Public Transport Authority of Western Australia v Leighton Contractors Pty Ltd
[2007] WASCA 151
•18 JULY 2007
PUBLIC TRANSPORT AUTHORITY OF WESTERN AUSTRALIA -v- LEIGHTON CONTRACTORS PTY LTD [2007] WASCA 151
| (2007) 34 WAR 279 | |||
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASCA 151 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:60/2007 | 8 MAY 2007 | |
| Coram: | STEYTLER P McLURE JA MILLER JA | 18/07/07 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted Appeal allowed | ||
| A | |||
| PDF Version |
| Parties: | PUBLIC TRANSPORT AUTHORITY OF WESTERN AUSTRALIA LEIGHTON CONTRACTORS PTY LTD (ABN 98 000 893 667) |
Catchwords: | Legal professional privilege Litigation privilege Whether separate existence and rationale from advice privilege Draft witness statements Whether witness can be compelled to produce draft witness statements |
Legislation: | Evidence Act 1995 (Cth), s 117, s 119 |
Case References: | Attorney-General (NT) v Maurice (1986) 161 CLR 475 Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526 Blank v Canada (Minister of Justice) [2006] 2 SCR 319 Carbone v National Crime Authority (1994) 52 FCR 516 Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 Commonwealth Bank of Australia v Cooke [2000] 1 Qd R 7 Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49 General Accident Assurance Company v Chrusz (1999) 45 OR (3 rd) 321 Goldberg v Ng (1995) 185 CLR 83 Harmony Shipping Co SA v Saudi Europe Line Ltd [1979] 1 WLR 1380 Hartogen Energy Ltd (in liq) v The Australian Gas Light Company (1992) 36 FCR 557 Health & Life Care Ltd v Price Waterhouse (1997) 69 SASR 362 Hickman v Taylor 329 US 495 (1946) In The Estate of Fuld, deceased [1965] P 405 Interchase Corporation Ltd (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 1) [1999] 1 Qd R 141 ISTIL Group Inc v Zahoor [2003] 2 All ER 252 Mann v Carnell (1999) 201 CLR 1 Mitsubishi Electric Australia Pty Ltd v Victorian Workcover Authority (2002) 4 VR 332 Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357 Ritz Hotel Ltd v Charles of The Ritz Ltd (No 22) (1988) 14 NSWLR 132 Southern Equities Corporation Ltd v West Australian Government Holdings Ltd (1993) 10 WAR 1 Southern Equities; Dingle v Commonwealth Development Bank of Australia (1989) 23 FCR 63 Susan Hosiery Ltd v Minister of National Review [1969] 2 Ex CR 27 The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 Trade Practices Commission v Sterling (1979) 36 FLR 244 Westgold Resources NL v St Barbara Mines Ltd [2007] WASC 47 Wheeler v Le Marchant (1881) 17 Ch D 675 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : PUBLIC TRANSPORT AUTHORITY OF WESTERN AUSTRALIA -v- LEIGHTON CONTRACTORS PTY LTD [2007] WASCA 151 CORAM : STEYTLER P
- McLURE JA
MILLER JA
- Appellant
LEIGHTON CONTRACTORS PTY LTD (ABN 98 000 893 667)
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : LE MIERE J
File No : CIV 1570 of 2006
Catchwords:
Legal professional privilege - Litigation privilege - Whether separate existence and rationale from advice privilege - Draft witness statements - Whether witness can be compelled to produce draft witness statements
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Legislation:
Evidence Act 1995 (Cth), s 117, s 119
Result:
Leave to appeal granted
Appeal allowed
Category: A
Representation:
Counsel:
Appellant : Mr D J Higgs SC & Mr J A Thomson
Respondent : Mr C G Colvin SC
Solicitors:
Appellant : State Solicitor for Western Australia
Respondent : Mallesons
Case(s) referred to in judgment(s):
Attorney-General (NT) v Maurice (1986) 161 CLR 475
Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526
Blank v Canada (Minister of Justice) [2006] 2 SCR 319
Carbone v National Crime Authority (1994) 52 FCR 516
Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501
Commonwealth Bank of Australia v Cooke [2000] 1 Qd R 7
Dingle v Commonwealth Development Bank of Australia (1989) 23 FCR 63
Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49
General Accident Assurance Company v Chrusz (1999) 45 OR (3d) 321
Goldberg v Ng (1995) 185 CLR 83
Harmony Shipping Co SA v Saudi Europe Line Ltd [1979] 1 WLR 1380
Hartogen Energy Ltd (in liq) v The Australian Gas Light Company (1992) 36 FCR 557
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Health & Life Care Ltd v Price Waterhouse (1997) 69 SASR 362
Hickman v Taylor 329 US 495 (1946)
In The Estate of Fuld, deceased [1965] P 405
