Stariha v Commissioner for Railways
[2007] QLC 38
•9 May 2007
LAND COURT OF QUEENSLAND
CITATION: Stariha v Commissioner for Railways [2007] QLC 0038 PARTIES: John and Vanessa J Stariha
(applicants/claimants)v. Commissioner for Railways
(respondent)FILE NO: A2006/0130 DIVISION: Land Court of Queensland PROCEEDING: An application for disclosure. DELIVERED ON: 9 May 2007 DELIVERED AT: Brisbane HEARD AT: Brisbane MEMBER: Mr R S Jones ORDERS: (i) The applicants are successful to the extent identified in paragraphs 16, 22, 24 and 26 herein.
(ii) I will hear from the parties as to the final wording of the orders invited and as to costs including those of the respondent's application for further and better particulars also dealt with on 20 April 2007.
CATCHWORDS: Practice and procedure – disclosure – legal professional privilege – Uniform Civil Procedure Rules R.223(1)(a).
Evidence – legal professional privilege – dominant purpose to obtain legal advice or reference to litigation – onus of proof on respondent – means of proving.
Evidence – "without prejudice" claims – dominant purpose of facilitating settlement – problems with very old documents – application to third parties.
APPEARANCES: Mr G Allan of counsel for the applicants.
Mr W Cochrane of counsel for the respondents.SOLICITORS: Anderssen Lawyers for the applicants.
The Crown Solicitor for the respondent.
Background
The applicants are the registered proprietors of land part of which was resumed by the respondent pursuant to the Acquisition of Land Act 1967 (ALA) for the purposes of the Thorneside to Cleveland railway line. The resumption occurred on 3 May 1986. On or about 9 May 1988 the applicants served a claim for compensation on the respondent but did not file it in this Court. It appears that the original claim was filed in the registry of this Court in or about June 2006 and on 3 July 2006 the Court issued orders addressing a number of matters including disclosure. On 9 March 2007 the applicant's solicitors filed an "Amended Claim for Compensation".
On 15 August 2006 the applicants' solicitors were served with the respondent's List of Documents. On 27 September 2006 the respondent's solicitor, under cover of correspondence dated 26 September 2006, delivered an Amended List of Documents and a Supplementary List of Documents. The correspondence of 26 September 2006 relevantly stated:
"As discussed, I advise that subsequent to the delivery of my client's list of documents on 15 August 2006, I have received Counsel's advice that some of the documents contained in my client's list are in fact subject to either legal professional privilege or without prejudice privilege. Accordingly, these documents have been removed from my client's list and I enclose, by way of service, my client's amended list of documents, dated 26 September 2006.
I enclose also my client's supplementary list of documents, dated 26 September 2006, which includes documents not previously listed."
In the Amended List of Documents a number of documents disclosed in Part 1 of the schedule of the original list were removed and made the subject of a claim for privilege under Part 2 of the amended list. Under Part 2 of the respondent's Supplementary List of Documents a claim for privilege is made in respect of a number of documents categorised by the respondent under various headings including "S3", "S6" and "S7". These documents are described in the following terms:
"S3.Letters and copies of letters, statements, reports and advices passing between the disclosing party, its employees, servants or agents and/or its legal advisers and/or third parties prepared and brought into existence for the dominant purpose of these proceedings at a time when they were either pending or contemplated.
…
S6.Diary notes or memoranda brought into existence for the dominant purpose of attempting to negotiate a settlement of these proceedings at a time when they were either pending or contemplated.
S7.Letters and copies of letters, statements, reports and advices passing between the disclosing party, its employees, servants or agents and the Redland Shire Council, its employees, servants or agents prepared or brought into existence for the dominant purpose of attempting to negotiate a settlement of these proceedings at a time when they were either pending or contemplated."
On 17 April 2007 the applicants commenced proceedings seeking orders pursuant to R223 of the Uniform Civil Procedure Rules, for further disclosure and the production of a large number of documents. The respondent has claimed privilege in respect of all those documents sought to be disclosed and produced. In some instances the claim is made only in respect of part of a document.
