New South Wales Bar Asssociation v Archer (No.10)
[2008] NSWADT 162
•5 June 2008
CITATION: New South Wales Bar Asssociation v Archer (No.10) [2008] NSWADT 162 DIVISION: Legal Services Division PARTIES: APPLICANT
RESPONDENT
Council of the New South Wales Bar Association
Stephen John ArcherFILE NUMBER: 032019 HEARING DATES: 11 March 2008 SUBMISSIONS CLOSED: 11 March 2008
DATE OF DECISION:
5 June 2008BEFORE: Chesterman M - ADCJ (Deputy President); Norton S SC - Judicial Member; Bennett C - Non Judicial Member CATCHWORDS: Summons - claim for legal professional privilege MATTER FOR DECISION: Preliminary matter LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Evidence Act 1995
Legal Profession Act 2004CASES CITED: Australian Securities & Investment Commission v Southcorp Ltd [2003] FCA 804
Churton v Frewen (1865) 2 Dr & Sm 390; 62 ER 669
Commissioner of Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501
Council of the New South Wales Bar Association v Archer (No 9) [2007] NSWADT 214
Curlex Manufacturing Pty Ltd v Carlingford [1987] 2 Qd R 535
Grofam Pty Ltd v Australia and New Zealand Banking Group Ltd (1993) 116 ALR 535
Interchase Corporation Ltd v Grosvenor Hill (Queensland) Pty Ltd (No 1) [1999] 1 Qd R 141
New Cap Reinsurance Corporation Ltd (In Liq) & Anor v Renaissance Reinsurance Ltd [2007] NSWSC 258
Packer v. Deputy Commissioner of Taxation [1985] 1 Qd R 275
Ryder v Frohlich [2005] NSWSC 1342
Trade Practices Commission v Ampol Petroleum (Victoria) Pty Ltd & Ors [1994] FCA 1024REPRESENTATION: APPLICANT
RESPONDENT
C Adamson SC, barrister
G M Gregg, barrister
In personORDERS: (1) With reference to the documents produced to the Tribunal by Dennis John Robertson in answer to a summons dated 22 February 2007 and currently held by the Registry:
(a) The Applicant’s claim to withhold these documents from inspection by the Respondent on the ground of client legal privilege is upheld with respect to the documents contained in the following categories listed in the Schedule to the affidavit of Alan William Blanch sworn on 9 November 2007: 1 – 7, 15, 20, 23, 25, 27, 29 and 31 – 33
(b) The Applicant’s claim to withhold these documents from inspection by the Respondent on the ground of client legal privilege is disallowed with respect to the documents contained in the following categories listed in the Schedule to the affidavit of Alan William Blanch sworn on 9 November 2007: 8 – 14, 16 – 19, 21, 22, 24, 26, 28, 30, 34 and 35
(2) Within seven days of the date of this decision, a representative of the Applicant is to place the documents covered by Order 1(a) in an envelope marked ‘Privileged’ and the documents covered by Order 1(b) in a separate envelope marked ‘Available for inspection by the Respondent'
(3) After Order (2) has been complied with, the Respondent is permitted to inspect and copy the documents contained in the envelope marked ‘Available for inspection by the Respondent’
(4) The matter is set down for further directions at 9.30 am. on Tuesday 17 June 2008.
REASONS FOR DECISION
Introduction
1 On 9 October 2003, the Council of the Bar Association of New South Wales (‘the Bar Association’) filed in the Tribunal an Information under Part 10 of the Legal Profession Act 1987 (‘the LP Act’) against Stephen John Archer, the Respondent.
2 Because this date of filing precedes the commencement of the Legal Profession Act 2004, this case falls wholly to be determined wholly under the LP Act even though it has been repealed: see Legal Profession Act 2004, Schedule 9, clause 15.
3 The Bar Association alleges that the Respondent, a legal practitioner within the meaning of section 128 of the LP Act, has been guilty of professional misconduct. In the Second Schedule to the Information, it requests the Tribunal (a) to find to this effect; (b) to find also that he is not a fit and proper person to remain on the Roll of Legal Practitioners; and (c) to order that his name be removed from the Roll or, in the alternative, to make an order under any one or more of sub-paragraphs (b), (c), (d), (e) or (f) of sub-section 171C(1) of the LP Act.
4 The Bar Association relies on two grounds, which are set out in the First Schedule to the Information. It is not necessary here to refer to their content, except to say that they relate to alleged conduct of the Respondent in the financial years ranging from 1987-88 to 2001-02.
