Stewart v State of Victoria
[2014] VSC 601
•2 December 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2014 00307
| YVONNE STEWART | Plaintiff |
| v | |
| STATE OF VICTORIA AND OTHERS (according to the attached schedule) | Defendants |
| ZURICH AUSTRALIAN INSURANCE LIMITED | Third Party |
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JUDGE: | Lansdowne AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 September 2014 |
DATE OF JUDGMENT: | 2 December 2014 |
CASE MAY BE CITED AS: | Stewart v State of Victoria and others |
MEDIUM NEUTRAL CITATION: | [2014] VSC 601 |
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PRACTICE AND PROCEDURE – Further and better discovery – claim for indemnity under policy of insurance that has not been located – previous similar claims accepted - relevance of documents evidencing acceptance of indemnity in the earlier claims –common interest privilege – whether instructions given by one party to a person likely to be a witness and notes of interview of that person are discoverable even if not admissible– whether the instructions and notes are the subject of litigation or advice privilege - ss 118 and 119 Evidence Act 2008.
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APPEARANCES: | Counsel | Solicitors |
| For the Fourth Defendant | Mr D McWilliams | Piper Alderman |
| For the Third Party | Mr J Richardson | Wotton + Kearney |
TABLE OF CONTENTS
The proceeding................................................................................................................................... 2
Third party claim for indemnity and earlier such claims........................................................... 3
Application for further and better discovery................................................................................ 6
Discovery by Zurich to date and what is now sought............................................................ 6
Solicitors’ files................................................................................................................................ 9
Determination.................................................................................................................... 10
Claim files.................................................................................................................................... 16
Documents relating to the meeting between Zurich and Mr Salveson.............................. 18
Conclusion and orders.................................................................................................................... 21
HER HONOUR:
This is an application made by the fourth defendant, Olympic General Products Proprietary Limited (‘OGP’) against the third party it has joined to the proceeding, Zurich Australian Insurance Limited (‘Zurich’). By summons filed 8 August 2014, OGP seeks further and better discovery from Zurich of three categories of documents.
The proceeding
The proceeding was commenced by the plaintiff by a generally endorsed writ filed 24 January 2014 in which she sought damages for personal injuries occasioned by secondary exposure to asbestos dust and fibres. The initial defendants to the writ were the State of Victoria and Amcor Limited. Esso Australia Pty Ltd was joined as the third defendant by an amended writ filed 5 February 2014. The fourth defendant, OGP, was joined by a second amended writ filed on 14 February 2014 which was also accompanied by a statement of claim. The statement of claim alleged as against OGP that the plaintiff had been subjected to secondary exposure to asbestos dust and fibres which had contaminated the hair, clothing and person of her father in the course of his work as a lagger for OGP at the Hazelwood Power Station. The statement of claim alleged that the plaintiff’s father had worked for OGP in the periods 20 February 1964 to 23 September 1965 and 10 February 1966 to 14 February 1975. The statement of claim further alleged that the plaintiff had lived with her father for the whole of the first of those periods and for a portion of the second of those periods, and that she also came into contact with asbestos dust on her father’s hair and person when she visited him or his home for the balance of the second period.
The statement of claim made allegations of similar type against all defendants, although in respect of the other defendants the plaintiff’s secondary exposure was said to have arisen from the primary exposure of the plaintiff’s husband to asbestos, not her father. The plaintiff sought against all defendants damages, interest and costs by reason of their negligence in allowing her father and husband to be exposed to asbestos dust, which then caused her own exposure.
The first defendant, the State of Victoria, sought contribution as against all three of the other defendants, including OGP, by notices filed on 19 February 2014. Directions for speedy trial were also made on 19 February 2014 and the proceeding was fixed for hearing on 21 May 2014.
The trial date was subsequently brought forward to 23 April 2014 due to the worsened prognosis for the plaintiff. The third defendant also sought contribution from OGP, and OGP sought contribution as against the second defendant.
The plaintiff’s proceeding against the defendants subsequently resolved prior to the trial date. OGP contributed to the settlement and by third party notice and statement of claim filed 4 March 2014 seeks indemnity from Zurich.
Third party claim for indemnity and earlier such claims
The critical issue for the purpose of this application as between OGP and Zurich is whether or not OGP was insured in the relevant period for claims such as those made by the plaintiff. OGP has been unable to produce the policy, and Zurich puts OGP to proof of its allegation that there was such a policy.