Interchase Corporation Ltd (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 1) [1999] 1 Qd R 141
ISTIL Group Inc v Zahoor [2003] 2 All ER 252
Mann v Carnell (1999) 201 CLR 1
Mitsubishi Electric Australia Pty Ltd v Victorian Workcover Authority (2002) 4 VR 332
Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357
Ritz Hotel Ltd v Charles of The Ritz Ltd (No 22) (1988) 14 NSWLR 132
Southern Equities Corporation Ltd v West Australian Government Holdings Ltd (1993) 10 WAR 1
Susan Hosiery Ltd v Minister of National Review [1969] 2 Ex CR 27
The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543
Trade Practices Commission v Sterling (1979) 36 FLR 244
Westgold Resources NL v St Barbara Mines Ltd [2007] WASC 47
Wheeler v Le Marchant (1881) 17 Ch D 675
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1 STEYTLER P: I agree with McLure JA.
2 McLURE JA: This is an expedited application for leave to appeal from an interlocutory order made by Le Miere J on 5 April 2007 dismissing the appellant's application for an order preventing inspection of certain documents discovered by the Australian Bureau of Statistics ("ABS") on the ground of legal professional privilege.
3 The litigation between the appellant and the respondent arises out of a contract between them with respect to the construction of the Perth-Mandurah railway. The contract contains a rise and fall provision in relation to material which was to be governed by a table published by ABS known as table 42. ABS discontinued table 42 in the course of construction of the railway. The appellant engaged ABS to in effect re-instate table 42 and liaised with officers of ABS for that purpose. ABS produced a substitute table (table 48) which is relevant to matters in issue in the litigation. The appellant's solicitors obtained witness statements from three ABS employees.
4 On 22 February 2007, on the application of the respondent, Le Miere J made orders for non-party discovery against ABS. ABS filed and served an affidavit of discovery and list of documents. The appellant claimed legal professional privilege in respect of certain documents in the list and applied for an order preventing disclosure of those documents. The documents were described by the primary Judge as:
"(a) … communications between the [appellant's] solicitors and either ABS employees or ABS's solicitors, or internal communications between employees of the ABS.
(b) … generally made for the purpose of the [appellant] preparing witness statements in the present proceedings for three ABS employees … and include draft versions of those statements. This includes three internal emails between ABS employees, but they also relate to information in the witness statements."
5 There was no express communication between the appellant's solicitors and ABS (or its servants and agents) relating to the confidential status of the communications in issue.
6 The primary Judge held, following Westgold Resources NL v St Barbara Mines Ltd [2007] WASC 47, that the communications were
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- protected by litigation privilege only if ABS owed a duty of confidentiality to the appellant. The primary Judge continued:
"Ordinarily, communications between a party or its solicitors and a third party witness are not confidential in the absence of some communication from the party or its solicitors requesting or stating that its communications are confidential and seeking some acceptance or acknowledgement from the witness that the communications are confidential.
In this case the potential witnesses who were approached and were the subject of the communications were employees of the government agency, [ABS].
Furthermore, the ABS engaged its own solicitors. There is no evidence before me to establish that the communications that were made to the potential witnesses, or to the ABS, were made on the basis that it was asserted or accepted that there was any obligation of confidentiality obliging them to keep the information confidential.
I am not satisfied that in this case the evidence establishes a duty of confidence owed by the witnesses, or potential witnesses, to the [appellant] or its solicitors …
Accordingly, I find that the [appellant] has not established that it is entitled to maintain legal professional privilege or client legal privilege in relation to the documents claimed."