5 The Respondent was admitted as a Solicitor of the Supreme Court on 4 June 1971. At his own request, his name was removed from the roll of solicitors on 5 September 1980 and he was admitted as a Barrister of the Supreme Court.
6 On 23 October 2001, the Bar Council resolved that the Respondent’s practising certificate should be cancelled.
7 Since the Information was filed, there have been several interlocutory applications, resulting in a number of decisions that we, as the three members constituting the Tribunal in these proceedings, have delivered.
The application to which this decision relates
8 On 22 February 2007, on the application of the Respondent, the Tribunal issued a summons to produce documents (‘the summons’) under section 84 of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’), addressed to Mr Dennis John Robertson. On 27 February 2007, the summons was served on Mr Robertson.
9 Mr Robertson is an accountant whom the Bar Association has retained for the purpose of giving evidence in these proceedings. He is a member of the firm of Weston Woodley and Robertson.
10 On 31 March 2006, Hicksons Lawyers (‘Hicksons’), who are the Bar Association’s solicitors in these proceedings, filed an affidavit that had been sworn by Mr Robertson on 29 March 2006.
11 The summons required production of documents described in a Schedule comprising six clauses. Mr Robertson indicated that he had no document within clause 1. The Respondent indicated that he did not press for production of the documents described in clause 6.
12 Clauses 2 – 5 of the Schedule were as follows:
13 On 21 March 2007, Hicksons wrote to the Respondent stating that documents had been produced in response to the summons, but that the Bar Association claimed client legal privilege in relation to all these documents. The Bar Association maintained this position when its representative and the Respondent appeared before the Registrar on 23 March 2007, the return date of the summons.
2. Copies of all documents of every kind provided to you by or on behalf of Hicksons to enable you to provide services in relation to the Proceedings (other than documents annexed or exhibited to the affidavit sworn by you on 29 March 2006 and filed in these proceedings (“your Affidavit”)).
3. Copies of all reports, statements, schedules, tables, analyses, spreadsheets and other documents of every kind provided by you to Hicksons since 1 March 2001 concerning or in any way relating to the financial or other affairs of the Respondent.
4. Copies of all notes, draft reports, draft statements, schedules, tables, analyses, spreadsheets and other documents of every kind compiled by you or by any person under your supervision, or by any other partner or employee of the Firm [of Weston Woodley and Robertson], since 1 March 2001 concerning or in any way relating to the financial or other affairs of the Respondent.
5. The originals, or in the absence of the originals, copies of every draft of your Affidavit and of each spreadsheet, analysis and other document annexed or exhibited to your Affidavit, whether prepared by you or by any person on your behalf or provided to you by Hicksons, before 29 March 2006.
14 On 5 April 2007, the Respondent applied for the following orders in relation to the summons:
15 At a hearing on 27 June 2007 relating to this application and to two other interlocutory applications that had been made by the Respondent, there was time only for limited oral argument on this application. Subsequently, both parties filed written submissions.
(1) that the Bar Association’s claim to privilege in respect of the documents produced by Mr Robertson be disallowed; and
(2) that the Respondent be permitted to inspect and copy these documents.
Our first decision relating to this application
16 In a decision delivered on 17 September 2007 (Council of the New South Wales Bar Association v Archer (No 9) [2007] NSWADT 214 – hereafter ‘Archer 9’), we made the following rulings relating to the summons:
17 We adopted as relevant and authoritative the following six principles relating to client legal privilege at common law, stated by Lindgren J in Australian Securities & Investment Commission v Southcorp Ltd [2003] FCA 804 at [21] (the cases cited by his Honour are omitted):
1. The onus to establish client legal privilege lay on the party claiming it, that is, the Bar Association.
2. Because the documents for which the Bar Association claimed privilege had not been specified, it could not be said that self-evidently they were documents to which privilege attached.
3. In these circumstances, it was appropriate to require that the Bar Association, if it wished to maintain its claim to privilege, should furnish affidavit or oral evidence in support of its claim (which it had not yet done).
4. The issues of whether privilege had arisen and, if so, whether it had been waived fell to be determined under the common law, not the Evidence Act 1995.
5. Because the Bar Association had filed and served Mr Robertson’s affidavit on 31 March 2006 pursuant to a direction by the Tribunal that it should file and serve ‘any further evidence’ in these proceedings on or before that date, it could not be held that in taking this step it had impliedly waived any privilege attaching to documents referred to in this affidavit or otherwise associated with it.