It is admitted on the pleadings in the third party claim that Zurich is the successor in title to a company called GRE Insurance Limited (‘GRE’) which was a provider of insurance products for public liability risk. It is also admitted that Zurich has acquired the legal rights and obligations pursuant to the policies of insurance underwritten by GRE. It is not, however, admitted by Zurich that, as pleaded at paragraph 6 of the third party statement of claim:
Between May 1964 and 1981 GRE Insurance Limited insured OGP for OGP’s legal liability to the public (‘the Public Liability Policy’).
Nor is it admitted that, as pleaded in paragraph 9 of the third party statement of claim:
The claim by Ms Stewart against OGP is a public liability claim within the insuring provision of the public liability policy issued by GRE Insurance Limited in favour of OGP.
Zurich admits in its defence filed 2 April 2014 that OGP notified Zurich of the claim made against it by Ms Stewart on 14 February 2014[1].
[1]At [10.1] of the defence.
In the event that such a policy is proved, Zurich in the alternative contends that any liability in OGP to pay damages to Ms Stewart occurred prior to the period for which OGP contends it was insured by GRE.
OGP and Zurich agree that there have been at least six prior claims by OGP on a public liability policy said to have been entered into with GRE where loss was accepted by Zurich to have occurred in periods commencing May 1964 to January 1975. Zurich accepted those claims and provided indemnity. Counsel for OGP submits that those six claims were ‘on all fours’ with the subject claim in that they were public liability rather than employee claims for asbestos exposure in the 1960s and 1970s.
The first of those claims for indemnity which were accepted by Zurich appears from the documents discovered by Zurich which form exhibit ‘IAN-1’ to the affidavit of Ian Aneel Nathaniel sworn 15 September 2014 to have been made on Zurich by OGP’s broker on 25 May 2007. Contrary to the assertion made by counsel for OGP in his submissions that all of the six claims are ‘on all fours’ with Ms Stewart’s claim, it appears from the statement of claim that forms part of IAN-1 that that claim on OGP, by a Mr Magro, arose from direct exposure to asbestos dust, not secondary exposure as does Ms Stewart’s. The claim was, however, classified as a public liability claim. Neither counsel pointed out this distinction to me in submissions and I became aware of it in the course of preparation of these reasons. As neither counsel identified this distinction, I will assume that it is not material for the resolution of the application.
The documents discovered by Zurich which form IAN‑1 show that after the claim relating to Mr Magro was made officers within Zurich searched for policies relating to OGC and located two policies, one for the period 30 January 1974 to 30 June 1993 and the other for the period 14 December 1979 to 30 June 1993. In her email of 28 May 2007 at 10.22am to Mr Stephen Roser of Zurich, Ms Siobhan Newton, a compliance officer within the personal injury claims division of Zurich, identifies these policies as 32 3660001 LIA and 32 3349410 LIA respectively. Both policies were said to relate to Victoria. She notes in that email that there appear to have been three claims made under those policies which she identifies as:
32 2245855 DOL: 2/2/1978
32 2099492 DOL: 14/12/1979
32 2099493 DOL: 30/1/1974
The located policies related to periods after the period for which Mr Magro claimed exposure. He claimed exposure to asbestos in the period 1962-1973. When OGP made the claim for indemnity in respect of Mr Magro, the discovered documents show that its broker asserted to Zurich that OGP had been insured by GRE for public liability in the period 31 May 1964 to 31 May 1981. Zurich determined in Mr Magro’s claim to extend liability to the period commencing 13 May 1964 to 30 January 1974. It is unclear on the discovered documents why this commencement date was selected, as opposed, for example, to 31 May 1964. The expiration date is the commencement date for the first of the policies relating to OGP located by Zurich, (the ‘verified policies’). Zurich assigned a policy number to that extension of liability which is distinct from the policy numbers on the two verified policies. The claims following that of Mr Magro where loss was said to have occurred prior to the commencement of the first verified policy and which were accepted by Zurich were assigned to this new policy number.
Application for further and better discovery
Discovery by Zurich to date and what is now sought
Zurich filed an affidavit of documents on 15 July 2014 sworn by Mr Joe Lai who swears, in the conventional form, that documents required to be discovered by Zurich and in its possession, custody or power are enumerated in Schedule 1; that the documents enumerated in Part 2 of Schedule 1 are privileged and Zurich objects to producing them; and that Zurich has had, but no longer has in its possession, custody or power the discoverable documents enumerated in Schedule 2. At paragraph 5 of the affidavit Mr Lai swears that to the best of his knowledge information and belief:
the third party, nor its solicitors nor any other person on its behalf have now, or ever had, in their possession, custody or power, any document required to be discovered, other than the documents enumerated in the said Schedule 1 and Schedule 2.
