Health and Life Care Ltd v Price Waterhouse (a Firm) and Ors No. Scgrg-93-289 Judgment No. 6306 Number of Pages 11 Procedure (1997) 69 Sasr 362

[1997] SASC 6306

IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA

DOYLE CJ, LANDER AND BLEBY JJ

Procedure - discovery and interrogatories - discovery and inspection of documents - application for order for production of discovered document - legal professional privilege claimed - unsigned statement taken by solicitor for plaintiff in respect of proceedings in Federal Court - no proceedings contemplated between the plaintiff and the proposed witness who gave the statement - proposed witness subsequently joined by a defendant in these proceedings as a third party - whether statement privileged. Grant v Downs
(1976) 135 CLR 674; O'Reilly v Commissioners of State Bank of South Australia
(1983) 153 CLR 1; Commissioner, Australian Federal Police and Anor v Propend Finance Pty Ltd (1997) 141 ALR 545; Trade Practices Commission v Sterling
(1979) 36 FLR 244; Nickmar Pty Ltd v Perservatrice Skandia Insurance Ltd
(1985) 3 NSWLR 44; Wheeler v Le Marchant (1881) 17 Ch D 675, applied. Flack v Pacific Press Ltd (1970) 14 DLR (3d) 334; Feuerheerd v London General Omnibus Company Ltd [1918] 2 KB 565; Aydin v Australian Iron & Steel Ltd (1984) 3 NSWLR 684; Jamison v Government Insurance Office (NSW) (1988) 7 MVR 209; Telebooth Pty Ltd v Telstra Corporation [1994] 1 VR 337, considered.

ADELAIDE, 5 May 1997 (hearing), 15 August 1997 (decision)

#DATE 15:8:1997

#ADD 4:9:1997

Appellant:

Counsel: Mr D A Trim QC with him Mr B M O'brien

Solicitors: Rowell Forrest & Co

Respondent:

Counsel: Mr P A Mcnamara

Solicitors: Johnson Winter & Slattery

Order: appeal dismissed.

DOYLE CJ

I have read the reasons for decision of Lander J and Bleby J. I agree that the appeal should be dismissed. I agree generally with the reasons that each of them gives.

I add the following brief remarks to indicate what I consider to be the issue in this case and the relatively narrow basis upon which it can be decided.

The case is not concerned with communications between solicitor and client for the purposes of seeking or giving legal advice.

The case concerns a document prepared by a solicitor for use in connection with litigation that was then on foot between the present plaintiff and others. That litigation has now come to an end.

The reasons for the protection from disclosure of material prepared for use in litigation may differ, in some respects, from the reasons for the protection from disclosure of material brought into existence for the purposes of giving or obtaining legal advice: see Ligertwood, Australian Evidence (2nd ed 1993) para 5.22 p216. I refer here to material, although, of course, legal professional privilege applies equally to communications which have a material form and communications which do not.

Nevertheless, the High Court has identified a single and unifying rationale for both aspects of legal professional privilege. In Grant v Downs (1976) 135 CLR 674 Stephen J, Mason J and Murphy J said (at 685):

"The rationale of this head of privilege, according to traditional doctrine, is that it promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisers, the law being a complex and complicated discipline."

The majority judgment in Grant v Downs (supra) authoritatively states the law of Australia on the matters with which it deals. That judgment is to be taken as dealing with communications between solicitor and client for the purpose of giving and receiving advice, and with documents brought into existence by a solicitor for use in actual or contemplated legal proceedings, the so-called "litigation privilege". What I have just said appears from the judgments of all members of the High Court in Commissioner Australian Federal Police v Propend Finance Pty Ltd (1977) 141 ALR 545 at 548 Brennan CJ, 554-555 Dawson J, 576-577 Gaudron J, 583-585 McHugh J, 596-597 Gummow J and 610 Kirby J.

It also appears from those portions of the judgments just referred to that the subject matter of the privilege is a communication. Or, to be a little more precise, a communication of information. Confusion can arise if one loses sight of this point and focuses attention upon a document constituting or recording a communication, when a document is in question, rather than upon the communication contained within and made by the document.

