State of New South Wales v Jackson

[2008] HCATrans 193

[2008] HCATrans 193

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S534 of 2007

B e t w e e n -

STATE OF NEW SOUTH WALES

Applicant

and

CHRISTOPHER JACKSON BY HIS NEXT FRIEND MELISSA JACKSON

Respondent

Application for special leave to appeal

GLEESON CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 MAY 2008, AT 2.14 PM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MS S.E. PRITCHARD, for the applicant.  (instructed by Hicksons Lawyers)

MR D.T. KENNEDY, SC:   If your Honours please, I appear on behalf of the respondent with my  learned friend, MR C.A.W. HART.  (instructed by Bale Boshev Lawyers)

GLEESON CJ:   Yes, Mr Walker.

MR WALKER:   Your Honours, some have said that there remains an interesting outstanding question at common law as to the need for confidentiality of some kind or another in order for there to be what has been called litigation privilege in the category legal professional privilege, but this case raises it under the Act, under the Evidence Act, and it erases it according to definitions which, in our submission, relate to nearly everyday transactions in the preparation for litigation involving the presentation of facts.

HEYDON J:   Can I just interrupt, Mr Walker, you raised – or the written summary of argument raises three special leave questions.  Do you press them all?

MR WALKER:   No, number (1).  Thank you, your Honour.  The statutory definition in question is the critical one in relation to confidential document.  A confidential document is that which is referred to as the second alternative way in which the litigation privilege under section 119 might arise.  If that confidential document was prepared for the dominant purpose of the client being provided with professional legal services, et cetera, then evidence is not to be adduced of its contents.

Now, the definition of confidential document is the one where, in our submission, serious error with far-reaching consequences as authority for the practice of adversarial litigation and the provision of legal services in connection with it has intruded.  Under section 117, the definition section for section 119, the:

confidential document means a document prepared in such circumstances that, when it was prepared:

(a)      the person who prepared it, or

(b)      the person for whom it was prepared,

was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.

It could be said quite precisely that this is a case where the error in question was the erroneous understanding and application to the facts of this case in the Court of Appeal of the preposition “for” in the phrase “the person for whom it” that is the document “was prepared”.

Could I take your Honours to page 26 of the application book, paragraph 39, in Justice Giles’ reasons?  To remind your Honours of the personages in question, Ms Jackson and Mr Blenman were onlookers, not employees, of the department, my client, the State.  Mr Harman was an employee of the department, a teacher.  It was he who at the direction of his superiors and in accordance with departmental policy obtained the statements of Jackson and Blenman.  Those statements were, on the findings which would bind in any hearing in the High Court, being obtained for the purposes of considering a position in litigation.  They would satisfy the other integers of the statutory test.

The question, said Justice Giles, arose as to who was the person for whom the statements were prepared.  Well, as one can see from section 119 itself, the litigation privilege provision, of course, ultimately the entirety of its focus is that there is a client, so-called, being a person for whom legal professional services are being performed and information gathered to enable that to be done, but it leads to the absurdity which brought about the result in this case in paragraph 39 when one chooses the client as the person for whom the document was prepared.  The absurdity can be readily pointed.

His Honour in paragraph 39 says “the client” because he identifies the actions of the agent, Mr Harman, with his principal.  Now, Mr Harman was, we would submit, like a solicitor or an inquiry agent, a private detective.  He was what might be called in old‑fashioned terms a confidential agent, going out to obtain information from the world, itself not necessarily confidential at all, to prepare it and put it in a form for consideration by lawyers who are carrying out litigation services for a client in circumstances where it is quite clear the private inquiry agent, the retired policeman, the solicitor’s clerk, or in this case the school teacher in question, is doing so in such a way that he or she is never to be at liberty simply to tell the world of what they found out.

GLEESON CJ:   Is the critical question that raised by the second and third sentences in paragraph 39?

MR WALKER:   Yes, it is.  In our submission, textually from section 117 in the context that it serves a definitional purpose for section 119 which speaks of the client, one can never sensibly talk about the person for whom it was prepared being under an obligation not to disclose its contents.  Section 117 is ancillary to section 119, which is erecting the statutory replacement of the litigation privilege, which has to do with the provision of services in connection with litigation, actual or impending, for the client.

