
See also AWB Ltd v Cole (2006) 152 FCR 382 at 411 [105] – [106].
Thus, in the present case, if one purpose was privileged and the other not, the claim must fail. If both purposes are privileged, then a novel issue arises, which I return to later in these reasons.

First purpose – potential litigation against the first defendant

It is convenient to first analyse the purpose of acting for GIO and the first defendant against any claim made by the plaintiff (or any of the others injured in the accident). For the purposes of this first part of the analysis, I will assume that GIO had taken a decision to indemnify the first defendant. As I have noted, the letter from Dibbs Barker Gosling to Hughes dated 2 February 2005, it is evident that the defendant's solicitors knew of the plaintiff's intention to make a claim.
The dominant purpose for the creation of a document is to be determined at the time of its production: Pratt (supra) at [30]; Techfarm (CA) at [15]. Thus the "purpose" inquiry for the Hughes Report (dated 8 March 2005) and the BGE Report (dated 3 March 2005) is to be determined at the date of their production. In each case, this is after Dibbs Barker Gosling can be said to be aware of at least a potential claim by the plaintiff. The type of information provided in the Hughes Report and the BGE Report is information that is routinely required in personal injuries litigation. Viewed objectively, I am satisfied that all the contents of both reports came into existence for the purpose of submission to legal advisers for advice in contemplation of litigation. Were there not the indemnity issue, I would have found this to be the dominant purpose.
For this ground of privilege, I do not need to determine whether Hughes or BGE were agents of the first defendant. Even if they were not, and were third parties, the privilege would apply:
"Legal professional privilege extends to …[a]ny communication between a party and his professional legal adviser if it is confidential and made to or by the professional adviser in his professional capacity and with a view to obtaining or giving legal advice or assistance; notwithstanding that the communication is made through agents of the party and the solicitor or the agent of either of them"
Trade Practices Commission v Sterling (1979) 36 FLR 244, at 245 ‑ 246.

Other cases in which assessor's reports have been held to have fallen within a claim for legal professional privilege under the litigation limb include Nickmar Pty Ltd v Preservatrice Skandia Insurance Ltd (1985) 3 NSWLR 44 at 57 - 58 and Spark v Iama Ltd [2000] WASC 150 at [29], [30].

