Priest v State of New South Wales

[2006] NSWSC 1281

CITATION:	Priest v State of New South Wales [2006] NSWSC 1281
HEARING DATE(S):	2 November 2006
JUDGMENT DATE :	28 November 2006
JUDGMENT OF:	Johnson J at 1
DECISION:	See paragraph 82 of Judgment.
CATCHWORDS:	PRACTICE AND PROCEDURE - discovery - claim of client legal privilege - report prepared by legally qualified police officer concerning a police internal investigation - whether report created for dominant purpose of giving legal advice - whether separate category of documents concerning police internal investigation are discoverable
LEGISLATION CITED:	Evidence Act 1995 Police Act 1990
CASES CITED:	Priest v State of New South Wales [2006] NSWSC 12 Grant v Downs (1976) 135 CLR 674 Australian Competition and Consumer Commission v Lux Pty Limited [2003] FCA 89 AWB Limited v Cole (2006) 152 FCR 382 National Crime Authority v S (1991) 29 FCR 203 AWB Limited v Cole (No. 5) [2006] FCA 1234 General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84 Commissioner of Taxation (Cth) v Pratt Holdings Pty Limited (2005) 60 ATR 466 Waterford v Commonwealth of Australia (1987) 163 CLR 54 Commonwealth of Australia v Vance [2005] 157 ACTR 47 R v Shirose (1999) 133 CCC(3d) 257 Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49 Waugh v British Railways Board (1980) AC 521 Jones v Dunkel (1959) 101 CLR 298 Idoport Pty Limited v National Australia Bank Limited [2006] NSWSC 1191 Mann v Carnell (1999) 201 CLR 1 R v Saleam (1989) 16 NSWLR 14 Commonwealth of Australia v Northern Land Council (1991) 103 ALR 267 Nelson v John Lysaght (Australia ) Limited (1974-1975) 132 CLR 201 New South Wales Land and Housing Corporation v Watkins [2002] NSWCA 19 Re Southland Coal Pty Limited [2006] NSWSC 899
PARTIES:	Michael Patrick Timothy Priest (Plaintiff) State of New South Wales (Defendant)
FILE NUMBER(S):	SC 20927/01
COUNSEL:	Mr P Semmler QC; Mr D Graham (Plaintiff) Mr J Maconachie QC; Mr P Sternberg (Defendant)
SOLICITORS:	Marsdens Law Group (Plaintiff) IV Knight, Crown Solicitor's Office (Defendant)
LOWER COURT DATE OF DECISION:	---
LOWER COURT MEDIUM NEUTRAL CITATION:	---

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CIVIL LIST

Johnson J

28 November 2006

20927/01 Michael Patrick Timothy Priest v State of New South Wales

JUDGMENT

1 JOHNSON J: This judgment relates to a further round of interlocutory applications in proceedings commenced by the Plaintiff, Michael Patrick Timothy Priest, against the Defendant, the State of New South Wales. The Plaintiff served as a New South Wales Police Officer between 1983 and 2002. He has sued the Defendant seeking damages in negligence and for breach of contract. The nature of the Plaintiff’s claim was considered in my judgment of 31 January 2006: Priest v State of New South Wales [2006] NSWSC 12.

The Present Notices of Motion

2 There are two Notices of Motion before the Court:

(a) a Notice of Motion filed by the Plaintiff seeking that the Defendant comply with the order for discovery made by me on 31 January 2006;

(b) a Notice of Motion filed by the Defendant seeking to be excused from the order for discovery of documents in Category 27 (“the Operation Retz Documents”).

3 The principal issues argued on the Notices of Motion are:

(a) a claim for client legal privilege by the Defendant with respect to the report dated 5 November 2003 of Mr J Tunks (“the Tunks Report”), against the background that the document was produced for inspection on 15 June 2006 and was inspected by the Plaintiff and his solicitor;

(b) the refusal of the Defendant to discover the Operation Retz Documents, giving rise to the Defendant’s application to be excused from the order for discovery in this respect;

(e) steps taken by the Defendant to comply with Category 30 of the order for discovery requiring production of diary entries of various senior police personnel concerning certain specified topics.

The Discovery Process Since January 2006

4 In my judgment of 31 January 2006 (at [123]ff), I considered the Plaintiff’s application for discovery and ordered that the Defendant give the Plaintiff discovery of various categories of documents. On 22 February 2006, I made orders extending time for the Defendant to produce documents required under discovery until 22 May 2006.

5 On 5 June 2006, the Defendant’s First Verified List of Documents was produced to the Plaintiff, together with an affidavit of Senior Sergeant Philip Kaufmann verifying the list. According to the Defendant’s Verified List (page 20), there were two categories of documents where objections to production were raised by the Defendant. Objection was taken to production of the “Operation Retz file” upon the grounds of “no legitimate forensic purpose”. Objection was taken to production of the “original duty book of Debbie Wallace” for the period 25 March 1999 to 15 May 2000 upon the ground of “no legitimate forensic purpose”.

