| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : SAKIN -v- MACDONALD JOHNSTON PTY LTD [2013] WADC 112 CORAM : DEPUTY REGISTRAR HEWITT HEARD : 3 JULY 2013 DELIVERED : 18 JULY 2013 FILE NO/S : CIV 1292 of 2011 BETWEEN : NADIR SAKIN Plaintiff
AND
MACDONALD JOHNSTON PTY LTD
Defendant
Catchwords: Practice and procedure - Documents subpoenaed from third party - Claim for privilege - Discussion of the basis of the claim - Inspection of the documents Legislation: Nil Result: Claim upheld in part
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Representation: Counsel:
Plaintiff : No appearance
Defendant : Mr J Sheldrick
LGIS WorkCare : Mr J I Wilcox
Solicitors:
Plaintiff : Not applicable
Defendant : Sparke Helmore
LGIS WorkCare : SRB Legal
Case(s) referred to in judgment(s):
Esso Australia Resources Ltd v Commissioner of Taxation (Cth) (1999) 201 CLR 49
Grant v Downs (1976) 135 CLR 674
Public Transport Authority of Western Australia) v Leighton Contractors Pty Ltd (2007) 34 WAR 279
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1 DEPUTY REGISTRAR HEWITT: In this action the defendant is sued by the plaintiff who alleges that he was injured in the course of his work by a malfunctioning garbage truck manufactured and sold by the defendant. The plaintiff was an employee of the City of Coburn and he made application for worker's compensation. That application was processed and approved and the worker's compensation insurer commenced payments to the injured worker.
2 By a chamber summons filed 19 February 2013, the defendant applied for leave to issue a subpoena against the relevant insurers, LGIS, and in response to that subpoena a number of documents were produced to the court. Amongst those documents were a bundle of documents in a sealed envelope which was annotated with the statement that LGIS WorkCare claimed privilege in respect of those documents. By a letter dated 15 May 2013 Messrs SRB Legal, the legal representatives of LGIS WorkCare provided more detailed particulars of the basis upon which privilege was claimed in respect of the relevant documents. In all cases save one, the privilege claimed as being based on legal professional privilege on the basis that the documents were made for the dominant reason of anticipated litigation or obtaining legal advice. Some items claim protection on the basis that they constituted without prejudice communications between the plaintiffs, the defendant, the relevant lawyers and the insurers. 3 Against that background a number of challenges were made in respect of some of the items over which privilege had been claimed. The items identified and which were the subject of contention before me were the documents numbered 1 to 6, 13 and 16. In respect of all of the items the subject of challenge the privilege is claimed to be legal professional privilege, documents being made for the dominant purpose of anticipated litigation. That such category of privilege has been established in this state by Public Transport Authority of Western Australia) v Leighton Contractors Pty Ltd (2007) 34 WAR 279. The existence of such a category of privileged documents was not contested in the argument before me, rather the argument centred on whether or not the documents in fact could properly be categorised as falling within that classification. A wide variety of documents are included within the documents the subject of the challenge, and in truth they are not individual documents but bundles of documents. It was originally the law in Australia that in order to qualify for privilege, a document must have been brought into existence for the sole purpose of litigation: Grant v Downs (1976) 135 CLR 674. That position has been changed by the subsequent decision of Esso Australia Resources Ltd v (Page 4)
Commissioner of Taxation (Cth) (1999) 201 CLR 49. The test is now whether the relevant document was brought into existence for the dominant purpose of litigation. In my view, to be brought into existence for the purpose of litigation, a party must either have engaged or propose to engage a solicitor to whom the information is to be passed either for use within the litigation or alternatively as a basis to provide advice to the client. The clearest cases exist where there is already a solicitor engaged in relation to the matter but it is sufficient if the client intends to engage a solicitor and the predominant purpose of the creation of the documents is to refer them to that solicitor either for use in the litigation or to provide advice. 4 In the present case, the accident which was suffered by the worker occurred on 10 December 2008. He made an application for worker's compensation which was promptly accepted. Subsequent, the insurer undertook various other tasks, one of which was to engage an investigator to investigate the circumstances of the accident. The investigator was instructed on 20 January 2009 and delivered his report on 12 February 2009. Having obtained the report, the insurer did not immediately refer it to a firm of solicitors, but did so in October 2009 after a number of meetings with the insured. An affidavit filed by the insurer states that the report was requisitioned with the intention that it would be provided to legal representatives. Ultimately that is what happened although there was a substantial delay in doing so. 5 There is to my mind no contention that the report was requisitioned with an eye to anticipated litigation. There would indeed be no other purpose that I can see for the trouble and expense of requisitioning such a report unless there was in contemplation some prospect that the worker might commence proceedings. The issue which has been fairly raised is whether or not that document was brought into existence with the intention that it be made available to legal advisors, either for the purpose of use in the proceedings or to form the basis of advice. 6 Although the case of Grant v Downs established the sole purpose test, nonetheless in that case the proposition advanced by the party claiming privilege was that the relevant report the subject of contention was obtained, amongst other things, with the intention of forwarding it to a legal advisor if proceedings were instituted. None of the judges considered that point to be of consequence and a reading of the judgment suggests to me that had the report been prepared for that purpose solely, the fact that solicitors were not instructed, nor the fact that proceedings were not underway, nor the fact that the intention was to forward the (Page 5)
report if proceedings were commenced, would have dissuaded the court from affording legal privilege in respect of the report. In summary therefore, the court did not seem concerned that the avowed purpose of the report was to forward it to legal advisers if proceedings commenced, and they did not regard that as a disqualifying matter. For that reason, I am of the view that insofar as the applicant seeks to overturn the privilege claimed in respect of the report which was prepared by the investigator, it should fail. 7 There are however other aspects to the matter which require consideration. At par 52 in Esso Australia Resources v Commissioner of Taxation (Cth), the majority stated: A claim for privilege is not conclusively established by the use of a verbal formula. A court has power to examine documents in cases where there is a disputed claim and it should not be hesitant to exercise such a power. 8 Relying on that authority, I have reviewed the documents the subject of the application. I find that of documents 1 – 6 over which privilege is claimed that privilege only attaches to documents 2, 3, 4, 5 and 6 which concern the commission of and the report of an investigator. I have next reviewed the bundle of in item 13, the list dated 22 March 2013 which comprises a composite of the documents referred to in items 13 and 16 on any earlier list which is referred to in the chamber summons. Of those documents a claim is made for legal professional privilege over file notes dated 11 December 2008, 15 December 2008 and 29 November 2009. There is nothing whatever in the last of these which indicates the document was brought into existence for use in litigation or for the purpose of obtaining legal advice. The other two refer to the need to obtain advice but likewise fail the test. 9 Of the final documents I reject the claim for privilege over the file notes (both typed and handwritten) dated 28 September 2011 which record an informal conference held at the offices of SRB Legal at which the plaintiff attended in company of his lawyer. The claim by privilege is based on the proposition that the documents were brought into purpose at litigation. In my view they were clearly not created for that purpose but are a record of a meeting which took place in the course of a worker's compensation claim and disclose, on their face, no communication between solicitor and client.
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