18 We pointed out that more than once the Supreme Court had applied these principles in cases where a claim to privilege fell to be resolved in accordance with the common law. In addition, we stated that we had obtained ‘useful guidance’ from two further authorities.
1. Ordinarily the confidential briefing or instructing by a prospective litigant's lawyers of an expert to provide a report of his or her opinion to be used in the anticipated litigation attracts client legal privilege: …
2. Copies of documents, whether the originals are privileged or not, where the copies were made for the purpose of forming part of confidential communications between the client's lawyers and the expert witness, ordinarily attract the privilege: …
3. Documents generated unilaterally by the expert witness, such as working notes, field notes, and the witness's own drafts of his or her report, do not attract privilege because they are not in the nature of, and would not expose, communications: ...
4. Ordinarily disclosure of the expert's report for the purpose of reliance on it in the litigation will result in an implied waiver of the privilege in respect of the brief or instructions or documents referred to in (1) and (2) above, at least if the appropriate inference to be drawn is that they were used in a way that could be said to influence the content of the report, because, in these circumstances, it would be unfair for the client to rely on the report without disclosure of the brief, instructions or documents; ...
5. Similarly, privilege cannot be maintained in respect of documents used by an expert to form an opinion or write a report, regardless of how the expert came by the documents; ...
6. It may be difficult to establish at an early stage whether documents, which were before an expert witness, influenced the content of his or her report, in the absence of any reference to them in the report; …
19 The first of these was a passage (at 162) in the judgment of Thomas J in Interchase Corporation Ltd v Grosvenor Hill (Queensland) Pty Ltd (No 1) [1999] 1 Qd R 141, to which Lindgren J in Southcorp referred more than once. This passage is as follows:
20 The second was a paragraph in the judgment of Barrett J in Ryder v Frohlich [2005] NSWSC 1342. After quoting (at [11]) the above passage from Interchase , his Honour said (at [12]):
We are concerned in this case with discovery and production of documents. A necessary basis for privilege to attach to anything - document or otherwise - is that it records a communication. The material in categories B, C, D and E has remained in Richard Ellis's possession, and has not been the subject of any communication with the solicitors, or for that matter anyone else. The basis upon which privilege was claimed for these documents is confined to the claim that they were ‘brought into existence by Richard Ellis solely for use in this litigation since its commencement and have been kept confidential.’ (my italics). The italicised words draw attention to what is missing, and expose a deficiency in the claim. The documents consist mainly of working papers and valuations of other properties, and lack the quality of confidentiality. There is no reason to think that the documents were made for any confidential purpose. The other deficiency is that they were not communicated or intended to be communicated to anyone. In Commissioner of Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501, 552, McHugh J underlined the fundamental point that the subject matter of privilege is communication.
In the present matter, shortly put, the documents in no way make or record communications, let alone confidential communications.
This point, however trite it may seem, is fundamental to the determination of the present appeal. Much of the confusion present in the case law arises from a failure to apply it. Legal professional privilege is concerned with communications, either oral, written or recorded, and not with documents per se.
I would hold that in general, when an expert is engaged by a solicitor for the purpose of giving evidence in a case, documents generated by the expert and information recorded in one form or another by the expert in the course of forming an opinion are not a proper subject for a claim of legal professional privilege. Privilege may however be claimed in relation to communications between the expert and the solicitor (both ways) when such communication is made for the purpose of confidential use in the litigation. Beyond this there is no sufficient reason why any material relevant to the formation of the expert's opinion should be subject to a claim of legal professional privilege. It is as well to add that an expert or solicitor may not artificially manufacture privilege by, for example, the expert sending in his or her file to the solicitor. Documents of this kind simply are not confidential.
21 The orders that we made in Archer 9 with specific reference to the summons were as follows:
The point made here is that privilege can only attach to documents, which embody communication between the expert, and the litigant by whom the expert is retained (or the litigant’s lawyer). A draft report prepared by the expert is not, of its nature, such a communication. It may be that the draft report is, in fact, given or sent by the expert to the litigant or the litigant’s lawyer, but that does not change its character as something prepared by the expert, which is not intended to be a means of communication with the litigant or lawyer.
The evidence tendered by the Bar Association
(a) Within fourteen days of the date of these reasons (or such further time as may, on application, be allowed), the Applicant is to (i) file and serve a list of the documents produced in response to the summons with respect to which it maintains its claim to legal professional privilege and (ii) file and serve an affidavit in support of this claim.