6 By letter dated 14 June 2006, the solicitor for the Defendant provided a supplementary list of documents which added a third category of documents to which objection to production was raised by the Defendant. The third category was described as “Item 42 (IA16 and IA17): Legal Review of 00001599” upon the ground of legal professional privilege. This category included the Tunks Report. In the letter accompanying the supplementary list, the Defendant’s solicitor stated:

“I refer to the verified list of documents dated 5 June 2006, and bring to your attention the following:

1. Further documents were obtained after service of the original list and in accordance with the defendant's continuing discovery obligations, will be made available for inspection on 15 June 2006. A description of these further documents has been incorporated into page 20 of defendant's list of documents. An updated copy of page 20 and 21 to reflect this is enclosed;

2. Duty book entries of Debbie Wallace dated 25 March 1999 - 15 May 2000 will not be produced, as the defendant considers them to lack legitimate forensic purpose in relation to the plaintiffs claim (see objection at page 20 of the defendant's discovery list of documents)

3. The Operation RETZ file will not be produced, as the defendant considers them to lack legitimate forensic purpose in relation to the plaintiff's claim (see objection at page 20 of the defendant's discovery list of documents);

4. Page 20 has been amended to include a claim of Legal Professional Privilege over Item 42, IA 16 and IA 17 (Legal Review of 00001599); accordingly, these documents will not be produced for inspection.”

7 On 15 June 2006, the Plaintiff and his solicitor inspected documents which had been produced on discovery. The discovered documents were contained in 27 lever-arch folders. Despite the claim for privilege referred to in the letter of 14 June 2006 (and supplementary list), included amongst these documents was the Tunks Report, which was read by the Plaintiff and his solicitor.

8 In a letter dated 15 June 2006, the Plaintiff’s solicitor took issue with the Defendant’s objection to production of the Operation Retz Documents and Ms Wallace’s duty book. An explanation was sought as to the Defendant’s stance with respect to these categories.

9 On 16 June 2006, a further supplementary list was provided to the Plaintiff’s solicitor by the Defendant. In a covering letter of the same date, the Defendant’s solicitor explained the position of the Defendant with respect to the Operation Retz Documents and discovery Category 30, which included Ms Wallace’s duty books:

“30 No items were found falling within this category. In the defendant's list of documents, duty book entries of Debbie Wallace dated 25 March 1999 to 15 May 2000 are listed as a document to which the defendant has raised objections to production; however after further consideration I have determined that the entries relate to Debbie Wallace's posting to Internal Affairs; do not relate to:


i) the plaintiff;

ii) the policing of drug related crime in Cabramatta LAC;

iii) the instigation of Internal Affairs complaints against the plaintiff; or

iv) the resourcing of Cabramatta LAC;
and are therefore not subject to the discovery order.


…

Please provide me with your client's response in relation to the Operation RETZ reports (category 27 in the Amended List of Categories of Documents) by close of business Monday, 19 June 2006, otherwise I will obtain instructions to move the Court for a variation of the discovery orders.”

10 By letter dated 22 June 2006, the Defendant’s solicitor raised the issue of the production for inspection of the Tunks Report on 15 June 2006:

“I refer to Ms White's and Mr Priest's attendance at my office on 15 June 2006, and their flagging of documents to be copied.

It has come to my attention that certain documents over which legal professional privilege had previously been claimed, namely documents contained in Internal Affairs file CIS P0304890 (`Legal Review of CIS 00001599'), were erroneously produced for inspection. These documents had been inserted into the file CIS 00001599, and formed part of folders IA-8 and IA-9. Specifically, the documents that were erroneously produced for inspection were:

…

6 Memorandum from J Tunks, Solicitor, dated 6 November 2003, enclosing legal review of CIS 00001599.

7. Document titled ‘Legal Review of Internal Investigation CIS 00001599”.
My client has not waived legal professional privilege over these documents. The documents have been removed form the two folders, and will not be copied.”

11 On 27 June 2006, the Plaintiff filed a Notice of Motion seeking the following orders:

“1. The Defendant to give discovery of the category of documents, listed in the Plaintiff’s Amended List (Exhibit A) in compliance with the ruling of Johnson J dated 31 January 2006.

2. The Defendant pay the Plaintiff’s costs on this motion.

3. Further order that this court sees fit.”

12 Further correspondence passed between the solicitors for the Plaintiff and the Defendant concerning the three classes of documents to which reference has been made. In a letter dated 30 June 2006, the Defendant’s solicitor further explained her client’s position with respect to the Operation Retz Documents and the duty books of Ms Wallace:

“As indicated in my letter of 16 June 2006, the Operation RETZ file relates to an investigation into management and conduct issues central to the Endeavour Region Command (which does not include Cabramatta), and more particularly into the management of former Commander Lola Scott. In the defendant's view it does not (as asserted by your client) relate generally to ‘the continuing harassment of 'whistleblowers' in the force regarding corruption involving senior police’, nor does it ‘demonstrate the failure of the Police Internal Witness Scheme’ or ‘'payback' complaints against police whistleblowers’ or ‘consequences to internal police informants or whistleblowers’. Rather it relates to specific incidents within another Regional Command under the management of a specific Commander.

