Streimer v Tamas

[1981] FCA 123

CATCHWORDS

l

Discovery - Legal professional privilege.

BRAMBLES HOLDINGS LIMITED v. TRADE PRACTICES COMMISSION.

N.S.W. NO.G.44

Of 1978.

FRANK1 J.

Sydney.

21 May 1981 5 June 1981 25 June 1981.

The question of costs has not yet been determined.

IN THE FEDERAL COURT OF AUSTRALIA)

1

NEW SOUTH WALES DISTRICT REGISTRY) No. G. 44 of 1978

1

GENERAL DIVISION

BETWEEN: BRAMBLES HOLDINGS LIMITED

Applicant

AND: TRADE PRACTICES COMMISSION

Respondent

21 May 1981

REASONS FOR JUDGMENT

FRANK1 J.

Brambles Holdings Ltd, the applicant, is the second

defendant in proceedings No.G.44 of 1978 brought by the Trade

Practices Commission ("the Commission") against it and eight

other defendants in which breaches of s.45 of the Trade Practices

- Act 1974 ("the Act") are alleged and penalties are sought

i	pursuant to ss.76 and 77 of the Act and	an injunction is sought
pursuant to s.80 of the Act.

The proceedings were commenced before the current

Federal Court Rules, S.R. No.140 of 1979, were made and therefore

the relevant rules are those appearing in S.R. No. 20 of 1977.

2

The effect of 0.2 r.1 of those Rules is that the Rules of the

High Court are applicable "subject to any directions of the Court

or a Judge". See also s.38	of the Federal Court	of Australia Act
1976.

The applicant filed an application on 16 March 1981

seeking orders :

1. That the plaintiff make, file and serve within 14 days

an affidavit making further and better discovery:

2 . That the claim of the plaintiff to legal professional

privilege made by paragraph 3 of the affidavit of Wynne Patricia

Hannon, sworn 27 January 1981, is not justified: and

3. That he plaintiff make available for inspection a

number of documents which were identified in the Notice of Motion

and for which the plaintiff has claimed legal professional

privilege.

No formal Notice for Discovery had been given pursuant

to 0.32 r.9 of the High Court Rules but it was agreed that I

should treat this application as if the Commission had been

served with a Notice for Discovery and it had sought to comply

with obligations then falling upon a party so served.

The first Affidavit of Discovery filed on behalf of the

Commission was that of Glen Catherine Smith, sworn on 15 January

1980. The schedule to this affidavit listed a number of documents

of various types and claims were made for privilege. A further

3

and much more detailed Affidavit of Discovery was sworn on 27

January 1981 by Wynne Patricia Hannon and this affidavit referred

to 31 volumes of documents and claimed privilege in respect of

certain documents. The documents referred to in the affidavit

were described in an exhibit to the affidavit which comprised 537

pages ("the Schedule"). The exhibit contained a list of

documents in the first four volumes of documents referred to in

the affidavit and described in it as "Documentary material of the

plaintiff and its solicitors". Various documents in the schedule

were marked to show that privilege was claimed for them.

However, senior counsel for the Commission said that it was not

seeking to maintain privilege in regard to documents of a date

prior to 5 April 1978 which was the .date when the Commission

decided to commence the proceedings. Senior counsel made it

clear that he was not conceding that privilege did not extend to

documents prior to that date but was simply not seeking to

maintain any existing privilege.

The day before the motion was commenced a further

affidavit sworn on that day by Mr. Graham Walker setting out the

grounds upon which privilege was claimed was filed on behalf of

the Commission. After two days hearing the matter was adjourned,

and a few days before the hearing was resumed a telex was sent by

the Commission to the applicant setting out the text of a further

affidavit to be sworn by Miss Hannon. When the matter resumed

before me on 8 May 1981 the further affidavit of Miss Hannon was

filed in Court. It is fair to say that it is not possible to

4

reconcile the precise grounds upon which privilege is claimed in

the four affidavits and in the telex. Counsel for the applicant

asked me to hold that the claim for privilege had not been

established because of the inconsistencies arising out of the

affidavits. I appreciate that in a case involving discovery of

the magnitude of that involved in this case it is extremely

difficult to prepare an affidavit which is beyond criticism,

without that affidavit being of an almost impractical length and

complexity. In saying this I do not wish it to be thought that I

am suggesting that litigants can expect the Court to read

affidavits of discovery with particular sympathy but in this case course.

