Rayney v CC
[2012] WASC 149
•8 MAY 2012
RAYNEY -v- CC [2012] WASC 149
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 149 | |
| Case No: | SJA:1033/2012 | 26 APRIL 2012 | |
| Coram: | COMMISSIONER SLEIGHT | 8/05/12 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed on grounds 1 and 2 Leave to appeal and appeal dismissed on ground 3 | ||
| B | |||
| PDF Version |
| Parties: | LLOYD PATRICK RAYNEY CC |
Catchwords: | Appeal Legal professional privilege Litigation privilege Scope of privilege claimed Turns on its own facts |
Legislation: | Criminal Investigation Act 2006 (WA) Criminal Appeals Act 2004 (WA) |
Case References: | Adams v Anthony Bryant and Co Pty Ltd (1986) 15 FCR 513 Attorney-General (NT) v Kearney [1985] HCA 60; (1985) 158 CLR 500 AW v Rayney [2010] WASCA 161 AWB Ltd v Cole [2006] FCA 571; (2006) 152 FCR 382 Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52 Carter v Managing Partner, Northmore Hale Davey & Leake [1995] HCA 33; (1995) 183 CLR 121 CC v Rayney (Unreported, SGMC, App 1 of 2011, 21 February 2012) Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; (1997) 188 CLR 501 Daniels Corp International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543 Esso Australia Resources Ltd v Commissioner of Taxation (Cth) [1999] HCA 67; (1999) 201 CLR 49 Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority [2002] VSCA 59; (2002) 4 VR 332 Southern Equities Corporation Ltd v West Australian Government Holdings Ltd (1993) 10 WAR 1 Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : RAYNEY -v- CC [2012] WASC 149 CORAM : COMMISSIONER SLEIGHT HEARD : 26 APRIL 2012 DELIVERED : 8 MAY 2012 FILE NO/S : SJA 1033 of 2012 BETWEEN : LLOYD PATRICK RAYNEY
- Appellant
AND
CC
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE J D WHITBREAD
File No : APP 1 of 2011
Catchwords:
Appeal - Legal professional privilege - Litigation privilege - Scope of privilege claimed - Turns on its own facts
Legislation:
Criminal Investigation Act 2006 (WA)
Criminal Appeals Act 2004 (WA)
Result:
Appeal allowed on grounds 1 and 2
Leave to appeal and appeal dismissed on ground 3
Category: B
Representation:
Counsel:
Appellant : Mr A G Elliott
Respondent : Mr D E Leigh
Solicitors:
Appellant : Timpano Legal
Respondent : WA Police Legal Services
Case(s) referred to in judgment(s):
Adams v Anthony Bryant and Co Pty Ltd (1986) 15 FCR 513
Attorney-General (NT) v Kearney [1985] HCA 60; (1985) 158 CLR 500
AW v Rayney [2010] WASCA 161
AWB Ltd v Cole [2006] FCA 571; (2006) 152 FCR 382
Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52
Carter v Managing Partner, Northmore Hale Davey & Leake [1995] HCA 33; (1995) 183 CLR 121
CC v Rayney (Unreported, SGMC, App 1 of 2011, 21 February 2012)
Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; (1997) 188 CLR 501
Daniels Corp International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543
Esso Australia Resources Ltd v Commissioner of Taxation (Cth) [1999] HCA 67; (1999) 201 CLR 49
Grant v Downs [1976] HCA 63; (1976) 135 CLR 674
Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority [2002] VSCA 59; (2002) 4 VR 332
Southern Equities Corporation Ltd v West Australian Government Holdings Ltd (1993) 10 WAR 1
Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531
- COMMISSIONER SLEIGHT:
Introduction
1 The appellant, Mr Rayney, claims legal professional privilege in relation to documents seized under a search warrant executed against his solicitors Timpano Legal. The documents, the subject of this appeal were previously in the possession of Mr Rayney's former solicitor, Mr David Price trading as DG Price & Co. The claim for legal professional privilege was heard by Magistrate Whitbread pursuant to s 151 of the Criminal Investigation Act 2006 (WA) (the Act). The magistrate allowed the claims for legal professional privilege on all documents seized except a document described as the document contained in envelope 7 (Env 7) and an endorsement on another document which was described as the document contained in envelope 8-D (Env 8-D). Mr Rayney appeals against the decisions concerning these two items.