The Duty Book entries of Deborah Wallace available fall between 25 March 1999 to 15 May 2000, and were made during Ms Wallace's employment at Internal Affairs. They do not relate to the plaintiff, policing of drug related crime in Cabramatta LAC, the instigation of internal affairs complaints against the plaintiff, or the resourcing of Cabramatta LAC. The entries are therefore not the subject of the discovery order, as described in the plaintiff's Amended List of Categories dated 22 February 2006 (category 30(e)(i)-(iv). No other duty books have been located in respect of Ms Wallace.

In view of the above, it is the defendant's intention to file a Notice of Motion returnable on 6 July 2006, seeking a variation of the current discovery order to remove the reference to the Operation RETZ file as a category of documents for discovery.”

13 On 3 July 2006, the Defendant filed a Notice of Motion seeking the following orders:

“1. That the orders of his Honour Justice Johnson made on 31 January 2006 and 22 February 2006, ordering the Defendant to provide verified discovery of the documents referred to in the amended list of categories served under cover of letter from the Plaintiff’s solicitor dated 24 February 2006 be varied by removing category 27.

2. That the Plaintiff pay the Defendant’s cost of the motion.”

Category 27 contains the Operation Retz Documents.

14 On 21 July 2006, a further supplementary List of Documents was provided to the Plaintiff’s solicitors.

Claim for Client Legal Privilege Concerning the Tunks Report

15 The Defendant’s claim for client legal privilege proceeded by reference to the affidavit of Senior Sergeant Kaufmann sworn 21 July 2006 and an examination of the Tunks Report itself (MFI4). Mr Maconachie QC, for the Defendant, made submissions in support of the claim for privilege and Mr Semmler QC, for the Plaintiff, responded.

16 In his affidavit, Senior Sergeant Kaufmann said (paragraph 4):

“A copy of a report prepared by J Tunks, Solicitor, Deputy Director, Legal Services, dated 5 November 2003, is contained in folders marked IA16 and IA17 (“the Report”). I am informed and verily believe that these folders were not produced for inspection, in accordance with the explicit instructions of NSW Police not to waive privilege over these documents.”

17 He adverted to the covering page of the Tunks Report which bore a note that the document was “protected by a claim of client legal privilege”. It was agreed between the parties that I would rule upon the claim for privilege and, in the event that I held that privilege attached to the document, I would hear submissions and determine whether the production and inspection of the Tunks Report by the Defendant constituted waiver of privilege. As a result, it was not necessary to consider, at this stage, what flowed from the claim for privilege over the Tunks Report made by the Defendant on 14 June 2006 which was followed by the production of that document (amongst many others) for inspection by the Plaintiff and his solicitor the next day.

Legal Principles Concerning Client Legal Privilege

18 The question whether the Tunks Report is caught by client legal privilege arises in the context of an order for discovery. I approach the issue upon the basis that the Defendant contends that the Tunks Report is, for the purpose of discovery, a privileged document: Parts 21.4(2), 21.5(1) Uniform Civil Procedure Rules (“UCPR”). A “privileged document” means a document that contains “privileged information” which, for the purpose of client legal privilege, involves application of the statutory test for privilege contained in Division 1 of Part 3.10 (ss.117-126) Evidence Act 1995: definition of “privileged information” in Dictionary to the UCPR.

19 Client legal privilege will be found with respect to confidential documents made for the dominant purpose of a lawyer providing legal advice or for the dominant purpose of a lawyer providing legal services relating to litigation: ss.118, 119 Evidence Act 1995.

20 Assessing a claim for privilege under s.118 or s.119 is a two-stage process. The first step is for the Court to be satisfied that the communication or contents, disclosure of which is sought to be prevented, satisfies the requirements set out in s.118 or s.119 or both sections. The second step is for the Court to be satisfied that the production of the document, or the unredacted part of it, would result in the disclosure of a confidential communication or the confidential contents of a document: Re Southland Coal Pty Limited [2006] NSWSC 899 at [14](b).

21 The onus of establishing the claim for client legal privilege falls on the party asserting or claiming the privilege and is met by establishing the facts giving rise to the claim: Grant v Downs (1976) 135 CLR 674 at 689; Australian Competition and Consumer Commission v Lux Pty Limited [2003] FCA 89 at [42]; Re Southland Coal Pty Limited at [14](c). Mere assertion of the claim, by way of a formulaic claim, is not enough: AWB Limited v Cole (2006) 152 FCR 382 at 402 [63]. What is required is exposure of facts from which an informed decision can be made as to whether the claim for privilege is supportable: National Crime Authority v S (1991) 29 FCR 203 at 211-212; AWB Limited v Cole (No. 5) [2006] FCA 1234 at [44]. The facts are to be proved on the balance of probabilities: s.142 Evidence Act 1995.