Document numbered 6 in Schedule 1, Part 1, is a list of the claims made on the policy number assigned in the course of the Magro claim. It consists of nine entries, including Ms Stewart’s claim. The date of loss assigned to Ms Stewart’s claim in this document appears to be 13 May 1964, which is the commencement date of acceptance of liability under the policy number first assigned in respect of Mr Magro’s claim. The claims listed on document 6 include claims by persons identified as Magro, Weismantel, Palmer, Ling and Hayes, and Zurich concedes that one of the unidentified claims listed on document 6 relates to a claimant Dewick. The relevance of document 6 is that it is the basis on which OGP seeks the first category of documents under its summons. That category is:
The solicitors (sic) files in each case where the Third Party has indemnified the Fourth Defendant from 2007 onwards, including, by reference to each plaintiff, Magro, Weismantel, Palmer, Dewick, Ling and Hayes.
The second category of documents sought by OGP in the summons is described as follows:
The files for each claim made under Policy Number 33 2968923 LIA.
This is the policy number assigned to the claims made by Mr Magro and others as it appears on document 6.
Zurich has discovered documents relating to Mr Magro’s claim as item 7 within Part 1 of Schedule 1. As noted earlier, this bundle is reproduced as exhibit IAN‑1 to Mr Nathaniel’s affidavit sworn 15 September 2014. It is contended by OGP, and not disputed by Zurich, that Zurich has not discovered any documents relating to the other claims made on the assigned policy number noted in document number 6. I note that item 5 in Part 1 of Schedule 1 to Mr Lai’s affidavit is described as a ‘bundle of documents in relation to policy number 33 2968923 LIA’, which is the assigned policy number shown on document 6 for the accepted claims where loss preceded the period of insurance under the verified policies. I assume that these documents do not include the claims files for claims other than Mr Magro’s.
In Schedule 2 to his affidavit, i.e. the schedule that lists the documents that Zurich had at one time but no longer has in its possession, custody or power, Mr Lai lists four categories of documents. The first are the originals of copy documents listed in Schedule 1. The second category he describes as:
Documents that may have been in the possession, custody or power of GRE Insurance Ltd but which after having made a reasonable search, I am unable to identify or specify, including:
· any documents or correspondence leading to the taking up of 33 3349410 LIA and 32 3660001 LIA onto the third party’s policy records systems; and
· policy wordings issued by GRE Insurance Ltd other than those referred to in Schedule 1 of Part 1.
It can be seen that the policy numbers there given by Mr Lai, with the exception of the initial number 33 instead of 32 in the first, are the same as the verified policies identified by Ms Newton. Subject to submissions to the contrary after delivery of these reasons, I will assume that that difference is an error, and that what Mr Lai there refers to are these two policies that Zurich had located for OGP consequent on Mr Magro’s claim.
I will also assume, subject to submissions to the contrary after delivery of these reasons, that the third category of discoverable documents identified by Mr Lai which are no longer in the possession, custody or power of Zurich are the claim files that Ms Newton identified as having been made under those policies. There is a discrepancy in one digit in the numbers Ms Newton gave for the claims in her email and the numbers given by Mr Lai which I will assume is a typographical error[2]. In respect of those files, Mr Lai deposes that they:
would have been in the possession of both GRE Insurance Ltd and subsequently the third party after it acquired GRE Insurance Ltd but which are believed to have been destroyed in about 2007 as part of the third party’s standard document destruction procedures.
[2]Ms Newton gives the number for the 1979 claim as 32-2099492, and the number given by Mr Lai is 32-2099429. The other two claim numbers listed by Mr Lai correspond to the other two claims noted by Ms Newton.
As earlier noted, the claims identified by Ms Newton in her email were apparently made in January 1974, February 1978 and December 1979. I note that Mr Lai has discovered some documents relating to these claims as items 2 and 4 in Schedule 1 Part 1.
The final fourth category of discoverable documents no longer in the possession, custody or power of Zurich to which Mr Lai deposes in Schedule 2 is said to be:
Documents which may have been in the possession, custody or power of the third party but which, after having made a reasonable search, I am not aware of and am unable to identify or specify.
