Secure Parking (WA) Pty Ltd v Wilson - [2004] WASC 246

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: SECURE PARKING (WA) PTY LTD -v- WILSON & ANOR [2004] WASC 246

CORAM: MASTER SANDERSON

HEARD: 5 NOVEMBER 2004

DELIVERED : 23 NOVEMBER 2004

FILE NO/S: CIV 1074 of 2003

BETWEEN: SECURE PARKING (WA) PTY LTD (ACN 073 500 160)
Plaintiff
AND
ALFRED KARL WILSON
First Defendant
NULLAGINE INVESTMENTS PTY LTD (ACN 008 729 717)
Second Defendant

Catchwords:

Practice and procedure - Application for inspection of documents subject to claim for privilege - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff:     Mr M J McPhee
First Defendant             :     Mr L Panotides
Second Defendant         :     No appearance

Solicitors:

Plaintiff:     Michell Sillar McPhee
First Defendant             :     Tottle Partners
Second Defendant         :     No appearance

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

CTC Resources NL v Australian Stock Exchange Ltd (2000) 22 WAR 48
Dalleagles Pty Ltd v Australian Securities Commission (1991) 4 WAR 325
Packer v Deputy Commissioner of Taxation (Qld) (1985) 1 Qd R 275

Case(s) also cited:

Balabel v Air India [1988] 2 All ER 247
Brambles Holdings Ltd v WMC Engineering Services Pty Ltd (1995) 14 WAR 239
Esso Australia Resources Ltd v FCT [1999] HCA 67
Grant v Downs (1976) 136 CLR 674
Saunders v Commissioner of Australian Federal Police (1998) 160 ALR 469