22 Section 118 Evidence Act 1995 protects certain confidential communications and the contents of confidential documents made or prepared for the dominant purpose of a lawyer providing legal advice to a client. In this context, “legal advice” is to be understood in a pragmatic sense - the term is not confined to telling the client the law, but includes advice as to what should prudently and sensibly be done in the relevant legal context: General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84 at [77]-[78]; Re Southland Coal Pty Limited at [14](d).

23 If the party asserting privilege over a communication has the capacity to call direct evidence on the issue of purpose, but does not do so, the tribunal of fact is entitled to infer that this evidence would not have assisted the person’s case: Re Southland Coal Pty Limited at [14](j).

24 The Court has the power to inspect the document itself to determine a claim for privilege and the Court should not be hesitant to exercise that power: Re Southland Coal Pty Limited at [14](k); s.133 Evidence Act 1995.

25 The purpose for which a communication is made or a document is created is a question of fact. Purpose and intended use must be determined objectively, having regard to all of the evidence. Purpose cannot be proved by mere assertion by a third party. Normally (but not always) the relevant purpose is that of the maker of the communication for which privilege is sought: Re Southland Coal Pty Limited at [14](g).

26 A “dominant purpose” is one that predominates over other purposes - it is the prevailing or paramount purpose: AWB Limited v Cole (No. 5) at 411 [105]. The “dominant purpose” brings within the scope of the privilege a document brought into existence for the purpose of a client being provided with professional legal services notwithstanding that some ancillary or subsidiary use of the document was contemplated at the time: Commissioner of Taxation (Cth) v Pratt Holdings Pty Limited (2005) 60 ATR 466 at [30]. Where two purposes are of equal weight, neither is dominant in the relevant sense: Re Southland Coal Pty Limited at [14](h). Hence a document is not privileged from production where one purpose for its creation is to obtain legal advice, but there is another equally important purpose. Likewise, if several purposes are of roughly similar weight, then it cannot be said that one prevails over the other: AWB Limited v Cole (No. 5) at 411 [106].

27 An appropriate starting point when applying the dominant purpose test is to ask what was the intended use or uses of the document which accounted for it being brought into existence: AWB Limited v Cole (No. 5) at 411 [107].

28 Client legal privilege is capable of attaching to communications between a salaried legal advisor and his or her employer provided that the legal advisor is consulted in a professional capacity in relation to a professional matter and the communications are made in confidence and arise from the relationship of lawyer and client: Waterford v Commonwealth of Australia (1987) 163 CLR 54 at 96; AWB v Cole (No. 5) at [44]. Where client legal privilege is claimed over documents produced by an in-house lawyer, particularly when that in-house lawyer is employed in government service, the question is whether the document would meet the statutory test of being a confidential document, that is to say, was it prepared in such circumstances that the person who prepared it was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under the law: Commonwealth of Australia v Vance [2005] 157 ACTR 47 at 53 [24].

29 Not everything done by a government lawyer attracts client legal privilege. Whilst some work of government lawyers is indistinguishable from the work of private practitioners, they may have multiple responsibilities. They may be called upon to offer policy advice that has nothing to do with their legal training or expertise, but draws on departmental know-how. Advice given by lawyers outside the solicitor-client relationship is not protected: R v Shirose (1999) 133 CCC(3d) 257 at 288-9; Vance at 54 [28].

30 It is not necessary that an in-house lawyer possess a current practising certificate for the purpose of the creation of client legal privilege: Vance at 54-55 [31], [35].

31 In Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49, Gleeson CJ, Gaudron and Gummow JJ observed at 65 [37] that it is commonplace for a document to be brought into existence for a multiplicity of purposes, especially in large corporations or bureaucracies which will often have their own internal legal staff. Their Honours referred (at 66 [38]) to Waugh v British Railways Board (1980) AC 521 where a report of an internal inquiry into a railway accident was prepared for two purposes - to assist the Board to decide whether there was a need to revise safety and operational procedures and to obtain legal advice in anticipation of litigation. In neither case was the obtaining of legal advice or assistance the dominant, let alone the sole, purpose of bringing the documents into existence, and it was observed that the conditions of ss.118 and 119 Evidence Act 1995 would not have been satisfied. If the most that could be said of a report is that the purposes for which it came into existence included a purpose of obtaining legal advice or assistance, then privilege will not apply: Esso at 69 [50].

Submissions Concerning the Tunks Report

32 Mr Maconachie QC submits that, upon examination, the Tunks Report is clearly a document prepared for the dominant purpose of giving legal advice to senior police personnel. He submits that Mr Tunks (then an Acting Chief Inspector (T43.35, 2 November 2006)), was a solicitor within the Legal Services Branch of the Police Service at the relevant time. He points to parts of the document which assert that it is a “legal review”, or assert that is otherwise intended to be caught by privilege.