The applicant asked that Mr. Walker be cross-examined on

his affidavit. Counsel could not refer me to any case where

cross-examination of the deponent to an affidavit of discovery

had been allowed and I refused to permit the cross-examination of

Mr. Walker. I consider that Mulley v. Manifold (1959). 103

C.L.R. 341 at p.343 is sufficient authority for this decision.

Counsel for the applicant relied mainly on 0.32 r.12,

r.13 and r.18 of the High Court Rules. However, the applicant no

longer seeks any further affidavit but merely seeks inspection of

those documents for which privilege has not been established.

5

At the conclusion of argument I indicated that I was not

prepared to hold that no claim for privilege had been

established, but that I considered that the most practical course

was to deal with a number of those documents referred to in the

schedule to Miss Hannon's first affidavit which had been

specifically dealt with by senior counsel for the applicant. I

said that I proposed to examine the description of each document

under consideration set out in the schedule and then decide

whether from its description it appeared that it fell within any

of the grounds referred to in the second affidavit of Miss Hannon

if privilege could be claimed under that ground.

In a particular case, I appreciated that it might be

necessary to inspect a document before I could rule on whether

' I

the claim for privilege was made out. I consider that the most

practical course is for me to rule on such of the documents

referred to by senior counsel for the applicant as I can without

inspection and to leave the parties to consider my judgment

before proceeding further. It is possible that any issues

remaining undetermined may be agreed by the parties. 1

Whilst still pressing his application that I should rule

on the affidavits that no satisfactory claim for privilege had

been shown, counsel for the applicant agreed that if I was not

prepared to do this the course I proposed was reasonably suitable

and senior counsel for the Commission also agreed.

6

Senior counsel for the applicant submitted a document

classifying certain of the documents for which privilege was

claimed into 11 categories and he dealt with the description of

those documents in the annexure to Miss Hannon's first affidavit.

It is not necessary to consider categories 3 , 10 and 11 because,

prior to the resumed hearing privilege was either not claimed or

was waived in respect of those categories.

The grounds of privilege from the production of

documents for which privilege is claimed were set out in the

second affidavit of Miss Hannon as follows:

"(i) prepared by the Plaintiff's legal advisers for use by them in these proceedings; or

(ii) brought into existence by the Plaintiff

for the sole purpose of submission to

its legal advisers for advice or for use

by them in connection with these

proceedings: or

(iii) brought into existence at the request of

the Plaintiff's legal advisers solely to

enable the Plaintiff's legal advisers to

advise the Plaintiff or to conduct these

proceedings on its behalf: or

communications passing between the

Plaintiff and third parties after the institution of these proceedings at the request or suggestion f the Plaintiff's

legal advisers relating to these

.proceedings; or

internal memoranda of the Plaintiff

prepared after the institution of these

proceedings relating to advice or information obtained or to be obtained from or for the Plaintiff ' S legal

advisers relation in to these

proceedings: or

7

(vi)  communications between the legal representatives of the parties or notes of discussions between the parties or

their legal representatives which

communications and discussions were

without prejudice

(vii) confidential communications between the

Plaintiff and its legal advisers made to

or by the legal adviser, with a view to obtaining or giving legal advice or assistance, or notes of these confidential communications."

I note that only grounds (ii) and (iii) refer to the

"sole" purpose.

Although I have been referred to a number of authorities

which I have carefully considered, I take the view that the two

recent decisions of the High Court in Grant v. Downs (1976) 135

C.L.R. 674 and National Employers' Mutual General Insurance

Association Ltd v. Waind (1979) 141 C.L.R. 648 set out the

relevant principles applicable to this case.

In the application before me the claim which was pressed

to justify non discovery of the relevant documents was that of

legal professional privilege.

In Waind's case the judgment of Mason J., with whom

Barwick C.J., Stephen. Jacobs and Aicken JJ. agreed, contained

the following passages at pp.654 and 656 which make it clear that

the intended use of documents in litigation is insufficient to

8

attract legal professional privilege but that this privilege

attaches to communications passing between the legal adviser and

client.

