State of Victoria v Tabcorp Holdings Ltd
[2013] VSCA 180
•24 JULY 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2013 0087
| STATE OF VICTORIA | Applicant |
| V | |
| TABCORP HOLDINGS LIMITED (ACN) 063 780 709 | Respondent |
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| JUDGES | ASHLEY AND HANSEN JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 19 JULY 2013 |
| DATE OF JUDGMENT | 24 JULY 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 180 |
| JUDGMENT APPEALED FROM | Tabcorp Holdings Limited v State of Victoria [2013] VSC 302 (Sifris J, 13 June 2013) |
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PRACTICE & PROCEDURE – Discovery – Privilege – Dominant purpose – Burden of establishing purpose – Sufficiency of evidence – Joint privilege.
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| Appearances: | Counsel | Solicitors |
| For the Applicant | Dr S B McNicol S.C. with Mr K A Loxley and Ms N Hassan | Johnson Winter & Slattery Lawyers |
| For the Respondent | Mr J C Sheahan S.C. with Mr P G Liondas | Herbert Smith Freehills |
ASHLEY JA:
I respectfully agree in the reasons of Hansen JA, and with the order which his Honour proposes. I would only add that the State’s submission, respecting the joint privilege issue, that the documents in categories A and B were different from the documents in categories C, D, E and (most of) F because they related to the grant of licences and not to the float, for which reason no joint privilege existed with respect to categories A and B documents, appeared to me to lack cogency. It seems likely indeed that it was of great importance to the success of the float that the terms of the licences were disclosed to the investing public. The float and licences were interrelated matters. Further, apart from the State’s assertion, there seems no reason to conclude that the terms upon which the licences were to be granted were arrived at by a process of conflict resolution rather than by, essentially, co-operation between parties each of which had a large financial stake in the success of the float.
HANSEN JA:
This is an application by the State of Victoria for leave to appeal from the judgment and orders of Sifris J made on 13 June 2013 whereby his Honour, having upheld the challenge by the respondent, Tabcorp Holdings Ltd, to the State’s claim for legal advice privilege over 105 discovered documents and part of one further document, ordered that the documents be produced for inspection on 27 June 2013.[1] That inspection has been held over pending determination of this application.
[1]Tabcorp Holdings Limited v State of Victoria [2013] VSC 302.
The challenged documents are listed – in six categories A to F - in a Schedule exhibited to an affidavit sworn by Christopher John Connor on behalf of the State. In addition to this Schedule the judge had placed before him the original list of documents together with a number of the documents and explanatory evidence of a historical nature.
Mr Connor identified the six categories as:
(a) Category A identifies those documents which relate to the State Agreement;
(b) Category B identifies those documents which relate to the Treasurer’s Letter;
(c) Category C identifies those documents which relate to the Prospectus;
(d) Category D identifies those documents which relate to the due Diligence Committee – Correspondence and Reports;
(e) Category E identifies those documents which relate to Price Waterhouse, and
(f) Category F identifies other documents.
We were informed that the documents in issue run to five lever arch files.
In the proceeding itself, which is fixed for trial in October, Tabcorp claims to be entitled to payment of approximately $687 million from the State. To quote the judge:
The alleged payment entitlement arises from the expiry of Tabcorp’s gambling licences on 15 August 2012, and the grant of new gambling licences by the State — which commenced operation on 16 August 2012. The statement of claim filed on 24 August 2012 pleads three bases for the claim:
(a)the operation of s 4.3.12 of the Gambling Regulation Act 2003 (Vic) (“the statutory claim”); further, or in the alternative,
(b)a contractual undertaking by the State to deal with Tabcorp reasonably and in good faith (“the good faith and reasonable dealing agreement”); further, or in the alternative,
(c)an indemnity given by the State for any loss suffered by Tabcorp by reason of any change in legislation (“the MoU indemnity”).
The documents discovered by the parties in this proceeding relate principally to the public offering of shares in Tabcorp in 1994 (“the Float”) and the arrangements put in place to enable the Float to be implemented.
The documents the subject of this application for inspection relate to the Float and were all created in the period 1993 to 1995. Many of these documents are letters to or from the law firm Arthur Robinson & Hedderwicks (“ARH”).[2]
[2]Ibid [6]-[8] (Sifris J).
As mentioned below, the State retained ARH in connection with the float.
Before the judge the issues were as follows.
First, whether the State’s claim of privilege was made out.
