Lazos v West Australian Newspapers Ltd

[2023] WASC 382

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   LAZOS -v- WEST AUSTRALIAN NEWSPAPERS LTD [2023] WASC 382

CORAM:   TOTTLE J

HEARD:   ON THE PAPERS

DELIVERED          :   5 OCTOBER 2023

FILE NO/S:   CIV 1404 of 2020

BETWEEN:   PETROS LAZOS

Plaintiff

AND

WEST AUSTRALIAN NEWSPAPERS LTD

Defendant

Catchwords:

Practice and procedure - Defamation - Application for the inspection of a memorandum to determine whether it contains material the subject of legal professional privilege of a non‑party - Where non‑party does not press for the inspection - Where such inspection would not dispose of any application - Application dismissed

Legislation:

Nil

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Plaintiff	:	N/A
Defendant	:	N/A

Solicitors:

Plaintiff	:	Bennett
Defendant	:	Steedman Stagg Lawyers

Case(s) referred to in decision(s):

Nil

TOTTLE J:

Introduction

1. In this defamation action the plaintiff has applied for an order that the defendant produce for inspection by a judge (other than the case manager) a memorandum prepared by the defendant's solicitors that is the subject of legal professional privilege held by the defendant.  Inspection is sought for the purpose of determining whether the memorandum contains material derived from documents produced by the Western Australia Police Force (WAPOL) in answer to a subpoena.  The parties have proceeded on the premise that some of the documents produced in answer to the subpoena may themselves have been the subject of legal professional privilege held by the Commissioner of Police and the Crown in the right of the State of Western Australia.  I will refer to those documents as the 'privileged documents' though there has been no binding determination about the privilege claim.  It is common ground that the privileged documents were disclosed inadvertently.

2. The plaintiff's concern is that the memorandum may have summarised privileged information and that it has been read by the defendant's legal advisers and, as a result, the plaintiff may be 'forensically disadvantaged by the defendant utilising the substance of the information'.[1]

   [1] Plaintiff's submissions in respect of the application filed 27 April 2023 [1].

Factual background

1. The factual background to this most unusual application is not in dispute.  It emerges in part from the court file and in part from the facts deposed to by one of the plaintiff's solicitors, Ms Demi Swain, in an affidavit sworn by her on 17 January 2023 and by one of the defendant's solicitors, Ms Jasmine Sims, in an affidavit sworn by her on 17 April 2023.  The affidavits attach extensive and contentious correspondence exchanged between the parties from March 2021 to December 2022. 

2. In late 2018 the plaintiff, then a senior employee of the State Government employed by the Department of Premier and Cabinet, was arrested and charged with fraud.  The alleged fraud concerned a claim for a travel allowance and the amount that was the subject of the charge was $116.35.

3. On 6 April 2019 the defendant published an article both in print form and online commenting on the charge and matters relating to it.  The plaintiff alleged the article was defamatory of him and on 19 March 2020 commenced proceedings for damages for defamation.  The defendant pleaded justification and contextual truth along with other defences. 

4. It is important to record that the defendant does not maintain the defences of justification and contextual truth.  The paragraphs relating to those defences were deleted when the defendant filed a substituted defence on 20 December 2021.

5. WAPOL produced documents to the court in answer to a subpoena issued on 18 December 2020 at the request of the defendant.  Copies of the documents were provided to the parties' solicitors.  During a preliminary review one of the plaintiff's solicitors noticed that the documents included documents that might be the subject of legal professional privilege and she brought this to the attention of both the defendant's solicitors and WAPOL. 

6. The State Solicitor's Office (SSO), instructed by the Department of Premier and Cabinet and the WAPOL, informed the parties that 18 of the documents produced in answer to the subpoena were the subject of legal professional privilege.  One document was the subject of privilege claimed by the Commissioner of Police and 17 documents were the subject of privilege claimed by the Crown in the right of the State.  The SSO confirmed the privileged documents had been disclosed inadvertently. 

7. In May 2022 the parties' solicitors and the SSO agreed a regime whereby the copies of the privileged documents in the possession of the parties' solicitors were destroyed with the parties agreeing not to disclose its contents.

8. One aspect of the regime to which I referred in the preceding paragraph was that undertakings were to be given by those individuals who had been provided with access to the privileged documents.  The undertakings were in the following form:[2]

   [2] Affidavit of Jasmine Ashleigh Sims sworn 17 April 2023, 95 - 96.