33 Mr Maconachie QC submits (T34-43) that it is clear, on the face of the document, that it involves legal advice given by Mr Tunks to senior police concerning the internal investigation under review. The Defendant submits that, although there is no express reference to possible administrative law remedies, opinions are expressed in a manner intended to inform the recipient of the document of features of the internal investigation report which would be susceptible to legal challenge, in the event that the Commissioner of Police was to make decisions relying upon it.

34 Mr Semmler QC points to the fact that the only evidence relied upon by the Defendant on the claim for client legal privilege is the affidavit of Senior Sergeant Kaufmann sworn 21 July 2006 referred to above, which does little more than repeat the formula appearing on the front page of the Tunks Report itself. The Plaintiff submits that it is significant that the Defendant has not adduced evidence from the author of the Tunks Report, or from the person or persons within the NSW Police who directed its creation. Mr Semmler QC submits that an inference adverse to the Defendant ought be drawn in accordance with the principle in Jones v Dunkel (1959) 101 CLR 298 flowing from the failure of the Defendant to adduce any evidence in support of the privilege claim.

35 Mr Semmler QC submits that the primary motivation behind the Tunks Report being brought into existence was to enable the Defendant to investigate the conduct of the internal affairs investigation under review. The fact that the document may have had some later relevance or use in the event that legal proceedings were taken does not, so the Plaintiff submits, detract from the fact that its sole, let alone dominant, purpose was to conduct an internal administrative investigation. Reliance was placed upon statements in Waterford that privilege does not extend to the seeking or giving of advice as to government policy in administering a statute (Brennan J at 77), advice which is intended to form the basis of an administrative decision to be made in the performance of some public duty (Dawson J at 97) or to general policy advice or directions given by government lawyers (Deane J at 84).

36 Even if parts of the Tunks Report were privileged, Mr Semmler QC submitted that privilege would not extend to the whole of the document unless I was satisfied that the dominant purpose test had been made out for the entirety of it: Waterford at 66.

The Purpose or Purposes of the Tunks Report

37 I do not propose to draw an adverse inference arising from the Defendant’s failure to adduce evidence from Mr Tunks on the present application. Mr Tunks is now employed as a solicitor in the firm of solicitors representing the Plaintiff. In these circumstances, it cannot be said that there has been an unexplained failure on the part of the Defendant to adduce evidence from Mr Tunks. Nevertheless, in the absence of any further evidence concerning the circumstances in which the Tunks Report came into existence, the claim is left to be determined on the contents of the document itself.

38 It is appropriate to refer to parts of the Tunks Report which shed light upon the purpose or purposes for which it was brought into existence. The following analysis will make limited reference to the content of parts of the Tunks Report. As will be seen, I have rejected the claim of privilege. I have taken care, however, to avoid reference to the content of the document, in the event that there is an appeal from my decision.

39 I was informed at the hearing that Mr Tunks was a Senior Sergeant (acting as a Chief Inspector) within the NSW Police in November 2003. Following his signature at the end of the report, Mr Tunks described himself as “Solicitor, Deputy Director Legal Services (Compliance Law Division)”. The title page of the report bore the endorsement “Legal Review of Internal Investigation CIS00001599” with a further endorsement “Confidential Legal Protected”.

40 In a covering memorandum dated 6 November 2003 from Mr Tunks, directed to each of the Director, Legal Services, the (Commissioner’s) Chief of Staff and the Commissioner, the following endorsement appears:

“This document (and attached material) is forwarded to you in the course of providing legal professional services. Both this document as well as any reply you may provide are protected by a claim of client legal privilege. Only the client is able to waive this claim. Provision of a copy of this document to any third party may constitute such a waiver. If you have any concerns, please do not hesitate to contact the writer.”

41 In the body of the memorandum, Mr Tunks indicated that he had completed the legal review of the internal investigation as requested and enclosed a copy of his advice. He drew attention to certain recommendations and conclusions in the document.

42 In paragraph 1 of the report, Mr Tunks stated that the Commissioner of Police (through Chief Superintendent Aust) had requested a legal review be undertaken in relation to the relevant internal investigation. In particular, Mr Tunks stated that he had been requested “to examine the manner in which the investigation was conducted”. See also paragraph 54 of the Tunks Report.

43 A number of conclusions and recommendations are made at paragraphs 4 and 242 of the report. These indicate to me that the dominant purpose of the report is not the provision of legal advice. Rather, the recommendations and conclusions point to an administrative or process review being the focus of the report.

44 In the report, Mr Tunks reviews the history of the internal investigation under review and makes a number of critical observations concerning the process undertaken (see, for example, paragraphs 9-12, 21, 25).

45 Within the report, Mr Tunks touches upon some matters which, in other contexts, may have the capacity to form a type of legal advice. However, in my view, a fair and objective reading of these parts of the Tunks Report does not indicate that these observations were made for the dominant purpose of giving legal advice (see, for example, paragraphs 39, 50).

