Jones v Southall and Burke Pty Ltd
[2002] FMCA 366
•15 February 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JONES v SOUTHALL AND BURKE PTY LTD | [2002] FMCA 366 |
| PRACTICE AND PROCEDURE – Legal privilege – whether privilege can be claimed for public documents – copies produced by print-out by solicitor of electronic data – no privilege. |
Grant v Downs (1975) 135 CLR 675
Esso Australia Resources v Federal Commissioner of Taxation (1999) 168 ALR 123, 74 ALJR 339
| Applicant: | NORMAN KENNETH JONES AS TRUSTEE OF THE PROPERTY OF HEATHER MACNEIL-BROWN, A BANKRUPT |
| Respondent: | SOUTHALL AND BURKE PTY LTD |
| File No: | MZ 704 of 2001 |
| Delivered on: | 15 February 2002 |
| Delivered at: | Melbourne |
| Hearing Date: | 12 February 2002 |
| Ruling of: | McInnis FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Hunt |
| Solicitors for the Applicant: | Abbott Stillman & Wilson |
| Counsel for the Respondent: | Mr Rosen |
| Solicitors for the Respondent: | Robert Richter & Associates |
ORDERS
The respondent produces the following documents:
(a)photocopy register search statement in relation to certificate of title volume 10392 folio 638 registered in the name of Heather MacNeil-Brown;
(b)photocopy historical person name extract dated 29 March 1999.
The respondent pay the applicant's costs of this application in accordance with rule 21.10 of the Federal Magistrates Court Rules 2001.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 704 of 2001
| NORMAN KENNETH JONES AS TRUSTEE OF THE PROPERTY OF HEATHER MACNEIL-BROWN, A BANKRUPT |
Applicant
And
| SOUTHALL AND BURKE PTY LTD |
Respondent
RULING
(Revised from transcript)
This is a hearing of an application by the applicants by way of a notice to produce filed 8 February 2002, wherein the applicant seeks from the respondent, returnable before the court on 12 February 2002, a number of documents for the purpose of evidence which had been referred to in the respondent's list of documents. Specifically, the applicants ask that the respondents produce three documents referred to in part 2 of schedule 1 of the respondent's list of documents filed in the court on
9 January 2002.
The documents are as follows:
(1)photocopy facsimile from Brady Fenton Lane and Co to McCormicks dated 30 March 1999;
(2)photocopy register search statement in relation to certificate of title volume 10392 folio 638 registered in the name of Heather MacNeil-Brown;
(3)photocopy historical person name extract dated 29 March 1999.
At the hearing before me Mr Hunt who appeared for the applicant conceded that legal privilege attaches to document 1 of the three documents to which I have referred. He otherwise disputes that legal privilege should attach to the remaining two documents. Mr Rosen for the respondent has asserted, as indicated in the respondent's list of documents, that legal professional privilege does attach to those documents.
It is not in dispute – and there is affidavit evidence to support the conclusion – that the two documents which now remain the subject of this application, were documents which were attached to the first of those documents where privilege is conceded; that is, the copy of the register search statement in relation to the certificate of title to which I have referred and the photocopy, it is said, of the historical person name extract dated 29 March 1999, were both documents which had in fact been forwarded by the solicitors for the applicant to accountants.
It is not in dispute that the purpose – indeed, the sole purpose of forwarding those documents was to obtain legal advice and to assist the respondents in relation to the preparation for this hearing. It is, however, significant to understand the nature of the two documents now in dispute. Both are documents which are readily available to the public. One is a register search statement in relation to a certificate of title and the other is a document which is regarded again as a public document, being an historical person name extract. It is conceded and common ground that both documents are readily available to members of the public.
During the course of submissions it became clear that although the documents are referred to as photocopies, they are in fact computer generated copies of electronic data which have been forwarded to the solicitors by the solicitors for the respondent and which have then been printed. The documents are both documents which are in existence at the respective public records office and available to be accessed electronically by solicitors who use what is described as a LAN data system. Hence, a more correct description of the documents might be a print out of electronically forwarded data based upon documents already in existence on public records.