As his Honour correctly, with great respect, pointed out, having taken the misstep in 39, with respect, thereafter the logic is impeccable, when one goes to application book 31 in paragraph 51, his Honour correctly held that the liberty that the department had as to what it would do with the statements its confidential agent, Mr Harman, obtained was “the antithesis of an obligation not to disclose their contents,” of course.

GLEESON CJ:   What does the word “disclose” mean in this section?

MR WALKER:   That has not been settled.  It may not involve an absolute embargo on any communication, not least because it is clear in the context of 119 that the material in question is that which may freely circulate among what I will call the confidential circle of legal advisers and assistants; that must be so.

GLEESON CJ:   Yes, I agree, but that seems to be upon the theory that – let me take a practical example – nobody would suggest there would be a breach of any confidence in taking it up to a barrister.

MR WALKER:   No.

GLEESON CJ:   But that would be because the barrister is the client’s barrister.

MR WALKER:   Yes.

GLEESON CJ:   Not Mr Harman’s barrister.

MR WALKER:   Quite.  Mr Harman is like the private inquiry agent, or he is like the bank manager who obtains the information about the location and market conditions for the security property in question about which there may be some litigation, much of which may be public; he obtains the information, it is assembled for the purposes of litigation upon which a number of people may then advise.

GLEESON CJ:   But that might be argued to suggest that because when the client’s solicitor takes it up to the client’s barrister, what is going on is not any kind of disclosure at all because it is just circulating among the client’s agents, but the person for whom it was prepared is the client.

MR WALKER:   Yes.  Now, the person ultimately for whom everything is prepared is the client, that is what section 119 says, but in section 117 if you treat the client as the person for whom it was prepared you have immediately raised the question whether Parliament ever intended to be positing that a client could be under an obligation not to disclose contents for the purposes of section 119 litigation privilege, to which the answer is, as Justice Giles gave in his paragraph 51, which then feeds on pages 33 and 34 to his page 58, foot of page 33, of course, the party can disclose the communication if it wishes, just as it can put all of its documents on the internet; it can waive any privilege.

It is the nature of the privilege, though that word not be used, in section 119, the immunity against evidence being given called privilege in the cases at least, that it may be waived.  That means it is simply not sensible to read section 117’s definition as if “the person for whom it was prepared” could ever have been intended to mean the client.  Rather, it is the classic case of somebody who collects information or material for litigation to which section 119 privilege may attach, who does so otherwise than by preparing a document himself or herself, but rather obtains or commissions that document.

Proofs of statement are the everyday pervasive circumstance in which the circumstances as now governed by this decision of the Court of Appeal presents a serious question of great public importance in the conduct of litigation that this Court should take on.  Your Honours appreciate that there are at least two ways very familiar in which information, be they formal proofs of evidence or simply statements of what a witness might be able to say or a person who might be a witness might be able to say, can be gathered.

The one is for a confidential agent of the client, be it solicitor, solicitor’s clerk or private inquiry agent, or an employee, going to talk to a person, listening to what they have to say and making a note.  That note made by the confidential agent, of course, falls within paragraph (a) in the definition of “confidential document”, and that person who prepared it, the confidential agent as I call it, employee, inquiry agent, solicitor, solicitor’s clerk, is under an obligation not to disclose its contents within the statutory expression.

Of course, they are under a duty to disclose its contents to their principal and for their principal’s benefit, thus to their principal’s counsel, but they are under the relevant statutory obligation not to disclose.  That is how public information gathered for the purposes of litigation becomes confidential and thus privileged under the litigation privilege.

Now, when one turns to paragraph (b) of the definition one can see that is the other and obvious way in which proofs of evidence or statements of what a person who might be a witness might say can be collected for the purposes of the considerations which would otherwise attract section 119 litigation privilege.

GLEESON CJ:   Does your argument depend on the proposition that these documents were prepared for Mr Harman?