46 I note that there is no reference to any authorities, texts or legal principles in the Tunks Report. No reference is made in the Tunks Report to the vulnerability of the internal investigation under review to challenge in any proceedings before a court or tribunal.

47 In my view, the Tunks Report has the strong flavour of an administrative or process review conducted by a police officer with legal training - the content and quality of the internal investigation under review are assessed.

48 Having considered the content of the Tunks Report, and its covering memorandum, together with the submissions made on behalf of the parties, I am not satisfied that client legal privilege attaches to the document.

49 To uphold the claim for privilege, I must be satisfied that the predominant, prevailing or paramount purpose for which the document was brought into existence was the provision of legal advice. I am not so satisfied.

50 In reaching this conclusion, I have taken into account the endorsements on the face of the Tunks Report and the covering memorandum which seek to invoke, in a formulaic way, client legal privilege. The test as to whether client legal privilege is demonstrated, however, is an objective one. I am not satisfied, on the evidence which has been adduced, that the Defendant has demonstrated that the privilege attaches to the Tunks Report.

51 In these circumstances, as I have found that client legal privilege does not attach to the Tunks Report, the question whether privilege was waived by the production of the report on 15 June 2006 for inspection by the Plaintiff and his solicitor does not arise.

The Operation Retz Documents

52 In my judgment of 31 January 2006 (at [163], [169]), I ordered the Defendant to give discovery of a category of documents (then Category 31, now Category 27) described as follows:

“Operation Retz reports into the conduct of former Assistant Commissioner Lola Scott from 1999 to present.”

Revisiting the Discovery Order Concerning Operation Retz Documents

53 By its Notice of Motion, the Defendant seeks to have Category 27 withdrawn from the order for discovery. Mr Maconachie QC submits that the Operation Retz Documents (MFI5) are not relevant to a fact in issue in the proceedings and, accordingly, are not discoverable: Part 21.1(2) UCPR.

54 Mr Maconachie QC submits that it is open to the Defendant to make the present application despite the fact that no appeal was brought from my order for discovery, which included the Operation Retz Documents. The Defendant submits that the discovery issue determined in my earlier judgment was dealt with as an argument in principle and at a level of generality, without reference to particular documents. The Defendant’s present application invites me to examine the documents in Category 27 for the purpose of an express ruling concerning their discoverability.

55 Mr Semmler QC submits that it is not open to the Defendant to approach the issue in this way. The approach which the Defendant seeks to take, it is submitted, involves an attempt to cavil with my earlier ruling which has not been taken on appeal. The Plaintiff submits that there is no evidence that new facts have emerged or that circumstances have changed so as to warrant further consideration of the issue.

56 I approach the Defendant’s application upon the basis that it is open to it to seek an order withdrawing Category 27 from the order for discovery. My order for discovery was interlocutory. It is open to the Defendant to bring the present application, inviting examination of the Operation Retz Documents themselves, in support of a submission that they are not, as a class, discoverable. In this sense, the Defendant invites further consideration of the issue by reference to additional relevant facts: Priest v State of NSW at [41]. Of course, there may be costs consequences for the Defendant, even if it succeeds on its application, having regard to the manner in which the present application is brought.

Relevant Legal Principles

57 The relevant principles with respect to discovery are not in dispute. A document is relevant if it is relevant to a fact in issue as defined in Part 21.1(2) UCPR. Relevance is measured by whether the document contains material that could rationally affect the assessment of the probability of the existence of a fact in issue: Idoport Pty Limited v National Australia Bank Limited [2006] NSWSC 1191 at paragraph 7. If documents satisfy this test, they are discoverable whether or not they would be admissible in evidence at the hearing of the proceedings: Mann v Carnell (1999) 201 CLR 1 at 10-11 [19]. Although not admissible in evidence, documents may be important because they indicate a useful line of investigation or contain information which could affect the manner in which a party may decide to conduct proceedings: Mann v Carnell at 10-11 [19].

58 Category 27 has already been included in an order for discovery: Priest v State of NSW at [136]. The Defendant asks the Court to revisit this issue. In these circumstances, I approach the present application upon the basis that it is for the Defendant to satisfy me that the category ought be withdrawn from the order made.

Submissions of the Parties

59 I turn to the submissions of the parties on the substance of the application.

60 At one point, Mr Maconachie QC sought to call in aid s.170 Police Act 1990 in support of an argument that the Operation Retz Documents were not discoverable. In light of the decision in R v Saleam (1989) 16 NSWLR 14 at 21-22, it is now common ground between the parties that s.170 relates only to admissibility of evidence, and not the requirement to produce documents by way of discovery or subpoena. Section 170 is not relevant to the present issue.

61 The Defendant submits that the Operation Retz Report (which forms part of MFI5) was completed in November 2002 and involved an investigation into various matters concerning Commander Lola Scott in the Endeavour Region Command.