What this analysis shows is that Mr Lai does not specifically identify within Schedule 2 files relating to the claims noted on document 6 by persons other than Mr Magro. Further, as these files are specifically identifiable by reason of document 6, it would appear that they cannot fall within the final fourth category of documents within Schedule 2 being discoverable but unknown documents that may formerly have been in the possession, custody or power of Zurich. Accordingly, there is no explanation within Zurich’s affidavit of documents as to why documents relating to these other claims are not discovered.
The third category of documents sought by the summons relate to a meeting between a Mr Max Salveson and officers or solicitors for Zurich in January 2014. Mr Salveson was formerly an employee of GRE, including for some of the period here in contention. Mr Nathaniel deposes that he contacted Mr Salveson to discuss with him his recollection of the type of policies offered by GRE in the 1960s and 1970s and Mr Salveson told him that Zurich had ‘flown him to Sydney in January of this year to meet with Zurich’.[3] By category 3 in the summons OGP seeks discovery from Zurich of:
·any handwritten notes taken by employees of Zurich or solicitors engaged by Zurich (external or in-house) during their meeting with Mr Salveson; and
·any letter of instruction provided to Mr Salveson for the purposes of that meeting.
[3]Affidavit of Ian Aneel Nathaniel sworn 7 August 2014 at [13].
I will now discuss each of these categories in turn.
Solicitors’ files
OGP submits that it is clear from the documentation that has been discovered in relation to the Magro claim that Zurich retained solicitors for that claim and so in all probability did so in respect of the other claims. This is not disputed. OGP submits that documents contained within those solicitors’ files are relevant to the question of whether or not a public liability policy existed for the time period there in question (which is similar to the time period here in question). Further, OGP submits that as those claims were accepted by Zurich, the privilege otherwise attaching to solicitor/client communications and advice in respect of those claims is a common privilege to OGP and Zurich and so no issue of privilege here arises.
Zurich submits that insofar as the solicitors’ files each relate to the specific claim there in question, they are not relevant to this claim. Zurich further submits that:
Absent any documents that go to the issue of the existence of a policy, or policies of public liability at the relevant times and the terms thereof…the question of the basis of the decision to grant indemnity is irrelevant to the question of whether it is now bound to grant indemnity.[4]
[4]Submissions by the Third Party dated 17 September 2014 at [6].
In relation to the existence of documents that go directly to the existence of a relevant public liability policy and its terms, Zurich relies on the affidavit of Mr Lai in so far as he deposes that Zurich has discovered all such documents, and says that no basis is shown to impugn that assertion on oath.
In relation to documents that may evidence why indemnity was granted in the other claims, Zurich contends that those documents are not relevant because they can only be the expression of opinion by the solicitor or by Zurich. Their opinions, it is said, are not relevant to the question of fact before the Court on this claim i.e whether there was, or was not, a relevant policy in existence.
Further, Zurich says that, in any event, communications relating to whether or not a policy existed are privileged and that privilege is that of Zurich alone on that issue and has not been waived. Zurich rejects the submission by OGP that acceptance of the claim and provision of indemnity means the privilege is a common one as between OGP and Zurich. Zurich submits that the question of privilege must be determined on an issue by issue basis by ascertaining for whom the solicitor was acting in respect of that issue and whose interests he or she was then protecting. Zurich submits that in respect of the question of whether or not Zurich should accept the claim, the solicitor was acting for Zurich alone.
Determination
I deal first with the first contention by Zurich- that Mr Lai’s affidavit establishes that there are no other documents that go to the existence of a policy, other than those he has identified.
As discussed earlier, I do not consider that Mr Lai’s affidavit specifically deals with the claim files in relation to the claims by persons other than Mr Magro which were determined under the assigned policy number. Accordingly, I consider that a basis is established for doubting its comprehensiveness in this regard. Mr Lai does not identify as relevant or as privileged the solicitors’ files for the accepted claims at all, and so by parity of reasoning I consider there is a basis on which to doubt the comprehensiveness of the affidavit in relation to documents on the solicitors’ files as well. I do not consider that it can be said that Mr Lai’s affidavit is necessarily comprehensive in relation to documents that may be on the solicitors’ files and go directly to the existence of a relevant policy and its terms. I reach this conclusion without drawing any adverse inference against Mr Lai personally or Zurich generally.