Secondly, whether the privilege included documents not between the lawyer (ARH) and client (the State), but included other advisors and other third parties. The State submitted that it did, whereas Tabcorp submitted that such documents fell outside the ambit of s 118 of the Evidence Act 2008 (the Act).
Thirdly, and if the State’s claim be upheld, Tabcorp submitted that it had a joint privilege pursuant to s 124 of the Act and was thus entitled to production of the documents. It was submitted that although Tabcorp had not specifically retained ARH it was embraced by the State’s retainer and any legal advice provided by ARH was specifically related to Tabcorp and for its benefit.
Fourthly, and in the alternative, Tabcorp submitted that any privilege in the State had been waived by reason of the challenged documents having been disclosed to Tabcorp. The State denied this contention.
Before dealing with these issues his Honour set out the factual background which concerned the implementation of the decision of the State Government in 1993 to privatise the former TAB and float Tabcorp, and the new statutory licensing arrangements for wagering and gambling including the grant thereunder of licences to Tabcorp.
The background identified the persons and advisors engaged in this process and their respective involvements. It is to be read with this judgment but, in summary:
(1) ARH was engaged by the State to provide legal services for the float.
(2) Centaurus was engaged by the State as the principal financial advisor to the State in relation to the float;
(2) Price Waterhouse was appointed by the State as the investigating accountants for the float;
(3) McIntosh Corporate Limited was appointed to advise on market related issues as Lead Manager to the issue;
(4) Minter Ellison Morris Fletcher was engaged by the State to prepare initial drafting instructions for the legislation to enable the privatisation and float;
(5) The Victorian Racing Industry had a critical involvement, represented by Macquarie Bank and Clayton Utz;
(6) There was a Steering Committee, chaired by Mr Tilley of Centaurus, that operated principally as a working group with responsibility for (amongst other things): advice on structuring and marketing the public offer; provision of general financial advice to the Government; advice on capital structure for the business; leading and overseeing the due diligence review and preparation of the Prospectus and ensuring proper contract arrangements between the Government, the TAB and Racing;
(7) Mr Tilley of Centaurus conducted negotiations with Mr Yates of Macquarie in relation to the key agreements that would govern the relationship between Tabcorp (the floated company) and the Racing Industry; the State was not a party to a number of the key agreements;
(8) Representatives of ARH, Price Waterhouse, the TAB, the Department of Treasury, Centaurus and McIntosh Corporate Limited were involved in the Due Diligence Committee which oversaw the due diligence process in relation to the Prospectus to be issued by Tabcorp.
Proceeding on, his Honour made the following “Critical Findings”:
This relatively detailed examination of the facts clearly establishes a number of relevant matters.
Throughout the entire period of their retainer, ARH were the only solicitors providing advice to the State and this included extensive advice in relation to and directly to and for the benefit of both TAB and Tabcorp before, during and after the Float. Neither TAB nor Tabcorp retained separate solicitors. Of course, this is the issue. The State contends that such advice could not be given to TAB because it was not a separate entity and therefore any advice was solely to the State even though it was essentially about TAB and its privatisation. The State further contends that Tabcorp, although a separate entity, is not a successor to any privilege that TAB may have. Tabcorp contends that both it and TAB are separate entities, that they were embraced by the retainer and directly received the benefit of any advice.
Whether or not TAB was part of and indistinguishable from the State, TAB (and Tabcorp) did have separate personnel who actively participated at all relevant stages in the discussions and legal advice which related to TAB and Tabcorp — whatever its separate existence —was clearly for their benefit. Again, it is contended by the State that because TAB did not have a separate existence it was not embraced by the retainer and the advice could not be for its benefit but rather it was for the sole benefit of the State.
Tabcorp is and was at all relevant times a separate entity. From the date of its incorporation, 13 April 1994, and extending to the Float and beyond, it had an identity separate from the State. It relevantly did not have solicitors during the period and received ongoing advice directly from ARH in relation to numerous matters. It was clearly embraced by the retainer.
So far as TAB is concerned, it also in my view had a separate identity. It was a statutory corporation capable of suing and being sued in its own right. Regardless of whether it was a separate entity in relation to Crown immunity, for the purpose of the argument on privilege it was relevantly an entity apart from the State. This is so notwithstanding its being controlled by the State, a fact which may be relevant for other purposes.[3]
[3]Ibid [69]-[73] (citations omitted).
His Honour then considered and concluded on the issues as follows.