2 Pursuant to s 151(15) of the Act, an appeal lies against a decision made by a magistrate under s 151. The hearing of the appeal is subject to pt 2 of the Criminal Appeals Act 2004 (WA). Leave of the Supreme Court is required on each ground of appeal. In this matter, the application for leave was heard in conjunction with the appeal.
3 Pursuant to s 14(1) of the Criminal Appeals Act, the Supreme Court, on hearing the appeal, has power to vary or substitute with a new order an order made by the magistrate.
Grounds of appeal
4 The grounds of appeal lodged by the appellant, Mr Rayney, are:
1. Having found that the communication in ENV 7 was an instruction from the respondent to his lawyers at a time of pending litigation, the Learned Magistrate:
(a) erred in law in determining that for there to be a litigation purpose:
(i) it was necessary that the instruction relate to the security of a part of the respondent's litigation; and
(ii) it was necessary for the record to progress the litigation or result in the taking of a step in the litigation;
(b) erred in law in determining that there was no evidence that ENV 7 came into existence for a litigation purpose;
(c) erred in law in determining that the record cannot relate to the conduct of the litigation;
(d) erred in fact in determining that the record did not:
(i) progress the litigation or result in the taking of a step in the litigation; and
(ii) relate to the security of a part of the respondent's litigation;
(e) erred in fact in determining that the record was not consequent on legal advice given to the respondent; and
(f) erred in fact in not determining that the record related sufficiently to the litigation as to fall within litigation privilege.
Particulars
- A. The document in ENV 7 had been produced to the Supreme Court in response to a notice to produce which required, in part, the production by the respondent's solicitors of:
'All records including but not limited to documents, notes and it electronic recordings, including computer records, e-mails, scanned documents and metadata relating to the receipt, possession. movement and release of transcripts and records of interview between Caitlyn Rayney, Sarah Rayney, as referred to and described as evidence by Mr Edwardson QC in Lloyd Patrick Rayney'sbail application on 23 December, 2010. (In reference to paragraph 5 of page 128, Transcript of proceedings at Perth on Thursday, 23 December, 2010; Matter of MCR 62 2010 Lloyd Patrick Rayney and State of Western Australia.)'
B. The record, on its face, gave instructions as to the custody of witness interviews obtained by the defence;
C. The connection of the record to the proceedings could be inferred from the fact of its production in the first instance, and in combination with what appeared from the face of the record;
D. The purpose of the record could be inferred from the fact of its production in the first instance, and in combination with what appeared from the face of the record; and
E. A purpose which directs a step relating to the acquisition, retention, possession, or safe custody of evidence with is obtained for the purpose of the proceedings, as these witness interviews were, is a litigation purpose.
2. The Learned Magistrate mistook the record in Env 8-A for the record in Env 8-D, and consequently erred in fact in finding that there was a notation in red on the original record in Env 8-D which disclosed the name of a potential witness. As a consequence, the Learned Magistrate's consideration of this record was flawed in law and in fact.
3. In the alternative to ground 2 above, the Learned Magistrate erred in law in not correcting her orders pursuant to the slip rule (0 21 R 10) when the matter was drawn to the attention of the court on 23 February 2012.
Background
5 On 7 August 2007, Corryn Veronica Anne Rayney (Corryn Rayney) was killed. On 8 December 2010, Mr Rayney was charged with the wilful murder of Corryn Rayney. The respondent, CC, is the senior investigating officer in relation to the investigation of the murder of Corryn Rayney.
6 The history to the execution of a search warrant against Timpano Legal needs to be briefly mentioned. On 16 May 2011, CC caused to be served on Mr David Price trading as DG Price & Co (the solicitor formerly acting for Mr Rayney) an order made pursuant to s 53 of the Act to produce a business record. The business record to be produced was described in the order in the following terms:
All records including but not limited to documents, notes and electronic recordings, including computer records, e-mails, scanned documents and metadata relating to the receipt, possession, movement and release of transcripts and records of interview between Caitlin Rayney, Sarah Rayney, as referred to and described as evidence by Mr Edwardson QC in Lloyd Patrick Rayney's bail application on 23 December 2010. (In reference to paragraph 5 of page 128, transcript of proceedings at Perth on Thursday, 23 December 2010; Matter of MCR 62 2010 Lloyd Patrick Rayney and State of Western Australia)
7 Mr Rayney made an application to this court for injunctive relief to prevent Mr David Price from producing records pursuant to the order to produce on the grounds that s 53 of the Act had no application to confidential records of a client held by a solicitor in relation to a criminal prosecution. Mr David Price neither opposed nor consented to the application and delivered the documents the subject of the order to produce to the custody of the court. CC was named as a second defendant in the injunction proceedings. The injunction proceedings were resolved by consent orders which permitted the documents to be released to Timpano Legal (the current solicitors acting for Mr Rayney) subject to Timpano Legal retaining the documents for a period of seven days to enable the police to execute a search warrant to seize the documents and have the issue of legal professional privilege adjudicated under s 151 of the Act. It was pursuant to this arrangement that the documents were then seized and brought before the Magistrates Court for adjudication of the issue of legal professional privilege.
