Mitchell v Malavoca Pty Ltd - [2001] WADC 137

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: MITCHELL -v- MALAVOCA PTY LTD [2001] WADC 137

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 27 APRIL 2001

DELIVERED : 18 JUNE 2001

FILE NO/S: CIV 2207 of 1999

BETWEEN: DARRYL JAMES MITCHELL
Plaintiff
AND
MALAVOCA PTY LTD
Defendant

Catchwords:

Practice - Western Australian - Practice under Rules of the Supreme Court of Western Australia - Discovery - Contest in relation to claim to privilege - Evidence

Legislation:

Nil

Result:

Application successful

Representation:

Counsel:

Plaintiff: Ms K L Shannon
Defendant: Mr D Markovich

Solicitors:

Plaintiff: Ilberys
Defendant: McAuliffe Williams & Partners

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

Nil

Case(s) also cited:

Nil

DEPUTY REGISTRAR HARMAN: The plaintiff's application that relates to the defendant's discovery was issued on 1 September 2000.
That part of the application which contests the defendant's claim to privilege for the documents identified as H2 and H3 in the defendant's discovery was considered by me on 14 November 2000. At that time, I made observations in relation to the defendant's discovery and its claim to privilege which are recorded on the transcript of the hearing of that date and ultimately adjourned the application for further hearing after the defendant had provided discovery. It was then my opinion that the defendant’s discovery provided to date was deficient, particularly in relation to the claim for privilege.
The application was re-listed in general chambers on 6 April 2001. On that date an order was made that the defendant do make available for inspection by the plaintiff documents identified as H2, H3, H4, H5 and H6 in the defendant’s discovery. The last three documents having been identified in the defendant's then most recent affidavit of discovery. There was no transcript of the hearing. The plaintiff has requested reasons for my decision.
In the transcript of the prior listing, I canvassed the obligations cast upon parties by the requirement for discovery. Where a party claims privilege it must carry an evidentiary onus to found that claim. Otherwise in every case the adverse party would have to go to the trouble and expense of contesting the claim in order that it be founded. Once that foundation is provided the onus in the application is upon the party contesting the privilege. As I indicated, it is unlikely that an applicant will be able to do much more than produce a chronology and seek to have the Court draw an inference on the basis of that evidence. Where the Court determines that the appropriate result lies would depend upon its analysis of the grounds for claiming privilege, any evidence in support of those grounds and the applicant’s evidence. If the court considers it appropriate to do so it may have recourse to the documents in order to finally determine the issue.
The purpose of privilege is to serve the public interest in the administration of justice by encouraging full and frank disclosure by clients to their lawyers. The test of whether privilege ought to attach to a document involves a consideration of the dominant purpose of the creation of the document. I refer to paragraphs 8 and 9 of the defendant's submissions in opposition to the application that I accept and are in the following terms: -
"8 Evidence is not to be adduced if, subsequently the Court finds that adducing the evidence would result in the disclosure of: -
(a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made or;
(b) the contents of a confidential document (whether delivered or not) that was prepared;
(c) for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding, or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was, or might have been, a party. See Esso Australia Resources Ltd & CMR of Taxation (Cth) [1999] HCA 67 at prg 15."