8 The respondent filed a notice of contention claiming that, even if the documents are confidential, they are outside the scope of legal professional privilege which exists only to the extent necessary to facilitate communications between clients and their lawyers to obtain legal advice and the subject documents were not for that purpose. The
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- contention is to the effect that legal professional privilege is confined to advice privilege.
9 The claim for privilege relates to draft statements of witnesses and communications with respect thereto. No claim for privilege was made in relation to the final statements of the ABS witnesses. They have been provided to the respondent. The unchallenged finding of the primary Judge is that the appellant (which in context must be a reference to its solicitors) was preparing the witness statements.
10 The issues for determination in the application are:
1. Whether the communication between the lawyer and witness must be confidential for litigation privilege to apply to documents in the hands of the legal practitioner (or client) and, if so, what is meant by confidential.
2. Under what circumstances, if any, is the communication privileged in the hands of the witness. Do different principles apply:
(i) to expert witnesses and independent witnesses of fact;
(ii) when the claim for privilege arises when the witness is subject to compulsory court process (such as third party discovery).
3. Whether litigation privilege only applies if the disclosure would reveal confidential communications between solicitor and client relating to legal advice.
11 The appellant's case is that (1) there are two categories of legal professional privilege, advice privilege and litigation privilege; (2) the rationale for the two categories is different; and (3) as a consequence, confidentiality is not a necessary condition of litigation privilege.
12 Lockhart J in Trade Practices Commission v Sterling (1979) 36 FLR 244 at 246 described litigation privilege as covering communications and documents passing between the party's solicitor and a third party if they are made or prepared when litigation is anticipated or commenced, for the purposes of the litigation, with a view to obtaining advice as to it or evidence to be used in it or information which may result in the obtaining of such evidence.
13 Litigation privilege is recognised in this jurisdiction as a separate category of legal professional privilege with a different rationale to that of
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- advice privilege: Southern Equities Corporation Ltd v West Australian Government Holdings Ltd (1993) 10 WAR 1. In that case the plaintiffs' solicitors, after litigation had commenced, took an affidavit from the managing director of the first plaintiff, who was seriously ill and about to undergo surgery from which he might not recover. The defendants called for the production of the affidavit in the context of discovery. The plaintiffs claimed legal professional privilege in respect of the affidavit. The Full Court upheld the claim. Seaman J adopted the rationale for litigation privilege (also referred to as the lawyer's brief rule) identified by Jackett P in Susan Hosiery Ltd v Minister of National Review [1969] 2 Ex CR 27 at 33 as follows:
"Turning to the 'lawyer's brief' rule, the reason for the rule is, obviously, that, under our adversary system of litigation, a lawyer's preparation of his client's case must not be inhibited by the possibility that the materials that he prepares can be taken out of his file and presented to the court in a manner other than that contemplated when they were being prepared."
15 The appellant also relied on English and Canadian authority in support of its contention that confidentiality is not a condition of litigation privilege: ISTIL Group Inc v Zahoor [2003] 2 All ER 252; General Accident Assurance Company v Chrusz (1999) 45 OR (3d) 321; Blank v Canada (Minister of Justice) [2006] 2 SCR 319. In Zahoor, the claimants and their solicitors corresponded by email with an unidentified potential witness. Subsequently, the unidentified witness copied his communications with the claimants and their solicitors without their consent to the defendants. Lawrence Collins J held that the email exchanges between the claimants and the unidentified witness were
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- covered by litigation privilege in the hands of the claimant even if the unidentified witness did not expressly or impliedly agree to keep the communication confidential. However, the implication in the reasons is that there would be no injunctive remedy against the witness unless the witness owed a duty of confidentiality in relation to the information.
16 The Ontario Court of Appeal in Chrusz and the Supreme Court of Canada in Blank quoted with approval a lecture by R J Sharpe entitled "Claiming Privilege in the Discovery Process" in "Law in Transition: Evidence", LSUC Special Lectures (1984) at 164 - 165. Sharpe said:
"It is crucially important to distinguish litigation privilege from solicitor-client privilege. There are, I suggest, at least three important differences between the two. First, solicitor-client privilege applies only to confidential communications between the client and his solicitor. Litigation privilege, on the other hand, applies to communications of a non-confidential nature between the solicitor and third parties … Secondly, solicitor-client privilege exists any time a client seeks legal advice from his solicitor whether or not litigation is involved. Litigation privilege, on the other hand, applies only in the context of litigation itself. Thirdly, and most important, the rationale for solicitor-client privilege is very different from that which underlies litigation privilege. This difference merits close attention. The interest which underlies the protection accorded communications between a client and a solicitor from disclosure is the interest of all citizens to have full and ready access to legal advice. If an individual cannot confide in a solicitor knowing that what is said will not be revealed, it will be difficult, if not impossible, for that individual to obtain proper candid legal advice.