8 The procedure provided for in s 151 of the Act requires the officer seizing the record pursuant to a search warrant to secure the record and apply to the Magistrates Court to decide whether the information in the record is privileged. The record seized must be delivered into the custody of the Magistrates Court and must be secured in such a manner that prevents access to the information by any person who would not be entitled to access to the information if it were privileged. However, the court, for the purpose of deciding the application, may have access to all of the information in the record.
Envelope 7
9 The first ground of appeal relates to a record referred to as the record contained in Env 7. Solicitors acting for Mr Rayney filed in the proceedings before Magistrate Whitbread a Privilege Claim Schedule (PCS) which described the material in Env 7 as follows:
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10 The document has been inspected by me and I must be cautious in the description of the document to ensure that I do not inadvertently, in giving a description, defeat the claim for legal professional privilege. The record is a handwritten note addressed to David, signed by Lloyd Rayney and is dated March 2011. The document contains instructions as to the custody of transcripts of the interviews of Caitlin Rayney and Sarah Rayney. This is confirmed in the grounds of appeal.
11 The applications for legal professional privilege made in relation to all of the documentation seized pursuant to the search warrant were supported by a number of affidavits. An affidavit of Gerald Yin sworn on 2 November 2011 (Mr Yin is a solicitor employed by DG Price & Co), deposes that the document contained in Env 7 was a note from Mr Rayney to DG Price & Co.
Decision of Magistrate Whitbread
12 The reasons for the decision of the magistrate to dismiss the claim of legal professional privilege in relation to Env 7 are set out in CC v Rayney (Unreported, SGMC, App 1 of 2011, 21 February 2012) and are as follows:
Env 7 is described in Table 1 of the PCS as a document, being a note, which attracts 'litigation privilege and client privilege' which was bought into existence in March 2011 by the respondent. The communication is stated to have been from the respondent to DG Price & Co and privilege is claimed on the basis that the document is a '[h]andwritten note from the respondent to the respondent's lawyer containing instructions'.
There is no evidence from Mr O'Brien, Ms Timpano or Ms Blackburn relevant to the onus on the respondent in respect of Env 7. Mr Yin, in his affidavit of 2 November 2011, speaks to the provenance of Env 7. Mr Yin attests to the accuracy of the description of Env 7 in the PCS [Privilege Claim Schedule] and states that the document described therein was sent to, or received from, the persons named on or about the dates sent out. He gives no other evidence concerning Env 7. There is no evidence from the respondent as he declined to swear an affidavit to support his claim of privilege on the basis of legal advice (affidavit of Lloyd Patrick Rayney dated 25 January 2012). Accordingly, Env 7 is left to speak for itself.
Whilst the document is a communication to the respondent's solicitor (at a time litigation was ongoing), legal professional privilege is anchored to the purpose for which the document was bought into existence: Commissioner of Australia Federal Police v Propend Finance Pty Ltd.
The purpose for which Env 7 was bought into existence is a question of fact that must be determined objectively. Here there is no evidence of the intention of the person who made it other than what Env 7 says on its face. The purpose of Env 7 is clear but it is not a document which has been prepared for the purpose of obtaining legal advice. It cannot progress the litigation or result in the taking of any step in a legal proceeding. On its face it is not based on any preceding legal advice. It is not suggested that the respondent was at any material time acting in his capacity as a lawyer representing himself.
There is no evidence before me that Env 7 came into existence for a litigation purpose which was necessary for the security of any part of the respondent's litigation. The document does not speak to any such purpose on its face.