To determine whether privilege attaches to a document, it is necessary to identify and consider the purpose for which the communication made by or constituted by the document is made. This is clearly illustrated by the decision of the High Court in Goldberg v Ng (1995) 185 CLR 83. That case dealt with two statements prepared by a solicitor relating to dealings with Mr and Mr Ng, former clients of his. The statement was prepared by Mr Goldberg, the solicitor in question, for the use of another solicitor who had been retained by Mr Goldberg in connection with disputes with the Ngs. Although those statements related to dealings between Mr Goldberg and the Ngs, and communications between them, they were privileged because the statements were prepared for the use of the solicitor retained by Mr Goldberg in relation to anticipated proceedings by the Ngs against Mr Goldberg. That was the purpose of the communication contained within the statements. The statements were confidential because of their character as statements of Mr Goldberg's version of the relevant events.

The document in question in the present case is a communication of information by Mr Lipman, the solicitor in question, the information being communicated for use in the earlier litigation in the Federal Court. It is a communication, or a potential communication, to and for the use of the person who would conduct the proceedings in the Federal Court on behalf of the plaintiff.

The communication of information made by the document in question, and the purpose of that communication, is to be distinguished from the original communication of information between Mr Lister and Mr Lipman. I am prepared to assume that the conversation between Mr Lister and Mr Lipman was not confidential, in the sense that Mr Lister could not be restrained from informing other persons of what passed between him and Mr Lipman. I am prepared to assume, although it is not necessary to decide, that the conversation between Mr Lister and Mr Lipman was not itself protected by legal professional privilege. I stress, I am prepared to make that assumption. As Bleby J rightly points out, the question of whether the conversation between Mr Lister and Mr Lipman is protected by legal professional privilege is a separate question. On that point I refer in passing to what was said by Malcolm CJ in Southern Equities Corporation Limited v West Australian Government Holdings Limited (1993) 10 WAR 1 at 4-5.

Any perceived oddity in the fact that the communication by Mr Lister to Mr Lipman was not or may not be privileged, whereas the communication contained within the document made by Mr Lipman for use in the Federal Court Proceedings is privileged, is met by making two points. First, that attention is to be directed to the purpose of the communication made by Mr Lipman when he recorded what Mr Lister had said to him: Goldberg v Ng (supra). Secondly, by bearing in mind that in Propend (supra) the High Court decided that privilege may attach to a copy of a document even though the document itself is not privileged, and, once again, the privilege will attach if and because the copy is made solely for the purpose of obtaining legal advice or solely for use in legal proceedings.

In one sense, it can be said that the decision in this case is determined by what the High Court decided in Goldberg v Ng. But, in my opinion, any lingering doubt, based upon the fact that the communication between Lipman and Lister was not confidential and was not privileged, is removed by the decision of the High Court in Propend.

I recognise, of course, that there are plenty of difficulties as yet unresolved in this field. The decision to which I have come draws a distinction between, on the one hand, the communication between Mr Lister and Mr Lipman, and on the other hand, the communication contained in the document made by Mr Lipman. That distinction will not

always be so easily drawn. The decided cases referred to by Lander J illustrate the difficulties which will be found in this field. It is for that reason that I have taken some care to make as clear as I can the basis upon which I have reached my decision.

It is for those reasons that, in my opinion, the appeal should be dismissed.

LANDER J

The appellants Robert Lister & Company Pty Ltd and Robert Ian Lister are third parties in a matter in which the respondent (plaintiff) has brought action against a firm of chartered accountants and the plaintiff's former directors in relation to a takeover by the plaintiff of an entity known as the CHC Group in 1987.

The plaintiff had previously brought proceedings against CHC and parties connected with it in May 1988. The appellant Robert Lister, who is an employee of the appellant Robert Lister & Company Pty Ltd was engaged by the plaintiff to provide a valuation of some of the assets comprised in the take over. In 1988 Mr Scipio Lipman, a partner in Messrs Thomson Simmons & Co, the then solicitors for the respondents, attended at the offices of the appellants in Melbourne and interviewed Mr Robert Lister for the purpose of obtaining a statement.

