Mitsubishi Australia Limited v The Electricity Trust of South Australia

[1992] HCATrans 83

~

~ -,~JI

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A33 of 1991

B e t w e e n -

MITSUBISHI AUSTRALIA LIMITED

Applicant

and

THE ELECTRICITY TRUST OF SOUTH

AUSTRALIA

Respondent

Application for special leave

to appeal

BRENNAN J
TOOHEY J

MCHUGH J

Mitsubishi 1 13/3/92

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 13 MARCH 1992, AT 10.36 AM

Copyright in the High Court of Australia

MR J.R. SULAN, QC:  May it please the Court, I appear with

MR W.L. RUDD, for the applicant. (instructed by

Corrs Chambers Westgarth)

MR B.R.M. HAYES, QC:  May it please the Court, I appear with

MR R.L. PROUD, for the respondent. (instructed by

Finlaysons)

BRENNAN J: Yes, Mr Sulan.

MR SULAN:  May it please the Court, the question which

arises in this case and generally which the

applicant submits justifies the grant of special

leave to appeal is as follows.

Where an organization provides in its work

practices a system for the investigation of

accidents and other incidents, and the purpose of
those practices is to inform senior management and

ultimately the board of directors of the

circumstances of the accident or incident so that

the organization can deal with that in the future,

can that organization, by simply stating that the

results of the investigation and any report

prepared as a result of the investigation is solely

prepared for the purpose of seeking legal advice,

clothe the report with legal professional

privilege?

We submit that the Full Court fell into error

in this case in that it misinterpreted the decision

of His Honour Justice Debelle at first instance,

and we would submit that if a document is brought

into existence in any event for other purposes,

then it cannot be clothed with legal professional

privilege simply by a decision that the matter be

submitted to legal advisers, because we say that

the document was brought into existence for dual

purposes within the principles of Grant v Downs and

Waind's case.

TOOHEY J: But it is a question of fact, Mr Sulan. Is it

not a question of fact in the present case? I

mean, the Full Court took the view that these two

gentlemen had been appointed as a committee of

inquiry on the evening of the accident, but what

happened thereafter converted them into two persons

who were required to report for the purposes of the
insurers and for the purpose of advice to be given

by the firm of solicitors for the respondent.

MR SULAN:  If Your Honour pleases, our answer to that

question is, no, that it is not purely a question
of fact upon which we would seek to justify an

application for special leave.	We say that it is
the interpretation of His Honour

Mitsubishi 2 13/3/92

Mr Justice Debelle's judgment, in which His Honour

Justice Mohr and His Honour Justice Matheson fell into error. In effect, there was no dispute on fact either before Justice Debelle or before the

Full Court. The affidavits were before

Their Honours. There was no cross-examination on the affidavit and it was a question of

interpretation of the material that was before the

court.

BRENNAN J: Well, Mr Sulan, is it the fact that as from the

morning of, I think it was, the 7th, the

proceedings before the inquiry were conducted for

the exclusive purpose of preparing a report for the

consideration of the legal advisers?

MR SULAN: That was the position that was put by the

respondent.

BRENNAN J:	Was that the fact?
MR SULAN: We would not concede that that was a fact.	It

was an assertion made on behalf of the respondent

based upon - - -

BRENNAN J:  Was it the fact as the Full Court took it to be?

MR SULAN: Well, it was the fact as the Full Court took it

to be but, in our submission, the Full Court

misinterpreted the manner in which Justice Debelle

arrived at his decision and we would submit that

the judgment of His Honour Acting Justice Zelling

ought to have been preferred in that regard and it

was not a question of the Full Court determining

that His Honour Justice Debelle had misinterpreted

the fact.

BRENNAN J:  Mr Sulan, it seems to me that the difficulty you

face is this: either that is the fact or it is

not. If it is the fact, then there is no doubt, in the light of Grant v Downs, that the decision below

was right. If it is not the fact then you wish to

get special leave in order to challenge a question

of fact.

MR SULAN: It is our submission, if the Court pleases, that

we do not wish to challenge the question of fact.

We say that the fact was that the purpose of the report was, in any event, being brought into

existence for other purposes, not only those of

legal advice.

TOOHEY J: But that is a question of fact, Mr Sulan, and on

which the Full Court said that as from the 7th
these two men were appointed to carry out the

investigation directed by the solicitors. That may

be right or it may not be but on the assumption

Mitsubishi 3 13/3/92

that it was right, how can it be said there was any

misapplication of the principle in Grant v Downs.

MR SULAN:  We would submit that if one goes to the judgment

of His Honour Justice Mohr, one can perhaps see

where the misapplication occurred. Could I take

the Court for the a moment to page 59 of the appeal

book where His Honour Justice Mohr had this to say:

From my perusal of the affidavits in this

matter it appears that whatever the positon of

Messrs Hoepner and Cock may have been in the

early stages of their investigation, from some

time on 7th September until they completed

their task and prepared that report they were

engaged on the task assigned to them. That

was, quite simply put, to investigate and

prepare a report which was for the sole use of
the appellant's legal advisers and for no
other purpose. In my opinion it is beside the

point to say that the report was capable of

having another purpose.