Initially the applicants sought orders effectively requiring the respondent to produce those documents removed from Part 1 of the original List of Documents[1] and those categorised as S3 and S7 documents in the respondent's Supplementary List of Documents. However, during the course of proceedings and following discussions between Mr Allan, counsel for the applicants, and Mr Cochrane, counsel for the respondent, Mr Allan advised me that he no longer pressed for the disclosure of the S3 documents.
[1]Documents 10, 11, 44, 46, 49, 50, 52, 56, 57, 59, 62, 63, 66, 72, 74, 76, 85, 86, 88, 94, 95, 96, 108, 123, and 125.
The documents about which I am still required to make a determination are those which come under the headings "S2", "S6" and "S7" in the folder titled "List of Documents Produced Pursuant to Claimants' Application for Further Disclosure" which was handed up by Mr Cochrane during argument. These documents fall into three categories. The first category is described by the respondent in the following terms:
"Legal Professional Privilege
Diary notes or memoranda brought into existence for the dominant purpose of obtaining or giving legal advice or instructions in relation to matters the subject of this application (S2)." (The S2 Documents).
The second and third categories of documents are described in these terms:
"Without Prejudice Privilege"
Diary notes or memoranda brought into existence for the dominant purpose of attempting to negotiate a settlement of these proceedings at a time when they were either pending or contemplated (S6)." (The S6 Documents)
"Letters and copies of letters, statements, reports and advices passing between the disclosing party, its employees, servants or agents and the Redland Shire Council, its employees, servants or agents prepared or brought into existence for the dominant purpose of attempting to negotiate a settlement of these proceedings at a time when they were either pending or contemplated (S7)." (The S7 Documents)
The Merits of the Application
This application has been made somewhat more difficult by virtue of the fact that the resumption occurred 20 years ago and a number of the documents in issue date back to around that time. Mr Cochrane referred me to correspondence occurring in June 1988 which indicated that, at least as far as the respondent was concerned, the determination of compensation was a matter likely to have to be decided by the Land Court. Correspondence also reveals that by no later than September 1989 the applicants were legally represented but not by their current lawyers who were retained, as best as I can ascertain, in or about mid 2006. It appears that the respondent had, concerning this resumption, at or about June 1988 retained the services of the Crown Solicitor.
In Cross on Evidence[2] the doctrine of legal professional privilege is stated in the following terms:
"[25210] In civil and criminal cases, confidential communications passing between a client and a legal adviser need not be given in evidence or otherwise disclosed by a client and, without the client's consent, may not be given in evidence or otherwise disclosed by the legal adviser if made either (1) to enable the client to obtain, or the adviser to give, legal advice, or (2) with reference to litigation that is actually taking place or was in the contemplation of the client.
Documents prepared by or communications passing between the legal adviser or client and third parties need not be given in evidence or otherwise disclosed by the client and, without the consent of the client, may not be given in evidence or otherwise disclosed by the legal adviser if they come within (2) above.
The privilege covers three kinds of communication: (a) communications between the client or the client's agents and the client's professional legal advisers; (b) communications between the client's professional legal advisers and third parties, if made for the purpose of pending or contemplated litigation; and (c) communications between the client or the client's agent and third parties, if made for the purpose of obtaining information to be submitted to the client's professional legal advisers for the purpose of obtaining advice upon pending or contemplated litigation."
[2]Cross on Evidence 7th Ed – J D Heydon – Lexis Nexis Butterworths 2004 at 798-799 [25210]: See also Legal Professional Privilege in Australia 2nd Ed – Dr R J Desiatnik – Lexis Nexis Butterworths 2005 at p.24.