At p. 654:

"Two preliminary comments should be made about

the way in which the case for the appellant

was presented. First, the argument at times

seemed to suggest that it is the intended use

of documents in litigation which attracts the

relevant privilege. This of course is not so. The relevant head of privilege is legal professional privilege which attaches to communications passing between legal adviser

and client. Documents submitted by the client

to his solicitors for advice or for use in

anticipated litigation attract the privilege,

but it is very doubtful whether there is a

privilege for documents coming into existence

as materials for the purposes of an action to

be conducted by a litigant in person (see

Laws of England, 4th ed;: vo1.13, p.68). .Of

course it may be that privilege can be claimed

on the ground that a document relates solely

to the case of the party, a head of privilege

still available in New South Wales. Secondly,

the argument did not always make clear the

distinction between the purpose for which

information is obtained and the purpose for

which a document recording information	is
brought into existence."

And at p. 656:

"If, on the facts, the documents are brought

into existence for the dual purpose of

deciding what it will do and for use in

litigation by legal advisers when appropriate,

the purpose should be considered as one

purpose which, including as it does submission

to legal advisers, would attract the relevant

head of privilege. That is the argument.

Unfortunately for the appellant, it is an argument which runs headlong into Grant v.

9

Downs (1976) 135 C.L.R. 674. As Glass J.A.

observed in the Court of Appeal @978] 1

N.S.W.L.R., at p. 376,' when he applled the

remarks of Stephen, Mason and Murphy JJ. in

Grant v. Downs:

'If the purpose which actuates the party who commissions documents is not single but multiple each must be identified. Unless all

of them fall within the protected group of

purposes namely submission to legal advisers

or use in litigation, no privilege attaches.'

The argument is not only inconsistent with the

sole purpose test enunciated by Stephen, Mason

and Murphy JJ. (1976) 135 C.L.R. at p.688; it

is also inconsistent with the dominant purpose

test favoured by Barwick C.J. (1976) 135

C.L.R. at p.678 and in my view it fails to

satisfy the test proposed by Jacobs J. (1976)

135 C.L.R. at p. 692 - Does the purpose of supplying the materials to the legal adviser account for its existence?"

The following passage from the judgment of Barwick C . J .

at p.657 also illustrates the importance of the purpose of

submission to legal advisers'.

"However useful these documents might prove in

any supervening litigation, they were not in

any sense proofs of witnesses or statements

prepared for submission to legal advisers."

Aicken J. at p.651 said:

"I agree with the reasons given by my brother

Mason for this conclusion.

The judgment of Stephen, Mason and Murphy JJ.

makes it clear that to attract legal

professional privilege it is necessary that

the sole purpose for bringing the relevant

document into existence was its submission	to
legal advisers for obtaining legal advice	or
for use in litigation".

.

10

I read this passage as stating that legal professional

privilege is not attracted unless the sole purpose for bringing

the relevant document into existence was its submission to legal

advisers (a)	for obtaining legal advice	or (b) for use in
litigation.

In Grant v. Downs (supra) Barwick C.J., who dissented,

nevertheless took the view at p.678 that the document under

consideration must have been produced - for the solicitor in

relation to proceedings pending, threatened or anticipated, i.e.

at the time of its production.

Stephen, Mason and Murphy JJ. in a joint judgment said

at p. 682:

"What then are the relevant principles of law

governing the privilege which attaches to communications and materials submitted by a client to his solicitor for the purpose of advice or for the purpose of use in existing or anticipated litigation, in particular when

the materials have been called into existence to serve more than one purpose, submission to the solicitor being only one of the purposes?"

It is to be noted that this passage refers to "communications and materials submitted by a client to his

solicitor. . . ' I .

At p.688 the joint judgment continues:

“It is not right that the privilege can attach

to documents which, quite apart from the

purpose of submission to a solicitor, would

have been brought into existence for other

purposes in any event, and then without

attracting any attendant privilege.“

Jacobs J. at p.692 said:

“I think that the question which the court

should pose to itself is this - does the

purpose of supplying the material to the legal

adviser account for the existence of the

material? I use the word purpose here in the

sense of intention - the intended use.“

Again it is to be noted that the reference is to the

supply of material to the legal adviser.