I reject the characterisation of Env 7 which the respondent sought, by analogy, to give to Env 7, including the characterisation specifically referred to at ts 39.7, ts 39.9 and ts 40.2. It is not a communication with the characteristics referred to in Adams v Anthony Bryant such that it would attract privilege.
The document is an instruction from the respondent to his lawyers which I find on the face of it, cannot be an instruction to his solicitor relating to the conduct of litigation or consequent on any legal advice given to the respondent.
Having regard to all the matters relevant to Env 7 I am not satisfied that Env 7 constituted a confidential communication between the respondent and his solicitors which was created for the dominant purpose of providing instructions to his lawyer either for legal advice, based on legal advice or for use in litigation (pending or apprehended).
I dismiss the claim for privilege in respect of Env 7 [143] - [151].
13 The characterisations referred to at ts 39.7, ts 39.9 and ts 40.2 were characterisations suggested by counsel for Mr Rayney in closing submissions. The submissions were that instructions as to the security and custody of particular records, which potentially could be included in the defence brief, are privileged communications. Those instructions might be to a solicitor to include the record within the brief or an instruction to a solicitor not to include the record in the brief.
14 The reference by the magistrate to the decision in Adams v Anthony Bryant and Co Pty Ltd (1986) 15 FCR 513must be understood in the context of an earlier reference to this decision in her Honour's reasons. At [117] her Honour stated:
In AW v Rayney [236], Buss JA adopted Adams v Anthony Bryant & Co Pty Ltd (1986) 15 FCR 513 where Wilcox J said that, in principle, information as to proposed witnesses cannot be a matter which is subject to legal professional privilege but states that communications from a client to his solicitor containing instructions as to witnesses to be called would undoubtedly be privileged. Wilcox J explained:
'The rationale of the doctrine of legal professional privilege is that it protects communications between a client and his or her legal advisers, enabling the client to seek and to receive advice and to give instructions without the fear that the communication will subsequently be used in evidence. A letter from a client to his or her solicitor containing suggestions or instructions as to witnesses to be called in pending legal proceedings would undoubtedly be privileged. A request for information from the solicitor of a party regarding the witnesses to be called does not require the solicitor to divulge the instructions given by the client. The names supplied may or may not coincide with any specific instructions given to the solicitor by the client. Indeed, it will be a rare case in which the client has given specific instructions as to witnesses; most litigants sensibly leave the decision as to witnesses to their lawyers (519).'
Ground of appeal 1
15 It is generally recognised that legal professional privilege can be divided into two categories; advice privilege and litigation privilege (although some commentary has disputed this dichotomy - see Ligertwood A, Australian Evidence (4th ed, 2004) page 275). On the application before the magistrate, the PCS filed on behalf of Mr Rayney claimed privilege on the grounds of 'litigation privilege and client privilege' (with the latter being equivalent to advice privilege). The magistrate rejected both of these grounds of privilege. The grounds of appeal narrow the claim of privilege on the hearing of the appeal to litigation privilege by contending that the magistrate fell into error by not determining that the record related sufficiently to litigation to fall within the litigation privilege.
16 The question that needs to be decided on this appeal is whether a letter of instruction by a client to a solicitor concerning the possession of the transcript of an interview with potential witnesses is a communication protected by the litigation privilege.
17 The respondent contends that the document in Env 7 is not covered by litigation privilege because the dominant purpose of the document was not to advance Mr Rayney's case in the prosecution against him (par 24 of the respondent's written submissions). The respondent contends that a narrow interpretation should be given to litigation privilege (attaching the privilege only to documents prepared for the dominant purpose of advancing the client's case in litigation). This contention resonates with the original common law rule that provided that legal professional privilege applied only to 'communications received since the beginning of the litigation at bar and for its purposes only'. However, since early common law times, the principle of legal professional privilege has changed both in its scope and its rationale (Desiatnik Dr RJ, Legal Professional Privilege in Australia (2nd ed) page 12).
18 The respondent's contention as to the scope of litigation privilege is supported by the language used in the decision of Stephen, Mason and Murphy JJ in Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 who referred to litigation privilege as attaching to documents brought into existence for the sole purpose of 'use in litigation' [27]. It should be noted that in Grant v Downs, Barwick CJ favoured a more expansive description of litigation privilege by describing it as covering documents which were produced or brought into existence for the dominant purpose of using its contents 'to conduct or aid in the conduct of litigation' [2]. Subsequent decisions of the High Court have adopted a description of litigation privilege more in line with the more expansive approach taken by Barwick CJ. Also, in Esso Australia Resources Ltd v Commissioner of Taxation (Cth) [1999] HCA 67; (1999) 201 CLR 49, the High Court rejected the narrow sole purpose test of Stephen, Mason and Murphy JJ in Grant v Downs and adopted the dominant purpose test in line with Barwick CJ's decision.