(b) Following compliance by the Bar Association with the order in sub-paragraph (a), the Respondent is to be permitted to inspect and copy any of the produced documents with respect to which privilege is not claimed.
22 At a further hearing on 11 March 2008 relating to this application, the Bar Association tendered an affidavit sworn on 9 November 2007 by Mr Alan Blanch, the solicitor on the record for the Bar Association in these proceedings. Mr Blanch is a partner in the firm of Hicksons.
23 Although the Respondent, in written submissions, raised objections to this affidavit, principally on grounds of relevance, we admitted it as evidence on this application.
24 In his affidavit, Mr Blanch explained that on 11 March 2004, pursuant to instructions from the Bar Association, he retained Mr Robertson as an expert accountant to analyse a substantial number of financial records relating to the affairs of the Respondent. The Respondent had produced these records to the Tribunal in answer to a summons issued in these proceedings at the request of the Bar Association.
25 The affidavit stated that over the next two years, Mr Robertson carried out the following tasks under his retainer: (a) examining these financial records, together with other material sent to him by Mr Blanch; (b) preparing schedules, spreadsheets and other documents (copies of which he provided to Mr Blanch), in which he analysed the financial data contained in these records and this other material; (c) making suggestions for further investigations to be conducted by Mr Blanch; (d) conferring (together with Mr Blanch) with an employee of, and an accountant engaged by, the Respondent’s trustee in bankruptcy; (e) preparing draft material for his affidavit sworn on 29 March 2006 and filed in these proceedings; (f) suggesting amendments to drafts of this affidavit that Mr Blanch had prepared; and (g) attending (together with Mr Blanch) a conference with senior counsel regarding the terms of this affidavit.
26 In a spreadsheet annexed to Mr Blanch’s affidavit (‘the spreadsheet’), the documents produced by Mr Robertson, over all of which the Bar Association maintained its claim of privilege, were listed in 35 numbered categories. In relation to each category, the spreadsheet showed the following: (1) a date (or in some instances, an indication that the document or documents concerned had no date, or had various dates); (2) an entry in summary form under the heading ‘Nature of Documents’ (for example, ‘Copy of letter from Hicksons to Dennis Robertson enclosing correspondence’); (3) the number of pages in the document(s); and (4) an entry in summary form under the heading ‘Basis of Claim for Privilege’ (for example, ‘Copies of documents forming part of confidential communications between Hicksons and Dennis Robertson’).
27 The affidavit stated further that all of the documents in the spreadsheet were confidential documents that had been brought into existence for one or other of the following purposes: preparing evidence to be filed in support of the Information and/or presenting the Bar Association’s case in a comprehensible and efficient manner. It stated that the documents comprised (a) ‘work’ (sic) done by Mr Robertson at Mr Blanch’s direction; (b) documents that Mr Blanch provided to Mr Robertson with a view to his providing advice to Mr Blanch to assist in the preparation of an affidavit; (c) documents that Mr Robertson obtained at Mr Blanch’s direction; (d) draft analyses and schedules prepared by Mr Robertson; (e) records of comments made by Mr Blanch or Mr Robertson in relation to the foregoing documents or the Bar Association’s case; and (f) drafts of affidavits to be sworn by Mr Robertson (counterparts of which were kept in Mr Blanch’s file).
28 In its final paragraph, the affidavit purported to summarise the grounds on which the Bar Association was entitled to claim privilege with regard to all the produced documents.
Discussion
29 In Archer 9, we held that the criteria to be applied in determining the extent, if any, to which the Bar Association’s claim to privilege should be upheld were those developed in the common law and usefully summarised and explained in the three cases to which we referred at [17 – 20] above.
30 As the Respondent emphasised in his submissions, this means that a document that a prospective witness, such as Mr Robertson, has prepared in connection with the relevant proceedings will not attract client legal privilege unless it constitutes or embodies a communication passing between the prospective witness and (i) the party who intends to call him or her or (ii) that party’s legal adviser. This will be the case even if (a) the document is confidential and (b) the purpose for which the document was prepared was that the party should be provided with professional legal services. As spelt out clearly in Interchase Corporation Ltd v Grosvenor Hill (Queensland) Pty Ltd (No 1) [1999] 1 Qd R 141 (at 162) and Ryder v Frohlich [2005] NSWSC 1342 at [12], this element of communication is vital.