However, I do consider that the claim for further and better discovery in respect of the solicitors’ files is too broadly expressed. Insofar as the files relate to the facts of the particular claim there in question, they are not relevant to this claim. I also accept Zurich’s submission that, to the extent documents on a solicitor’s file may go to the acceptance of liability in that claim notwithstanding that a policy cannot be located i.e. the acceptance of indemnity for reasons other than contractual, those documents are not relevant to this claim for indemnity. It is not suggested on the pleadings that Zurich would be estopped by its prior acceptance of liability in other claims from denying it in this. Accordingly, the reasons why another claim was accepted but not this are not relevant, unless the reasons for that decision evidence a policy. To that extent, I accept the submissions on relevance by Zurich. The only relevance of documents on the solicitors’ files in respect of other claims in my view is in relation to the question as to whether or not OGP held a relevant public liability policy with GRE, which then became the responsibility of Zurich. It may be that there are some documents within the solicitors’ files that relate to that question and I do not consider that Mr Lai’s affidavit is determinative as to the existence or otherwise of such documents.
It follows from the above that I do not accept the submission of Zurich that any documents relating to the grant of indemnity in the other claims can only be the expression of opinion. That submission assumes that there is no direct evidence of a relevant policy on any of the files. That cannot be assumed in my view. It will depend on what is, in fact, on the files. There is no evidence from Zurich as to what is on the files, and so no evidence that there is only expression of opinion as to whether or not a policy existed.
In any event, I do not consider that a document that evidences an opinion is necessarily irrelevant, for the purposes of discovery. It may be inadmissible as opinion evidence, but in my view that is a different matter. The test for discovery is not that a discovered document is admissible. Zurich has discovered, for example, documents in respect of the Magro claim that contain opinion. In Network Ten Ltd v Capital Television Holdings Ltd[5] (‘Network Ten’) Giles J held in respect of a submission that a letter of advice was not relevant that by inclusion of the letter in its list of documents the relevant party acknowledged relevance.[6] Admittedly he relied on the former wide approach to the scope of discovery under the Peruvian Guano test in reaching that conclusion, but I would take the same approach here.
[5](1995) 36 NSWLR 275.
[6]Network Ten, at 278.
However, in respect of the question as to whether or not there was a relevant policy, I accept the submission of Zurich that communications between Zurich and its solicitors are likely to be privileged, being confidential communications between them for the dominant purpose of the solicitors providing legal advice to Zurich and so within s 118 of the Evidence Act 2008. There may also be documents on the files that would fall within the definition of litigation privilege within s 119 of the Evidence Act 2008, being confidential communications for the dominant purpose of Zurich being provided with legal services relating to legal proceedings or an anticipated legal proceeding in which Zurich was or possibly could have been a party.
I do not accept the submission by OGP that once indemnity was granted, privilege in respect of advice as to whether or not to grant indemnity became the common privilege of OGP and Zurich. Counsel for OGP relies on an extract from a learned text[7] in support of his proposition as to common privilege. That extract states as follows:
When the insurer has taken over the defence of the insured and has retained solicitors for that purpose, the insured as well as the insurer is the client of the solicitors in respect of their joint or common interest.[8]
[7]Derrington and Ashton, The Law of Liability Insurance (Lexis Nexis, 2nd ed, 2005)
[8]Ibid, at [13-264].
This extract does not address or support the proposition that where there is an initial issue as to indemnity, privilege in respect of that issue retrospectively becomes common once indemnity is granted.
Counsel for Zurich has referred me to two decisions of Giles J in the Supreme Court of New South Wales in which His Honour reviewed the authorities on common interest privilege. In each of these cases, Network Ten (noted earlier) and Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd and ors[9] (‘Ampolex’) the question of common interest privilege arose from the voluntary disclosure of a document otherwise privileged by an entity which was a party to proceeding to another entity, not a party to the proceeding, but which had an interest in determination of the claim the subject of the proceeding. The other party to the proceeding claimed that any privilege had been waived by the disclosure. Giles J held that ‘If a person entitled to claim legal professional privilege in relation to a document discloses the document to a third party having an interest sufficient for common interest privilege, the disclosure cannot be a waiver of the privilege’.[10] It was, accordingly, necessary to determine in each case if the parties who had exchanged the document could claim common interest privilege. In each case, Giles J held that they could not.
[9](1995) 37 NSWLR 405.
[10]Network Ten, at 279.
In Ampolex, Giles J summarised his earlier statement of the relevant principles in Network Ten as follows:
…two persons interested in a particular question will not have a common interest for the purposes of common interest privilege if their individual interests in the question are selfish and potentially adverse to each other. In such a case there will not be the necessary identity of interest.[11]
[11]Ampolex, at 410.