In these proceedings the appellants sought production for inspection and copying of document number 73 in Schedule 1 Part II of the plaintiff's First List of Documents described as "Statement of Robert Ian Lister". The plaintiff refused to produce the document for inspection and copying and the appellants brought an application for inspection and copying. The parties agreed the following facts for the purpose of the application, which was heard by a Master.

"1 The document of which Robert Ian Lister & Company Pty Ltd and Robert Ian Lister seek production, is described in the plaintiff's first list of documents dated 14 April 1994 as "73 00/06/88 Statement of Robert Ian Lister".

2 In June 1988, Federal Court proceedings (South Australian Registry Action No G45 of 1988) were on foot between the plaintiff and others as applicants and Dr Ian McGoldrick and others as respondents by which HLC, as purchaser of 21 private hospitals ("the new assets") was claiming damages in contract and pursuant to the Trade Practices Act 1974 (Commonwealth) against McGoldrick and the other respondents as vendors of the new assets. During the course of negotiations for the purchase of the new assets, Lister, a valuer, was engaged by HLC to provide and did provide valuations of each of the new assets.

3 The said Federal Court proceedings were commenced on 23 May 1988.

4 The solicitors on the record for HLC in the said Federal Court proceedings was the firm of solicitors then known as Thomson Simmons & Co.

5 One of the solicitors at Thomson Simmons & Co who had the conduct of the said Federal Court proceedings on behalf of HLC was Mr Skip Lipman.

6 Mr Skip Lipman attended upon Mr Lister for the purpose of obtaining a statement from Mr Lister which would be used as the basis of a proof of the evidence which Mr Lister would give if called as a witness in the said Federal Court proceedings. This statement is the document referred to in paragraph 1 hereof.

7 The said Federal Court proceedings were discontinued without trial on a date in January 1989.

8 Lister did not swear any affidavit in the said Federal Court proceedings and did not give any oral evidence in the said Federal Court proceedings.

9 Neither Lister nor Robert Lister & Company Pty Ltd were joined as parties to the said Federal Court proceedings at any time."

The Master refused the application upon the basis that, although the communication between Mr Lister and Mr Lipman may not have been confidential, the document prepared by Mr Lipman as the statement of Robert Ian Lister "was and remains confidential" and was a document to which legal professional privilege attached. The appellants appealed from that decision to Bollen J, who also concluded that the document was privileged from production and dismissed the appeal. On 10 February 1997 leave was granted to the appellants to appeal from the decision of Bollen J to this Court.

In his reasons for judgment, the Master said:

"The only inference that I can draw from the agreed statement of facts is that Mr Lipman prepared a 'statement' based on his conversation with Mr Lister and retained that statement on his file for the purposes of advising his client as to what Mr Lister would say if he was called to give evidence."

That finding was not challenged in the appeal before Bollen J or before this Court. I think that the appellant was right not to challenge that finding which is an inference clearly open upon the agreed facts.

The appellants argued that the rationale for legal professional privilege emanates from the requirement of keeping secret communications between a party and that party's legal adviser and communications between that legal adviser and third parties for the purpose of obtaining information for the giving of legal advice. In circumstances where the communication is between a party's legal adviser and a third party and that third party seeks release to him or her of that communication then the need for confidentiality does not exist because there is no confidentiality to safeguard, or secrecy to keep. They relied upon a statement of Robertson JA in Flack v Pacific Press Ltd (1970) 14 DLR (3d) 334 at 341:

"It can be no discouragement of laymen consulting lawyers that a party is allowed to see a document which he himself supplied to an opposite party. The information having originated with the one party, there is no secrecy to guard."

It was put that it was not to the point that the document, which embodied the communication, was prepared at a subsequent time nor that it was not signed by the party providing the information to the legal adviser. It was argued that if the document which was subsequently prepared contained a record of the communication made between the third party and legal adviser then it could not contain any information which was confidential or secret and therefore legal professional privilege would not attach, because there would be no need to protect that communication. Therefore, as the content of the document (i.e. the oral communication) was never confidential, the oral communication was never entitled to the protection of legal professional privilege and nor was the document. Therefore the document was liable to be produced for inspection.

