Famous Artists International Pty Ltd v Australian Broadcasting Corporation

[1992] FCA 170

Re: FAMOUS ARTISTS INTERNATIONAL PTY. LTD.
And: AUSTRALIAN BROADCASTING CORPORATION
No. V G124 of 1991
FED No. 170
Evidence

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Olney J.(1)

CATCHWORDS

Evidence - discovery and inspection - legal professional privilege - employed legal advisers - principles applicable to consideration of claim of legal professional privilege - inspection of documents by the Court.

Grant v. Downs (1976) 135 CLR 674

Attorney-General for the Northern Territory v. Kearney (1985) 158 CLR 500

Waterford v. The Commonwealth (1987) 61 ALJR 350

Trade Practices Commission v. Sterling (1978) 36 FLR 244.

Alfred Crompton Amusement Machines Limited v. Customs and Excise Commissioners (1972) 2 QB 102

HEARING

MELBOURNE

#DATE 3:4:1992

Counsel for the applicant: Mr G. McGowan

Solicitors for the applicant: Coltmans

Counsel for the respondent: Mr C. Harrison

Solicitors for the respondent: Howie and Maher

ORDER

THE COURT ORDERS that the applicant's notice of motion filed 19 March 1992 be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

The respondent objects to the production for inspection of certain documents disclosed in its affidavit of discovery which are said to be privileged from production on the ground of legal professional privilege. For a variety of reasons which need not be canvassed the applicant questions the claim of privilege and seeks an order for the production of the documents.

1. The principles relevant to a claim of legal professional privilege are not in doubt and in the course of argument reference was made to a number of authorities including Grant v. Downs (1976) 135 CLR 674, Attorney-General for the Northern Territory v. Kearney (1985) 158 CLR 500, Waterford v. The Commonwealth (1987) 61 ALJR 350 and Trade Practices Commission v. Sterling (1978) 36 FLR 244.

2. The respondent is a statutory authority and has within its organisation a legal and copyright department in which a number of qualified legal practitioners are employed for the purpose of providing legal advice to the respondent on matters relating to its statutory functions. Evidence was given by a senior legal officer employed in the respondent's legal and copyright department and I am satisfied that in so far as its legal staff are concerned it enjoys the independence from the employer organisation appropriate to a department charged with the responsibility to give professional advice and assistance to the employer.

3. In Attorney-General (NT) v. Kearney Gibbs C.J. (at p 510) said that he did not doubt the correctness of the English Court of Appeal decision in Alfred Crompton Amusement Machines Limited v. Customs and Excise Commissioners (1972) 2 QB 102 to the effect that privilege extends to legal advice given by legal advisers who are salaried employees provided that in giving the advice they are acting in their capacities as legal advisers. In the same case Wilson J (at p 521-2) also referred to Crompton and other decisions to the same effect with tacit approval and Dawson J (at p 530-1) said he saw no reason for denying privilege to communications passing between salaried employees and their client provided they are consulted in a professional capacity in relation to a professional matter and the communications are made in confidence arising from the relationship of lawyer and client.

4. The same general proposition was confirmed by the High Court in Waterford v. The Commonwealth in which Mason and Wilson JJ., in dealing specifically with the role of legal officers employed in government service, said at pp 352-3:
   

In our opinion, given the safeguards to which reference is made in the various citations, there is no reason to place legal officers in government employment outside the bounds of legal professional privilege. The proper functioning of the legal system is facilitated by freedom of consultation between the client and the legal adviser.

...

... The common law, in the view that we have taken, recognises that legal professional privilege attaches to confidential, professional communications between goverment agencies and their salaried legal officers undertaken for the sole-purpose of seeking or giving legal advice or in connection with anticipated or pending litigation. Provided that the sole purpose test enunciated in Grant v. Downs is satisfied, there is no warrant to draw an arbitrary line through the functions of government in order to exclude the privilege from those described as of an administrative nature.

1. Grant v. Downs had to do with the question of whether legal professional privilege could be claimed in respect of certain reports which were routinely prepared following the death of a patient who had escaped from a psychiatric centre. There was evidence that the reports were required for a variety of purposes including (but by no means limited to) the purpose of being submitted to the legal advisers of the hospital authority in the event that legal proceedings for damages should arise. After considering the various authorities in detail Stephen, Mason and Murphy JJ. said (at p 688):
   

All that we have said so far indicates that unless the law confines legal professional privilege to those documents which are brought into existence for the sole purpose of submission to legal advisers for advice or for use in legal proceedings the privilege will travel beyond the underlying rationale to which it is intended to give expression and will confer an advantage and immunity on a corporation which is not enjoyed by the ordinary individual. It is not right that the privilege can attach to documents which, quite apart from the purpose of submission to a solicitor, would have been brought into existence for other purposes in only event, and then without attracting any attendant privilege. It is true that the requirement that documents be brought into existence in anticipation of litigation diminishes to some extent the risk that documents brought into existence for non-privileged purposes will attract the privilege but it certainly does not eliminate that risk. For this and the reasons which we have expressed earlier we consider that the sole purpose test should now be adopted as the criterion of legal professional privilege.

1. In Trade Practices Commission v. Sterling Lockhart J enumerated a number of different classes of cases giving rise to legal professional privilege, and having found that privilege extended to the particular documents in issue before him made the following general observation at the conclusion of his reasons.

2. It was submitted by Mr Tuchen of counsel for the respondent that Grant's case is authority for the proposition that legal professional privilege is confined to documents which are brought into existence for the sole purpose of their being submitted to legal advisers for advice or for use in legal proceedings. He submitted that the other categories of legal professional privilege, some of which I have set out above, although having been part of the law for well over a century have now gone. The submission fails. It is clear that the High Court in Grant's case was considering the relevant principles of law governing privilege attaching to communications and materials submitted by a client to his solicitor for the purpose of advice or for the purpose of use in existing or anticipated litigation and not otherwise. Grant's case has nothing to say as to the other well-established categories of legal professional privilege.

3. It is undoubted that the Court has power to examine any document for which a claim of privilege from discovery is made in order to determine whether the claim is made out, and at the suggestion of counsel for the respondent, I examined a file of documents said to be the subject of legal professional privilege. It is inappropriate that I should attempt to canvass the contents of the individual documents and I do not propose doing so. Counsel for the applicant queried whether privilege could be claimed in respect of documents which clearly predate the commencement of these proceedings and which could not be said to have come into existence for the purpose of this litigation or in contemplation of it. Such a submission appears to me to fail to heed the final comments of Lockhart J in Sterling which are quoted above. An examination of the documents reveals that they all fall within one or other of the following classes:
   (a) Communications between the respondent and its officers and the respondent's professional legal advisers of a confidential nature, made to or by the advisers in their professional capacity with a view to obtaining or giving legal advice or assistance;
   (b) Notes and memoranda made by officers of the respondent and the respondent's legal advisers of communications which themselves are privileged or relating to information sought by the legal advisers to enable advice to be given to the respondent or to conduct litigation;
   (c) Communications and documents passing between the respondent's legal advisers and third parties which were made or prepared when litigation was anticipated or commenced for the purpose of the litigation and giving advice in relation thereto.
   In my opinion all of the foregoing classes of documents fall within the classes of documents identified in Sterling as attracting a claim of legal professional privilege. It is also clear from an inspection of the documents that the role of the respondent's employed legal advisers in relation to the documents was that of professional legal advisers. In my opinion the claim of legal professional privilege should be upheld. The applicant's notice of motion filed 19 March 1992 will be dismissed.