Second purpose – advising GIO as to whether to indemnify

The second purpose is to advise GIO on the issue of whether it should indemnify the first defendant. Unlike the decisions in Nickmar (supra) and Spark (supra), I cannot here conclude that the advice was in effect a continuum, in which "solicitors were retained to advise in relation to the defendant's rights under the policy of insurance and thereafter to act for it in relation to the litigation which was commenced": Spark at [29]; Nickmar at 57 - 58. In both those cases the advice was given in relation to whether to indemnify the insured, who subsequently became the plaintiff. Here, there are two distinct clients for the two purposes: the first advice goes to the issues as between the first defendant (and her insurer GIO) and the plaintiff; the second advice goes to issues as between GIO and the first defendant.
As between GIO and the first defendant, there is nothing in the material on the record or the privileged material from which it could be asserted that litigation on this issue was contemplated. This is in contrast the decision in Techfarm in which the court at first instance (and affirmed on appeal - Techfarm (CA)) found that, viewed objectively, there was a reasonable contemplation of litigation between the plaintiff claimant insured and the defendant insurer at the time the relevant reports were brought into existence. In that case, the documents went beyond those which "might well be prepared during part of the ordinary process of claims management in any event": Techfarm (CA) at [17]. A similar conclusion was reached in Nikmar at 56 and Spark at [30].
However, this is not the end of the matter, as legal professional privilege extends to confidential communications between lawyer and client for the purpose of obtaining or giving legal advice. Deane J summarises the position in Baker v Campbell (1983) 153 CLR 52 at 115 ‑ 116:
"…the principle underlying legal professional privilege is that a person should be entitled to seek and obtain legal advice without the apprehension of being prejudiced by subsequent disclosure of confidential communications and that the privilege is not confined to such communications as are made in the course of or in anticipation of litigation but extends generally to confidential communications of a professional nature between a person and his lawyer made for the purpose of obtaining or giving legal advice."
The photographs taken by the Dibbs Barker Gosling lawyer are within this privilege.
The contested issue arises in relation to the Hughes Report and the BGE Report as these were prepared by third parties.
Traditionally, the scope of the advice limb of legal professional privilege has been expressed in narrower terms than the scope of the litigation limb. The rule here is long standing, stemming from the decision in Wheeler v Le Marchant (1881) 17 Ch D 675. This case often cited as authority for the proposition that "confidential communications between a legal adviser or client and a third party will be privileged if made for the dominant purpose of obtaining legal advice and either the third party is an agent of the client or the communication is made in relation to litigation existing, anticipated or contemplated": Pratt Holdings Pty Ltd v Federal Commissioner of Taxation (2004) 136 FCR 357 at [96]. This proposition is reflected in the oft cited summary of the classes of documents to which the privilege attaches in Sterling (supra), at 245 - 246. It was also accepted as settled law by Master Sanderson in Spark at [27] - [28].
The decision in Wheeler case was considered in detail in Pratt (FC) (supra), in which the Full Court comprehensively reviewed the Australian case law on its application, and ultimately declined to follow it in the formulation set out above. Given how long standing the authority is, and the absence of a decision of the Western Australian Court of Appeal following Pratt (FC), it is appropriate that I consider the position both under the traditional Wheeler test and the wider Pratt (FC) test.
The distinction in Wheeler was the subject of detailed analysis by Wood J in Nickmar at 52 - 57. As Wood J observes, Jessel MR and Cotton LJ in Wheeler recognized that there was a distinction between communications from third parties acting as agents of a client seeking advice, and from third parties not acting as agents (at 53). His Honour comments that (at 53-54):
"Communications by the former could perhaps be regarded as communications of the client itself, and on that account attract privilege, where made for the purpose of obtaining advice. Communications by the latter however stand in a different position. Although they may become employed on behalf of the client to do certain work, that work is not the communicating with the solicitor to obtain legal advice… It is only when their communications are in contemplation of litigation, or for the purpose of giving advice or obtaining evidence with reference to it, that privilege attaches."
In Nickmar, the plaintiff sought production of certain insurance assessor's reports obtained by the defendant, its insurer. Very soon after the fire in question officers of the defendant formed the view that the fire was suspicious, putting in issue whether they would allow the claim. Wood J upheld the claim for privilege. His Honour had no difficulty in accepting that it was because of the contemplation of litigation that solicitors were retained to act in the matter (at 56). Strictly speaking, it was not then necessary to consider the agency issue on the facts of the case. However, his Honour went on to observe the following (at 56):
