Herridge v Electricity Networks Corporation t/as Western Power
[2016] WASC 372
•16 NOVEMBER 2016
HERRIDGE -v- ELECTRICITY NETWORKS CORPORATION t/as WESTERN POWER [2016] WASC 372
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 372 | |
| 16/11/2016 | |||
| Case No: | CIV:2259/2015 | ON THE PAPERS | |
| Coram: | MARTIN CJ | 7/11/16 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | DANIEL HERRIDGE and the Plaintiffs listed in Schedule 1 to the Further Amended Writ of Summons ELECTRICITY NETWORKS CORPORATION t/as WESTERN POWER VENTIA UTILITY SERVICES PTY LTD NOREEN CAMPBELL |
Catchwords: | Practice and procedure Discovery Claims of legal professional privilege Application for orders for inspection Whether claims properly made |
Legislation: | Nil |
Case References: | Powercor Australia Ltd v Perry [2011] VSCA 239 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiffs
AND
ELECTRICITY NETWORKS CORPORATION t/as WESTERN POWER
First Defendant
VENTIA UTILITY SERVICES PTY LTD
Second Defendant
NOREEN CAMPBELL
Third Defendant
Catchwords:
Practice and procedure - Discovery - Claims of legal professional privilege - Application for orders for inspection - Whether claims properly made
Legislation:
Nil
Result:
Application dismissed
Category: B
Representation:
Counsel:
Plaintiffs : Mr L Armstrong QC
First Defendant : Mr J Campbell
Second Defendant : No appearance
Third Defendant : No appearance
Solicitors:
Plaintiffs : Slater & Gordon Lawyers
First Defendant : DLA Piper
Second Defendant : Corrs Chambers Westgarth
Third Defendant : Minter Ellison Lawyers
Case(s) referred to in judgment(s):
Powercor Australia Ltd v Perry [2011] VSCA 239
1 MARTIN CJ: The plaintiffs, who claim to have suffered damage by reason of a fire in the vicinity of Parkerville, Western Australia, have applied for permission to inspect some of the documents discovered by the first defendant (Western Power) subject to claims of legal professional privilege. The relevant parties1 agreed that the application should be determined by the court on the papers, and exchanged documents necessary and appropriate to enable that to occur. These are my reasons for concluding that the application should be dismissed.
Legal principles
2 It is sufficient for present purposes to note that legal professional privilege can be claimed if a document was brought into existence for the dominant purpose of giving or obtaining legal advice, irrespective of whether that advice was to be given by, or obtained from, a lawyer employed by the party claiming privilege or an external legal advisor. That is the basis upon which Western Power has claimed privilege from inspection of the disputed documents.
3 For the purposes of this application the following propositions advanced by the plaintiffs in written submissions may be accepted:
(a) it is for the party claiming LPP [legal professional privilege] to provide focused and specific evidence substantiating the claim: Tabcorp Holdings Ltd v Victoria [2013] VSC 302 at [82] to [85]; Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Ltd (No 4) [2014] FCA 796 at [29]; Oswal v Oswal (No 4) [2016] VSC 386;
(b) a claim for privilege will not generally be made out by a bare assertion of a protected dominant purpose in relation to a document that, by the description given to it in the affidavit or list, has no apparent connection with legal advice or litigation: see Carey v Korda [2012] WASCA 228 at [70] to [71]; CTC Resources NL v Australian Stock Exchange Ltd [2000] WASCA 19; (2000) 22 WAR 48 [33]-[34];
(c) moreover, reports or advices that are not themselves advice (or obtained for use in litigation) will rarely attract privilege even if the party chooses to 'route' them through its lawyer: Asahi at [40-44]; Commissioner of Taxation (Cth) v Pratt Holdings Pty Ltd (2005) 225 ALR 266 at [45] to [48];
(d) absent sufficient evidence from the party claiming privilege (or, in some cases, an obvious context clearly implying a likelihood of privilege), the court will not inspect the documents but instead will simply reject the claims for privilege: Tabcorp at [97];
(e) where the party claiming privilege has provided proper substantiation, but there remains uncertainty or dispute, the court can inspect the documents to ensure there has been no misuse of LPP, especially by the device of 'routing' documents through in-house lawyers in order to cloak the documents with undeserved privilege: Oswal.
4 In addition, the plaintiffs have referred me to the decision in Powercor Australia Ltd v Perry.2 However, that case was primarily concerned with the ascertainment of the dominant purpose of a corporation in a context in which the evidence established that the relevant documents were prepared for multiple purposes. That issue does not arise in this case because, for the reasons which follow, there is no reason to doubt the assertions made in the affidavit of discovery with respect to the dominant purpose for which the disputed documents were brought into existence.
The claims for privilege
5 Western Power has claimed privilege from inspection of the disputed documents in an affidavit of discovery sworn by Mr Sam Barbaro, who is general counsel for Western Power. The affidavit discovers many documents and comprises a total of just under 700 pages. Claims for privilege from inspection are made in the form of a schedule which identifies the basis of each claim. Mr Barbaro refers to the claims for privilege in the text in his affidavit in terms which clearly adopt the basis for the claims of privilege enunciated in the schedule to the affidavit. Further particulars in support of the claims for privilege have been provided by solicitors acting on behalf of Western Power in the course of correspondence between the parties although, for the reasons which follow, it is unnecessary to refer to that information in detail, as it simply amplifies or augments the primary basis of the claims for privilege contained in the schedule to Mr Barbaro's affidavit.