62 The Defendant points to the fact that the Plaintiff’s service with the Defendant terminated in 2002 (prior to the completion of the Operation Retz Report). Insofar as the Plaintiff’s affidavit (paragraphs 13 and 16) states that he was aware that Operation Retz made strong recommendations about the treatment of internal police whistleblowers, and that this provided him with comfort in complaining about the conduct of senior police at Cabramatta, the Defendant points to the fact that the Plaintiff’s complaints to that effect were made in September 1999 and pre-dated the Operation Retz Report. Accordingly, the Defendant submits that the recommendations, and the Operation Retz Report, could not have given the Plaintiff “comfort in complaining” as asserted by him.

63 The Defendant submits that the Plaintiff’s affidavit concerning the relevance of the Operation Retz Documents involves speculative possibilities and suggestions that the report may contain relevant material, and that this is not sufficient to require the Defendant to give discovery: Commonwealth of Australia v Northern Land Council (1991) 103 ALR 267 at 290.35. The Defendant submits that it is clear that the Operation Retz Report played no part whatsoever in promoting any complaints made by the Plaintiff in September 1999. The recommendations were not made until three years later.

64 The Defendant submits that an investigation of unrelated matters which post-dated the Plaintiff’s complaints with respect to senior police at Cabramatta, cannot satisfy the relevance test in Part 21.1(2) UCPR. The Defendant submits that the Plaintiff derives no comfort from Nelson v John Lysaght (Australia ) Limited (1974-1975) 132 CLR 201, which involved the relevance of a change to a system of work in an entirely different workplace context.

65 The Defendant submits that, in reality, Category 27 involves a fishing expedition by the Plaintiff and should be withdrawn from the order for discovery.

66 The Plaintiff submits that the Operation Retz Documents are relevant to the Plaintiff’s case. He submits that the Operation Retz investigation commenced in the mid-to-late 1990s, and was completed whilst the Plaintiff was still employed by the Defendant. The Plaintiff relies upon the Plaintiff’s affidavit sworn 14 July 2006 which, so it was submitted, was capable of supporting the Plaintiff’s contention that the Operation Retz Documents satisfied the test of relevance for the purpose of Part 21.1(2) UCPR.

67 The Plaintiff submits that, even if it be the case that the Operation Retz Report post-dated the Plaintiff’s employment with the Defendant, it remained relevant to these proceedings. This is because changes to a system of work that are implemented (or recommended) after a Plaintiff’s injuries are sustained, may nonetheless be relevant to the issue of the availability of a practical, safer alternative system of work which would have reduced or eliminated the risk of injury to which the Plaintiff was exposed: Nelson v John Lysaght (Australia) Limited at 214-215; New South Wales Land and Housing Corporation v Watkins [2002] NSWCA 19 at [78]-[80].

68 The Plaintiff points to the pleadings and submits that the Operation Retz Documents are relevant so that their production fulfils a legitimate forensic purpose. The Plaintiff refers to paragraph 31 of the Third Amended Statement of Claim filed 20 February 2006, in which the Plaintiff alleges that he complained about the policing of drugs and organised crime in the Cabramatta area in July 1999. In or about November 1999, the Plaintiff was also involved in complaints, with another police officer, against Superintendent Horton: paragraph 35, Third Amended Statement of Claim. The Plaintiff alleges that he made complaints in relation to policing and police officers in the Cabramatta area: paragraphs 50, 51, 59, Third Amended Statement of Claim. The Plaintiff alleges that, after he made complaints, he was harassed and victimised at the request of senior officers of the New South Wales Police Service: paragraphs 32, 33, 38, 39, Third Amended Statement of Claim.

69 The Plaintiff specifically pleads, as allegations of negligence, a failure on the part of the Defendant to develop and implement systems of work which ensured that he was not subjected to harassment, victimisation and inappropriate treatment after he had made complaints about policing and senior police officers. The Plaintiff points to the particulars of negligence following paragraph 65 of the Third Amended Statement of Claim in this respect. The Plaintiff submits that it is central to his claim that he was not afforded a safe system of work when he became an internal whistle blower, making complaints about policing and the conduct of senior police officers.

70 The Plaintiff submits that the Operation Retz Documents, although originating in the Endeavour Region Command, concern the treatment of internal whistleblowers making complaints about senior police officers. The Plaintiff submits that the investigation concerned the implementation, or recommendation for implementation, of a safe system of work for persons such as the Plaintiff.

71 The Plaintiff submits that the Operation Retz Documents are relevant to the proceedings and that their production on discovery is for a legitimate forensic purpose and that, as a result, Category 27 ought not be withdrawn from the order for discovery already made.

Resolution of Competing Submissions

72 For the purpose of determining the competing submissions, I have examined the Operation Retz Documents contained within two lever-arch folders (MFI5).