I am therefore of the opinion that in order to attract

legal professional privilege the document must have been brought

into existence for the sole purpose of submission to the legal

adviser either for obtaining legal advice or for use in the

litigation. Unless the document was brought into existence for

the purpose of putting it before the legal adviser legal

professional privilege does not attach to it. Whilst neither of

the cases I have mentioned deal specifically with the question of

copies I am satisfied that legal professional privilege attaches

to a draft or copies of a document which is itself entitled to

that privilege, at least if the existence of the draft or copy represents a reasonably necessary stage in the preparation of the document to which privilege attaches.

12

The first category of documents dealt with by the

applicant was that under the general heading of "File notes,

internal memoranda or papers". The first of those was that dated

17 October 1978. The description in the schedule is "File Note

of telephone conversation between MS G. Smith, a member of the

staff assisting the plaintiff and Mr	N. Stock concerning contact
with certain defendant companies".

The only claim for privilege relevant to the document

of 17 October 1978 is that in paragraph (v) of Miss Hannon's

second affidavit. There is no suggestion that the document was prepared solely for submission to legal advisers. I reject the

claim for privilege in respect of this document.

The next document in this category is that of 25 May

1979. The description of it in the schedule is "Internal

briefing paper of the plaintiff entitled 'T.P.C. v. T.N.T.

(Management) Pty. Ltd and Others, Outline of Industry and Effect

of Arrangement"'. The only claim for privilege relevant to this

document appears to be that in paragraph (v) of Miss Hannon's

second affidavit which does not allege any sole purpose. Ground

(v) is not limited to an internal memorandum merely setting out

legal advice whlch has been obtained and which would be the

subject of legal professional privilege if it was a record of a

communication of advice from a legal adviser in the litigation.

Ground (v) in its terms is applicable to an internal memorandum

setting out legal advice together with comment on that advice by

13

other persons in the Commission . In such a case that part of

the memorandum which set out the legal advice would be privileged

but not that part which set out the comment on the advice. I

agree with the unreported views in this regard of Rath J. in

Komacha v. Orange City Council delivered on 30 August 1979. It

may be that the parties can agree in the light of this statement

whether all or only part of the document should	be produced for
inspection.

The next document referred to by the applicant is that

dated 25 January 1980 and described in the schedule as "Internal

memorandum of the Plaintiff concerning progress in this matter".

That also does not appear to fall within any valid ground of

privilege claimed. It is not solely for submission to legal

advisers nor does it appear	to record legal advice and so it is
not privileged.

The next document is that of 10 March 1980 which appears

to fall in the same category as the last document.

The next document is that of 28 April 1980 described in

the schedule as "File note of telephone conversation between Ms.

E. Barton, a member of the staff assisting the plaintiff and Mr.

McGrillen, a member of staff of the Public Transport Commission of New South Wales concerning the seventhnamed defendant." This

document falls into the same category as the file note	of 17
October 1978 and it is not privileged.

14

The next document is that of 29 April 1980. It is

described as a letter. It is not privileged.

The next document is that of 21 July 1980 described as

"Internal briefing memorandum of the plaintiff concerning

settlement of this matter". If the parties cannot agree with

respect to this document it will be necessary for me to inspect

it.

The next document is that of August 1980 described as

"Internal Working Paper of the plaintiff entitled 'Specific

Competition Evidence Needed"'. Privilege is not established for this document except for any part which records legal advice received.

The next document is that of 2 September 1980 described

in the schedule as "Internal memorandum of the plaintiff

concerning witnesses in this matter". This document does not

appear to have been solely prepared for submission to legal

advisers and therefore no claim for privilege is established

9

except for any part which records legal advice received.

The next category of documents is entitled "Internal

briefing paper". This document is described in the schedule as:

"Internal briefing paper of the plaintiff entitled 'Effect on

Competitlon of Exclusion of Brokers from National Freight

Forwarding Industry"'. Also, apparently included in this

i

15

category, are three undated documents described as follows;

“Broadsheet being a chronology of the evidence relating to this

matter “; “Broadsheet detailing evidence of ‘giving effect’ to

the alleged arrangements by the defendants ‘l; “Broadsheet being

analysis of the pleadings and the evidence in this matter.”

The date of these documents is not established as being

after 5 April 1978, nor does it appear that any of them were

prepared for the sole purpose of submission	to legal advisers and
they are not privileged.

The documents in category 4, being letters from the

Minister, are no longer the subject of a claim for privilege.