"In Wheeler v Le Marchant, the supply of documents to a solicitor for advice by an agent of the client, was placed on all fours with their supply by the client itself… It was submitted in the present case that reports obtained from investigators or experts retained formally by solicitors, but on the explicit instructions of the client, should be regarded in a similar light. I accept this submission. Any other view seems to place undue emphasis on form, and to ignore the substance of the engagement of the expert as an agent by direction. In such circumstances I believe the information could properly be regarded as collected and communicated confidentially on behalf of the client to its legal adviser, in the character, and for the purpose of obtaining legal advice."
Following this principle, Gobbo J in Leader Westernport Printing Pty Ltd (t/a Waverley Offset Publishing Group) v IPD Instant & Duplicating Pty Ltd (1988) 5 ANZ Insurance Cases [60‑856] at 75,364 held that the report of a loss adjuster, subsequently provided to the insurer's solicitors, was privileged, as the loss adjuster was an agent of an insurer. Again, following this principle, Holmes J in GSA Industries (Aust) Pty Ltd v Constable [2002] 2 Qd R 146 held that a report written to the client by its accountants was privileged as when it was produced the client had formed the dominant purpose of using it to seek legal advice.
The critical issue becomes whether Hughes and BGE can be said to be agents of GIO, such that the documents which they communicated can properly be said to have been brought into existence and communicated to the solicitors by GIO, albeit through them as agents. In this second purpose, it is GIO who is the client in its own right, and not the first defendant, as a possible outcome of the advice sought was for GIO to decline to indemnify the first defendant.
It is significant that GIO explicitly instructed Dibbs Barker Gosling to brief Hughes and a structural engineer, and then to provide advice having considered those reports.
The analysis can be tested by asking whether the advice privilege would apply had an employee of GIO done the work that either Hughes or BGE had done. The notes made and photographs taken would fall within a routine application of the privilege. They would fall within par (d) of the categories set out by Lockhart J in Sterling: "Notes, memoranda, minutes or other documents made by the client or officers of the client … which … or relate to information sought by the client's legal adviser to enable him to advise the client…". Were this not the case, a corporate client would never be able to claim legal professional privilege in relation to the gathering of primary factual material, which is confidential, on which the opinion is to be given. The question thus becomes whether the privilege is lost because the factual inquiry is not undertaken by the client, but it contracted out.
The authorities set out above draw the distinction between and "agent" and a "third party". The technical legal meaning of the word "agent" is fraught with uncertainty: see generally Petersen v Moloney (1951) 84 CLR 91 at 94; Woodward v Shellab Pty Ltd(t/as Shellabears) & Ors [2009] WADC 74 at [25] - [52]. It seems more appropriate to use its ordinary meaning of a "person acting on behalf of another" (The Macquarie Dictionary). The question then becomes whether Hughes and GBE were acting on behalf of GIO in making their inquiries, or were they acting as third parties in their own right. Consistent with the decisions in GSA Industries (supra) and Leader (supra), the answer would be "yes". However, on a more technical interpretation of the word "agency", like that adopted in Pratt (FC), the answer could well be "no". Like the accountant in that case, Hughes and BGE did work for Dibbs Barker Gosling and GIO as its client, and did not assume any strictly representative capacity. It seems that the somewhat nebulous and artificial approach to "agency" in this context was a factor in the Full Court declining to follow the decision in Wheeler in the manner referred to above.
Although the position is far from clear, on balance it is appropriate that I follow the decisions in Spark, GSA Industries, Leader, Nickmar and also Australian Rugby Union Ltd v Hospitality Group Pty Ltd (1999) 165 ALR 253 at [29] - [30]. I find that Hughes and GBE were relevantly GIO's agents in preparing the reports sent to Dibbs Barker Gosling; GIO could have prepared the reports itself, rather it chose to have someone else prepare the reports on its behalf. Had this been the dominant purpose, the Hughes Report and the GBE Report would have been privileged on a traditional application of the rule in Wheeler.
Even if I am wrong in my view that the Hughes Report and the GBE Report is a communication between GIO, through its agents Hughes and GBE, and Dibbs Barker Gosling, that is not the end of the matter. In Pratt (FC), the Full Court of the Federal Court refined the scope of the rule in Wheeler in a manner that would allow the claim for privilege to be maintained in the present case. In that case, Pratt Holdings Pty Ltd had requested a report from a firm of accountants (Pricewaterhouse Coopers or "PW") which was submitted to its legal advisers for the purpose of providing advice about a proposed restructuring. The Commissioner sought access to the report pursuant to its compulsory information gathering powers, which were subject to legal professional privilege. The Full Court held that PW could not properly be held to be Pratt's agent. Rather, it did work for Pratt Holdings, its client, which it delivered to Pratt Holdings (at 367 [40]). The Full Court held that "legal advice privilege is capable of extending to non-agent, third party authored documentary communications" (at [34] ‑ [49], [52], [102] ‑ [106]). The Full Court was only able to partly determine the issues before it because the trial judge did not (and did not need to on the law found) make a finding in relation to Pratt's purpose in obtaining the accountant's report.
For Finn J, what was critical was the nature of the function performed by the third party, not their legal relationship with the client (at [41] ‑ [43]):