The argument proceeded in the Courts below upon a consideration as to whether Feuerheerd v London General Omnibus Company Ltd [1918] 2 KB 565 was correctly decided. It was argued by the appellant that that decision, which has been much criticised, was wrong. In Feuerheerd v London General Omnibus Company Ltd (supra) the plaintiffs gave a signed statement to the defendant's claims inspector in circumstances where they thought they were meeting a representative of their own solicitors. The Court of Appeal held that the statement was privileged from production to the plaintiffs because it was a statement obtained for the purpose of being laid before the solicitors for the defence of the action. It held that the fact that the statement was that of the plaintiffs was not to the point because the statement was prepared for the purpose which satisfied the test of legal professional privilege.

The case has been much criticised for the reasons expressed by Robertson JA in Flack v Pacific Press (supra) upon the ground that because the information originated with the party seeking release of the document the circumstances of the communication were not confidential and there was no secrecy to ground.

Feuerheerd v London General Omnibus Ltd was not followed in Aydin v Australian Iron & Steel Pty Ltd (1984) 3 NSWLR 684, Jamison v Government Insurance Office (NSW) (1988) 7 MVR 209 and Telebooth Pty Ltd v Telstra Corporation [1994] 1 VR 337. It was followed in Vardas v South British Insurance Co Ltd (1984) 2 NSWLR 652, Nickmar Pty Ltd v Preservatrice Skandia Insurance Ltd (1985) 3 NSWLR 44 and Handley v Baddock [1987] WAR 98.

In Aydin v Australian Iron & Steel Ltd (supra) an investigator employed by the defendant prepared a document setting out answers given by the plaintiff in relation to the accident the subject matter of the litigation. He then read the statement to the plaintiff and the plaintiff signed the document as true and correct. Hodgson J was not satisfied that the sole purpose of the document was to submit to the defendant's solicitors in the event that proceedings were brought by the plaintiff. That would have been enough to dispose of the claim for privilege but Hodgson J went on to say that he believed the decision in Feuerheerd v London General Omnibus Co Ltd was plainly wrong for the same reasons given by Robertson JA in Flack v Pacific Press (supra).

Carruthers J in Jamison v Government Insurance Office (NSW) (supra) concluded that a communication between the legal adviser of one party and the person who was opposed could not be the subject of legal professional privilege because the communication lacked the requisite confidentiality.

Telebooth Pty Ltd v Telstra Corporation (supra) was a case concerned with communications between representatives of the parties. Hedigan J, after considering the authorities and Feuerheerd v London General Omnibus Co Ltd, held that a tape of a conversation between two representatives of opposing parties was not privileged because it was not a confidential communication even though it was brought into existence by one party solely for the purpose of submission to legal advisers.

The rationale for legal professional privilege has been stated in the following terms in Grant v Downs (1976) 135 CLR 674 at 685:

"The rationale of this head of privilege, according to traditional doctrine, is that it promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisers, the law being a complex and complicated discipline. This it does by keeping secret their communications, thereby inducing the client to retain the solicitor and seek his advice, and encouraging the client to make a full and frank disclosure of the relevant circumstances to the solicitor. The existence of the privilege reflects, to the extent to which it is accorded the paramountcy of this public interest over a more general public interest, that which requires that in the interests of a fair trial litigation should be conducted on the footing that all relevant documentary evidence is available. As a head of privilege legal professional privilege is so firmly entrenched in the law that it is not to be exorcised by judicial decision."

The reason for the legal professional privilege is, as stated in Grant v Downs (supra), to assist and enhance the administration of justice in encouraging parties to obtain legal representation. It encourages parties to obtain legal representation by ensuring that communications between parties and their legal representatives are kept confidential. The consequence of legal professional privilege is to keep the subject matter of the communication whether oral or written confidential as between the solicitor and client. It is the communication which is the subject of legal professional privilege and therefore it is the communication which is kept confidential.