Commencing with the State’s claim for privilege, he noted that the State bore the onus of establishing the basis of the claim, and must establish the facts from which the Court can determine that the privilege was capable of being asserted.[4]
[4]Ibid [74] (citations omitted).
Having referred to s 118, the judge noted the State’s contention “that the legal services and advice provided by ARH and Minter Ellison to the State were comprised in and facilitated by communications to and from Centaurus, the Treasurer, officers of the Treasurer and the OSOE;[5] and that all such communications to and from ARH and Minter Ellison were for the purposes of their respective retainers by the State, and were confidential, according to the terms of those retainers”.[6] The judge then referred to correspondence between the parties’ solicitors on the matter of the State’s privilege list, and the Schedule referred to above, and in particular as to whether, as Tabcorp contended and the State denied, further substantiation of the privilege claims was required.
[5]Office of State Owned Enterprises.
[6]Tabcorp Holdings Limited v State of Victoria [2013] VSC 302, [76] (Sifris J).
The judge referred to the six categories of documents referred to in the Schedule – A to F – and set out five examples by way of illustration of the description of those documents in the Schedule. The question was whether the descriptions in the Schedule provided an adequate basis for the claim of privilege.
His Honour noted that it was necessary that the State identify and prove that the “dominant purpose” which led to the making of a confidential communication was the provision of legal advice by the lawyer to a client,[7] “dominant purpose” referring to the “ruling, prevailing, or most influential purpose”.[8] If there was more than one purpose, and they were of equal weight, no privilege inhered in the communication.[9] The dominant purpose was to be determined objectively, having regard to the evidence, the whole of the documents and the parties submissions.[10] Further, the support for the claim should be “focussed and specific”, verbal formulae and conclusory assertions of purpose not being sufficient.[11] And, in Bailey v Director-General, Department of Land and Water Conservation,[12] the New South Wales Court of Appeal held that particularly where the State, or agencies of the State are involved, “every effort should be made to ensure that evidence in support of a claim of privilege is in all respects adequate and compelling”.[13]
[7]Carnell v Mann (1998) 89 FCR 247, 253 (Higgins, Lehane and Weinberg JJ).
[8]Federal Commissioner of Taxation v Spotless Services Ltd (1996) 186 CLR 404, 416 (Brennan CJ, Dawson, Toohey, Gaudron, Gummow and Kirby JJ).
[9]Sparnon v Apand Pty Ltd (1996) 68 FCR 322, 328 (Branson J); Esso Australia Resources Ltd v FCT (1999) 210 CLR 49, [76].
[10]Grant v Downs (1976) 135 CLR 674, 677 (Barwick CJ), 682 and 689 (Stephen, Mason and Murphy JJ); Commissioner of Taxation (Cth) v Pratt Holdings Pty Ltd [2005] FCA 1247 at [30(3)] (Kenny J).
[11]Barnes v Commissioner of Taxation [2007] FCAFC 88, [18]–[19] (Tamberlin, Stone and Siopis JJ); Buzzle Operations Pty Ltd (in liquidation) and Another v Apple Computer Australia Pty Ltd (2009) 74 NSWLR 469, [9], [21] and [22] (White J); Blackrock Asset Management Australia Services Ltd v Waked (No 2) [2011] FCA 479, [18] (Perram J); Krok v Szaintop Homes Pty Ltd (No 1) [2011] VSC 16, [15] (Judd J); Kennedy v Wallace (2004) 142 FCR 185, [145], [167]–[173] (Allsop J).
[12](2009) 74 NSWLR 333.
[13]Ibid [45] (Tobias JA, Allsop P and Hodgson JA agreeing).
Having then set out the parties submissions, his Honour concluded as follows:
In my view, the State has failed to make out a sufficient evidential foundation for its claim of privilege. The evidence is not sufficiently “focused and specific”, and directed to the requirements of legal advice and the dominant purpose of such advice. The descriptions provided do not satisfy this standard. They are inadequate in establishing that the Challenged Documents were for the dominant purpose of ARH’s provision of legal advice to the State, and therefore do not satisfy the requirements of client legal privilege under s 118 (a), (b) or (c). Some of the communications included in the Challenged Documents relate to agreements to which the State was not party, and cannot be understood to be directed at providing legal advice to the State. Even on Mr Tabe’s evidence, the Challenged Documents include communications which he did not believe to be legal advice. The position is not improved by the general evidence contained in the affidavits in support.[14]
[14]Tabcorp Holdings Limited v State of Victoria [2013] VSC 302, [94] (Sifris J).