"To deny that a third party is an agent in [the present] circumstances does not, though, provide a sufficient or principled reason for denying privilege to the documentary communication (or contents) it has authored. The important consideration in my view is not the nature of the third party's legal relationship with the party that engaged it but, rather, the nature of the function it performed for that party. If that function was to enable the principal to make the communication necessary to obtain legal advice it required, I can see no reason for withholding the privilege from the documentary communication authored by the third party. That party has been so implicated in the communication made by the client to its legal adviser as to bring its work product within the rationale of legal advice privilege.
There are, in my view, clear reasons of policy that support extending the privilege to such third party authored documentary communications. Whether a natural person or a corporation, a party seeking to obtain legal advice may not have the aptitude, knowledge, skill and expertise, or resources to make adequately, appropriately or at all such communication to its legal adviser as is necessary to obtain the advice required. Such is commonplace today where advice is sought on complex and technical matters. To deny that person the ability to utilise the services of a third party to remedy his or her own inability or inadequacy unless he or she is prepared to forego privilege in the documents prepared by the third party, is to disadvantage that person relative to another who is able adequately to make the desired communication to a legal adviser by relying upon his or her own knowledge, resources, etc.
For the law to provide such an incentive not to utilise the services of third parties in such circumstances is to undercut the privilege itself. It would not facilitate access to effective legal advice nor would it facilitate effective communication with legal advisers for the purpose of obtaining legal advice."
Likewise, Stone J, saw the key requirement as being the dominant purpose of the communication (at [102] ‑ [105]):
"I am satisfied from this survey of the Australian decisions that have considered the Wheeler principle that this Court is not bound either by authority of considerations of comity to dismiss the present appeals because PW was not the agent of Pratt when it created the documents in question. In my view the present issue must be decided by the application of principle, eschewing formalistic approaches and concentrating on substance.
The history of legal professional privilege shows that the courts have been willing and able to adapt the doctrine to ensure that the policy supporting the doctrine is not sabotaged by rigid adherence to form that does not reflect the practical realities surrounding the application of privilege. The complexity of present day commerce means that it is increasingly necessary for a client to have the assistance of experts, including financial experts such as accountants, in formulating a request for legal advice and in providing legal advisers with sufficient understanding of the facts to enable that advice to be given…
The complexity of commercial arrangements is matched by increasing volume, complexity and technicality in the law: taxation legislation now runs to many volumes, encompassing nearly 2,000 provisions; corporations and securities legislation is similarly mammoth. A company that wishes to obtain legal advice as to its obligations under such legislation may well need to rely on experts to assist it in instructing its legal advisers. This is not only true of commercial arrangements but may also extend to scientific and technological complexities. To take a purely hypothetical example, suppose the manufacturer of lip salve requests its lawyer to advise as to the health and manufacturing standards with which it must comply. The lawyer is aware that among the legal requirements that may be relevant are regulations applicable to skin care products. In such a case scientific advice may be required as to whether lips are skin. These are issues that did not arise in simpler times.
The coherent rationale for legal professional privilege developed by the High Court does not lend itself to artificial distinction between situations where that expert assistance is provided by an agent or alter ego of the client and where it is provided by a third party. Nor, in my view, should the availability of privilege depend on whether the expert opinion is delivered to the lawyer directly by the expert or by the client. Provided that the dominant purpose requirement is met I see no reason why privilege should not extend to the communication by the expert to the client. This approach is consistent with the High Court's ruling in Daniels (see [84]) that legal professional privilege protects communications and therefore prevents the disclosure of information or documents that would reveal communications protected by the doctrine."
The third member of the Court, Merkel J, agreed with Finn and Stone JJ (370 [52]). This aspect of the decision in Pratt (FC) was applied in Re: Southland Coal Pty Ltd (Receivers and Managers appointed) (in liq) (2006) 203 FLR 1 at 6; Quality Publications Australia Pty Ltd v Commissioner of Taxation [2009] FCA 1293 at [12] and Korean Air Lines Co Ltd v Australian Competition and Consumer Commission (No 2) [2008] FCA 449 at [6].
In my view, the Hughes Report and the BGE Report were prepared for the purpose of seeking legal advice from Dibbs Barker Gosling. Again, had this been the dominant purpose, I would have found them to be privileged. As already noted, the photographs taken by the Dibbs Barker Gosling lawyer would be privileged on the same basis, though without the need to consider the decision in Wheeler.