On behalf of the applicant it is said that because of the nature of those documents privilege should not attach. It was argued on behalf of the respondent that any documents which are attached to an otherwise privileged covering letter will attach the protection of professional privilege. I was referred in particular to an extract on Civil Procedure Victoria and paragraph 2901580, where the learned authors say:
“The documents protected by legal professional privilege are not limited to documents containing legal advice to the client or a request of the client for the advice. The protection extends to documents passing between them which contains information to enable legal advice to be sought or given (see Belabel v Air India (1988) Ch 317 at 330; and ACCC v Australian Safeway Stores (1998) 81 FCR 526 at 557-8)”.
Whilst I accept that in general terms it is a principle which should apply to privilege, it seemed to me during the course of submissions that the court should consider further the general principle which underlines the purpose of legal professional privilege. During the course of submissions counsel for the applicant referred me to the well-known decision of Grant v Downs (1975) 135 CLR 675 and in particular referred me to a passage which appears in the joint judgment at page 688, where the court there said:
“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 any 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 a criterion of legal professional privilege”.
As I indicated during the course of submissions, I was aware that since that decision and indeed in recent times there have been other authorities and other considerations of the test that has been laid down in Grant v Downs. In particular, I had in mind the decision of Esso Australia Resources v Federal Commissioner of Taxation (1999) 168 ALR 123; 74 ALJR 339. In that case the High Court in fact discarded the test of legal privilege for which Grant v Downs had long stood as authority; namely, the privilege did not attach to communication made or documents brought into existence for use in litigation unless that was the sole purpose for which the communication was made or the document was brought into existence.
The Esso decision does not affect the position of the communication or a document where the use in litigation was the sole purpose for making the communication or bringing the document into existence, but where the litigation purpose was not the sole purpose, privilege will only attach if that purpose was the dominant purpose.
In the present case there really is not any significance that would attach to either of those authorities in circumstances where it is conceded by both sides that the documents attach to what is conceded to be the privileged document; that is, the letter from the solicitors to the accountants was clearly attached solely for the purpose of obtaining that advice and that of course was going to be part of the advice for the solicitors.
It seems to me, however, that the essence of privilege is something which needs to be considered in general principle because it really only relates, in my view, to documents brought into existence which otherwise would need the protection of confidentiality of communications between a client and his legal advisers. It is appropriate, therefore, to refer to the general principle concerning legal professional privilege which was set out by the High Court in the Esso case to which I referred, and in particular I refer to page 346 of the ALJR reports, where at paragraph 35 the court says:
“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 and 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 (1983) 153 CLR 52 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 the present case it is my view that the documents which are now sought to be produced by the applicant could not possibly be said to be documents which in themselves are documents brought into existence by the solicitors for the respondent. Nor, in my view, are they documents which could properly attract the concept of privilege. Both documents are public documents brought into existence by the public authorities to which the public has access. What is being claimed as privilege is privilege which extends only to computer generated copies of those documents produced after electronic data has been transferred from the material held by the public authority to the solicitors for the respondent.
In those circumstances, having regard to the principles to which I have referred and particularly the principles underlining the concept of legal professional privilege, it is my view that those principles will not be offended at all by ordering that those documents be produced.
Accordingly, the orders of the court are:
(1)The respondent produces the following documents:
(a)photocopy register search statement in relation to certificate of title volume 10392 folio 638 registered in the name of Heather MacNeil-Brown;
(b)photocopy historical person name extract dated 29 March 1999.
(2)The respondent pay the applicant's costs of this application in accordance with rule 21.10 of the Federal Magistrates Court Rules 2001.
I certify that the preceding fifteen (15) paragraphs are a true copy of the ruling of McInnis FM
Associate:
Date: 15 February 2002
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