The next category of documents is headed “Record of

discussion within Commission“. The first document in this

category is dated 1 May 1978 and is described in the schedule as:

“Record of discussion between a Commissioner and members of staff

assisting the plaintiff concerning competition matters“.

This appears to be in the category of a record of a

discussion and appears to be an internal document which is not claimed to have been prepared solely for submission to legal advisers and it is not privileged.

The next document in this category is that dated 13 July

1978 which is described in the schedule as: “Record of

* <

16

discussion between a Commissioner and members of staff assisting

the plaintiff concerning competition aspects	of' this matter".
This document is not privileged.

The next category of documents is entitled "Records of

interviews re Freight Arrangements and Tradestock". The first is

dated 18 July 1978 and is described in the schedule as "Record of

interview between Mr J. O'Neill and MS G. Smith, members of staff

assisting the plaintiff and Mr T. Henderson, T.F. Henderson &

Associates, concerning the freight forwarding industry".

This document appears to have been brought into existence €or internal purposes and not solely for submission	to
legal advisers. It is not privileged.

The next documents are both of 7 August 1978 and

described in the schedule as: "Record f interview between Ms. G.

Smith, a member of staff assisting the plaintiff, and Mr. Coull, Hardy Spicer, concerning freight arrangements and Tradestock Pty Ltd" and "Record of interview between Ms. G . Smith, a member of

staff assisting the plaintiff, and Mr Daws, Mindrill, concerning

freight arrangements and Tradestock Pty. Ltd.". Again neither of

these documents appear to have been prepared solely for the

purpose of submission to solicitors and neither is privileged.

17

The next document is dated 4 October 1979 and is

described in the schedule as "Statement of Mr. T. Henderson on

matters relating to the Freight Forwarding Industry". From its

description this document does not appear to be any more than a

statement from a Mr. Henderson and it does not appear to have

been brought into existence for the sole purpose	of submission to
legal advisers. It is not privileged.

The next category of documents is entitled "Minutes of

Commission". The first document in this category is that of 28 April 1978 which is entitled "Minutes of Commission Meeting of the plaintiff". These minutes appear to be no more than of a meeting of the Commission and they do not appear to have been

prepared solely for the purpose of presentation to legal advisers

nor as a record of legal advice received. They are not

privileged.

The next category of documents is entitled "Letters

written by or to the plaintiff or to or by various named

persons". Those written by a Mr. Haymen on 6 February 1979 and

to him on 14 February 1979 were discussed. These letters are

described in the schedule as: "Letter of Mr. J. Haymen, Tomasetti

E, Son Pty. Ltd. enclosing copies of correspondence concerning

freight arrangements and Tradestock Pty. Ltd.'' and "Letter of the plaintiff to Mr. J. Hayman, Tomasetti & Son Ptye Ltd., concerning

conversation with Mr. J. Oxley."

18

I can see no basis for any claim for privilege in

respect of these letters.

The next category of documents is entitled "Copies of

correspondence enclosed with letter plaintiff to Haymen". The

letter referred to appears to be that of 6 February 1979 to which

I have just referred. No claim for privilege has been

established in respect of any of the correspondence enclosed with

the letter of 6 February 1979.

My decision in relation to any document which I have

held not to be privileged is subject to the qualification that any part of any such document which does no more than reproduce

legal advice obtained in relation	to the proceedings need not be
made available for inspection.

I propose to adjourn the matter to a date which I will

now fix.

I, 0

*$-:.

,/(‘/, i,’

t , IN THE FEDERAL COURT OF AUSTRALIA)

I.

/ 1

NEW SOUTH WALES DISTRICT REGISTRY) No. N.S.W. G44 of 1978.

1

DIVISION GENERaL 1

BETWEEN: BFLWBLES HOLDINGS LIMITED

Applicant

‘ AND: TRADE PRaCTICES COMMISSION

Respondent.

5 June 1981

REASONS FOR JUDGMENT

Franki J.