Two protected purposes

We then arrive at the interesting position in which there were two purposes for the brief to Dibbs Barker Gosling. The first was to provide legal advice to GIO on whether to accept the claim by the first defendant. Had this been the dominant purpose for the brief, then the Hughes Report and the BGE Report would have been privileged, as being communications as GIO's agent to its lawyers. The second was to provide advice to GIO and the first defendant in relation to potential litigation against the first defendant. Had this been the dominant purpose for the brief, then the Hughes Report and the BGE Report would have been privileged.
Had GIO sent two briefs out to different law firms, one for each of the purposes set out in the preceding paragraph, and received separate assessor's and structural engineer's reports for each brief, then each report would have been privileged. The question becomes whether this privilege falls away because the advice was sought on these two issues, in the one brief. In my view it does not.
In Esso, the key distinction for the majority was between the legal purpose for the communication and the non-legal purposes (at 64 – 65, [35] ‑ [36], footnotes omitted, my emphasis):
"Legal professional privilege (or client legal privilege) protects the confidentiality of certain communications made in connection with giving or obtaining legal advice or the provision of legal services, including representation in proceedings in a court. In the ordinary course of events, citizens engage in many confidential communications, including communications with professional advisers, which are not protected from compulsory disclosure. The rationale of the privilege has been explained in a number of cases, including Baker v Campbell, and Grant v Downs itself. The privilege exists to serve the public interest in the administration of justice by encouraging full and frank disclosure by clients to their lawyers. In Waterford v The Commonwealth, Mason and Wilson JJ explained that legal professional privilege is itself the product of a balancing exercise between competing public interests and that, given the application of the privilege, no further balancing exercise is required. As Deane J expressed it in Baker v Campbell, a person should be entitled to seek and obtain legal advice in the conduct of his or her affairs, and legal assistance in and for the purposes of the conduct of actual or anticipated litigation, without the apprehension of being prejudiced by subsequent disclosure of the communication. The obvious tension between this policy and the desirability, in the interests of justice, of obtaining the fullest possible access to the facts relevant to the issues in a case lies at the heart of the problem of the scope of the privilege. Where the privilege applies, it inhibits or prevents access to potentially relevant information. The party denied access might be an opposing litigant, a prosecutor, an accused in a criminal trial, or an investigating authority. For the law, in the interests of the administration of justice, to deny access to relevant information, involves a balancing of competing considerations. This Court is now asked to reconsider the balance that was struck in Grant v Downs.
Like the present case, and the leading English case of Waugh v British Railways Board, Grant v Downs was about discovery and inspection of documents in pending litigation. Although privilege, where it applies, attaches to communications, not to pieces of paper, discovery is concerned with documents, and privileged communications are frequently in writing. If a written communication is made for the sole purpose of seeking or giving legal advice, or obtaining or providing legal services, the problem of present concern does not arise. It arises where the documentary communication comes into existence for some purpose or purposes in addition to the legal purpose."

Here, the Hughes Report and the BGE Report did not come into existence for some purpose or purpose in addition to the two legal purposes I have identified. To uphold the privilege in this case is consistent with the policy reflected in the Esso decision that the privilege does not apply where the documentary communication comes into existence for some purpose or purposes in addition to the legal purpose – or in this case, purposes - such that the legal purpose ceases to be the dominant purpose for which the document came into existence.
On this basis, I find that the Hughes Report, BGE Report and the photographs taken by the Dibbs Barker Gosling lawyer are privileged.