73 Although Operation Retz led to a 153-page report of Detective Inspector Cameron dated 15 November 2002, it is obvious that this report was the culmination of an extensive and protracted investigation of a large number and variety of allegations. A number of the matters which were investigated appear to relate, directly or indirectly, to allegations of victimisation or harassment of police officers or fear of retribution of officers resulting from the making of complaints. In this respect, I note pages 84-87, 112, 117-121, 142-149 and 150 of Detective Inspector Cameron’s report of 15 November 2002.

74 In considering the test of relevance for the purpose of discovery with respect to this class of documents, I have regard to the Plaintiff’s submission that a change of system after an event (if such a change took place) may provide prima facie evidence of what could and should have been done beforehand to avoid an obvious risk: Nelson v John Lysaght at 214-215; NSW Land and Housing Corporation v Watkins at paragraphs 78-80.

75 In my view, a foundation exists in the Third Amended Statement of Claim for the Plaintiff to call in aid this principle in the present proceedings. Those parts of the Operation Retz Documents which touch upon allegations of victimisation and harassment of persons making complaints about other officers, and any measures adopted by the New South Wales Police to deal with such matters are, in my view, relevant for the purpose of Part 21.1(2) UCPR. This is so, whether the documents were brought into existence before or after the time of the alleged events referred to in the Third Amended Statement of Claim. I accept the Plaintiff’s submissions, in this respect, based upon Nelson v John Lysaght and NSW Land and Housing Corporation v Watkins.

76 The report of Detective Inspector Cameron of 15 November 2002 touches upon a range of other issues apart from allegations of victimisation and harassment. It may be that those parts of the report are not relevant for the purpose of discovery. It may be, however, that there is some overlap with the Operation Retz Documents which touch upon allegations of victimisation and harassment, and conclusions arising from those allegations.

77 I am not prepared, at this stage, to withdraw the Operation Retz Documents, or part of them, from the order for discovery. I will provide the Defendant with an opportunity to consider the documents contained within MFI5 for the purpose of identifying, with some specificity, the documents which it contends do not relate to the investigation of allegations of victimisation and harassment. This process may involve a close examination of the report of 15 November 2002 (contained in Volume 1 of MFI5) and a series of other documents and reports (contained in Volume 2 of MFI5). It is appropriate that the legal representatives for the Defendant have an opportunity to make precise submissions concerning the documents in the light of my ruling, and I will give them that opportunity. However, that opportunity will not be open-ended. I propose to stand the matter over to 9.30 am on 14 December 2006 to permit the Defendant to make further submissions in support of its application with respect to the Operation Retz Documents.

The Diaries’ Issue

78 Category 30 of the order for discovery requires discovery of all entries in the diaries for the years 1997 to 2001 of former Superintendent Peter Horton, former Commissioner Peter Ryan, former Deputy Commissioner Jeff Jarrett, former Assistant Commissioner Clive Small and Inspector Deborah Wallace in relation to:

(a) the Plaintiff;

(b) the policing of drug-related crime in Cabramatta LAC;

(c) the instigation of Internal Affairs complaints against the Plaintiff;

(d) the resourcing of Cabramatta LAC.

79 The Plaintiff’s grievance with respect to this category of documents is that ambiguous indications have been given in correspondence concerning the existence of such diaries and their contents. See the Affidavit of Zarina Braybrooke affirmed 4 July 2006 annexing letters from the Crown Solicitor’s Office to the Plaintiff’s solicitors dated 16 June 2006 (page 54) and 30 June 2006 (pages 63-64).

80 The position is unsatisfactory in that is not clear what steps the Defendant has taken to obtain diaries from the persons mentioned in Category 30 since the order was made by me on 31 January 2006.

81 Mr Maconachie QC submitted that a number of the persons involved may be either unco-operative, or not contactable, for this purpose (T60-62). This submission suggests that the Defendant has not received clear answers from these persons as to whether diaries exist, let alone whether they contain entries which may be relevant to this category of discovery. At the hearing on 2 November 2006, Mr Maconachie QC indicated that a letter will be sent, in clear terms, to the Plaintiff’s solicitors explaining the position with respect to this category of documents (T61.46). If controversy remains concerning Category 30 when judgment is handed down, it may be necessary to revisit this issue.

Conclusion

82 In summary:

(a) I reject the Defendant’s claim for client legal privilege with respect to the Tunks Report;

(b) I am not prepared, at this stage, to withdraw the Operation Retz Documents (Category 27) from the order for discovery;

(c) I will allow the Defendant a limited opportunity to make specific submissions with respect to the Operation Retz Documents and, in particular, concerning documents in MFI5 which are said not to relate to the investigation of allegations of victimisation and harassment.

83 I stand the matter over to 9.30 am on 14 December 2006 to permit the Defendant an opportunity to make further specific submissions in support of its application to withdraw from the order for discovery such Operation Retz Documents as are said not to relate to allegations of harassment and victimisation. At that time, I will also hear the parties as to costs.

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