In this Notice of Motion I gave judgment on 21 May 1981

l	which I hoped might substantially resolve the problems which
had arisen with regard to discovery. I refer to that
judgment when I said:

“I consider that the most practical course

is for me to rule on such of the documents

referred to by senior counsel €or the applxant as I can without mspection and

to leave the partles to consider my

judgment before proceeding further. It

is possible that any issues remaining

undetermined may be agreed by the parties.“

I laid down certain tests which were summarized on the

latter half of page 11 when I said:

“I am therefore of the oplnlon that in

order to attract legal professional

privilege the document must have been

L .

brought into existence for the sole purpose

of submission to the legal adviser either

for obtaining legal advice or for use in

the litigation. Unless the document was

brought into existence for the purpose

of putting it before the legal adviser

legal professional privilege does not attach

to it. Whilst neither of the cases I have

mentioned deal specifically with the question

of copies I am satisfied that legal professional

privilege attaches to a draft or copies of a

document which is itself entitled to that

privilege, at least if the existence of the

draft or copy represents a reasonably necessary

stage in the preparation of the document	to
which privilege attaches."

I also added a qualification in the second last

paragraph on page 18 whlch is:

"My decision in relation to any document which

I have held not to be privileged is subject

to the qualification that any part of any such

document which does no more than reproduce

legal advice obtained in relation to the

proceedings need not be made available for

inspection."

The effect of my Judgment, so far as it relates to the

documents under consideration m it, was that documents which did not fall within category (ii) or (iil) set out in the

second affidavit of Miss Hannon and reproduced at page 6 of

my judgment were not privileged. It had not been necessary

for me to consider documents falling within category (vi) of

that affldavit but the applicant does not seek inspection

of any documents falling within that category.

As a result of further argument since my judgment was

delivered it is necessary to deal with the position in

relation to documents about which	L made no speciflc flndings
in that judgment.

3.

The applicant seeks that I rule on each other document

by doing no more than relying upon the description of that

document in Miss Hannon's second affidavit, together with

any necessary inspection which I may be requested to make

and which I might feel to be justified.

The respondent argues that the basis of my ruling in

relation to each document in category (ii) or (iii) of Miss

Hannon's second affidavit requires consideration of the sole purpose for which that document was brought into existence and that neither the description in the affidavit nor any

other description	of it would be sufficient to establzsh that
purpose.

I consider that the only practical way to deal with

this problem is to order that Miss Hannon file and serve a

further affidavxt on or before 5pm. on 11 June 1981, listing

each document for whxch privilege is still claimed by the respondent and stating withxn which of the categories (ii) or (iii) or (vi) that document is alleged to fall.

The documents which will need to be covered in th

affidavit are those in the schedule tendered today by senior

counsel for the applicant and marked Exhibit "A" , and for

which privilege is still claimed by the respondent.

I hope that once this affidavxt is filed and served

there may be no problems of discovery still remaining. It is

my present intention, if necessary, to make an order for

inspection of each document for which privilege is claimed

and which the applicant still seeks to inspect and which 1 s

4.

not established to be within category (ii) or (iii) or

(vi) of the categories in the second affidavit	of Miss
Hannon .

It will also be necessary for Miss Hannon to specify

in her affidavit any document for which privilege is claimed

for any part on the ground that that part does no more than

reproduce legal advice obtained in relation to the proceedings,

and any order of mine would exclude any such part for which

that privilege were established.

I propose to stand the matter over to 9.3Oam on

25 June 1981 and reserve the question of costs. If in

the meantime, apart from the question of costs, the question

of inspection is no longer an issue, the parties might be

kind enough to send a letter to the District Registrar to

that effect and there will then be no need for anybody to

attend on the date fixed. I reserve the question of costs

and give liberty to either party to apply on	3 days notlce
to the other party.

* 3

I certify that this and the 3

precedingpages are atrue copyofthe

Reasons for JudgmentheremofhisHonour

M r . Justice F R I\I /<

L

I N THE FEDERAL COURT OF AUSTRALIA)

1

NEW SOUTH WALES DISTRJCT REGISTRY) NO. G.44 of 1978

1

GENERAL DIVISION )

BETWEEN: BRAMRLFS HOLDINGS LIMITED

Applicant

AND: TRADE PRACTICES COMMISSION

Responden t

25 J u n e 1981

REASONS FOR JUDGMENT

F R A N K 1 J

T h i s matter has t a k e n a rather u n u s u a l c o u r s e b u t , a s I

s a i d before, I thought it w a s t he post appropriate c o u r s e for it

t o t a k e . I gave sone r e a s o n s for judgment on 21 May 1981 , and on

t h a t occasion J set o u t c e r t a in p r i n c i p l e s t h a t I c o n s i d e r were

appl icable a n d r u l e d o n a number of documen t s . One document I

s a i d I would need t o inspect before I r u l e d on it, and t h a t is

r e f e r r e d t o o n paoe 14 of t h e judgment of 21 May 1 9 8 1 , b u t sen ior

c o u n s e l for t h e a p p l i c a n t d o e s no t press for the i n s p e c t i o n of

t h a t document .