19 In Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52, 114, Deane J stated that a person should be entitled to seek and obtain legal advice on the conduct of his or her affairs, and legal assistance in and for the purposes of the conduct of actual or anticipated litigation, without the apprehension of being prejudiced by subsequent disclosure of the communication (see also Esso Australia Resources Ltd v Commissioner of Taxation (Cth) [35] (Gleeson CJ, Gaudron & Gummow JJ)).
20 In Daniels Corp International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543, Gleeson CJ, Gaudron, Gummow and Hayne JJ expressed the principles of legal professional privilege (covering advice and litigation privilege) in the following way [9]:
It is now settled that legal professional privilege is a rule of substantive law which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings. It may here be noted that the 'dominant purpose' test for legal professional privilege was recently adopted by this Court in Esso Australia Resources Ltd v Federal Commissioner of Taxation in place of the 'sole purpose' test which had been applied following the decision in Grant v Downs. (emphasis added)
21 In Carter v Managing Partner, Northmore Hale Davey & Leake [1995] HCA 33; (1995) 183 CLR 121, McHugh J stated (excluding footnote references):
Communications between legal advisers and their clients concerning contemplated or pending litigation cannot be disclosed without the consent of the client. Similarly, communications made to obtain or to give legal advice cannot be disclosed without the consent of the client . 'Legal professional privilege' is the shorthand description of the right that protects these communications from being disclosed without the consent of the lay client [2]. (emphasis added)
22 In AW v Rayney [2010] WASCA 161, Buss JA described the two categories of privilege in broad terms as follows [179]:
Legal professional privilege comprises two categories, namely, legal advice privilege and litigation privilege. Legal advice privilege can be claimed in respect of information or documents which contain or reveal confidential communications between a client and his or her lawyer made for the dominant purpose of giving or receiving legal advice, whether or not litigation is subsisting or within the reasonable contemplation of the client. Litigation privilege can be claimed where litigation is subsisting or within the reasonable contemplation of the client, and applies to confidential communications passing between a lawyer and his or her client or between the lawyer and third parties, and confidential information or documents brought into existence, for the dominant purpose of preparing for the litigation. See Schreuder v Murray [No 2] [2009] WASCA 145 [59] (Buss JA, McLure JA agreeing).
23 This formulation of litigation privilege divides the circumstances in which litigation privilege arises into a number of subcategories, namely:
1. Confidential communications passing between a lawyer and his or her client for the dominant purpose of preparing for litigation; and
2. Confidential communication between lawyer and third parties for the dominant purpose of preparing for the litigation; and
3. Confidential information or documents brought into existence, for the dominant purpose of preparing for litigation.
24 The wide scope of litigation privilege under the description of 'confidential communications passing between a lawyer and his or her client for the purpose of preparing for litigation' confirms the overlap between litigation privilege and advice privilege.
25 In my view, a description of the two branches of privilege in the authorities is an attempt to define, in broad terms, situations which give rise to a lawyer/client relationship for the purpose of providing legal services: see Daniels Corp International Pty Ltd v Australian Competition and Consumer Commission [9]. It is a provision of legal services which elevates the confidential communication between solicitor and client to a situation where privilege can be claimed. Confidentiality of communication is not enough by itself to ground a claim for privilege (for example, no privilege attaches to confidential communications between a patient and doctor). In Esso Australia Resources Ltd v Commissioner of Taxation (Cth), Gleeson CJ, Gaudron and Gummow JJ stated as follows:
Legal professional privilege (or client legal privilege) protects the confidentiality of certain communications made in connection with giving or obtaining legal advice or the provision of legal service, including representation in proceedings in court [35].
26 Whether the privilege is advice privilege or litigation privilege, it protects the communications between a solicitor and client relating to legal services. A client needs to be able to communicate frankly and fully with his or her lawyer. The protection offered needs to be simple and clear: Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; (1997) 188 CLR 501, 551 (McHugh J), 584 (Kirby J).