In his longer discussion of the authorities in Network Ten, Giles J had noted that the existence or otherwise of common interest privilege is a question of fact in each case[12]. In discussing the classic test as enunciated in earlier authority (whether the parties had an ‘identity of interest’ so close that they could, had they chosen to do so, have used the same solicitor[13]) he noted that as between insurer and insured, although those parties may have a common interest in defence of a claim against the insured, at least prior to a decision to afford indemnity, they also have a potential conflict of interest prohibiting the retention of the same solicitor, and so could not have the necessary identify of interest to give rise to a common interest privilege.[14] This example is precisely on point on the facts of this case.
[12]Network Ten, at 280.
[13]Bank of Nova Scotia v Hellenic Mutual War Risks Association (Bermuda) Ltd (“The Good Luck”) [1992] Lloyd’s Rep 540 per Saville J at 542.
[14]Network Ten, at 282.
Neither of these cases before Giles J directly concerned a dispute between insurer and insured. Another case to which Zurich has referred me did directly concern disclosure to an insured of a document otherwise privileged which had been obtained by its insurer. In that case, Thiess Contractors Pty Ltd v Terokell Pty Ltd[15], Derrington J held that there was no waiver of privilege in favour of the other party to legal proceedings against the insured by the provision of this document to the insured by the insurer. The document had originally been obtained by the insurer and other underwriters to the insured. Derrington J held that on the facts of that case the insurer and the insured had ‘an interest in recovering moneys in the same cause of action’ and so this was a ‘classical case’ of common interest.[16]
[15][1993] 2 Qd.R. 341.
[16]Ibid, at 342-343.
It is not possible to tell from the account of the circumstances in which the document had originally been obtained by the various insurers whether or not there had been at one time a dispute between the insured and insurer as to indemnity. In any event, the document was subsequently provided voluntarily by the insurer to the insured, and so the case does not address the question that arises in this case of a retrospective creation of common interest where the insurer resists provision of a document obtained while indemnity was still in issue.
In my view the analysis by Giles J that a potentially adverse interest means there can be no common interest privilege, and the specific example he gave of the competing interests of an insured and its insurer prior to acceptance of indemnity, both support the submission by Zurich that there was no common interest as between OGP and Zurich in relation to the preliminary question in the earlier claims as to whether or not to afford indemnity. I have not been referred by either party to any authority directly on the question, as between insurer and insured, as to whether a common privilege may retrospectively arise once indemnity is afforded, and in my view the proposition that it may so arise is wrong in principle. I accept the submissions of Zurich that the privilege of the insurer will continue to attach solely to the insurer if the solicitors were then acting for the insurer potentially against the person claiming to be insured. In my view Zurich is correct in its submission that on the question of indemnity the solicitors in the other claims were and remained acting for Zurich alone.
Zurich has also made submissions in relation to waiver of privilege, supported by authorities. This appears to have been prompted by the contention advanced in Mr Nathaniel’s affidavit sworn 15 September 2014 that reference in the discovered Magro documents to other communications between Zurich and its solicitors in that claim constitute waiver of any privilege thereby attaching to those communications.
In relation to the Magro claim, I accept the submission of Zurich that a mere reference to a party having sought legal advice is not sufficient to expressly waive privilege.[17] I consider that questions of implied waiver are better considered after the required documents are discovered and any of those documents said to be privileged sufficiently identified.
[17]Towney v Minister for Land & Water Conservation (NSW) (1997) 147 ALR 402 at 414; Matthews v SPI Electricity Pty Ltd [2013] VSC 33 at 42.
Subject to any further submissions on the assumptions that I have made relating to Mr Lai’s affidavit that are relevant to this category, I will order the discovery of documents contained within the solicitors’ files that relate to the question as to whether or not there was a relevant public liability policy. That process will require any documents said to be privileged to be sufficiently identified. ‘Sufficient’ identification may well, in the circumstances of this case, require more than the generic claim for privilege that is usually made and is currently made within Part 2 of Schedule 1 of Mr Lai’s affidavit of documents. I will hear the parties further if they do not agree on what is required by way of sufficient identification of any documents in respect of which privilege is claimed.
Claim files
In respect of the files for the other claims made under the assigned policy number, Zurich submits that those files are irrelevant to this claim, at least in so far as they relate to that particular claim only. In relation to documents within those files relating to the question of indemnity and so whether a policy existed, counsel for Zurich submits that any documents of this character would express opinion only and so are irrelevant. If relevant, counsel for Zurich submits that the claim files are privileged.