Litigation privilege, on the other hand, is geared directly to the process of litigation. Its purpose is not explained adequately by the protection afforded lawyer-client communications deemed necessary to allow clients to obtain legal advice, the interest protected by solicitor-client privilege. Its purpose is more particularly related to the needs of the adversarial trial process. Litigation privilege is based upon the need for a protected area to facilitate investigation and preparation of a case for trial by the adversarial advocate. In other words, litigation privilege aims to facilitate a process (namely, the adversary process), while solicitor-client privilege aims to protect a relationship
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- (namely, the confidential relationship between a lawyer and a client)."
17 However, the Canadian cases do not address the issue of whether the relevant documents were privileged in the hands of an independent witness. In the United States the "work product" of the lawyer, including witness statements, is the subject of litigation privilege: Hickman v Taylor 329 US 495 (1946).
18 It is generally accepted in this jurisdiction and elsewhere that litigation privilege is a separate category of legal professional privilege: Southern Equities; Dingle v Commonwealth Development Bank of Australia (1989) 23 FCR 63; Mitsubishi Electric Australia Pty Ltd v Victorian Workcover Authority (2002) 4 VR 332; Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357.
19 In any event, it is uncontroversial that a statement by a potential witness is protected by legal professional privilege and delivery of it (or a copy) to the witness is not a waiver of privilege: Carbone v National Crime Authority (1994) 52 FCR 516 at 529; Attorney-General (NT) v Maurice (1986) 161 CLR 475 at 487; Hartogen Energy Ltd (in liq) v The Australian Gas Light Company (1992) 36 FCR 557 at 568. It is also generally accepted that the rationale of litigation privilege is the facilitation of the adversary process: Southern Equities; Mitsubishi Electric at 336; Dingle at 242; Wheeler v Le Marchant (1881) 17 Ch D 675 at 685.
20 The High Court has yet to make clear whether litigation privilege has an existence and rationale distinct from advice privilege. In the circumstances there is no proper basis for this Court to depart from Southern Equities on the issues of the existence and rationale of litigation privilege. Accordingly, the notice of contention must be dismissed.
21 The most contentious aspect of Southern Equities is the proposition that litigation privilege does not require that the communication between the independent witness and the lawyer be confidential, at least when the claim is for documents in the possession of the lawyer.
22 The High Court has made numerous general statements which, on their face, are capable of applying to all categories of legal professional privilege, to the effect that the privilege only attaches to confidential communications: Goldberg v Ng (1995) 185 CLR 83 at 93, 105; Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 508; Mann v Carnell (1999) 201 CLR 1 at [28];
(Page 10)
- Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49 at [35]; TheDaniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 at [9] - [11], [44]. The correctness of Southern Equities on the issue of confidentiality has been doubted: J D Heydon, "Cross on Evidence" (7th Aust ed) [25225] fn 363.
23 There is conflicting authority in other jurisdictions: Ritz Hotel Ltd v Charles of The Ritz Ltd (No 22) (1988) 14 NSWLR 132; Commonwealth Bank of Australia v Cooke [2000] 1 Qd R 7 at 12 - 13. McLelland J in Ritz Hotel said that a witness must owe a duty of confidentiality in relation to communications with a litigant's lawyer in order for the litigant's privilege to apply to the witness.
24 It is also said that Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526 is inconsistent with Southern Equities. In Safeway the Commission in its discovery claimed legal professional privilege for draft witness statements prepared in anticipation of litigation. The draft witness statements were obtained from persons with interests adverse to the Commission and there was no express agreement or arrangement relating to confidentiality. Goldberg J said it was important to draw a distinction between the two limbs upon which the claim for legal professional privilege is based (advice privilege and litigation privilege) and that the nature of the relevant confidentiality required may differ between the two limbs. He said (at 563):
"A document recording or containing a witness statement can be regarded as a document privileged from production if it is brought into existence for the dominant purpose of use in anticipated legal proceedings, even though it may be said that the communication of the information recorded in the document by the witness to the maker of the document (in this case [the Commission's solicitor]) is not confidential because, for example, it is a communication between two parties with adverse interests. Propend is authority for the proposition that a document can become privileged from production even if it is a copy of a non-privileged document.