27 The privilege which attaches to contemplated or pending litigation must be given a broad scope consistent with the broad scope described in the authorities of legal professional privilege. In Attorney-General (NT) v Kearney [1985] HCA 60; (1985) 158 CLR 500, 532, Dawson J stated as follows:
The policy which lies behind the doctrine views unrestricted communication between lawyer and client upon professional matters as being necessary for the proper functioning of our legal system. If inroads could be made upon the privilege in individual cases by involving a 'higher public interest', its application would become uncertain and the policy behind it would be effectively undermined [16].
28 Although cases concerning witness statements and other documents obtained from third parties, for use in proceedings, speak of the rationale for the litigation privilege in terms of protecting documents prepared for the dominant purpose of use in litigation, this does not set the ambit of the privilege. Such cases are generally concerned with documents that fall within this description and therefore, in my opinion, can be viewed as only involving a narrow consideration of the scope of litigation privilege (see for example, Southern Equities Corporation Ltd v West Australian Government Holdings Ltd (1993) 10 WAR 1, which involved a question of whether an affidavit prepared for proceedings was subject to legal professional privilege). In AWB Ltd v Cole [2006] FCA 571; (2006) 152 FCR 382, Young J stated [145]:
The crucial difference between the first and second limbs of the privilege is that the second limb is not limited to communications whose dominant purpose is the giving or obtaining of legal advice. Communications lacking this advice element, such as communications between a solicitor and a prospective expert witness, will attract privilege where they occur in a litigation context: see JD Heydon, Cross on Evidence, vol 1, Butterworths, 1996, par 25235; SB McNicol, Law of Privilege, Law Book Company, 1992, at p 48; and SL Phipson, Law of Evidence, 16th edn, Sweet & Maxwell, 2005, at pars 23-81 and 23-82. (emphasis added)
29 Consistent with the decision of Buss JA in AW v Rayney,litigation privilege is not confined to the production of documents which might form part of the defence brief to counsel (for example, witness statements and other evidentiary material) or advance the client's case, but covers a myriad of communications concerning the litigation, including a variety of instructions that might be given by a client to his or her solicitor and/or counsel concerning the litigation. To deny this broad scope to the litigation privilege category would seriously inhibit the frank and full communications concerning litigation between a lawyer and his or her client that legal professional privilege was meant to protect. A client and his or her lawyer would be left continually analysing each communication, unsure as to whether it was protected. That would create an untenable situation. Further, in many situations the party claiming privilege would be forced to disclose confidential tactical details in order to establish the privilege by demonstrating that the document or communication advanced that party's case in the litigation.
30 The onus of establishing legal professional privilege rests with the party seeking to establish the privilege. A person claiming legal professional privilege must point to the nature of the information or document itself or to evidence describing the circumstances in which the information was obtained or the document was brought into existence. In other words, the claimant must establish the facts giving rise to the privilege: AW v Rayney [182]. The person claiming the privilege may succeed in achieving this objective by pointing to the nature of the documents or by evidence describing the circumstances in which the documents were brought into existence. The court has power to examine the document for itself. It should not be forgotten that in many instances the character of the document, the subject of a claim, will illuminate the purpose for which it was brought into existence: Grant v Downs (689) (Stephen, Mason & Murphy JJ)
31 The dominant purpose is the purpose which was the ruling, prevailing or most influential purpose: Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority [2002] VSCA 59; (2002) 4 VR 332 (Batt JA, Charles JA agreeing & Callaway JA relevantly agreeing). The dominant purpose, in the context of a claim of legal advice privilege or litigation privilege, is to be ascertained objectively. A finding of fact must be made: AW v Rayney [183].
32 Where an appeal court is in as good a position as the magistrate to decide on the proper inferences to be drawn from the evidence concerning the purpose of the document, the appeal court must give effect to its own judgement: Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531; AW v Rayney [37] (McLure P). I am satisfied in this matter that I am in as good a position as the magistrate to make a decision, given that her decision was based upon the affidavits filed and the document itself.
33 In my opinion, Magistrate Whitbread made a number of errors. Firstly, the magistrate was wrong in finding that the document on the face of it was not based on preceding legal advice. Having considered the document, I conclude that the instructions given by Mr Rayney to his solicitors, D G Price & Co, relating to possession of the transcript of the interviews with the two potential witnesses was given after discussions with senior counsel. Implicit in this is that the instruction was given after receiving legal advice. Secondly, I conclude that her Honour, in concluding that the document was not related 'to the conduct of litigation' gave too much emphasis to her finding that the document 'cannot progress the litigation or result in the making of any step in a legal proceeding' and was not 'necessary for the security of any part of the respondent's [Mr Rayney's] litigation'.