   I, the Recipient, make the following statements and give undertakings in favour of WAPOL, Lazos, WAN and the Court.  Until such time as this undertaking is varied, amended or otherwise discharged by order of the Court:

   1 I acknowledge that I had limited access to the Privilege Claim Documents as described in the Background section above.

   2 I confirm I have not previously disclosed the substantive content of any of the Privilege Claim Documents to any other person.

   3 I confirm I have no independent recollection of the substantive content of any of the Privilege Claim Documents, or any part of them.

   4 Subject to the terms of this undertaking, I undertake that I will not disclose any of the Privilege Claim Documents or their content to any person:

   4.1 unless compelled to do so by the Court or as otherwise required by law; or

   4.2 with the prior written consent of WAPOL, WAN and Lazos.

   5 The undertaking given in paragraph 4 above does not extend to any copy of a Privilege Claim Document that is produced by WAPOL or the SSO after the date of this undertaking that masks information or other content that is subject to a claim for privilege.

   6 I undertake that I will immediately notify the SSO and the solicitors for WAN and Lazos if I become aware of:

   6.1 any breach of this undertaking; or

   6.2 any other unauthorised use or disclosure of the Privilege Claim Documents, or any part of them.

   7 This undertaking is continuing and survives a resolution or determination of the Proceedings and any further legal proceedings (including appeals) arising from or related to the Proceeding.

9. On 1 June 2022 the defendant's solicitors disclosed that following the original inspection of the documents (including the privileged documents) a law clerk employed by them, Mr Patrick McCarthy, had prepared an internal note (subsequently referred to in the materials as 'the Memorandum') with respect to the truth defence then being maintained by the defendant.  The Memorandum was sent to senior counsel, retained by the defendant, the defendant's in-house counsel and other lawyers within the defendant's solicitors.  Mr McCarthy has subsequently been admitted as a legal practitioner.

10. Neither Mr McCarthy nor any of recipients of the Memorandum have any recollection of whether it reproduced the substantive content of the privileged documents.  The defendant's solicitors stated that they could not risk reviewing the Memorandum to refresh memories in case there was some privileged information contained in it.  The defendant's solicitors proposed amendments to the undertaking to record the fact that the Memorandum had been prepared.

11. Undertakings were signed by the senior counsel who remained involved in the case, the in‑house counsel and two of the lawyers from the defendant's solicitors in the following terms:[3]

    [3] Affidavit of Jasmine Ashleigh Sims sworn 17 April 2023, 126 - 135, 140 - 142.

    1 I:

    1.1 read the Memorandum.

    1.2 have not read any of the Privilege Claim Documents.

    1.3 have no recollection or awareness of any Privilege Claim Document having been cited or referred to in the Memorandum.

    1.4 have not previously disclosed the substantive content of any of the Privilege Claim Documents to any person.

    1.5 have no recollection of the substantive content of any of the Privilege Claim Documents, or any part of them.

    2 Subject to the terms of this undertaking, I undertake that I will not disclose any of the Privilege Claim Documents or their content to any person:

    2.1 unless compelled to do so by the Court or as otherwise required by law; or

    2.2 with the prior written consent of WAPOL, WAN and Lazos.

    3 The undertaking given in paragraph 2 above does not extend to any copy of a Privilege Claim Document that is produced by WAPOL or the SSO after the date of this undertaking that masks information or other content that is subject to a claim for privilege.

    4 I undertake that I will immediately notify the SSO and the solicitors for WAN and Lazos if I become aware of:

    4.1 any breach of this undertaking; or

    4.2 any other unauthorised use or disclosure of the Privilege Claim Documents, or any part of them.

    5 This undertaking is continuing and survives a resolution or determination of the Proceedings and any further legal proceedings (including appeals) arising from or related to the Proceeding.

12. Mr McCarthy signed an undertaking in different terms.  The material parts of that undertaking were as follows:[4]

    [4] Affidavit of Jasmine Ashleigh Sims sworn 17 April 2023, 136 - 139.

    1 I acknowledge that I had access to the Privilege Claim Documents as described in the Background section above.

    2 I do not now recall whether the Privilege Claim Documents were referred to in the Memorandum or, if so, the extent of any reference.

    3 I confirm I have not otherwise disclosed the content of any of the Privilege Claim Documents to any other person.

    4 I confirm I have no recollection of the substantive content of any of the Privilege Claim Documents, or any part of them.