MASTER SANDERSON: This is the plaintiff's application for an order allowing it to inspect certain documents over which the plaintiff has claimed privilege. For the purposes of this application no detailed consideration of the facts is required. However, a brief outline of the matters in issue between the parties helps put the application in context. In June 1996 the first defendant was the lessee of premises known as the "Esplanade Car Park". The lease expired in October 2000 and contained two options for renewal - one exercisable in October 2000, the other exercisable in October 2005. In June 1996 the first defendant orally agreed with the plaintiff to assign the lease to the plaintiff for an amount of $150,000. The second defendant was the owner of the premises on which the carpark was located. It was the second defendant who granted the lease to the plaintiff. The lease agreement, by its terms, required the second defendant's approval before any assignment of the lease could be effected. As is usual, the lease agreement provided that the consent to the assignment would not be unreasonably withheld.
It is the plaintiff's case that in late June 1996 the second defendant wrote to the plaintiff agreeing to the assignment of the lease if certain conditions were met. The plaintiff says that these conditions were met by September 1996 and that a deed titled an "Assignment of Lease" was prepared, executed by the plaintiff and the first defendant and sent to the second defendant for execution. The second defendant refused to execute the deed. The plaintiff seeks declarations that the lease has been assigned and that the second defendant has consented to the assignment. Causes of action are pleaded in estoppel and waiver, but these causes of action arise out of the facts I have outlined above.
For its part, the second defendant admits that it received the plaintiff's letter in late June 1996 and admits that the letter contained conditions which were to be fulfilled before the lease would be assigned. It says further that its offer to sign if the conditions were met was rejected because when the plaintiff forwarded the deed of assignment, it did not make provision for one of the conditions contained in the letter. The second defendant admits it has not executed the deed of assignment, denies that it has given consent to an assignment and says that the assignment is ineffective.
It is clear then that it is common ground between the parties that a deed of assignment of lease was prepared, signed by the plaintiff and the first defendant and forwarded to the second defendant. Unfortunately the partially executed deed has gone astray. Logic suggests it should be with the second defendant. They can find no trace of it. Reluctantly the plaintiff has accepted that this is the position. It no longer presses the second defendant in relation to the deed. However, the plaintiff wishes to explore issues such as when the deed was executed and by whom on behalf of the first defendant, to whom the deed was sent and which party had the deed in its possession last. It is for that reason that it wishes to inspect the documents the subject of this application.
The documents themselves are five in number. They are (the number appearing alongside each document is the number found in the schedule to the affidavit of discovery):
"18 Memo to file by Paul Lyons
19Handwritten memo by Paul Lyons
20Handwritten notes by Paul Lyons
22Memo to file by Paul Lyons
24Memo to file by Paul Lyons"
It is common ground between the parties that Paul Lyons was at all material times a partner of the firm of Dwyer Durack, who were acting for the first defendant in relation to the assignment of the lease. The documents date from 1996. Clearly they were not documents produced in contemplation of litigation. However, the first defendant says that the documents are privileged on the basis that they comprise of confidential communications between the first defendant and his solicitors for the purpose of obtaining or giving legal advice or assistance.
The first point to make about these documents is that they must relate to a matter in issue between the parties. The very fact that they have been discovered requires that conclusion. Having said that, it does seem that the documents could only have an incidental relevance to what seems to be a peripheral issue. As I have said, it is common ground between the parties that the deed of assignment was prepared, was signed by the plaintiff and the first defendant and forwarded to the second defendant. There is no suggestion that the second defendant signed the assignment. The issue on the pleadings is whether or not the conditions set by the second defendant, before it would consent to the assignment and contained in its June letter, were met. How the notes and memorandum prepared by the first defendant's solicitors bear upon this question is difficult to see. Nonetheless, the documents have been discovered, consequently they must relate to a matter in issue and the question is whether privilege attaches so as to deny the plaintiff access to them.
Counsel for the plaintiff accepted that the onus was on the plaintiff to establish the basis upon which the privilege could be questioned: see CTC Resources NL v Australian Stock Exchange Ltd (2000) 22 WAR 48 at 56, 58. Counsel also accepted that the documents could be covered by so‑called legal advice privilege: see Dalleagles Pty Ltd v Australian Securities Commission (1991) 4 WAR 325 at 333. Counsel made the point that documents which did not reveal the advice given by the solicitor to his client, although prepared by the solicitor during the course of acting for the client, were not privileged from production. Reliance was placed by the decision of the Queensland Full Court in Packer v Deputy Commissioner of Taxation (Qld) (1985) 1 Qd R 275.
Reduced to its essentials, counsel's argument raised three points. First, it was said that the very fact of the notes and memorandum being discovered demonstrated that they related to a matter in issue between the parties. Second, it was said that when all of the discovered documents were looked at in chronological order, it was clear that these documents in question would fill in gaps as to the chain of events leading to the deed being sent to the second defendant. Finally, it was said by way of general submission that it was difficult to imagine, in the circumstances of the case, that the notes could contain legal advice. After all, agreement had been reached and it was simply a matter of signing the lease. What, counsel asked rhetorically, could Mr Lyons have been advising the first defendant about?
What is clear from the evidence is that the first defendant has given careful consideration to the documents over which privilege was claimed. This was not a case where there was an ambit claim for privilege with particular documents inadequately described. A number of notes and memoranda prepared by Mr Lyons have been discovered and made available for inspection. It is only the five documents the subject of this application which have been excluded. Furthermore, the availability of these documents has been in issue between the parties for some time. There is no reason to suggest that the solicitors for the first defendant have not given the question of the claim for privilege careful consideration.
On balance, I am not satisfied that these documents should be produced for inspection. In my view there is nothing in the evidence which suggests that the claim for privilege has been improperly or wrongly made. Quite the reverse. In my view it is entirely possible that Mr Lyons was advising the first defendant about his legal position at the time when these notes and memorandum were drawn up. After all, the assignment of the lease had not been signed by the second defendant and, in the terms of the lease agreement itself, that had certain consequences both for the plaintiff and the first defendant. It would perhaps have been surprising if the first defendant had not sought advice about his potential liability.
During the course of his submissions, counsel for the plaintiff suggested that I should inspect the documents with a view to deciding one way or another whether the privilege claim could be maintained. I indicated to the parties that I would only take this step if I was satisfied that there was sufficient reason to believe that the claim for privilege was unjustified. In the event, as I have indicated, I am satisfied that the claim can be maintained. On that basis I have not inspected the documents and at the resumed hearing I will return the documents which were in a sealed envelope to counsel for the first defendant.
I will hear the parties as to the precise form of orders and as to costs.