OGP relies on the fact that Zurich has already discovered documents relating to one of the claims made on that assigned policy number, being the Magro claim. OGP submits that this is a concession that the documents are relevant and, accordingly, the files relating to the other claims made on that assigned policy are similarly relevant.
I accept the submissions of OGP in relation to this category of documents. Having discovered the documents relating to Mr Magro, Zurich cannot now contend that any files for other claims made under that policy are not relevant. The discovered documents in respect of Mr Magro include the expression of opinion as to whether or not there was a relevant public liability policy. In any event, for the reasons already expressed I do not consider that documents expressing opinion which may be inadmissible for that reason are necessarily irrelevant for the purposes of discovery.
As noted, counsel for Zurich submits, and does so forcefully, that the claim for further and better discovery by OGP seeks to impugn Mr Lai’s affidavit, without any basis being established for that attack. He relies on the fact that Mr Lai deposes that there are no other discoverable documents other than those listed in his affidavit. As discussed earlier, Mr Lai does not specifically address in Schedule 2 the claim files for claimants other than Mr Magro. Document number 6 shows that some documents for these claims at one time presumably existed. I do not consider Mr Lai’s general statement in in paragraph 5 of the affidavit that there are no other documents to be sufficient in respect of documents that his own affidavit shows at one time must have existed. It is not necessary to consider the summons an attack on Mr Lai’s credibility. I consider it sufficient that he simply does not depose one way or another as to the existence of these other claim files. I will order discovery of the other claim files.
In relation to the contention by Zurich that the files for the other claims are privileged, if there are communications within those files as between Zurich and its solicitors or others that fall within s 118 or s 119 of the Evidence Act 2008, those documents should be specifically identified in any claim for privilege once those files are discovered so as to enable any contested issue of privilege to be properly determined. I note, however, that at least one of the documents discovered by Zurich already, being Ms Newton’s email to Zurich’s solicitors of 25 May 2007 relating to Mr Magro’s claim, could arguably have fallen within s 118 of the Evidence Act 2008 as she seeks the solicitor’s advice in relation to the creation of a new policy. Nevertheless, the communication was discovered and no claim for privilege made in respect of it.
Documents relating to the meeting between Zurich and Mr Salveson
A key question in this proceeding is whether or not there was a public liability policy held by OGP with GRE, and so by succession with Zurich, for the period here in question. Both parties were aware prior to the claim by this plaintiff that no policy document for the 1960’s or early 1970’s could be located. Mr Salveson will presumably be a key witness as to whether or not there was a relevant public liability policy, given his earlier role at GRE. Both parties agree that Mr Salveson’s own account is highly relevant. Further, I accept the submission by Zurich that there is no legal barrier shown to OGP calling Mr Salveson, if necessary on subpoena, and obtaining his direct evidence on the issue before the Court. His uninformed view that he should not discuss the case with OGP, having previously discussed it with Zurich, is incorrect, and Zurich has offered to disabuse him of it.
Zurich contends that while Mr Salveson’s own evidence is relevant, the documents created by employees or solicitors of Zurich recording their interview with him are not. These are the documents sought by the first limb of this category. Zurich contends that what Mr Salveson has told other people about the existence or otherwise of a policy is hearsay, and their notes are records of that hearsay. Evidence from those others as to what he said would not ordinarily be admissible.
In my view, this submission conflates admissibility of evidence and the discoverability of a document. A document may be discoverable for the purposes of an order for particular discovery because it relates to a question in the proceeding, without itself being admissible. I consider that the documents sought by the first limb of this category are discoverable. I take the same approach in relation to whether or not the document sought by the second limb, the letter of instruction to Mr Salveson from Zurich, is discoverable. Given that both parties knew before this claim that no policy document or documents for the period prior to 1974 could be found, I infer that the enquiries of Mr Salveson made by Zurich by letter and in the interview with him related to whether or not there was such a policy or policies and what became of the documents evidencing them. Zurich did not suggest that the interview related to any other issue.
In respect of both limbs of this category the principal submission by Zurich was that the documents were privileged. Counsel for Zurich did not identify in either his written or oral submissions whether he relied on advice privilege (s 118 of the Evidence Act 2008) or litigation privilege (s 119). OGP has assumed that the privilege in question is litigation privilege, but counsel for Zurich referred in his oral submissions to the obtaining of ‘legal advice’, as well as the ‘ongoing issue’ between the parties as to whether or not a policy was in existence.[18] In fairness to Zurich, I will consider the applicability of both aspects of client legal privilege.