In concluding on the first issue his Honour noted the discretion under s 133 of the Act to inspect documents for the purpose of determining the question of privilege. As to that, however, his Honour stated that a party claiming privilege cannot delegate to the Court the task of establishing that the privilege exists; adequate materials must be put before the Court to allow the claim to be entertained. He referred to the statement of Tobias JA (Allsop P and Hodgson JA agreeing) in Bailey v Director-General, Department of Land and Water Conservation that:
…the power under s 133 to inspect documents cannot be used as a substitute for admissible evidence to support the various elements necessary to establish privilege so that if evidence in respect of any one of those elements is missing, the gap cannot be filled by an inspection of the documents.[15]
[15](2009) 74 NSWLR 333, [57].
I interpolate that subsequent to the decision in Bailey, in Ensham Resources Pty Ltd v AIOI Insurance Company Ltd[16] Buchanan J observed that:
The Court should not normally be asked to fill gaps in the disclosed case for a claim for privilege by inspecting documents which are kept from other parties.[17]
[16](2012) 209 FCR 1.
[17]Ibid [111].
Sifris J continued:
In the absence of adequate substantiating evidence, the utility of inspecting the documents is also questionable, as examination of the terms of the documents alone may not answer the question of whether of not they were brought into existence for the dominant purpose of providing or receiving legal advice.[18]
In these circumstances his Honour did not inspect the documents.
[18]Tabcorp Holdings Limited v State of Victoria [2013] VSC 302, [98] (Sifris J) (citations omitted).
Then, on the second issue, his Honour concluded that the consultants were “agents” for the purpose of s 118. But that did not mean that the dominant purpose of the “documents” was legal advice. For present purposes that is sufficient reference to this aspect.
On the third issue of joint privilege his Honour concluded that the TAB had enjoyed a joint privilege which could be claimed by Tabcorp as successor in title to the TAB. Further, Tabcorp in its own right was entitled to a joint privilege at least from its incorporation on 13 April 1994 (prior to the float).
Finally, on waiver, considering it not being necessary to do so, the judge did not deal with the issue. He simply noted that while the documents specifically provided to the TAB and Tabcorp may provide a basis for the claim, it was not known how they might be used inconsistently with the State’s privilege.
For these reasons the claim for sole privilege failed and Tabcorp was entitled to inspect the challenged documents.
If leave be granted the State, by its draft Notice of Appeal seeks the setting aside of the judge’s orders. The grounds of appeal are:
(1) that his Honour erred in holding there was insufficient evidence to establish privilege, and
(2) in failing to make a clear finding of joint privilege with respect to any of the six categories of documents and, in particular, failing to consider the application of joint privilege to categories of documents A and B in the Schedule.
In support of the first ground counsel for the State emphasised that it is presumed that the communications of a retained lawyer were privileged; counsel did however note that not all the communications were between ARH and the State directly or through agents. It was submitted that his Honour had not had proper regard to the presumption, the evidence, the nature of the documents, the parties’ submissions and the context. It was submitted that his Honour erred (a) in failing to consider each document – or even the description of each document – individually to determine the question of sufficiency of the evidence, and (b) in wrongly finding that the requisite dominant purpose could not be inferred from the descriptions of the challenged documents read in context.
On point (a), counsel submitted that his Honour had dealt with the matter in a global way without regard to any particular document description. Save for quoting some examples, there was no indication that he considered whether the description of any particular document may be enough to establish privilege in relation to that document. While the judge did not have to give reasons for each document, he needed to have engaged with the Schedule, and he had not done so.
I reject that submission. In my view a fair reading of the judgment as a whole shows that his Honour had regard to all relevant matters and the descriptions in the Schedule, and that the reference to the examples was illustrative only. In my view it was not necessary that his Honour separately consider the terms of each description in the relevant context. It was open and appropriate in the circumstances, which included the terms of the descriptions, to deal with the matter as he did.
On point (b) concerning dominant purpose, the State submitted that the judge wrongly found that:
(1) evidence as to the dominant purpose of a document must be given by the maker of the document, and
(2) the State’s evidence “was not sufficiently focused and specific”.
As to the first point, the answer is that the judge did not make that finding. Nor, as we were informed, did Tabcorp so submit to the judge. Further, the judge acknowledged the State’s submissions that it was not always necessary to adduce evidence of purpose of a communication from its maker, and that the purpose can in some circumstances be inferred from the purpose of the lawyers’ retainers. What the judge did say, that a person other than the maker of the document could not by mere assertion or conclusory statement, give evidence of the purpose of a maker, was correct and is accepted.