He then goes on, at page 60

TOOHEY J: Just a moment, Mr Sulan. Should you not read the

next couple of sentences?

MR SULAN:  Yes.

That may well be so but there is no evidence

or suggestion that it has been or was ever intended to be used for any other than its

stated purpose.

He goes on, at page 60 to deal with the learned

trial judge and he says -

The learned trial Judge perused the

report and said it confirmed his opinion that

it had a dual purpose.	What he was really
dual purpose but as I have said earlier that saying was that it was capable of serving a	is nothing to the point when considering the
purpose for which it was brought into
existence.

In our respectful submission, that is not what His Honour Justice Debelle found, and on the clear

evidence that was before the court, we would

submit, the report was brought into existence for a

dual purpose, namely, the purpose provided in the

ETSA manual and the purpose subsequently alluded to

in the letter of the solicitors to ETSA. We would

say that at all times the report was clothed with

the dual purpose and, in our respectful submission,

the Full Court misinterpreted His Honour

Mitsubishi 4 13/3/92

Justice Debelle's judgment because His Honour

Justice Debelle -

McHUGH J:  Mr Sulan, these are not special leave points.

You are seeking special leave to appeal against an interlocutory order, and it is really only a question of fact.

MR SULAN: Well, our submission is that it goes further than

a question of fact, and goes to the interpretation

of Grant v Downs and the application of Grant v

Downs, and although it be an application for

discovery, it would be our submission that discovery is fundamental in the process of

litigation. It is fundamental to the carrying out

discovery are properly applied and courts have, in effect, indicated that in the judgment of the High	of proper litigation that the rules relating to application of the rules relating to privilege are
misapplied, we would say that that is quite
fundamental and goes to the general administration
of justice and raises questions of special leave appropriate for decision by this Court.

It is our submission that if one considers the

judgment of Justice Mohr and Justice Matheson it

does not turn on fact alone. It turns upon the

application of the principles in Grant v Downs and

in Waind's case, and therefore requires, in our

respectful submission, consideration by this Court.

If one were to go back to the judgment of

Justice Debelle - and I do not want to go back to

it in any detail - he, in our submission, correctly

applied the principles by looking at the purpose.

And, in our submission, the question that really

ought to be asked is: did the document come into

existence for more than one purpose?

We would submit that it is quite fundamental

that where you have large corporations or large

organizations which have a standard procedure in

which information can be passed up the line - and I

refer particularly to the judgment of the majority

in Grant v Downs - it is very important that if

that information is passed up the line, it cannot
hide behind legal professional privilege for the
organization simply to assert at some stage that

the investigation, which is an essential part of

that organization's practice, was for the purposes

of obtaining legal advice solely, because at all

times unless the practices of the organization is

changed fundamentally, if one goes back to the

beginning the report is always being brought into

existence for a purpose other than for seeking

legal advice.

Mitsubishi 13/3/92

In our submission, it is fundamental to the

principles of proper litigation that information

passed up the line which would normally be

available if we were talking about an individual on

factual matters, should be discoverable and should

be open for discovery. We would submit that the

case turns on the application of that principle and

not on an interpretation of the facts. In our

respectful submission, we would call in aid the
dissenting judgment of acting Justice Zelling where

he, in effect, finds that the learned trial judge

applied the correct principle and it was not an

appropriate case to allow the appeal.

BRENNAN J: Thank you, Mr Sulan. We need not trouble you,

Mr Hayes. In Grant v Downs (1976) 135 CLR 674, the

Court held that legal professional privilege

extends only to documents brought into existence

for the sole purpose of submission to legal

advisers for advice or for use in legal

proceedings. That principle is not in issue here.

The question is one of application of the principle

to the facts of the case.

The Full Court was in as good a position as

Debelle J to apply the principle. There is nothing

to warrant a grant of special leave the effect of

which would be to require this Court to make yet

another application of the principle, this time to

it's view of the facts.

In any event, this application is made in an

interlocutory proceeding having no special features

commending it as a case warranting the intervention

of this Court. In general, a question of

exceptional importance would have to appear to

justify the grant of special leave in order to

consider a question of interlocutory practice.	The
application should be refused.

MR HAYES: ·If the Court pleases, I make an application for

costs.

BRENNAN J:  What do you have to say about that, Mr Sulan?

MR SULAN: If the Court pleases, I cannot resist that

application.

BRENNAN J: It will be refused with costs.

AT 10.50 AM THE MATTER WAS ADJOURNED SINE DIE

Mitsubishi 6 13/3/92