…
If a copy of a non-privileged document can become privileged from production because of the purpose for which it has come
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- into existence it seems to me that the recording of a non-confidential conversation in a document can similarly be protected from production if the document was brought into existence for the dominant purpose of apprehended proceedings.
In the circumstances of intended use in apprehended proceedings I consider that the context in which a document comes into existence and its proposed use makes it a confidential document. It is hardly to be expected that at the stage the draft witness statements came into existence the Commission would be prepared for any person to see the statements. I consider that confidentiality should be inferred from the nature of the activities being undertaken by [the solicitor]."
25 Thus, according to Goldberg J, it is sufficient that the maker of the statement or the person at whose instigation it is made was under a duty of confidentiality in relation to the statement. Goldberg J reaches the same result as Southern Equities but by a different route. The approach in Safeway is also consistent with that taken by the Full Court of the Supreme Court of South Australia in Health & Life Care Ltd v Price Waterhouse (1997) 69 SASR 362. The Full Court held that a statement prepared by a litigant's solicitor of communications with an independent witness was privileged from production by the solicitor notwithstanding that the independent witness could not be restrained from voluntarily disclosing his communications with the litigant's solicitors.
26 Southern Equities, Safeway and Health & Life Care address the issue of whether witness statements were privileged in the hands of the litigant's lawyer. In Westgold Resources v St Barbara Mines the question was whether documents evidencing communications with a potential witness were privileged in the hands of the witness. The trial Judge, EM Heenan J, concluded that the documents were not privileged. He relied in part on the statement in A Ligertwood, "Australian Evidence" (4th ed) at 291 - 292 that:
"The ambit of the litigation privilege is contentious. A statement taken from a witness for the purposes of litigation is privileged in the hands of lawyer or client. But it seems that a copy of that statement in the hands of the witness will only be privileged if the witness owes a duty of confidentiality to the party taking the statement."
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27 A different result was reached by the Court of Appeal of Queensland in Interchase Corporation Ltd (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 1) [1999] 1 Qd R 141. An order for non-party discovery was made against a valuer who had provided expert reports to one of the parties in connection with the litigation. The valuer was not a party to the action and no claim for privilege was made on its behalf, the claim being made by the litigant. The primary Judge had ordered that specified documents did not have to be produced. In this case, the parties' right to prevent production of the relevant documents by the valuer was said to be founded on the doctrine of legal professional privilege only, not on any contractual relationship or equitable right. On appeal Pincus JA considered whether experts are to be treated differently from non-expert witnesses. He said (at 145):
"[W]e were referred to authority for the proposition, which can hardly be doubted, that an expert opinion is not supposed to be simply an argument for one side or the other, but an impartial opinion; that may be thought to throw doubt on the view that the side which happens to have engaged the expert can prevent disclosure of, for example, the expert's working papers. But in my opinion the notion that the expert status of the witness makes a difference is fallacious; there is no property in any witness expert or inexpert, nor may a party intending to call a witness (whether or not a statement has been taken from that witness) prevent communication between the witness and any other party."
28 I respectfully agree with Pincus JA. Any conflicting contractual or equitable duties owed by the expert to the client cannot prevail over compulsory court process. The Court upheld the claim for privilege in relation to documents that fell within the litigation privilege category. There was no suggestion that the privilege was only available if the valuer owed a duty of confidentiality sufficient to entitle the client to restrain the witness from disclosing the content of the communications.