MR WALKER:   Yes, and he obtained them.  That is the factual finding in paragraph 3 of the reasons at application book 13.  He was told to obtain these statements.  He did obtain them.  He asked the children, or the child and the student teacher, “Write down what you saw”.  In effect, that is what it means.

GLEESON CJ:   What was the relationship between Mr Harman and these two people, Ms Jackson and Mr Blenman?

MR WALKER:   Mr Harman was the teacher, Ms Jackson was a student teacher present at the event, and Mr Blenman was a student.

GLEESON CJ:   If Mr Harman had been on vacation, presumably some other teacher would have had this job to do?

MR WALKER:   Yes, yes, it is simply he was – he happened to be the teacher on the spot at the time as well, but anybody, be it as I say, a solicitor, solicitor’s clerk, inquiry agent or employee, is a person – they do not lose their status statutorily as a person under the definition of “a confidential document” because they are also an agent or employee or servant, and what paragraph 39 shows is that because of the undoubted agency – and we do not doubt that, we do not dispute that he was an agent, of course – it is as if the reasoning goes thus, what the department does by its agent it does itself and therefore the department is the person for whom it was prepared, and of course, we respectfully accept the correctness of the logic thereafter, there is no obligation of any kind in the department, that is, the State.

But, in our submission, that is to bring about a situation at law which discriminates bizarrely between two factual positions.  The factual position where the inquiry agent or employee listens to the version and writes it down when there is clear section 119 privilege thereafter, to the document in the hands of the inquiry agent, solicitor, or the client.

On the other hand, what happened in this case, whereas it happens Mr Harman writes his own, and that is held privilege, and he obtains two other statements, one might think all the more reliable and valuable for being literally in the handwriting of and presumably the words of, one hopes, the prospective witnesses, but because he obtains them, he being the person we submit clearly for whom they were prepared, he made the request, accedence to that request is why the documents came into existence, and he is under an obligation upon their receipt of exactly the same confidentiality as applied to his own statement.

Now, there is no reason supplied in the judgment or in any authority of which we are aware as to why there might be that distinction between those two very ordinary ways of gathering information about possible evidence by possible witnesses, none at all.  There is no indication in the statute or in the ALRC travaux that your Honours have seen referred to in the written submissions to that effect that there should be such a distinction.  It all turns ultimately on reading the definition of “confidential document” as if the person for whom the confidential document was prepared could ever be the client.

It may be that from time to time there are clients who themselves are under obligations not to disclose the content of documents which, after all, have been gathered for the conduct of litigation.  That is what section 119 is about.  That is because they will be, like in the tax department, or subject to national security obligations, covered by their own statutes.  The Evidence Act is not necessary to deal with that proposition.  Their own statutes will cover the field.  Section 117’s definition of “confidential document”, rather, is dealing with the two very mundane ways in which papers, recording possible evidence by possible witnesses may come into what I will call “the files”, to use the Americanism, become part of the work product of those who are assisting ultimately a party, the client, in and about possible or actual litigation.

When one reads it in that fashion, then there was no distinction that should have been so decisive between what Mr Harman wrote himself and what Mr Harman got these two young people to write.  Having got them to write it, he was obviously, as a matter of ordinary English, the person for whom the document was prepared, even although he, and they, were all being enlisted ultimately for the purposes of the State, that is, the department, which was considering litigation.

Your Honours, that is the point which, in our submission, is of extremely important everyday importance in relation to, not only the answering of what would otherwise be compulsory calls for the disclosure of documents, but also of course as to the way in which people considering litigation and conducting litigation go about their business of dealing with what I will call the outside world, sources of information not itself confidential, in order to take it into that class which becomes confidential, becomes the brief that the other side cannot get simply by asking.

In our submission, the consequence of this case is that there is an unaccountable, and we would submit, unprincipled distinction between safe

and secure proof which is in the agent’s hand, and the unsafe, wholly available proof which is in the witness’ hand.  That, in our submission, borders on the perverse, because the latter is likely to have, perhaps in many cases, more qualities of reliability than the former.  If it please, your Honours. 