    5 Subject to the terms of this undertaking, I undertake that I will not disclose any of the Privilege Claim Documents or their content to any person:

    5.1 unless compelled to do so by the Court or as otherwise required by law; or

    5.2 with the prior written consent of WAPOL, WAN and Lazos.

    6 The undertaking given in paragraph 5 above does not extend to any copy of a Privilege Claim Document that is produced by WAPOL or the SSO after the date of this undertaking that masks information or other content that is subject to a claim for privilege.

    7 I undertake that I will immediately notify the SSO and the solicitors for WAN and Lazos if I become aware of:

    7.1 any breach of this undertaking; or

    7.2 any other unauthorised use or disclosure of the Privilege Claim Documents, or any part of them.

    8 This undertaking is continuing and survives a resolution or determination of the Proceedings and any further legal proceedings (including appeals) arising from or related to the Proceeding.

13. The undertakings were provided to the plaintiff's solicitors in July 2022 but they did not allay the plaintiff's concerns and further correspondence was exchanged.

14. In November and December 2022 addenda to the undertakings were signed by the defendant's representatives who had signed the earlier undertakings.  The material parts of each addendum read as follows:[5]

    I will not:

    1 Examine, look at, possess, or otherwise have access to the memorandum prepared by Mr Patrick McCarthy in or about February 2021 (Memorandum) examining the factual and evidentiary basis for WAPOL charging and prosecuting Lazos based on his having access to the Subpoena documents.

    2 Allow any other person to examine, look at, possess, or otherwise have access to the Memorandum.

    [5] Affidavit of Jasmine Ashleigh Sims sworn 17 April 2023, 216 - 219.

15. One addendum contained the following additional statement:[6]

    3That I have placed a copy of the Memorandum in secure location, locked in from being opened and marked it as 'PRIVILEGED AND CONFIDENTIAL - PLEASE DO NOT OPEN'.

    [6] Affidavit of Jasmine Ashleigh Sims sworn 17 April 2023, 218.

16. The plaintiff is concerned that the undertakings given by the defendant's lawyers do not include an undertaking not to use any information derived from the Memorandum.  He is concerned that, consciously or subconsciously, there is a real risk that access to the Memorandum has communicated the substance of the privileged documents which would be to the forensic advantage of the defendant at any trial.[7]

    [7] Plaintiff's submissions in respect of the application filed 27 April 2023 [41], [42].

Consideration and disposition

1. It is not uncommon for a judge to inspect documents for the purposes of determining a claim for privilege.  This application is, however, truly extraordinary because it involves compelling a party to produce a document - the Memorandum - that is undoubtedly privileged so that a judge can determine whether the Memorandum contains any material the subject of legal professional privilege of a non‑party.  The plaintiff proposes that the judge undertaking this exercise will have the privileged documents available.  There are two further extraordinary features, first, the non-party is not pressing for the exercise to be undertaken, and secondly, the judge who it is proposed will undertake the determination is not being asked to dispose of any application.  Rather the court is being asked to assume an inquisitorial role which the plaintiff contemplates may result in an application by him for directions from the court 'as to how to address the unfairness' or the court of its own motion could deal with how it perceives any unfairness showed be addressed.

2. Unsurprisingly, the defendant contends that there is no jurisdictional basis for the plaintiff's application. 

3. The application is premised on the existence of a risk of unfairness to the plaintiff created by the possibility that the defendant's lawyers are aware of information derived from the privileged documents of a third party of which he is unaware.  The plaintiff says that such information related to the criminal proceedings against him which were the subject of the allegedly defamatory publications. 

4. It may be doubted whether there is a jurisdictional basis for making the orders sought by the plaintiff but, assuming without deciding that there is, in circumstances in which the defendant no longer maintains its former defences of justification and contextual truth and the defendant's lawyers having given undertakings recording in effect that they have no recollection of the privileged documents or the contents of the Memorandum, I am not satisfied that there is any risk of unfairness to the plaintiff, let alone a risk of a level of significance that would justify orders of the nature sought by the plaintiff.

5. Further, as I have observed, the procedure proposed by the plaintiff is extraordinary and no authority has been cited in which a court has followed the procedure proposed by the plaintiff.  The procedure to be followed when a party has well-founded concerns about unfairness resulting from a party's lawyers having had access to privileged information is to seek injunctive relief so that the issues may be determined in accordance with the jurisdiction to restrain lawyers from acting for a party.

Conclusion

1. For the reasons given, I dismiss the application.  The plaintiff should pay the defendant's costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

OK

Associate to the Honourable Justice Tottle

5 OCTOBER 2023