Implied waiver

As I have noted, the first defendant released a copy of the McLarens Report to the plaintiff. It contains 15 photographs of the accident scene. The plaintiff asserts that, if the other two reports and the photographs taken by the first defendant's lawyer are privileged, then by releasing the McLarens Report, the first defendant impliedly waived legal professional privilege in relation to the remainder of the photographs held by it.
Although not expressed precisely in these terms, it seems to me that the submission at its strongest is to the effect that it is unfair for the first defendant to waive privilege on some of the photographs it has in its possession as, in order for the plaintiff to prepare for trial, it needs to be able to assess the photographs released in the light of all photographs available of the accident site. In the words of Kirby J in Osland v Secretary, Department of Justice (2008) 82 ALJR 1288, at [92]:
"It cannot provide part of the confidential information (inferentially that part which favours its position) to others whilst demanding that everything else (which may reveal that position in a different light) be treated as confidential"
(I have quoted this passage in its full context below).
The law in relation to implied waiver is summarised in the following passage from the decision of the majority in Osland (supra) ([45], footnotes omitted):
"Waiver of the kind presently in question is sometimes, described as implied waiver and sometimes as waiver 'imputed by operation of law'. It reflects a judgment that the conduct of the party entitled to the privilege is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. Such a judgment is to be made in the context and circumstances of the case and in the light of any considerations of fairness arising from that context or those circumstances."
It is instructive for present purposes to also refer to a passage from the decision of Kirby J (at [91] and [92]) in the following terms:
"The issue of waiver arises in this appeal in relation to one document only, namely the joint advice. The question, to be decided by reference to the principle of imputed waiver, is whether, whatever the subjective intention of the Attorney‑General in publishing the press release upon which the appellant relies, the objective fact of that publication was incompatible with a continued insistence by the respondent on legal professional privilege, and made such insistence unwarranted and unfair in the circumstances.
Each of these words is important. 'Unwarranted' signifies a legal conclusion, namely that enough has been disclosed of the subject communication to evince conduct 'inconsistent with the maintenance of the confidentiality which the privilege is intended to protect'. Effectively, the client cannot have it both ways. It cannot provide part of the confidential information (inferentially that part which favours its position) to others whilst demanding that everything else (which may reveal that position in a different light) be treated as confidential. The use of the word 'unfair' does not mean that all that the decision maker has to do is weigh up the respective 'fairness' of the positions of the client and its opponent and decide the question of waiver according to such generalised considerations. But considerations of 'fairness' may be relevant to whether there is an inconsistency between the conduct said to amount to the waiver and the maintenance of the privilege."
It is also instructive to refer to the decision of the High Court in Attorney-General (NT) v Maurice (1986) 161 CLR 475, in particular, the judgment of Mason and Brennan JJ (at p 488):
"In order to ensure that the opposing litigant is not misled by an inaccurate perception of the disclosed communication, fairness will usually require that waiver as to one part of a protected communication should result in waiver as to the rest of the communication on the subject matter."
The question of what constitutes fairness was considered by Steytler J (as his Honour was then) in Hoad v Nationwide News Pty Ltd (1998) 19 WAR 468. His Honour notes that none of the judges in the decision in Maurice (supra), nor the earlier High Court decision in Goldberg v Ng (1995) 185 CLR 83, had limited the test of unfairness to what is fair in the conduct of the trial (at 473). His Honour goes on to comment (at p 474 to p 475):
"It is not difficult to conceive of situations in which a party has, by disclosing a document which suggests what was the content of a privileged communication but declining to waive privilege in respect of the communication itself, created a relevant unfairness prior to a trial. So, for example, a partial disclosure of that kind (which might relate to an issue crucial to the whole conduct of the action) might set up some train of enquiry or preparation which is entirely misplaced. As Lindgren J has pointed out in Trade Practices Commission v CC Pty Ltd (No 4) (1995) 58 FCR 426 at 437 … the notions of 'interests of a fair trial' and of the 'fair disposition of a case' encompass 'an opening up of a trial on inquiry … which is part of the proper function of discovery': see also Meltend Pty Ltd v Restoration Clinics of Australia Pty Ltd (1997) 145 ALR 391 at 405. If the train of inquiry so opened up has the propensity to be misguided because of a partial waiver of privilege which creates a potentially misleading impression then the interests of a fair trial or the fair disposition of a case will be compromised. Moreover, as Phipson points out, a partial disclosure of that kind might result in an approach to settlement which would not have been adopted had the true or full nature of the privileged communication been made known."
In the present case, the relevant communication is the McLaren Report. The first defendant has released the McLaren Report in its entirety. There has been no partial disclosure of the McLaren Report.
I do not find that there is relevant unfairness as required by the decisions which I have cited in the first defendant, having released the McLaren Report, declining to release the Hughes Report, the BGE Report and the photos taken by its solicitors. These documents, including the photographs, were brought into existence after the date on which the McLarens Report was communicated. It is not necessary to refer to any of this material to fully understand what it set out in the McLarens Report.

Determination

For these reasons, I decline to order the first defendant to produce the Hughes Report, the BGE Report and the other photographs. The plaintiff's application fails. The privileged materials provided to me for inspection will be returned to the first defendant's lawyers. I will hear from counsel on the issue of costs and consequential orders.