34 It is clear from the document itself it is a communication between Mr Rayney and his solicitor concerning the litigation in progress. In my opinion, instructions relating to possession of the transcripts of interviews conducted with two potential witnesses are instructions concerning the litigation in progress, relate to the preparation of the case and are privileged. It may well be that the location of such transcripts would be a matter of interest to the prosecution, with a view to seizing the transcripts pursuant to a search warrant and then having the question of legal professional privilege decided in relation to these transcripts. However, legal professional privilege is a substantive right which overrides rights of seizure in the public interest of a fair trial by parties having access to all relevant documents, including the State: Carter v Managing Partner, Northmore Hale Davey & Leake [11] (Brennan J). In my opinion, the nature of the communication falls within the broad principles of litigation privilege enunciated earlier in this decision. Even if I am incorrect as to this conclusion, I am satisfied that, in any event, the document would be privileged under the advice category of legal professional privilege.
35 For the above reasons I grant leave and allow the appeal on ground 1 which relates to Env 7. In substitution of the magistrate's order relating to Env 7, I will order that Mr Rayney's application for privilege in relation to Env 7 is allowed and the copy of the document in the custody of the court will be made available for collection by Mr Rayney or his solicitors as soon as practicable.
Grounds of appeal 2 and 3
36 These grounds of appeal relate to an alleged misdescription of the document containing a notation which the magistrate found was not subject to legal professional privilege. This alleged misdescription arises because Env 8 contained four documents. These four documents were designated in affidavits filed by the appellant solicitors in the proceedings before Magistrate Whitbread as Env 8-A, Env 8-B, Env 8-C and Env 8-D. However, the documents themselves contained no such endorsed description. Further, the affidavits filed in the proceedings on behalf of Mr Rayney, although referring to the documents using the descriptions Env 8-A, Env 8-B, Env 8-C and Env 8-D, did not annex any of the documents to the affidavits (this could have been done by enclosing annexed documents in a sealed confidential envelope) so that Magistrate Whitbread was left with the difficult task of matching the designation of each document from the general comments contained in the affidavits as to the nature of the documents. The magistrate's task was made more difficult because the copies of the documents secured in the custody of the court were not the originals, but photocopies in black and white. This meant the magistrate was unable to readily identify from her own observations a critical 'red pen' annotation referred to in one of the supporting affidavits.
37 The magistrate in her decision stated as follows:
The relevant evidence in relation to these documents can be summarised as follows:
• Env 8-D contains a draft handwritten statement prepared by Mr O'Brien whilst he was acting for the respondent. The document is a copy and has a short handwritten notation in red pen made by an unknown person. The original draft statement was prepared for the purposes of anticipated litigation in which the respondent might be a party. There is no evidence before me as to the purpose for which the copy (bearing the red-ink handwritten annotation at the top of page 1) was brought into existence or who brought it into existence.
• Env 8-A contains a typed draft version of Env 8-D.
• Env 8-B and Env 8-C are draft witness statements following amendments made to Env 8-A [152].
38 After finding that each of the documents were draft witness statements and subject to legal professional privilege, the magistrate went onto find that:
However, I do not find that the respondent has satisfied the onus on him in relation to a notation in red pen on Env 8-D.
However, the notation in red pen discloses the name of a potential witness. So, for the reasons stated above in relation to the fact that a potential witness' name is subject to litigation (sic) privilege, it is necessary to redact that name.
Accordingly, I find that the respondent has established that Env 8-A, Env B, Env 8-C and Env 8-D are properly the subject of litigation privilege, save and except as to the notation in red pen on Env 8-D (except in relation to the name written in red pen which will be redacted) [161] - [163].
39 The magistrate made orders which included relevantly the following:
3. The respondent's application for privilege in respect of Env 8-A, Env 8-B, Env 8-C and Env 8-D is allowed save and except in relation to the notation in red pen on Env 8-D with the name therein redacted.
5. The court will make available to the applicant, as soon as practicable but not before 5 March 2012, ... copies of ... Env 8-A which have been redacted in accordance with these orders.