GLEESON CJ:   Thank you, Mr Walker.  Yes, Mr Kennedy. 

MR KENNEDY:   Your Honours, the position of Mr Harman was completely different to the position of the two persons who provided the statement.  He was an employee of the department.  One would assume that if he prepared some document himself or made some notes, there would probably be an implied obligation, given that he was a servant, not to disclose the content, bearing in mind the policy that had been set by the department.

We say that Mr Harman was really no more than a conduit pipe, if one looks at the department’s policy as to what they require to be done, and that his Honour, when he made his determination in relation to, at paragraph 39 of his judgment, page 26, that the person who was prepared was either Mr Harman who obtains it or the department.  In my view, it was the department.  His Honour was clearly of the view, and we say correctly so, that in fact what was happening was that Mr Harman, in accordance with the policy that was laid down which he was referred to, asked the student and asked the student at the school to provide a statement, which was provided.

We say, your Honours, that if one looks at the provisions of the relevant sections, that what the Court of Appeal did and particularly, Mr Justice Giles, was that he looked at the two issues that are raised by section 119 and that is, whether there was – that is at page 15, your Honour, of the book - confidentiality and whether there was a relevant dominant purpose.  He found that there was a relevant dominant purpose but he found on the facts that the circumstances in which the documents came into existence, were not in circumstances of confidentiality, and therefore access could be had to those documents. 

That finding, which we say was critical and which the basic underlying decision about confidentiality – the applicant has not challenged the underlying facts and those underlying facts were, as found by the court, that there was no evidence of any express obligation not to disclose.  The provisions of the protocol permit a supply of copies of any statements and that is in the judgment.  There was nothing in the evidence to suggest the defendant was not able to disclose the contents itself.  There was no evidence that either of the persons, Jackson or Blenman, were asked or agreed not to disclose the contents of the statements.  They were neutral observers who told the department what they observed and were free to tell anyone else what they observed and what they had told the department.  They could be given copies of their statements if requested and paragraph 6.8 of the protocol made no reference to attaching a non‑disclosure ‑ ‑ ‑

GLEESON CJ:  Well, I think you are pushing at an open door here.  It is not suggested that it is paragraph (a) that was satisfied, it is suggested that it was paragraph (b) and the critical question is as to the identity of the person for whom these documents were prepared.

MR KENNEDY:   Well, we say, your Honour, that the identity of the person for whom the documents were prepared was the department and Mr Harman was no more than a conduit pipe for that purpose.  It was the department to whom any confidentiality was owed, rather than to Mr Harman.

GLEESON CJ:   What do you say to Mr Walker’s argument that it is a curious result that documents prepared by Mr Harman recording what these people told him would be confidential, but documents prepared by them in response to his request to state what happened would not be?

MR KENNEDY:   Well, because they were in a different category to Mr Harman who was an employee of the department and he had obligations as an employee and those obligations did not extend to a student or a student teacher.  That gives rise to the distinction to be drawn.  His Honour did find specifically that as far as the department was concerned that it could disclose the contents of the documents if they wished.  There was no confidentiality attaching to the documents as far as they were concerned.  He specifically dealt with that matter where he says that if they had the right to disclose the contents of the documents – this is at paragraph 51 at page 31 of the book:

that the Department could use them as it saw fit including by disclosure to the respondent or to the world in open court in legal proceedings.  This is the antithesis of an obligation not to disclose their contents.

So he found that they could disclose the contents if they so wished.  As well, your Honour, he makes reference to a decision in the Federal Court ‑ ‑ ‑

GLEESON CJ:   Are you responding to the argument that I just mentioned by saying that if these two people had individually decided to post their statements on their respective Facebooks they were perfectly entitled to do so?  But Mr Harman was not entitled to do that with respect to his record of what they said.