31 This feature of the common law criteria differentiates them from those applying under the Evidence Act. The difference is well explained by White J in New Cap Reinsurance Corporation Ltd (In Liq) & Anor v Renaissance Reinsurance Ltd [2007] NSWSC 258. In his judgment at [16], his Honour set out the text of section 119 of this Act, which is as follows:
32 At [18 – 20], his Honour said:
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:
for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), 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.
(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,
33 Later in his judgment, at [32 – 33], White J restated this distinction between the common law and statutory positions, though a brief observation by him at [36] seemed designed to play down its significance. This was as follows:
18 Paragraph 119(b) is important. It has been held that common law legal professional privilege does not attach to an expert’s own documents, prepared by him for the purpose of expressing an expert opinion in litigation but which were not communicated to the client or the lawyer of the client, and do not reveal communications between the expert and the client, or between the expert and the lawyer for the client (I nterchase Corporations Ltd (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 1) [1999] 1 Qd R 141 at 150-151, 153, 162; Australian Securities and Investments Commission v Southcorp Ltd (2003) 46ACSR 438 at [21]).
19 This view is based upon the fact that:
20 Section 119 of the Evidence Act expressly applies both to confidential communications between the client and a third party, or between a lawyer acting for the client and a third party, for the dominant purpose of the client being provided with professional legal services relating to legal proceedings, and to the contents of a confidential document prepared with that dominant purpose, whether the document is delivered or not …
“Legal professional privilege is concerned with communications, either oral, written or recorded, and not with documents per se.” ( Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 529, 543, 552, 568, 580–581, 585).
34 In his written submissions, the Respondent indicated his acceptance of the proposition that, ‘at a practical level’, the ‘remaining argument’ in this contest regarding privilege concerned only documents of the kinds described in clauses 4 and 5 of the Schedule to the summons, omitting from the latter clause the words ‘provided to you by Hicksons’. He contended that the onus still lay on the Bar Association to show, with respect to any documents within this range that Mr Robertson had produced, that they constituted or embodied communications between Mr Robertson and Hicksons.
36 In this way, in the case of claims for privilege over working notes and expert’s draft reports not communicated to a client’s lawyer, the same practical outcome may be reached in many cases whether the privilege is claimed at common law or under s 119 of the Evidence Act . However, the analysis of the claims must proceed along different paths.
35 He argued further that, in relation to the documents in 24 of the 35 categories set out in the spreadsheet annexed to Mr Blanch’s affidavit, neither the text of the affidavit nor the matters briefly recorded on the spreadsheet, either separately or in conjunction, sufficiently indicated that they constituted or embodied communications of this nature. The categories embraced by this submission were the following: 1, 3, 5, 8 – 14, 16 – 19, 21, 22, 24, 26, 28, 30 – 32, 34 and 35.
36 According to the Respondent, the broad description of the produced documents contained in Mr Blanch’s affidavit was insufficient to achieve this result because it indicated, at least by implication, that some of the documents were prepared by Mr Robertson or obtained by him from third parties without ever being sent to Mr Blanch. By way of illustration of this part of the Respondent’s argument, we may refer to the following phrases within our summary (at [27] above) of this part of Mr Blanch’s affidavit: ‘(d) draft analyses and schedules prepared by Mr Robertson; (e) records of comments made by … Mr Robertson in relation to the foregoing documents or the Bar Association’s case’.
37 Similarly, the matters recorded on the spreadsheet with regard to the 24 identified categories to which the Respondent directed this line of argument did not, in his submission, indicate either expressly or by implication that a communication of the relevant kind was involved.
38 With regard to the documents in 19 out of these 24 categories, Ms Adamson SC, senior counsel for the Bar Association, did not, as we understand her argument, challenge the Respondent’s contention that the evidence before us – that is, Mr Blanch’s affidavit, with the spreadsheet annexed – failed to establish that they constituted or embodied communications passing between Mr Robertson and Mr Blanch. (The five categories to which this part of her submissions did not apply are the following: 1, 3, 5, 31 and 32. We deal separately with these categories below.)
39 Ms Adamson relied, however, on a passage, different from those quoted above, in the judgment of White J in New Cap Reinsurance Corporation Ltd (In Liq) & Anor v Renaissance Reinsurance Ltd [2007] NSWSC 258. This passage, at [28 – 30], contains the proposition (at [30]) draft reports or working notes that were prepared by an expert witness for the dominant purpose of a party to proceedings being provided with legal advice would be privileged even if they were retained by the expert.