- (I have used the order numbers used by the magistrate in her written reasons delivered on the 25 January 2012, but subsequently one of the other orders made by the magistrate was deleted under the slip rule, which changed the numerical sequence of the orders made.)
40 It is clear that order 5 made by the magistrate is inconsistent with order 3 made by the magistrate. Order 3 provides that Env 8-A is fully privileged. It is only a notation in red on Env 8-D (less the redacted name of a witness) that the magistrate held was not privileged.
41 However, there is a more fundamental problem. Mr Gerald Paul O'Brien, retired legal practitioner, and former solicitor for Mr Rayney, swore an affidavit on 9 November 2011, in which he refers to a document he describes as Env 8-D as being a copy of a handwritten document prepared by him and stating that it bears a short handwritten notation in red pen which has been made by somebody else. This is the only reference to a red pen notation. Also, the document described by Mr O'Brien as Env 8-D (and being a handwritten document by him) is the only handwritten document amongst the four documents, Env 8-A, Env 8-B, Env 8-C and Env 8-D. On hearing the appeal, I directed that an additional affidavit be sworn providing a coloured copy of Env 8-D to show the red-coloured notation that Mr O'Brien was referring to in his affidavit of 9 November 2011. An additional affidavit has now been filed, sworn by Laura Marie Timpano (solicitor for Mr Rayney) on the 1 May 2012. This further affidavit establishes that the red notation referred to by Mr O'Brien contains a notation which makes no reference to the name of a witness.
42 Having inspected the documents held in the custody of the court and before the magistrate, I am satisfied that the notation the magistrate was referring to is a handwritten notation at the top of the document described by Mr O'Brien in his affidavit as Env 8-A. The notation includes a reference to the name of a witness. I conclude that the magistrate mistakenly thought that the notation which appears at the top of document Env 8-A was the notation that Mr O'Brien had been referring to in his affidavit as being in red pen. At [155] of her decision, the magistrate stated as follows:
However, there is simply no evidence as to who, when or why the notation to Env 8-D was added in red pen. In such circumstances unless the writing itself speaks to the dominant purpose for the notation, such that the relevant test for legal professional privilege is made out, privilege is not made out. Here, the notation could have been made by anyone and for any purpose. I am left in the position of having had no assistance from the respondent with regard to this matter by way of evidence.
43 Mr O'Brien in his affidavit, in relation to the document Env 8-A, stated as follows:
34. The document described as Env 8-A is a typed version of Env 8-D and is in draft form. It contains my handwritten amendments and annotations.
44 This paragraph is the extent to which Mr O'Brien makes any reference to notations on the document Env 8-A. He does not refer specifically to the notation the magistrate was referring to which contains a reference to the name of a witness. Significantly, Mr O'Brien's affidavit does not say that all annotations are his, only that the document contains annotations made by him.
45 I have inspected the notation that I conclude the magistrate meant to be subject to her order that it was not covered by legal professional privilege, being the notation on document Env 8-A, and I find that the content of this notation is completely incongruous with the suggestion that it was made by Mr O'Brien. Accordingly, I conclude that the notation was not made by Mr O'Brien. Further, there is no other evidence as to who made the notation or its purpose. I should add that, except for the name of the witness, the content of the notation is innocuous and not capable of being relevant to any issue in the criminal proceedings against Mr Rayney.
46 I conclude that I should grant leave and allow the appeal on ground 2 and vary the magistrate's order (described earlier as order 3), by deleting the words 'except in relation to the notation in red pen on Env 8-D with the name therein redacted' and substitute it with the words 'except in relation to the notation on the top of page 1 of Env 8-A, with the name therein redacted'. This would then make the order consistent with order 5 of the magistrate. Further, to maintain complete consistency, I believe order 5 should be amended by adding the words 'the notation referred to in order 3', so that the order relevantly reads:
The court shall make available to the applicant as soon as practicable, but not before 15 March 2012, ... copies of ... the notation referred to in order 3 on Env 8-A which have been redacted in accordance with these orders.
47 The amendments that I have made arising from the error in relation to Env 8-A and Env 8-D are of substance and not something that normally could be dealt with under the slip rule. Accordingly, leave to appeal on ground 3 is dismissed.
48 Finally, I believe the error that has occurred would have been avoided if the magistrate had been provided proper assistance by counsel and, as I have earlier indicated, the relevant documents had been annexed to supporting affidavits.
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