As to the second point, and as mentioned above, counsel for the State referred to its affidavit evidence, the list of privileged documents and the Schedule to the Connor affidavit. It was submitted that the State could not have done more to substantiate its claim.
It was submitted that the affidavit of Geoffrey Ronald Tabe (also filed on behalf of the State) established that the challenged documents were created in the context of the retainer of ARH to provide legal services to the State. The list and Schedule combined provided for the date, author, recipient and title of each document together with a “detailed description of [the] context” thereof.
It was submitted that the clear inferences to be drawn from the descriptions in the Schedule were that the documents’ dominant purpose was to provide legal advice. Indeed, it was said that it spoke for itself. An example (among five) was document 77 being a draft agreement, which surely constituted advice as to the terms thereof. Moreover, what further information could be provided without disclosing the terms of the agreement, rendering the privilege nugatory?
His Honour, however, appeared to have accepted Tabcorp’s submission that because the challenged documents related to advice provided in the context of preparing and executing a public offering of shares, the documents would have involved communications on commercial matters and that the purpose may not have been only, or even mostly, to provide legal advice to the State. This was an unfounded assertion.
Further, if his Honour had considered each document description individually, it would have been apparent from the descriptions read in context that a very large proportion of the challenged documents were privileged. Indeed, to the extent his Honour found those individual descriptions insufficient he ought to have inspected the documents, as counsel had invited him to do. In this respect counsel referred to AWB Ltd v Cole (No 5).[19] Finally, it was submitted that it was improper – given the importance of the privilege – for his Honour to have concluded as he did without inspecting the documents.
[19](2006) 155 FCR 30 [67] (Young J).
Accordingly, it was submitted that the State had provided a sufficient evidential foundation to establish the privilege.
I do not accept that the judge was wrong in not concluding as the State asserts. It was open to him to conclude as he did on an evaluation of all of the evidence. To put it another way, I do not consider that his conclusion is attended with doubt as could warrant leave to appeal.
It is evident that the work being attended to in respect of the float concerned commercial, transactional or financial, as opposed to legal, matters. Such circumstances, and absent clear evidence descending to particularity, rendered it difficult to establish what was the dominant, ruling or prevailing purpose of a particular document. In finding (at [94] referred to above) that the evidence was insufficient to resolve the difficulty as the State contended, Sifris J found that:
The purpose of the communications may not have been only, or even mostly, to provide legal advice to the State. This is especially so regarding the role of a party such as Centaurus, in providing financial advice to the State. In order to establish privilege in such a case, further substantiation is required, directed at proving that each communication from ARH to the party was for the dominant purpose of ARH providing legal advice to the State.[20]
[20]Tabcorp Holdings Limited v State of Victoria [2013] VSC 302, [89] (emphasis added).
It is to be noted, in relation to the five documents referred to by counsel for the State, that the recipient of four was Centaurus, and the fifth was Minter Ellison Morris Fletcher.
In my view his Honour was not in error in approaching the matter as he did. He considered the factual situation and made findings as to the role of the various parties, which are not challenged. Nor is his statement of the factual context challenged. It was in this context that he concluded that the purpose of the challenged documents may not have been only, or predominately, to provide legal advice to the State. In my view, his conclusion that the State had failed to establish that the dominant purpose of the documents was the provision of legal advice was correct.
On the matter of inspection, I do not consider, in the circumstances, that the exercise of discretion under s 133 miscarried. In declining to inspect the judge took into account the insufficiency of the evidence and the possible variety of purposes of communications and documents. In the complexity of the circumstances in this case, how was he to discern the purpose or purposes let alone the dominant purpose? If the State, with its resources, had not provided the evidentiary basis, how was he to do so? After all, it was not for the State to delegate to him the task of establishing the privilege existed, or that he “be asked to fill gaps”[21] in the case. Finally, we were informed by counsel for the State that in respect of 71 documents an inspection would not have assisted.
[21]Ensham Resources Pty Ltd v AIOI Insurance Company Ltd (2012) 209 FCR 1, [111] (Buchanan J).
Save for consideration of the issue of substantial injustice if leave is not granted, the above conclusion in relation to ground 1 is sufficient to deal with the issue of doubt as to the correctness of the judgment. The issue of joint privilege only arose as an alternative should the State’s claim for privilege have been upheld, and the judge decided the case, and made his order on the basis that the claim for sole privilege failed.