A confidential document will attract legal professional privilege if it was brought into existence for the dominant purpose of giving or obtaining legal advice.[3] A "dominant purpose" is one that overrides or predominates any other purpose and the purpose of a particular document is to be determined at the time of its production.[4] If it is asserted that a document was brought into existence for the purpose of "contemplated" litigation the litigation must be reasonably anticipated,[5] in the sense of being probable or likely by reference to objective criteria.[6]
[3]Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 at 73 [61] per Gleeson CJ, Gaudron and Gummow JJ.
[4] Commissioner of Taxation v Pratt Holdings Pty Ltd (2006) 225 ALR 266 at 279 [30] per Kenny J.
[5] Grant v Downs (1976) 135 CLR 674 at 682-3 per Stephen, Mason and Murphy JJ.
[6] ACCC v Australian Safeway Stores Pty Ltd & Ors 153 ALR 393 at 424-425 per Goldberg J.
The respondent here carries the onus of proving that the documents are privileged.[7] In Australian Wheat Board Ltd v Honourable Terence R H Cole[8] His Honour Young J, at page 16, paragraph 44 stated that the onus might be discharged by evidence about the circumstances and context in which the communications occurred or the documents were brought into existence, or by evidence as to the purposes of the person who made or authorised the communication or document, or procured its creation. The onus might also be discharged by reference to the nature of the documents supported by argument and submissions. Mere assertions that the communications or documents are or must be privileged are not sufficient. It also needs to be kept in mind that, in the administration of justice, neither the parties nor the Court should be readily denied access to relevant material.
[7] Grant v Downs at 689: FCT v Pratt Holdings Pty Ltd at 278 [30].
[8] unreported decision of the Federal Court of Australia [2006] FCA 1234.
As identified above in paragraph 6, privilege is being claimed in respect of the S6 and S7 documents (or parts thereof), under the heading, "Without Prejudice Documents", on the basis that they were brought into existence for the dominant purpose of attempting to negotiate the settlement of "these proceedings". The phrase "these proceedings" can only sensibly mean the litigation about compensation arising out of the resumption of part of the applicants' land.
Generally speaking, communications between parties which are part of genuine negotiations intended to compromise the dispute between them will attract privilege. None of the S6 or S7 documents however fall into that category of documents. In my opinion, in this case, the S6 and S7 documents will only be capable of attracting privilege if they can be said to be reasonably connected with or incidental to settlement negotiations.[9]
[9] Field v Commissioner for Railwaysfor NSW (1957) 99 CLR 285.
Perhaps not surprisingly, given the lapse of time, the respondent here primarily sought to address the documents still in issue by reference to their content and the context and circumstances in which the documents came into existence. The affidavit of Ms Collingburn sworn 19 April 2007 is not, in my opinion of much assistance in these proceedings. Accordingly, the context and circumstances in which the documents were produced and came into existence has had to be largely determined by reference to the documents themselves, the documents contained in exhibit 1 and those handed up to me by Mr Cochrane during submissions. In saying this I mean no disrespect to Ms Collingburn. In the circumstances surrounding this application one wonders whether she would have been able to take matters much further than she did.
As already mentioned, the subject land was resumed in May 1986. The matter first came before the Court in May 2006 upon the respondent filing an applicant pursuant to ss. 24 and 25 of the ALA seeking, in practical terms, orders that the applicants file in the Land Court a claim for compensation. On the limited evidence before me I am prepared to accept that litigation was anticipated by the respondent at or about early 1988. However, in my opinion, the evidence does not support a finding that litigation was anticipated by the respondent from early 1988 to October 2000 being the most recently dated document in dispute. Doing what I can with the evidence before me my conclusion is that, relevant to the documents in issue, litigation was reasonably anticipated by the respondent from early 1988 to sometime through to the early 1990's. The evidence does not allow me to be any more definite than that.