It is not every communication with a legal adviser that is subject to legal professional privilege but only those communications made solely for the purpose of contemplated or pending litigation or for obtaining or giving legal advice: Grant v Downs (supra), O'Reilly v Commissioners of State Bank of South Australia (1983) 153 CLR 1. It is not therefore every confidential communication which is protected.

The test, therefore, for whether or not a communication is subject to legal professional privilege does not depend upon the confidentiality of the communication but the purpose for which the communication was made. Of course a communication between a legal adviser and his or her client which is not confidential could not be the subject of legal professional privilege because there is nothing to keep secret. So if a communication took place between a client and the legal adviser in the presence of third parties who were not similarly interested in the communication to the legal adviser, i.e. were not present for the purpose of a confidential communication, that communication would not attract legal professional privilege.

Where the communication is between a legal adviser and his or her client the circumstances of the communication must be one of confidentiality but the subject matter of the communication need not be. For example the communication of publicly available information by a client to the legal adviser in circumstances of confidentiality for the sole purpose of contemplated or pending litigation or for obtaining or giving legal advice will be subject to legal professional privilege, even though the subject matter of the communication was information in the public domain.

Thus it is that a document which has been prepared other than solely for the purpose of contemplated or pending litigation or for obtaining or giving legal advice is not privileged but it may become privileged if it becomes the communication by the client to the legal adviser: Commissioner, Australian Federal Police and Another v Propend Finance Pty Ltd (1997) 141 ALR 545. In that case the High Court decided that where the original of a document was not protected by legal professional privilege a copy may be, if it was brought into existence solely for use in legal proceedings or made solely for the purpose of obtaining legal advice. That decision is consistent with the proposition that a confidential communication which has taken place for one of the sole purposes identified in the authorities will be protected from legal professional privilege even if the subject matter of the communication is not of itself confidential.

But it is not only communications directly between legal advisers and their clients that are protected by legal professional privilege. In Trade Practices Commission v Sterling (1979) 36 FLR 244 at 245, Lockhart J identified various classes of documents or communications which might give rise to legal professional privilege. He included in these classes:

"Communications and documents passing between the party's solicitor and a third party if they are made or prepared when litigation is anticipated or commenced, for the purposes of the litigation, with a view to obtaining advice as to it or evidence to be used in it or information which may result in the obtaining of such evidence. See Wheeler v Le Marchant (1881) 17 Ch D 675; Laurenson v Wellington City Corporation [1927] NZLR 510 and O'Sullivan v Morton [1911] VLR 70."

In Wheeler v Le Marchant (1881) 17 Ch D 675 it was contended that any communication between a solicitor and a representative of that solicitor's client or any other person the solicitor communicated with confidentially, for the purpose of advising the client, was protected by legal professional privilege. The Court of Appeal determined that it was not every confidential communication which is protected. Jessel M R said:

"Now, keeping that in view, what has been done is this: The actual communication to the solicitor by the client is of course protected, and it is equally protected whether it is made by the client in person or is made by an agent on behalf of the client, and whether it is made to the solicitor in person or to a clerk or subordinate of the solicitor who acts in his place and under his direction. Again, the evidence obtained by the solicitor, or by his direction, or at his instance, even if obtained by the client, is protected if obtained after litigation has been commenced or threatened, or with a view to the defence or prosecution of such litigation. So, again, a communication with a solicitor for the purpose of obtaining legal advice is protected though it relates to a dealing which is not the subject of litigation, provided it be a communication made to the solicitor in that character and for that purpose. But what we are asked to protect here is this. The solicitor, being consulted in a matter as to which no dispute has arisen, thinks he would like to know some further facts before giving his advice, and applies to a surveyor to tell him what the state of a given property is, and it is said that the information given ought to be protected because it is desired or required by the solicitor in order to enable him the better to give legal advice. It appears to me that to give such protection would not only extend the rule beyond what has been previously laid down, but beyond what necessity warrants.