29 This outcome is consistent with the approach taken in In TheEstate of Fuld, deceased [1965] P 405. In that case a witness giving evidence at trial was questioned by counsel for the plaintiffs about three statements he had given to the defendant's solicitors. The court was required to consider whether the documents in the witness's possession were documents in respect of which the defendant could claim privilege. Scarman J said (at 409):
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- "The second point is whether the privilege, which clearly extends under the general law to those documents in the possession of solicitors, covers also the copies of those documents (if they exist), in the possession of the witness himself. This is a more difficult question. I have come to the conclusion that under the general law [the defendant's] submission represents good sense and is therefore more likely than not to be the law. If these are copies, as they appear to be, of documents prepared at the request of solicitors, the originals being with the solicitors, then their character - privileged or unprivileged - must stand or fall with that of the originals in the possession of the solicitors."
30 Interchase and Fuld would appear to be consistent with the approach in the Evidence Act 1995 (Cth). Section 119, which deals with the provision of legal services in relation to litigation, protects confidential communications and documents. Section 117 provides that such confidence exists wherever the maker or receiver of the communication or document was "under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law". On my reading of the definition, only one of the participants to the communication must be under a duty not to disclose.
Analysis
31 It is important to bear in mind the scope of what is in issue in this case. Legal professional privilege applies to protect communications, in this case communications passing between the appellant's solicitors and the witnesses (and ABS's solicitors), and documents that constitute or reflect those communications. Privilege in respect of those communications would not prevent the respondent interviewing the witnesses and obtaining all relevant information from them concerning the issues in the litigation. As stated by Lord Denning MR in Harmony Shipping Co SA v Saudi Europe Line Ltd [1979] 1 WLR 1380 at 1384:
"There is no property in a witness. The reason is because the court has a right to every man's evidence. Its primary duty is to ascertain the truth. Neither one side nor the other can debar the court from ascertaining the truth either by seeing a witness beforehand or by purchasing his evidence or by making communication to him."
32 There is no restriction on an independent witness who has provided a witness statement from providing the information the subject of the
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- witness statement to any other person. The privilege would only prevent the witness disclosing what the opposing lawyer asked the witness and what the witness said to the lawyer. Disclosure of those communications would at best enable the other side to identify possible prior inconsistent statements made by the witness (much court time is often spent by counsel on such issues for little if any forensic reward) and any breach by the opposing lawyer of his or her duties in relation to the proofing of witnesses. These are not compelling grounds for resisting the privilege. It would also provide the other side with access to and the benefit of the opposing lawyer's work product. The lawyer is not a passive recipient of information volunteered by a witness. In all but the simplest litigation, the preparation of a quality witness statement requires the proofing lawyer to have a good grasp of the relevant law, understand all the relevant issues (which in this jurisdiction are not often apparent from the pleadings) and be familiar with the discovered documents. Many insights into an opponent's case can be gleaned from access to communications between the lawyer and a witness, including from successive drafts of witness statements.
33 I have reservations as to the correctness of the proposition that litigation privilege protects non-confidential communications. Why should communications between a lawyer and a proposed witness in the presence of relevantly disinterested parties be protected? Moreover, as previously noted, there are numerous general statements made by the High Court that are capable of applying to all categories of privilege referring to the requirement for confidentiality. However, it is unnecessary to determine that question in this case.
34 I am satisfied that there is sufficient confidentiality in this case to sustain the appellant's claim for litigation privilege in relation to the documents in the hands of ABS. The claim is for privilege from production pursuant to compulsory court process. Whether or not the witness may owe duties of confidentiality that are sourced not in the privilege but in a separate legal basis such as contract or equity is of no relevance in that context.
35 It is sufficient in my view if the lawyer, to the knowledge of the witness, intended the communications to be and remain private. Having regard to the nature and purpose of the activities of the appellant's lawyers and the circumstances of privacy in which the communications occurred, it can be inferred that the appellant's solicitors intended the communications to be and remain private, which intention must have been apparent to the ABS witnesses who, notwithstanding that they were under
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- no obligation to do so, co-operated and provided the information sought by the appellant's lawyers. Those circumstances, in combination with the duty of the appellant's lawyers to keep the information confidential, are sufficient to entitle the appellant to privilege in respect of the communications in the hands of ABS.
36 The application raises legal issues of general significance that alone justify the grant of leave to appeal. I would grant leave to appeal, allow the appeal, dismiss the notice of contention, set aside the orders of the primary Judge and in lieu thereof order that the documents the subject of the claim for privilege not be produced for inspection by the respondent.
37 MILLER JA: I agree with McLure JA.
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