The Legal Professional Privilege Claim (The S2 Documents)
In the folder of documents produced by Mr Cochrane and referred to in paragraph 6 above, the S2 documents comprise of documents 74, 76, 85, 86, 88, 94, 95, 96, 108 and 125. The basis for the claim of privilege in respect of each of these documents is as identified in paragraph 6. These documents seem predominantly to comprise of memoranda produced by employees or agents of the respondent and addressed to other employees, officers and agents of the respondent or of handwritten notes of the respondent's employees or agents. A dominant theme of all of the S2 documents is access to the applicants land.
Having read the S2 documents in the context of the evidence before me and the submissions of counsel it is my opinion that in respect of documents 74, 76, 86, 88, 108 and 125 there are insufficient grounds to justify a conclusion that they were confidential communications brought into existence for the dominant purpose of obtaining or giving of legal advice or for the dominant purpose of existing or anticipated litigation.
As already mentioned most of these documents are concerned with the requesting and/or giving of information by the respondent's employees or agents concerning access to the applicants land. It seems almost inevitable that some access issues are likely to be involved in any litigation concerning this resumption and I also accept that access issues would have been cause for the respondent to seek and obtain legal advice quite apart from that concerning potential litigation with the applicants. However, in my opinion, these documents are more in the character of routine internal memoranda having the dominant purpose of keeping those with a need to know informed about the progress and details of the dealings between the respondent and the applicants.
As to the balance of the S2 documents I find as follows:
· Document 85 – the part privilege claim is accepted and the handwritten note dated 18 June 1989 appearing at the end of this memorandum does not have to be produced.
· Documents 94, 95 and 96 – These documents are communications between senior officers of the respondent which occurred between 12 February 1990 and 28 March 1990 following a request for quite specific information by the Crown Solicitor. I am satisfied that the dominant purpose of these documents was to enable the respondent to give confidential instructions to his lawyer and/or to be furnished with legal advice. In respect of documents 94 and 95 I accept the claim and only the first and last paragraphs of those documents need be produced. In respect of document 96 I find that the whole of that document attracts privilege and does not have to be produced.
The Without Prejudice Claims (The S6 and S7 Documents)
In respect of these documents the submissions of Mr Allan were to the effect that there was no or insufficient evidence to support findings that when these documents came into existence (i) their dominant purpose was to facilitate settlement negotiations or, (ii) that litigation could fairly be described as being reasonably anticipated. And, in respect of S7 documents particularly, it was difficult to imagine how the documents involving the Redland Shire Council could attract any privilege.
In response to Mr Allan's submissions concerning the prospect of litigation as early as 1988, Mr Cochrane specifically directed my attention to the correspondence referred to above in paragraph 7. In response to Mr Allan's submissions concerning the Redland Shire Council Mr Cochrane referred me to the decision of the Court of Appeal in Mercantile Mutual Custodians Pty Ltd v Village Nine Network Restaurants and Bars Pty Ltd[10] as authority for the proposition that the "without prejudice" privilege can extend to include non disputants or third parties. Neither Mr Allan or Mr Cochrane addressed me about whether the extent of this privilege was limited to express or implied admissions. As was recognised by Pincus JA in Mercantile Mutual at p. 284-285 some authority for that proposition exists the judgment of Dixon CJ, Webb, Kitto and Taylor JJ in Field v Commissioner of Railways (NSW) at 291 but there was reason to doubt that the judgment of the majority of the High Court in that case should be given such limited effect.[11]
[10] (2001) 1 QdR 276.
[11] also Byrne J in Mercantile Mutual at p 289 [30].
For the purpose of determining the dispute about the S6 and S7 documents, I accept that the "without prejudice" privilege will extend to include communications passing between the respondent and the Redland Shire Council but only if they can be fairly described as being reasonably connected with or incidental to settlement negotiations. I will also proceed on the basis that the privilege is not limited to embrace only admissions.