The position is somewhat different when the communication is between a legal adviser and a third party. A legal adviser will often have communications with third parties for the purpose of obtaining information in contemplated or pending legal proceedings. Whilst those communications may be confidential in form and whilst the legal adviser has a duty to keep those communications confidential to the legal adviser and the client and any other party who might be relevant in assisting in the litigation, those communications are not confidential in that the third party is under no obligation to keep them confidential from any other party. The third party is usually at liberty to pass on the whole of the communication to any one else he or she pleases including the opposing party. However any document prepared evidencing that communication between the legal adviser and the third party will be subject to a claim for legal professional privilege by the client of that legal adviser if it satisfies the other criteria required to raise a claim of legal professional privilege. Wheeler v Le Marchant (supra), Trade Practices Commission v Sterling (supra) and Nickmar Pty Ltd v Preservatice Skandia Insurance Ltd (supra) at 55.

Any statement which the legal adviser prepares for the sole purpose of contemplated or pending legal proceedings, whether or not the communication giving rise to the preparation of the statement was confidential in the sense that I have explained a confidential communication between a legal adviser and a third party, will be privileged. It does not matter whether that statement was prepared as a consequence of a confidential communication from the client to the client's legal adviser or as a result of a communication from a third party to the legal adviser.

The document in this case was prepared as the basis of a proof of evidence which Mr Lister would give if he had been called as a witness in the Federal Court proceedings. In those circumstances it can be said that the document was prepared solely for the purpose of pending litigation. It has apparently been prepared by the legal adviser in circumstances of confidentiality. It seems to me that the document must therefore be one to which legal professional privilege attaches.

It is not to the point that the subject matter of the communication is not confidential. In road accident cases a defendant is entitled to obtain a plaintiff driver's statement to the Police. That document, if copied for the purpose of submission to counsel for the defendant for advice, in proceedings brought by the plaintiff, would be the subject of legal professional privilege even though the whole subject matter of the document is known to the plaintiff in the proceedings. Therefore I do not think that it can be said that Feuerheed v London General Omnibus Company Ltd was wrongly decided because the information originated from the party who seeks production.

The decision of the High Court in Commissioner, Australian Federal Police and Anor v Propend Finance Pty Ltd (supra) is consistent with the result at which I have arrived. Indeed the reasoning in that case is decisive in relation to this appeal.

In my opinion the appeal ought to be dismissed.

BLEBY J

I agree that the appeal should be dismissed, and I am in general agreement with the reasons given by Lander J. I merely wish to add some brief remarks of my own.

The rationale for legal professional privilege is the public interest in the preservation of the confidentiality between a solicitor and the solicitor's client: Grant v Downs (1976) 135 CLR 674 per Stephen, Mason and Murphy JJ at 685. It is personal to the client, and can only be waived by the client. For communications to attract the privilege, they must, of course, meet the criteria laid down in Grant v Downs, namely that they are brought into existence for the sole purpose of their being submitted to legal advisers for advice or use in legal proceedings.

Lack of confidentiality of information given by a third party to a solicitor who is bound by his client's privilege cannot determine whether the communication to the client of that same information is privileged. It still requires an analysis of the purpose of the communication: Commissioner, Australian Federal Police v Propend Finance Pty Ltd (1997) 141 ALR 545. Confidentiality or lack of it between the solicitor in those circumstances and the third party cannot therefore be the rationale behind the claim for privilege.

That the purpose of the communication is the determining factor can be seen from Goldberg v Ng (1995) 185 CLR 83 per Deane, Dawson and Gaudron JJ at 93. In that case, information which had previously been given by former clients to their solicitor became the subject of written "proofs of evidence" prepared by the solicitor for submission to his own solicitors in connection with proceedings contemplated by the former clients against the solicitor. The proofs containing the information were nevertheless privileged from production to the former clients because they were prepared solely for the purpose of submission to the solicitor's own legal advisers.