MR KENNEDY:   Well, Mr Harman, we would have thought, had an implied obligation of confidentiality if he was following out the policy of the department to record in writing what his understanding of the events had been, as distinct from the handwritten statements of the two persons.  The Court of Appeal did in fact look at the statements and indicated in its judgment that they were just handwritten statements and no indication of any confidentiality attaching to them.  So they were requested to provide a statement; they wrote out a statement and the statement was supplied to Mr Harman for the purposes of being passed on, I think he said, to the executive and to the department.

Your Honour, that we say is the distinction to be drawn in relation to his position and in relation to their position.  We say that the Court of Appeal was correct in determining those two issues and determining those two issues in the manner in which they did.  We say, your Honour, that there was a decision of J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers which is referred to in the judgment where it was held by Mr Justice French that:

There is nothing to stop a prospective witness who has given a statement to a solicitor from announcing that fact and the content of his statement to the world at large.

Additionally, your Honour, the authorities that have been referred to by the applicant really are all authorities where statements were obtained through legal advisers that were appointed and one could understand how an implied obligation of confidentiality might apply in relation to those circumstances.  But these circumstances were entirely different from those circumstances because there was no intervention of a lawyer whatsoever.

GLEESON CJ:   I take the point of your argument to be that the consequence that Mr Walker says is a very strange consequence is not strange at all.

MR KENNEDY:   That is so, your Honour, given the different character of the persons that were involved.

GLEESON CJ:   Well, given that these two people could have posted their statements up on a noticeboard in Martin Place if they had wanted to.

MR KENNEDY:   His Honour decided that in fact there was no agreement that they would remain confidential; they were never asked to keep them confidential, they could have done with the statements whatever they wanted to do.  There was the provision in the school’s policy whereby on request the statements could be made available if they did not have copies themselves and that is, your Honour, to be found at page 18 at paragraph 40 and that was another matter that the court had regard to when it determined the factual issue as to whether or not in the circumstances of this case there was confidentiality attaching to the statements.

We say, your Honour, at the end of the day that the findings of fact have not been challenged and therefore even if special leave were to be granted the applicant’s case would be unlikely to succeed because of those factual findings that we say fall within the provisions of the Act.  What we say, your Honour, is that UCPR it is referred to – there are a number of authorities that indicate that in fact the court is to have regard and to apply the provisions of section 119 and they are referred to, your Honour, in our submissions.

But we say in relation to the question of special leave that the applicant has failed to satisfy this Court that the Court of Appeal’s decision about the express or implied obligation not to disclose – they have not done so, and there has been, your Honour, a breach of duty of care admitted by the defendant in recent times.  That means that there is only to be determined a question of contributory negligence in terms of the relevance of the documents.

Your Honours, we say that there is no question of general application or of substantial importance which would warrant a grant of leave and there is nothing in the decision of Sugden v Sugden, a decision of the Court of Appeal that is referred to in the applicant’s submissions, that requires reconciliation by this Court.

We also say, your Honours, that it would be inappropriate generally speaking for special leave to be granted in respect of an interlocutory application that would only normally be granted in exceptional circumstances and that the applicant has not demonstrated any exceptional circumstances in this case.  The applicant, we say, has not demonstrated that the Court of Appeal has fallen into any error in relation to the determination of the matter either in relation to the facts or in relation to the application of the applicable law.  We say, your Honour, that even if there is some substance in the submission of the applicant, that this would not be an appropriate vehicle for this matter to go to the High Court on a full appeal.

HEYDON J:   What you are saying is if the State of New South Wales loses the trial in the face of this Court of Appeal holding on privilege, one of the grounds of appeal can be the error in that holding, so that the matter can be thrashed out at that stage, rather than this stage.

MR KENNEDY:   Yes, and, your Honour, we also say that if the Court is of a mind to grant special leave we would refer the Court to the applicant’s submissions that if leave be granted the applicant would not resist an order that it pay the respondent’s costs of the appeal in any event and we would ask that that and the cost of this application and the cost of any appeal be made a condition of any special leave that be granted given those circumstances.  If the Court pleases.

GLEESON CJ:   Thank you Mr Kennedy.  Yes Mr Walker.