40 In relation to this proposition, we would point out, however, that his Honour expressly stated that it related only to privilege under section 119 of the Evidence Act 1995, not to common law privilege. Ms Adamson invited us to treat it as applicable to common law privilege. But in view of the authorities that we have cited, including a number of other statements made by White J in New Cap Reinsurance, we do not see how this could be correct.
41 In relation to each of these 19 categories, the ‘Basis of Claim for Privilege’ set out in the spreadsheet ended with the following phrase: ‘prepared by Dennis Robertson for the purpose of submission to Hicksons for comment and/or advice’. Preceding this phrase was a short description of the document(s) involved: for example, ‘draft schedules and/or draft spreadsheets’, or ‘working notes in relation to draft reports and/or draft schedules and/or draft spreadsheets’ or, in one case, ‘document obtained by Dennis Robertson at the behest of Hicksons in relation to draft reports and/or draft schedules and/or draft spreadsheets’.
42 In relation to each of these 19 categories, there appeared, under the heading ‘Nature of Documents’, a brief description of the document(s) concerned. This was either general (for example, ‘copy of bundle of draft schedules/spreadsheets’) or specific (for example, ‘copy of St George Bank account statement with handwritten notes of Dennis Robertson’). None of these descriptions indicated expressly or by implication that the document(s) constituted or embodied one or more communications between Mr Robertson and Mr Blanch.
43 Having reviewed in this way the relevant aspects of the text of Mr Blanch’s affidavit and of the spreadsheet, our conclusion is that, as submitted by the Respondent, no element of communication between prospective witness and legal adviser is established with respect to the documents in the 19 categories concerned. We adhere to our ruling, made in Archer 9, that at common law this is an essential element in any successful claim for client legal privilege.
44 It follows that, so far as the documents within these 19 categories in the spreadsheet are concerned, the Bar Association’s claim to privilege must fail. The relevant categories are as follows: 8 – 14, 16 – 19, 21, 22, 24, 26, 28, 30, 34 and 35.
45 It is convenient to consider next the eleven categories of documents in the spreadsheet with respect to which the Respondent did not maintain that the requisite element of communication was lacking.
46 In all of these categories, the entries under the heading ‘Nature of Documents’ indicated by express words that the documents constituted or embodied communications between Mr Robertson and Mr Blanch (or in a couple of cases, between Mr Robertson and some other person working at Hicksons). For example, there were descriptions such as ‘copy of letter from Hicksons to Dennis Robertson enclosing correspondence’ and ‘copy of email from Dennis Robertson attaching draft reports and schedules’.
47 At the conclusion of his written submissions, the Respondent indicated that the order that he sought from the Tribunal granting him access to the produced documents need not extend to the documents in these eleven categories. Elsewhere in his submissions, he said that the documents in these categories seemed ‘unexceptionable’.
48 At the same time, however, the Respondent advanced written and oral submissions to the effect that Mr Blanch’s affidavit did not and could not provide sufficient evidence to support any claim for privilege whatsoever. His main contentions in this context were these: (a) that only Mr Robertson (who was available to give evidence but was not called) could testify adequately as to what was his purpose in preparing, receiving or communicating any of the produced documents (this being a necessary component of the Bar Association’s claim to privilege); (b) that equally, Mr Blanch could not testify adequately as to the confidentiality of any communications made to him by Mr Robertson; and (c) that Mr Blanch’s affidavit was unduly vague and, on various matters, ambiguous.
49 Even apart from the Respondent’s apparent concession regarding the eleven categories now being discussed, we would not be inclined to accept any of these three contentions. We consider that both Mr Robertson’s purposes in dealing with the produced documents and the element of confidentiality may sufficiently be inferred from the nature and circumstances of his retainer by Hicksons. While we agree that Mr Blanch’s affidavit could have provided more detailed evidence on certain matters, we have found it sufficiently informative to enable us to conclude that – as indeed the Respondent appeared to concede – the Bar Association’s claim should be upheld in part and rejected in part.
50 We accordingly rule that in relation to these eleven categories of documents in the spreadsheet, the Bar Association’s claim of client legal privilege should be upheld. The relevant categories are as follows: 2, 4, 6, 7, 15, 20, 23, 25, 27, 29 and 33.
51 We will now consider the remaining five categories of produced documents: namely, categories 1, 3, 5, 31 and 32. Issue was firmly joined between the parties as to whether in each of these categories the evidence was sufficient to support a claim of privilege.
