Schreuder v Murray [No 2]

Case [2009] WASCA 145


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   SCHREUDER -v- MURRAY [No 2] [2009] WASCA 145

CORAM:   McLURE JA

PULLIN JA
BUSS JA

HEARD:   2 JUNE 2009

DELIVERED          :   14 AUGUST 2009

FILE NO/S:   CACV 28 of 2009

BETWEEN:   DERYCK MARSHALL SCHREUDER as Executor of the Will of JOHN CLAUSCEN MURRAY

Appellant

AND

FREDERICA JESSEME MURRAY
Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :NEWNES J

Citation  :MURRAY -v- SCHREUDER [2009] WASC 51

File No  :CIV 1805 of 2008

Catchwords:

Trusts - Proceedings by beneficiary to remove trustee - Beneficiary with vested interest in trust fund - Interlocutory application by beneficiary for production of documents for inspection - Documents relevant to the issues and final relief in the proceedings - Trustee claimed legal professional privilege in respect of documents - Whether trustee and beneficiary entitled to a joint privilege - Trustee ordered to produce documents for inspection

Legislation:

Nil

Result:

Leave to appeal granted
Appeal dismissed

Category:    A

Representation:

Counsel:

Appellant:     Mr D E Baran

Respondent:     Mr S M Davies

Solicitors:

Appellant:     Marks & Sands

Respondent:     Jonathan Eastoe

Case(s) referred to in judgment(s):

Avanes v Marshall [2007] NSWSC 191; (2007) 68 NSWLR 595

Breen v Williams [1996] HCA 57; (1996) 186 CLR 71

Camosun College Faculty Association v British Columbia (College Pension Board of Trustees) (2004) BCSC 941

Cooke v Canada Trust Co (2005) BCCA 112

Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543

Esso Australia Resources Limited v Federal Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49

Farrow Mortgage Services Pty Ltd (in liq) v Webb (1996) 39 NSWLR 601

Floyd v Floyd 615 SE 2d 465 (SC App 2005)

Grant v Downs [1976] HCA 63; (1976) 135 CLR 674

Hartigan Nominees Pty Ltd v Rydge (1992) 29 NSWLR 405

McDonald v Ellis [2007] NSWSC 1068

Mercantile Mutual Insurance (NSW Workers Compensation) Ltd v Murray [2004] NSWCA 151; (2004) 13 ANZ Ins Cas 61‑612

Murray v Schreuder [2009] WASC 51

O'Rourke v Darbishire [1920] AC 581

Pulitano v Ginbey [1999] WASC 5

Re Ballard Estate (1994) 20 OR (3d) 350

Re Cowin (1886) 33 Ch D 179

Re Doran Constructions [2002] NSWSC 215; (2002) 194 ALR 101

Re Grand Jury Proceedings Grand Jury No 97-11-8 162 F 3d 554 (9th Cir 1998)

Re Londonderry's Settlement [1965] Ch 918

Re Mason; Mason v Cattley (1883) 22 Ch D 609

Re Postlethwaite (1887) 35 Ch D 722

Re Simersall; Blackwell v Bray (1992) 35 FCR 584

Riggs National Bank of Washington DC v Zimmer 355 A 2d 709 (Del Ch 1976)

Rouse v IOOF Australia Trustees Ltd [1999] SASC 181; (1999) 73 SASR 484

Samson Indian Nation and Band v Canada [1995] 2 FC 762

Schaverien v Jones [2007] NSWSC 1429

Schmidt v Rosewood Trust Ltd [2003] UKPC 26; [2003] 2 AC 709

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Schreuder v Murray [No 2] [2009] WASCA 145
Case
[2009] WASCA 145
Decision Date

CaseChat Overview and Summary

The case of Schreuder v Murray [No 2] involved a dispute between a beneficiary and a trustee of a trust fund. The beneficiary sought the production of certain documents for inspection, which the trustee claimed were protected by legal professional privilege. The trustee argued that the beneficiary and the trustee were entitled to a joint privilege over the documents, which would prevent the beneficiary from obtaining the documents.

The legal issue before the court was whether the trustee and the beneficiary were entitled to a joint privilege over the documents in question. The court held that legal professional privilege is a substantive rule of law and that a party claiming such privilege must properly identify the basis on which the privilege is claimed. The court also held that a party who claims legal professional privilege must provide a sufficient statement of the grounds of the privilege and that the documents must be properly described to enable the claim for privilege to be tested.

The court found that the trustee had not properly identified the basis on which the privilege was claimed and that the documents were not sufficiently described. The court also held that there was no joint privilege between the trustee and the beneficiary over the documents in question. The court ordered the trustee to produce the documents for inspection.

The final orders of the court were that leave to appeal was granted, but the appeal was dismissed. The beneficiary was entitled to inspect the documents in question, subject to any applicable redactions.

Orders

Orders of the court

Leave to appeal granted

Appeal dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Legal professional privilege is a rule of substantive law. A person may invoke the privilege to resist giving information or producing documents that would reveal confidential communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or providing legal services (including representation in legal proceedings). See Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543 [9] ‑ [11] (Gleeson CJ, Gaudron, Gummow & Hayne JJ); Esso Australia Resources Limited v Federal Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49 [35], [61], [62] (Gleeson CJ, Gaudron & Gummow JJ), [167] (Callinan J). 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. The person claiming legal professional privilege must prove that the information or documents in question are privileged. See Grant v Downs [1976] HCA 63; (1976) 135 CLR 674, 689 (Stephen, Mason & Murphy JJ). A claim of legal professional privilege is not established conclusively by the use of a verbal formula. See Esso [52]. A court may examine documents where there is a disputed claim. It should not be hesitant to exercise the power. Also, in appropriate cases, a court may permit cross‑examination of a deponent of an affidavit claiming privilege. See Esso [52]; Grant, 689. However, a party who claims legal professional privilege must properly identify the basis on which the privilege is claimed. It is not appropriate for the party merely to assert the existence of the privilege, deliver the documents to the presiding judicial officer and request him or her to analyse them and determine whether there is a proper basis for the claim. In the present case, the learned judge, appropriately, refused the invitation of counsel for the appellant to embark on this task. Order 26 r 4(2) provides, in the context of discovery and inspection between parties to litigation, that if it is claimed that any documents are privileged from production, the claim must be made in the list of documents made in compliance with O 26 r 1, and with a sufficient statement of the grounds of the privilege. The list of documents must be verified by an affidavit in form no 18. The purpose of the requirement in the rule for identification and description of documents in respect of which privilege is claimed, is explained in Kendall C and Curthoys J, Civil Procedure Western Australia (at 2 July 2009):Where a claim of privilege is made, it is necessary that any documents for which privilege is claimed be properly described. Unless such documents are sufficiently described, it will be impossible for the other party to discern whether the claim of privilege is properly made. It is not sufficient merely to assert that the documents are privileged, which is a statement of law. The facts relied upon as giving rise to the privilege must be set out so the claim for privilege can be tested, although the facts should not be set out in such detail as would enable the contents of the documents to be ascertained indirectly: Gardiner v Irvine [1879] 4 Ex D 49 at 53. That is, an adequate description is required of each of the documents for which privilege is claimed, but not one which indirectly reveals its contents: Buttes Gas & Oil Co v Hammer (No 3) [1981] QB 223 at 265; [1980] 3 All ER 475; [1980] 3 WLR 668 [26.4.6].