MR WALKER:   We certainly could not resist the last of those matters.  Your Honours, as to the matter that fell from Justice Heydon, the difficulty of course is that that appeal right would be to the Court of Appeal and the very issue as to the propriety of the claim of privilege would already have been determined between these parties.  There would be no possible appeal on that ground.  My friend’s answer, with respect, was wrong.

HEYDON J:   Appeal direct to the High Court or seek special leave to appeal direct to the High Court.

MR WALKER:   Yes, your Honour, is right, quite.  But we are here now and in our submission this is the best time to do it not least because if we be correct we would avoid a trial being had on a wrong basis, which would mean of course avoiding the need to have a retrial on the right basis.

Your Honours, section 119 says nothing about the intervention of a lawyer.  It is not a provision for the entrenching of any monopoly of lawyers in the preparation of confidential documents.  The monopoly it entrenches for lawyers is that there must be the dominant purpose in the preparation of the document of the client being provided with professional legal services.  Yes, that is where lawyers are involved.  But private inquiry agents are not to be cut out as it were in their usefulness by not being lawyers when they are asked to go out, for example, and measure something entirely public.  What is the distance from the front door to the gate; what is the distance between kerb and kerb; these are public matters not in themselves confidential, but they become confidential when they are put into a document by the private inquiry agent on the instruction for the solicitor for consideration of litigation.  No one has ever doubted that.

The same is true when that which is of course not confidential - what did I see at the supermarket last week - is the subject of inquiry addressed to me by a private inquiry agent for the lady who fell over in the aisle.  It is not going to be confidential unless I happen to sign some peculiar instrument.  But that does not mean that in the hands of the inquiry agent, the solicitor or the party for whom the inquiry agent and the solicitor are both working – “for whom” - I repeat that that expression.  It remains confidential, although of course the party, the client, has no obligation not to disclose and in due course may disclose every word of it for forensic purpose.

So, your Honours, understood purposively and emphasising that section 117 is ancillary, is a definitional provision at the heart of how section 119 litigation privilege operates, it is clear that the distinction that we have urged in‑chief is brought about by this decision.  It does matter whether a witness talks and is transcribed or whether a witness writes.  That, in our submission, is absurd and there is nothing to suggest that that has ever been informed by any rationale.

HEYDON J:   Assessing the purposes of Ms Jackson’s and Mr Blenman’s statements, you would look solely to the minds of each of those two people, would you not?

MR WALKER:   I am not quite sure that is correct when the…..of a document is that it is prepared in response to a request that it is prepared for Mr Harman.  Certainly in this case there are no contested facts about any of that.  That is a strength, not a weakness, of our application.  This is an admirable deal because the dominant purpose is uncontested and ‑ ‑ ‑

HEYDON J:   The dominant purpose of Mr Harman and New South Wales may be uncontested, but what was the dominant purpose of Ms Jackson?

MR WALKER:   Well, the dominant purpose of Ms Jackson, as was held at the Court of Appeal, was to oblige a request made by a person who was setting about a task which as the policy documents and the ad hoc request made clear included the requisite content of possible litigation.

GLEESON CJ:   On the other hand, I imagine the student teacher was under an obligation to prepare the document if asked by the department?

MR WALKER:   I cannot say that there are - that sounds likely in the nature of things, but I cannot point to any findings to that effect.  The student teacher is obviously not a stranger to a campus and is there as a special invitee, but that is as far as I can put that.  It is for those reasons, in our submission, that this really is a case which is there are no factual complications.  It is a very short point and it is a very, very important point for day‑to‑day legal practice.

GLEESON CJ:   Are you saying that there are no factual complications or like those advertisements they have on television aimed at elderly people, which say no complicated documents to sign?

MR WALKER:   Yes, now I will disassociate myself from that, your Honour.  Your Honours, the facts in this case are in very short compass.  That is what I mean.

GLEESON CJ:   We think there are insufficient prospects of success of an appeal to warrant a grant of special leave in this matter.  The application is dismissed with costs.

The Court will adjourn until 10.15 on Tuesday, 20 May in Canberra.

AT 2.50 PM THE MATTER WAS CONCLUDED