After reading the S6 documents in the light of the evidence and submissions of counsel I have reached the conclusion that a significant number of these documents also have the character or flavour of routine internal communications concerned with, as much as anything else, providing information and advice about the progress of the dealings with the applicants post resumption and, in particular, about property access including easement access. I am not satisfied that these documents, either in whole or in part, could reasonably be said to have come into existence for the dominant purpose of settlement negotiations. These conclusions apply to the following S6 documents: 11, 44, 46, 49, 50, 52, 56, 59, 72 and 123.
In respect of the remaining S6 documents my conclusions are:
· Document 57: This document is a copy of document 56 but has some illegible handwriting at the bottom left hand corner. If the respondent wishes to maintain his privilege claim (which is described as a "part privilege" claim) consideration will have to be given about how that is to be addressed.
· Documents 62 and 63: These documents are subject to "part privilege" claims and are identical save that document 63 has a handwritten note on the last page. Document 63 is in fact a copy of Document 62. A significant part of these internal documents are concerned with facts and circumstances surrounding the resumption including concerns raised by the applicants about access. However, it is against the factual background set out in the previous pages that the last three paragraphs on page 4 and page 5 of the memorandum advances recommendations for an offer of compensation to the applicants. In the circumstances I find that the last three paragraphs on page 4 and the whole of page 5 of these documents are privileged and exempt from production.
· Document 66: I find that the whole of this document is exempt from production.
· Document 96: has already been dealt with in paragraph 18 above.
Turning then to the S7 documents, they also largely comprise of documents having the character of quite routine internal communications produced by employees or agents of the respondent primarily concerned with discussions with employees or agents of the Redland Shire Council. Various issues are addressed but again the dominant theme seems to be access to the applicants land. After reading these documents, I am again not satisfied that those identified below came into existence for the dominant purpose settlement negotiations. These documents are described in the folder of the documents produced to me and referred to in paragraph 6 above as S7 document (10) numbers 26, 27 and 28.
As to the balance of the S7 documents I find that page 2 of document 10 described as "29 Draft Note for File re meeting on 05.08.93 …" including the handwritten notes on that page are privileged and exempt from production. In respect of document 103 I find that the third paragraph commencing "This office was …" and the last paragraph of that document are privileged and exempt from production. I accept that the dominant purpose of these documents was reasonably connected with or incidental to the formulation of an offer to be made by the respondent to the applicants in an attempt to settle the dispute about compensation.
Conclusions
For the reasons canvassed above I find that:
(i)The following documents do not attract privilege and should be produced: 10 (numbers 26, 27, and 28), 11, 44, 46, 49, 50, 52, 56, 59, 72, 74, 76, 86, 88, 108, 123 and 125.
(ii)In respect of documents 10 (number 29) 62, 63, 85, 94, 95 and 103 the claims for privilege are upheld to the extent explained in paragraphs 18, 23 and 25 above.
(iii)The following documents in their entirety are privileged and are not required to be produced for inspection: 66 and 96.
(iv)The respondent is to advise the Court and the solicitors for the applicants about its position concerning the handwritten notes appearing at the bottom of document 57.
Finally, during submissions I advised Mr Cochrane that I was experiencing difficulty in understanding some of the hand written communications under consideration. As it turned out, save for the hand written note on document 57 referred to above, I was able to decipher and follow what was written. I should also refer to what may be described, I hope not unfairly, as a fall back position advanced by Mr Cochrane which was that "merely because privilege is claimed under one heading does not remove it from an entitlement to claim privilege under other headings." I accept that as a general proposition that is no doubt correct. However, in the circumstances of this application, I am not satisfied that where the claim for privilege as articulated by the respondent has not been made out it is justified on other grounds.
I publish my reasons and will hear from the parties about the final form of the orders to be made and as to costs including the costs of the respondent's application concerning further and better particulars also dealt with on 20 April 2007.
ORDERS:
(i) The applicants are successful to the extent identified in paragraphs 16, 22, 24 and 26 herein.
(ii) I will hear from the parties as to the final wording of the orders invited and as to costs including those of the respondent's application for further and better particulars also dealt with on 20 April 2007.
R S JONES
MEMBER
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