In these circumstances it is unnecessary to the disposition of this application to deal with the issues of joint privilege and waiver. Indeed, on any basis waiver may be put to one side; the judge did not deal with it and the State has made no submission about it. I note only that Tabcorp proposed, if leave be granted, to rely upon that ground and file a Notice of Contention.
As to joint privilege it is sufficient to note this. The State does not appeal his Honour’s findings that: the TAB and Tabcorp were embraced by a joint retainer with the State of ARH; that the TAB “had a joint privilege” in the period prior to Tabcorp’s incorporation; and that Tabcorp “is entitled to a joint privilege” from the date of its incorporation. In the State’s written outline it was contended that his Honour’s reasons were unclear as to the scope and application of any joint privilege. Specifically, that his Honour failed to consider the application of joint privilege to the challenged documents described in the Schedule, and address the submission that documents in categories A and B were of a different nature to the other categories in that they were prepared for the State’s benefit alone and were never disclosed to the TAB or Tabcorp, and ought to be “quarantined” from a finding of joint privilege in respect of the others.
This seemed to indicate that the State sought to challenge only the findings that the joint retainer of privilege extended to categories A and B. If that were so the challenge was much limited and on its face seemed inconsistent with the unlimited claim for sole privilege. Counsel for the State clarified the position in her oral submissions. The State conceded the documents in categories C to E, and category F save for some documents concerning Minter Ellison Morris Fletcher. The seeming inconsistency in this distinction between categories was sought to be explained on the basis that categories A and B concerned the State Agreement and the licence, including the principles for granting licences, which Tabcorp alleged constitute the relevant contract, whereas the other categories were concerned with the float. In my view this does not seem a satisfactory distinction in view of the relationship or interdependence of one to the other.
Nevertheless, Tabcorp submitted that in view of the judge’s findings, not appealed from, the State cannot contend that the judge ought to have found a joint retainer or privilege existed that did not encompass the documents in categories A and B. Accordingly, it submitted, the decision was neither wrong nor attended with sufficient doubt to justify the grant of leave to appeal. The findings relied upon were:
(a) TAB and Tabcorp were separate entities from the State and were embraced by a joint retainer with the State of ARH;[22]
[22]Tabcorp Holdings Ltd v State of Victoria [2013] VSC 302, [140] (Sifris J).
(b) TAB and Tabcorp both had interests in the advice provided by ARH, and that advice was sought for the benefit of TAB and Tabcorp by the State;[23]
[23]Ibid.
(c) the float involved the TAB and Tabcorp in complex legal negotiations, incurring serious legal obligations and taking on legal risks, and that for this purpose both TAB and Tabcorp required legal advice and that advice was given by ARH pursuant to the State’s retainer and through no other lawyers;[24]
[24]Ibid [141].
(d) none of the relevant advices were withheld from the TAB or Tabcorp;[25]
[25]Ibid.
(e) TAB and Tabcorp were actively engaged with ARH in both instructing and receiving advice and legal services from ARH;[26]
[26]Ibid [142].
(f) the State engaged ARH to advise the TAB and Tabcorp and the facts show that the retainer was for their benefit;[27] and
(g) where issues of joint interest arise, the party claiming the privilege must establish that the communications or documents were to be kept confidential from the other parties.[28]
[27]Ibid.
[28]Ibid [120].
I have regard of course to all of the State’s submissions and Tabcorp’s response. In the circumstances it is sufficient to indicate that if it were necessary to conclude on this aspect I would accept Tabcorp’s submission.
That leaves for consideration the question whether, if leave to appeal is refused, the judgment and orders will cause the State substantial injustice. The State submits that it would because the order affects its right to legal privilege in this case. That is a loss or diminution of the right, as may result from the production. It is submitted that the prejudice to the State’s defence in the proceeding is “sufficiently grave” as to warrant the intervention of the Court.
Without in any way derogating from the fact that the privilege is a right, it is to be noted that the State did not further develop the aspect of prejudice to it in the conduct of the proceeding. Hence, the assertion of prejudice is just that, an assertion. If there were a risk of such prejudice, or substantial prejudice, the State could have sought to develop the point before his Honour by confidential evidence or otherwise as it may have been advised, but that was not done. The matter was left in the air, so to speak. As to this, it is to be remembered that the challenged documents are historical in nature, in the period 1993 – 1995 relating to the incorporation of the TAB and the float of Tabcorp.
I am not persuaded that the State would suffer substantial injustice if leave to appeal is refused.
For these reasons leave to appeal should be refused.
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