In the defendant's initial discovery its claim was in the following terms: -
"Instructions given by the defendant to the defendant's solicitors for the purpose of preparing the's case defendant [sic] and instructions given to Counsel in regard thereto and Counsel's notes opinion and advice thereon. Notes and memoranda of evidence and information made or obtained by the defendant's solicitors on behalf of the defendant. The information of the defendant's solicitors and Counsel for the purpose of or in the course of this action.
H1 …
H2 Insurance investigator's reports held on McAuliffe Schwikkard file no. 23649 in a bundle marked "P2".
H3 Witness statements obtained by insurance investigators held on McAuliffe Schwikkard file no. 23649 and marked "P3"."
As to the first paragraph is it is too general in its terms to be of any utility at all in founding the claims made in relation to H2 and H3. As to the discrete grounds at H2 and H3, there is nothing to found the claim that the documents relate to a relevant purpose.
The defendant's second affidavit of discovery contains the same general paragraph as the first, embellishes upon the grounds for the claims in relation to H2 and H3 and also provides discovery of the further documents. The relevant discovery is given in the following terms: -
"H2 report dated 8 December 1996 prepared by N E Williams & Associates and addressed to Royal & Sun Alliance Insurance Company, outlining the worker's conditions of employment and the circumstances of his work-related accident. The report was generated for the dual purpose of assessing the worker's entitlement to worker's compensation benefits and the exposure of the defendant to a claim for damages at common law. The report is held on McAuliffe Williams & Partners file no. 23649 marked "P2".
H3 surveillance report of Western Investigations dated 11 December 1997 addressed to Royal & Sun Alliance, and held on McAuliffe Williams & Partners file no. 23649.
H4 report N E Williams & Associates dated 15 January 1998 addressed to Royal & Sun Alliance (Australia) Limited, being a report obtained in anticipation of common law proceedings dealing further with the circumstances of the plaintiff's work accident. The report is held on McAuliffe Williams file no. 23649 and marked "P4".
H5 surveillance report of Western Investigations dated 23 January 1998 addressed to Royal & Sun Alliance marked on McAuliffe Williams & Partners file 23649 and marked "P5".
H6 surveillance report of Western Investigations dated 30 January 1998 addressed to Royal & Sun Alliance Insurance and held on McAuliffe Williams & Partners file no. 23649 and marked "P6"."
In my opinion the defendant’s claim to privilege has not been advanced. The unspecified basis for the claim in the first discovery at least in relation to H2, is now expressed as a dual purpose but without any evidence by which one can evaluate the dominance of either purpose. Prima facie there is nothing that would suggest that either purpose would attract privilege. I accept that the document seems to have found its way into the hands of the defendant’s solicitors but there is no explanation as to why that is the case. For the purpose of the test there is nothing to indicate that the document is confidential or was prepared for the purpose of the provision of legal assistance to the defendant. Furthermore, I am concerned that the words "entitlement" and "exposure" may have been used in order to give an impression that may be utterly unjustified. As to H3, there is no basis in either discovery for the claim to privilege.
The defendant also relied upon the affidavit of Mike Gough sworn 14 November 2000 the relevant content of which is as follows.
"5. Royal & Sun Alliance has in its possession two assessors reports including witness statements ("the documents") for which legal professional privilege from production is claimed on the grounds that these documents were brought into existence for the dominant purpose of the Defendant subsequently obtaining legal advice and for use in this litigation.
6. Whilst the documents came into existence before we instructed our solicitors, the documents constitute the outcome of an investigation into the Defendant's possible common law exposure, in anticipation of this common law claim and for the purposes of obtaining legal advice in that regard.
7. It would be contrary to the interests of justice and prejudicial to the Defendant if it were forced to discover the documents to the Plaintiff prior to the trial of the Plaintiff's action because it would afford the Plaintiff the opportunity to tailor his evidence at trial."
At its relevant part that affidavit does no more than assert that the claim to privilege satisfies the test. It provides no evidence to support the claim to privilege. Significantly it does not identify the documents for which privilege is claimed. One may seek to infer that the relevant documents are H2 and H4. However at that time H4 had not been so identified or indeed, discovered. Ultimately paragraph 7 is interesting as it seems to suggest that the dominant interest of the defendant in the application is to preserve the prospect of surprise at trial. That consideration is irrelevant.
As I stated on the occasion of the first determination made by me in this matter, it did not seem appropriate to determine the application on the basis of the defendant's default in making out an appropriate claim to privilege. That consideration remains live. Balanced against that consideration is the fact that the Court has gone to the trouble of pointing out the deficiencies in the defendant's first claim to privilege and it has come back with evidence which provides no better foundation to that claim. Whilst the documents have been identified with greater specificity, there is nothing to establish the circumstances in which they were created and indeed, nothing to explain perhaps how or why the documents came into the possession of the defendant's solicitors.
Despite my reservations that the plaintiff ought not to succeed by default, I am satisfied that the plaintiff ought to succeed where I have outlined the defendant's default, given it the opportunity to remedy that default and yet it has not done so. There comes a point where the court has held the hand of a litigant for long enough. Where the applicant has contested an unfounded claim to immunity and the respondent has failed to perfect that claim after having been accorded some latitude, the court would appear to be partisan to refrain from dealing with an application on its merits.
As I have previously canvassed, I recognise that the Court has the power to call for the production of documents in order to make its own assessment in relation to privilege. In my opinion, it is not appropriate to exercise that jurisdiction simply because I can do so. Until the respondent has provided the context in which a document was generated it is unlikely that by simply reading the document that anyone would be in a position to assess what may have been the dominant purpose for which a document was created.
I do not consider that the respondent has yet advanced its claim to the point that there is any utility in me looking at the documents in order to seek to discern whether they are privileged from inspection.
In relation to the additional documents of which the plaintiff sought production, those only came to light as a result of the defendant's further discovery. The plaintiff sought to amend its application and that application to amend was granted. The defendant's claim to privilege in relation to those documents failed the same test.
I believe that the reasons given above are consistent with those expressed by me upon the determination of the plaintiff's application.