52 In Category 1, the entry under the heading ‘Nature of Documents’ was ‘Copy of letter from Hicksons to Dennis Robertson enclosing two reports’. The entry under the heading ‘Basis of Claim for Privilege’ was in these terms: ‘Copies of documents forming part of confidential communications between the Applicant’s lawyers (“Hicksons”) and the expert forensic accountant, Dennis Robertson.’
53 These two entries appear to us to align the documents in this category with those in the eleven categories, which we have held (at [47 – 50]) to be covered by the Bar Association’s claim of privilege. There is no reason, in our view, why the documents in category 1 should receive different treatment.
54 We accordingly rule that in relation to the documents in category 1 in the spreadsheet, the Bar Association’s claim of client legal privilege should be upheld.
55 In categories 3, 5 and 31, the entries under the heading ‘Nature of Documents’, described, in differing terms, copies of documents that Hicksons had provided to Mr Robertson. During cross-examination at the hearing on 11 March 2008, Mr Blanch testified that the documents in question had been ‘generated’ by Hicksons.
56 In category 32, the entry under this heading stated: ‘Copy of letter from Hicksons to Dennis Robertson attaching correspondence from Angela Gallucci dated 23 12 2004.’ In his affidavit, Mr Blanch stated that Ms Gallucci was at the material time an employee of Ferrier Hodgson, who had been the Respondent’s trustee in bankruptcy, and that Ferrier Hodgson had produced to the Tribunal various schedules analysing documents relating to the administration of the Respondent’s estate.
57 In categories 3, 5, 31 and 32, the following entry appeared under the heading ‘Basis of Claim for Privilege’:
58 During examination in chief at the hearing on 11 March 2008, Mr Blanch testified that all of these ‘working notes’ were placed by Mr Robertson on documents (within the relevant category) that ‘formed part of confidential communications between Hicksons and Mr Robertson’.
Copies of documents forming part of confidential communications between Hicksons and Dennis Robertson and working notes in relation to draft reports and/or draft schedules and/or draft spreadsheets prepared by Dennis Robertson for the purpose of submission to Hicksons for comment and/or advice.
59 During his final oral submissions to us, the Respondent argued that while the documents within these categories that had been provided by Hicksons to Mr Robertson might ‘technically’ be privileged under the second of the six principles stated by Lindgren J in Southcorp (see [17] above), the ‘working notes’ placed on them by Mr Robertson were not privileged, by virtue of the third principle stated by his Honour.
60 It appears to us that the question arising here is whether, and if so to what extent, privilege should be held to exist with relation to a composite document which, according to principles of common law such as we have been applying, is privileged in part but not as to the remainder. The parties did not advance any submissions addressed specifically to this question.
61 Our researches have unearthed some authority, which provides guidance. In Curlex Manufacturing Pty Ltd v Carlingford [1987] 2 Qd R 535, the Full Court of the Supreme Court of Queensland upheld a decision that a party to proceedings, by disclosing during discovery a portion (pages 1 – 5 and the schedule) of a draft report prepared by a consultant accountant, did not thereby waive its right to claim that the balance of the report (pages 6 – 11) could be withheld from discovery on the ground of client legal privilege.
62 In his judgment (with which Andrews CJ and Denmack J agreed), McPherson J examined the practices of covering, or ‘sealing up’, parts of documents that had developed within the procedures for discovery formulated within the Court of Chancery and the common law courts in England. At 339, he concluded ‘that for at least 150 years it has been possible to resist on some proper ground production of parts of discoverable documents, and to do so entirely without reference to the question whether the part in respect of which non-production was claimed was of “the same subject matter” as another part as to which production was not resisted’.
