Idoport P/L v NAB Ltd

[1999] NSWSC 803

CITATION:	IDOPORT P/L & ANOR v NAB LTD & ORS [1999] NSWSC 803
CURRENT JURISDICTION:	COMMERCIAL DIVISION
FILE NUMBER(S):	50113/98
HEARING DATE(S):	2/08/99
JUDGMENT DATE:	2 August 1999
PARTIES :	IDOPORT PTY LTD & ANOR v NATIONAL AUSTRALIA BANK LIMITED & ORS
JUDGMENT OF:	Bryson J at 1

COUNSEL :	Garnsey QC, Hancock and Titterton for Plaintiffs Hughes QC and H. Insall for Defendants
SOLICITORS:	Withnell Hetherington for Plaintiffs Freehill Hollingdale & Page for Defendants
CATCHWORDS:	EVIDENCE - client legal privilege - inspection of documents produced on call - claim of client legal privilege was decided by applying Evidence Act 1995 (NSW) s.118 on the authority of Akins v Abigroup - production on call during the trial was ancillary to adduction of evidence, not adduction of evidence - Akins was followed as binding authority - decision of CCA in R v Young was not binding - the binding effect of decisions is produced by the power to hear appeals.
CASES CITED:	Akins & Ors v Abigroup Pty Ltd 43 NSWLR 539 at 545 Viro v The Queen (1978) 141 CLR 88 R. v. Young [1999] NSW CCA 166
DECISION:	See paras 15 and 17

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRYSON J.

MONDAY 2 AUGUST 1999

50113/98 IDOPORT PTY LTD & ANOR v NATIONAL AUSTRALIA BANKI LIMITED & ORS

JUDGMENT

1 HIS HONOUR: The hearing of these proceedings has continued over several days before Einstein J. On 28 July 1999 defendants’ counsel made a call for production of some documents. This call was delivered orally from the Bar table in the course of the hearing. The plaintiff produced documents in answer on 29 July and of those documents Einstein J set aside documents in two envelopes marked "Privileged" as they were subject to claims of client legal privilege on which his Honour did not rule. 2 Einstein J requested me to hear and determine the claim of client legal privilege. For some reason which I do not know, and have no occasion to know, his Honour did not regard it as appropriate that he should decide the matter. 3 In respect of documents in one envelope marked "Counsel's Advice", the defendants' counsel has today not pressed me to come to a conclusion so that the privilege claim remains undetermined and the documents will remain in the envelope marked as now marked unless and until there is some further ruling. 4 The second envelope is marked "Litigation Reports" and contains four documents. The first is a letter from Idoport Pty Ltd to Mr Port, chief executive of OAMP, dated 1 December 1998. I have been told today that in respect of that document there is now no privilege claimed. Accordingly, it may be inspected. 5 The second document is a letter from Idoport Pty Ltd to Mr Lamont, Chairman of OAMPS, in respect of which I have been told today that the privilege claimed relates to some passages in the document. I have been shown a copy with some passages blanked out, so the blanking identifies the passages said to be privileged. 6 I propose to proceed to rule on the claim for privilege for the parts blanked out on the basis of the material before me, i.e. only the contents of the documents themselves. 7 The third document is a letter from Idoport Pty Ltd to Mr Lamont dated 5 May 1999 for which there is no privilege claim and it may now be inspected. 8 The fourth is a report on the NAB claim dated 11 June 1999. For this document there is a privilege claim, again for some parts which are blanked out, on which I am to rule. 9 On reading document number 2 and the corresponding document with passages blanked out, it is in my opinion clear from the terms of the passages blanked out and their content that, in the words of s 118 of the Evidence Act 1995, adducing evidence of them, or - I should interpose - producing them for inspection by another party in answer to a call, would result in disclosure of a confidential communication made between the client and a lawyer. Mr Maconachie communicated to Mr Lamont the terms of legal advice or other advice from lawyers representing him and his companies, and the terms of the material themselves indicate that they were confidential in nature and that they related to the conduct of the proceedings. Document 2 is not a communication between lawyer and client but is protected having regard to the provisions of subs 122(2), because the communication passing between Mr Maconachie and Mr Lamont was itself a confidential communication. That it was a confidential communication appears from its general nature, and also by express reference to confidentiality in the report annexed to the letter. 10 In my opinion the privilege claimed for the blanked-out passages in the copy document 2 should be allowed and inspection of document 2 should be restricted. 11 Document 3 is in the same position as document 1, i.e. there is now no claim of privilege. 12 Document 4 is in the same position as document 2 and, for similar reasons as for document 2, it appears on consideration of the contents of the document and the passages blanked out that client legal privilege extends to protect the document against inspection by another party. 13 Section 118 relates to the adduction of evidence. The events which have given rise to the question before me arise on a proceeding ancillary to the adduction of evidence; the claim was made in the course of proceedings for the production of documents on call. I have applied the view expressed in the judgment of Mason P in Akins & Ors v Abigroup Pty Ltd 43 NSWLR 539 at 545 and following, and I have made these rulings on the footing that the provisions of the Evidence Act 1995 ought to apply by analogy to privilege claimed on such a call. The procedure followed could not be referred to as pre-trial gathering of evidence. Mason P uses that expression in his judgment to extend to processes ancillary to trials: see 545D. As I understand his Honour, his Honour's ruling is no less applicable to a process for the production and inspection of documents where the process happens whilst the trial is actually proceeding. 14 In revising these reasons I add that I have followed the holding in Akins because it is a binding authority, notwithstanding that the opposite view is strongly supported by other decisions, most notably by the decision of the Court of Criminal Appeal in R. v. Young [1999] NSW CCA 166. The binding effect of decisions is produced by the power to hear appeals: see Viro v The Queen (1978) 141 CLR 88 at 93 (Barwick CJ) 120 (Gibbs J) 129 (Stephen J) 173-174 (Aickin J). The Court of Criminal Appeal does not have power to hear an appeal from my decision in this application. 15 I make the following directions:

(1) I direct that each party and the legal representatives of each party may inspect for the purpose of these proceedings documents 1 and 3 of the documents produced by the plaintiff before Einstein J on 29 July 1999 in answer to a call for the production of documents made on 28 July 1999 and contained in the envelope marked "Litigation Reports".
(2) I direct that each party and the legal representative of each party may inspect copies of documents numbers 2 and 4 in the envelope, being copies which I have initialled for identification, from which certain passages have been blanked out.
(3) The envelope containing the litigation reports is returned to plaintiff's counsel who should comply with the direction by producing documents for inspection and should protect the plaintiff's interests as that is done.
(4) The envelope marked "Counsel's Advice", on which I have not ruled, will remain with the papers.

16   Today counsel representing the plaintiffs, and also counsel representing OAMP, sought to embark upon obtaining my ruling by objecting, on the basis of client legal privilege and the provisions of subs 122(5)(b) relating to common interest, to inspection of documents produced on subpoena by a number of companies, including OAMP Funds Management Limited, Australian International Insurances Limited and Vigil Underwriting Agencies Pty Limited in response to subpoenas issued by leave of Einstein J granted on 28 July 1999. The claim for privilege appeared to me to involve a need the ground of the claim and to establish the claim by evidence, it may be by affidavit or it may be by evidence already introduced at the trial before Einstein J, of the factual basis for the claim. The claim for privilege relating to documents produced on subpoena is not within the range of the matters which Einstein J referred to me: it relates to a trial which is proceeding before him. I do not think it would be good practice for me to embark upon deciding such a claim otherwise than in accordance with the wish of the judge of trial. In any event, the claim does not appear to me to be in a condition where it could be properly addressed for lack of definition of grounds and establishment of its factual basis. For that reason I have not completed the hearing of the application or made any ruling upon it. 17   Order:
(5) The costs of the application today are reserved for decision by Einstein J.

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