6 For the purposes of these reasons it will be sufficient to describe the basis for the claims made in Mr Barbaro's affidavit in general terms illustrated by examples. The claims made have a number of general characteristics. First, each claim made is specific to the particular document to which it relates and describes the character of the document and the purpose for which it was brought into existence (although some of the documents in respect of which privilege is claimed are of the same kind and have the same provenance as other documents for which privilege is claimed). Second, in each case a connection is drawn between the creation of the document and the purpose of either obtaining or providing legal advice, either by lawyers employed by Western Power or by external legal advisors retained by Western Power.
7 The following examples of the claims made in the affidavit illustrate these characteristics:
• 'file note prepared on instruction from Western Power legal counsel for the purpose of providing legal advice';
• 'annexures to legal advice, photographs taken from expert report obtained by external legal advisors';
• 'attachment to privileged email - information provided to in-house counsel for the purpose of providing legal advice';
• 'internal email correspondence - collecting information requested by in-house legal counsel for the purpose of providing legal advice';
• 'internal email requesting information sought by external legal advisors for the purpose of providing legal advice';
• 'legal advice of Western Power's in-house counsel'; and
• 'memorandum prepared by Western Power in-house counsel regarding Parkerville fire timeline; legal advice'.
8 There is one document in respect of which the claim for privilege is made on a basis that is less clear. I will address that document specifically later in these reasons.
The grounds of the application for inspection
9 As is often the case in applications of this kind, the plaintiffs do not rely upon evidence which would suggest that the documents were not prepared for the dominant purpose ascribed to them in the affidavit of Mr Barbaro. Rather, the plaintiffs assert that the claims made do not sustain the privilege asserted when viewed in the light of the description of the document. So, for example, the plaintiffs assert that a particular document is, by its description as an 'activity history', not obviously prepared for advice or litigation, and further assert that routing the document through internal lawyers does not of itself confer privilege. Similarly, in the case of the documents which Mr Barbaro deposes were taken from an expert report obtained by external legal advisors, the plaintiffs assert that the photographs are 'not described in terms indicating an advice or litigation purpose'. In other cases a distinction is drawn between 'legal review' and legal advice, and in another case the plaintiffs assert that a reference to 'claims management' suggests that the document was prepared for insurance purposes rather than, as asserted in Mr Barbaro's affidavit, for the purpose of providing legal advice. In the case of documents described as emails requesting information sought by external legal advisors for the purpose of providing legal advice, the plaintiffs assert that the claim does not provide proper verification of the dominant purpose of the document.
10 I do not accept the plaintiffs' criticisms of the terms in which the claims for privilege have been made. As I have noted, and as is apparent from the examples of the claims which I have set out above, in each case a specific connection is drawn between the document and its provenance and the provision of legal advice by either employed lawyers or external legal advisors. The inferences which the plaintiffs would seek to draw from general terms used to describe the documents are insufficient to overcome the clear and explicit assertion of the connection between the document and the provision of legal advice. Further, the criticism of the claims made with respect to emails requesting information sought by external legal advisors to the effect that there has been no verification of the dominant purpose of the document overlooks the fact that the purpose of the document is explicitly asserted in Mr Barbaro's affidavit - that being the purpose of obtaining legal advice.
Inspection of the disputed documents
11 In light of the conclusion I have reached with respect to the adequacy of the claims for privilege made in Mr Barbaro's affidavit, it would have been entirely consistent with authority for me to decline to inspect the documents in respect of which the claims for privilege were made. However, having regard to the plaintiffs' assertion that, in some cases at least, the claims were made or documents 'routed' through lawyers to, in effect, 'mask' a dominant purpose which is not privileged, I have inspected the disputed documents. It is sufficient for present purposes to say that the documents correspond to the descriptions given to them in Mr Barbaro's affidavit, and there is nothing in any of the documents which would suggest that they were prepared for some purpose other than that identified in Mr Barbaro's affidavit.
A specific document
12 There is one document in respect of which the claim for privilege is not quite so clear. The claim was initially enunciated by Western Power in these terms:
Emails sent to third parties attaching record of meeting attended by the third parties. When the third parties attended the meeting they were advised that the meeting and the record of it were without prejudice and the document was created as part of a privileged and confidential investigation into the Fire by Western Power, and accordingly the meeting and the document should be treated as confidential by the third parties, and should not be disclosed to persons not directly involved in the confidential investigation.
13 The claim enunciated in those terms is, on its face, insufficient to sustain the privilege asserted, as there is no reference to either legal advice or investigation for the purposes of legal proceedings. However, since the claim was first advanced, Western Power have provided further information to the effect that the third parties attending the relevant meeting were employees of the second defendant in these proceedings. Mr Barbaro also attended the meeting and the email was sent to the third parties for the purpose of confirming or amending draft minutes of the meeting which were to be provided to Mr Barbaro for the purpose of him providing legal advice. I have inspected the document over which privilege has been claimed, and confirm that it conforms to the description provided by Western Power in the further information that it provided relating to the document. Put shortly, the document is a chain of emails clearly intended to finalise notes of a meeting with employees of the second defendant to be provided to Mr Barbaro for his consideration. It is reasonable to infer that the purpose of creating the document was to enable Mr Barbaro to provide legal advice to Western Power or to undertake investigations in relation to prospective litigation in conjunction with another prospective defendant, and Western Power have asserted that purpose in correspondence. Accordingly, I am satisfied that the claim for privilege in respect of this document has also been made out.
Summary and conclusion
14 For these reasons I have dismissed the plaintiffs' application for inspection of the disputed documents. At the next convenient directions hearing I will invite submissions from the parties in relation to the costs of the application, if they cannot be agreed.
1 The plaintiffs and the first defendant.
2Powercor Australia Ltd v Perry [2011] VSCA 239.
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