63 His Honour then went on to consider the situation where it was not possible to sever the privileged from the non-privileged portions of a document. At 341, he said:
64 At 342, McPherson J said:
In Churton v. Frewen (1865) 2 Dr. & Sm. 390; 62 E.R. 669, the defendant objected to produce, on the ground of legal professional privilege, a report made at the request of defendants’ solicitors. The report was the result of a search conducted by an expert of ancient documents relevant to the litigation. It was a fair inference that the report contained not only extracts from or copies of the documents (which were not privileged) but, interspersed among them, observations and comments by the expert upon their character and effect, which were entitled to privilege. Kindersley V.- C. thought it “quite impossible to separate the different portions”, and “very dangerous”, as trenching upon the principle that protected the report, to require production for inspection of those portions of the report which consisted of copies or extracts from the ancient documents. With respect, the decision cannot be regarded as authority for a proposition that privilege can be claimed for part of a document only if it embodies a different or distinct subject matter. His Honour’s reason for not requiring the document to be produced with the privileged parts sealed up was not that a waiver of privilege would follow, but that “it would hardly be possible to seal up and effectually protect from inspection those parts which constitute the report, and which it is admitted there is no right to see” (2 Dr.& Sm. at 62 E.R. at 671). Had there been no such risk, it seems likely that production would have been ordered, with liberty to seal up the privileged parts, whether they dealt with the same or a different subject matter. The decision is no more than an illustration of the rule that a document or part of a document not itself the subject of privilege may be protected from production because of what it reveals about some other document or part that does attract a claim of privilege: cf. Packer v. Deputy Commissioner of Taxation [1985] 1 Qd. R. 275, 285
65 This judgment of McPherson J has been approved and applied more than once: see for example Grofam Pty Ltd v Australia and New Zealand Banking Group Ltd (1993) 116 ALR 535; Trade Practices Commission v Ampol Petroleum (Victoria) Pty Ltd & Ors [1994] FCA 1024.
In the present case the material the subject of the claim for privilege (pages 6 to 11 of the report) is capable of isolation from the reminder of the report (pages 1 to 5 and the schedule). It was therefore possible for the defendant, as it did in its affidavit of documents, to claim privilege from production of a described part (pages 6 to 11) of the report. Had that not been possible, or had it been impracticable to seal up parts of the document, it may, on the authority of Churton v. Frewen , have been open to the defendant to claim privilege from production in respect of the whole of the report.
66 We do not see how the ‘working notes’, being the non-privileged portions of the documentary material within the four categories that we are now discussing, could be ‘severed’ from the documents on which Mr Robinson placed them. In line with our ruling regarding the 11 categories listed at [50] above, those documents are privileged because they fall within the description ‘copies of documents forming part of confidential communications between Hicksons and Dennis Robertson’. On our understanding of the principles stated by McPherson J in Curlex, the Bar Association must therefore be entitled to withhold all of this documentary material from inspection, on the ground of client legal privilege.
67 We accordingly rule that in relation to the documents in categories 3, 5, 31 and 32 in the spreadsheet, the Bar Association’s claim of client legal privilege should be upheld.
68 We should add that both parties in their submissions drew to our attention the existence of a well-recognised power of the Tribunal to inspect any or all of the documents in respect to which the Bar Association claimed privilege. We decided, however, not to exercise this power.
69 Our reasons are these: (a) as the arguments progressed, it appeared to us that our decisions regarding most of the categories of the documents in the spreadsheet were fairly clear-cut, particularly when concessions or quasi-concessions made by the parties were taken into account; (b) so far as the four most strongly disputed categories of documents were concerned, Mr Blanch’s oral evidence, coupled with the authorities that we have just discussed, provided a sufficient basis for a ruling; and (c) as Ms Adamson pointed out, by inspecting produced documents, we might provide grounds for a belief that our capacity to determine these proceedings impartially had been compromised.
Orders
Our orders are as follows:
(1) With reference to the documents produced to the Tribunal by Dennis John Robertson in answer to a summons dated 22 February 2007 and currently held by the Registry:
(2) Within seven days of the date of this decision, a representative of the Applicant is to place the documents covered by Order 1(a) in an envelope marked ‘Privileged’ and the documents covered by Order 1(b) in a separate envelope marked ‘Available for inspection by the Respondent’
(a) The Applicant’s claim to withhold these documents from inspection by the Respondent on the ground of client legal privilege is upheld with respect to the documents contained in the following categories listed in the Schedule to the affidavit of Alan William Blanch sworn on 9 November 2007: 1 – 7, 15, 20, 23, 25, 27, 29 and 31 – 33
(b) The Applicant’s claim to withhold these documents from inspection by the Respondent on the ground of client legal privilege is disallowed with respect to the documents contained in the following categories listed in the Schedule to the affidavit of Alan William Blanch sworn on 9 November 2007: 8 – 14, 16 – 19, 21, 22, 24, 26, 28, 30, 34 and 35
(3) After Order (2) has been complied with, the Respondent is permitted to inspect and copy the documents contained in the envelope marked ‘Available for inspection by the Respondent’
(4) The matter is set down for further directions at 9.30 am on Tuesday 17 June 2008.
1
9
3