[18]T 61 line 3, T 62 lines 13-16.
I first consider litigation privilege. OGP agrees that there had been correspondence between itself and Zurich for some time prior to the January meeting in relation to indemnification of OGP for public liability risks. It contends, however, that no litigation privilege can attach to the documents sought in this category because the meeting between Zurich and Mr Salveson took place in January of this year, and it is admitted on the pleadings that OGP only notified Zurich of Ms Stewart’s claim on 14 February 2014. Accordingly, the documents relating to the interview cannot fall within s 119 of the Evidence Act 2008. The third party claim was not on foot at the time of the interview and, prior to the notification of the claim, which was after the interview, could not be said to be anticipated.
I accept that submission. I do not consider that fact gathering about an issue that is not at that time related to a specific claim is enough to attract litigation privilege in a subsequent proceeding commenced in respect of a subsequent claim where that issue arises. Indeed, as the insurance text on which OGP relies indicates, even the making of a specific claim by the insured on the insurer may not be enough to attract litigation privilege in subsequent proceedings between them over documents created in relation to the claim.[19]
[19]Derrington and Ashton, op cit, at [13-260].
If what Zurich relies on is really advice privilege, then it may have potentially been on stronger ground. However, the onus of proof is on Zurich in this regard and Zurich has chosen not to rely on any evidence to support its privilege claim. There is no evidence that the communications here sought were confidential, within the meaning of s 118; no evidence or submission to indicate which of the three sub-paragraphs of s 118 are said to apply; and no evidence as to the purpose of the creation of the ‘confidential communication’ or ‘confidential document,’ bearing in mind that Zurich must show that the dominant purpose of its creation was for its lawyers to provide it with legal advice.
It appears to be conceded that Mr Salveson is not an employee of Zurich, and so it may be that it is only paragraph (c) of s 118 that could be relied upon. The Court should not have to speculate, however, as to the legal or evidentiary basis of the submission. Further, in the absence of evidence as to confidentiality and purpose, it cannot be said that Zurich has satisfied the onus of establishing that s 118 applies to the documents sought by this category.
Zurich raised arguments about privilege in respect of all categories of documents sought. I have indicated that in respect of the first two categories, I consider that some questions of privilege should await discovery. I take a different view in relation to this third category. This is for two reasons. First, the parties sought a determination of the issue and it has been possible to determine it because the documents in question were precisely identified and no issue of waiver arises. Secondly, to allow Zurich to re-litigate the issue of privilege in respect of these documents would be to potentially allow it now to put on evidence, when it chose not to in this application. I consider that the parties should be bound by the manner in which they chose to run their respective cases.
I will order discovery of the documents sought by this category and, if required, inspection.
Conclusion and orders
Subject to any submission that the discrepancies I have noted between Mr Lai’s listing of the verified policies and the claims made thereunder and the numbers given to those policies and the claims by Ms Newton (‘the discrepancies’) are not typographical errors but in fact show different matters are identified, I will order discovery by Zurich of the documents identified in the first two of the categories in the summons, including sufficient identification of any privileged documents. The parties may relist the application before me without further summons after discovery if there is dispute in relation to the degree of identification of documents claimed to be privileged, or in relation to a claim for privilege or waiver of such privilege. I do not consider that I have determined those issues in these reasons, save that I have determined the issue of common interest privilege.
I will also order discovery in respect of the documents sought in the third category. I have determined Zurich’s claim for privilege by these reasons, and so I will also order inspection if that order is required.
I will ask the parties to draw an agreed form of order to give effect to these reasons, with any necessary consequential order required in relation to the future conduct of the proceeding (including the trial date). If the order cannot be agreed in any respect, including in relation to costs, or if further submission is required in relation to the discrepancies, I will hear the parties further.
SCHEDULE OF PARTIES
| YVONNE STEWART | Plaintiff |
| STATE OF VICTORIA | First Defendant |
| AMCOR LTD | Second Defendant |
| ESSO AUSTRALIA PTY LTD | Third Defendant |
| OLYMPIC GENERAL PRODUCTS PROPRIETARY LIMITED | Fourth Defendant |
| ZURICH AUSTRALIAN INSURANCE LTD | Third Party |
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