The right to confidentiality of the document the subject of these proceedings became not that of the present appellants but of the plaintiff, as an internal note or memorandum pertaining to its proceedings against the CHC group in 1987. Furthermore, there is no suggestion that the document created by the solicitor was a verbatim report of the conversation with Mr Lister, and there is a risk that the solicitor, by omission or by the way he recorded the information, might indicate a view of the case or of the information which further justifies the maintenance of the privilege. It was his interpretation of what Mr Lister might say.

In this case, the appellant's argument fails to distinguish between the communication given orally to the solicitor and the record made by the solicitor. The communication from Mr Lister to the solicitor may or may not be privileged. It was that type of communication, although in written form, that was in issue in Feuerheerd v London General Omnibus Ltd [1918] 2 KB 565 and similar cases to which Lander J has referred. Protection of that communication is not a question which arises in these proceedings, and I refrain from deciding it. It would only arise if the solicitor were asked questions about it in evidence or if the respondent were asked about it by way of interrogatories. Those cases are also complicated by the fact that they mostly involve communications on a subject matter which

was either then the subject of litigation or which was then in contemplation as being the subject of litigation and from a party or intended party to that litigation. That may make it more difficult, depending on the circumstances, for the Grant v Downs test to apply to the communication at all. However, that is not this case.

Once the creator of the document in question and the purpose of its creation was established by the statement of agreed facts and the inferences properly drawn therefrom by the Master, the privilege was established. The privilege did not arise because the information obtained from Lister was confidential as between Lister and the solicitor. Plainly it was not. The privilege attached to the communication (the file note) because it was prepared for a purpose for which privilege arises. Commissioner, Australian Federal Police & Anor v Propend Finance Pty Ltd (1997) 141 ALR 545 makes it abundantly clear that a document prepared or even copied for that purpose makes the document or copy (as the case may be) privileged. That also appears to have been the basis of the decision in circumstances similar to those of this case in Handley v Baddock [1987] WAR 98. I consider that that case was rightly decided. At page 102 Master Seaman QC observed:

"There is a distinction between the purpose for which the information is obtained and the purpose for which the document recording the information is brought into existence and it is the latter purpose for which the law of professional privilege is concerned: National Employers' Mutual General Insurance Association Ltd v Waind (1979) 14 CLR 648 at 652-654."

I agree with that distinction.

I recognise that there have been differing views expressed as to whether a signed statement by a third party given to a solicitor is privileged against that third party. As I said, that is not this case. However, I agree with Lander J that the answer to that dilemma does not depend on the fact that the information emanated from the party who seeks production. It will depend on a proper application of the purposes for which the communication is made. In some cases, although the document may have some bearing on the litigation, it may not have been produced solely for the purpose of the litigation. Aydin v Australian Iron and Steel Pty Ltd (1984) 3 NSWLR 684 is an example of that.

Some other cases seem to base their reasoning as to the existence or otherwise of the privilege on whether or not there is a lack of confidentiality by the author of the communication. That appears to be the case in Telebooth Pty Ltd v Telstra Corporation Ltd [1994] 1 VR 337 and in Jamison v Government Insurance Office (NSW) (1988) 7 MVR 209. I make no comment about the correctness of those decisions, although I doubt that lack of confidentiality to the author of the communication can be a determining factor.

A question did arise in argument as to the onus of proof in establishing privilege for documents such as this, and whether that onus had been discharged. It is plainly on the party asserting the privilege to establish the nature of the document either by description of the document, by affidavit or other acceptable evidence as to the nature of the document, or sometimes by having the relevant judicial officer looking at the document. The description in the list of documents "Statement of Robert Ian Lister" and nothing more would not have been enough to establish the privilege. However, by the time the matter came before Master Burley there was placed before him the statement of agreed facts, including, importantly, paragraph 6, from which the Master properly drew the inference that "Mr Lipman prepared a

'statement' based on his conversation with Mr Lister and retained that statement on his file

for the purposes of advising his client as to what Mr Lister would say if he was called to give evidence". As Lander J has pointed out, the drawing of that inference was not challenged before Bollen J or before us, and the onus of establishing the nature of the document for the purpose of establishing the privilege was sufficiently discharged.

I agree that the appeal should be dismissed.