T h e o r d e r s which 1 made on 5 J u n e 1981 c o n c e r n i n g a

f u r t h e r a f f i d a v i t h a v e b e e n c o m p l i e d w i t h , a n d Miss Wynne

P a t r i c i a H a n n o n h a s f i l e d a f u r t h e r a f f i d a v i t of 11 J u n e 1 9 8 1 .

I n t h a t she has sought t o c l a s s i fy v a r i o u s d o c u m e n t s , i n respect

2.

of which inspection i s sought and i n respec t o f which pr iv i lege

i s still claimed, f irst i n t o c a t e g o r y (ii) of t he ca t egor i e s

which she set o u t i n h e r a f f i d a v i t o f 8 May 1981, secondly i n t o

category (iii) of t h a t a f f i d a v i t and t h i r d l y i n t o c a t e g o r y ( v i ) .

There i s a fu r the r ca t egory be ing ce r t a in documents which a r e

sail t o c o n t a i n c e r t a i n l e g a l a d v i c e w h i c h w o u l d n o t be

d i scove rab le pu r suan t o my e a r l i e r r u l i n g insofar as concerns

t h e v e r y p a r t of each document which records the legal advice.

T h i s a f f i d a v i t o f 11 J u n e 1981 descr ibes the var ious

documents t h a t it classif ies i n p r e c i s e l y t h e same words a s were

used t o c l a s s i f y t h o s e documents i n Miss Hannon ' s a f f idavi t o f 27

January 1981, and f o r t h a t r e a s o n I do no t th ink tha t it is

d e s i r a b l e o r a p p r o p r i a t e t o h a v e o v e r much r e g a r d t o t h e

par t icu lar descr ip t ion of the documents . A v a s t number of

documents w e r e descr ibed i n t h e a f f i d a v i t o f 27 January 1981. As

I men t ioned p rev ious ly tha t a f f idav i t was of 537 pages.

Now t h e r e a r e o n e o r two documents as descr lbed i n t h a t

a f f i d a v i t o f 27 January 1981 whlch might be thought no t to have

been proBuced under c i rcumstances tha t fa l l wi th in ca tegory (ii)

o r (iii) ( i f t h e y b e t h e r e l e v a n t c a t e g o r i e s ) i n t h e a f f i d a v l t o f

Miss Fannon of 8 Vay 1981. I tske as examples a document of 2 8

February 1979 which i s described a s a f i l e note and aocument

undated except as t o May la80 descrlbed a s an i n t e r n a l memorandum

o f t h e p l a i n t i f f . E u t Miss Fannon has sa id i n paragraph 3 of her

a f f i d a v i t o f 11 J u n e 1981 t h a t :

3 .

"In t h e t h r e e days preceding the swearing of

t h i s a f f i d a v i t I have looked a t each document

l i s t e d i n e x h i b i t s "Y" and "2" t o t h i s

a f f i d a v i t h a v e n d i n v e s t i g a t e d the

c i r c u m s t a n c e s i n w h i c h each document i s

correctly placed i n t h e r ight f a c t u a l category

of t h e c a t e g o r i e s r e f e r r e d t o i n t h e p r e c e d i n g

paragraph of t h i s a f f i d a v i t . "

I s a i d o n 21 May 1981 t h a t I would no t permit cross-

examination of M r VJalker who furnished an ear l ie r a f f i d a v i t and I

cons ide r , b road ly speak ing , t ha t an a f f idav i t of discovery should

be taken as be ing a c c u r a t e u n l e s s there i s some reason for t h e

C o u r t t o t h i n k t h a t t h a t i s n o t so.

Now I am s p e a k i n g f a i r l y b r o a d l y i n t h e way I have

phrased tha t . I have been referred t o t h e cases of Birmingham

and Mldland Motor Omnibus Company Limited v. London North Western

Railway Company (l?13) 3 K . R . 850, Grant v . Downs (1976) 135

C . L . R . 674 and Vauah v. Rrit ish Railways Board E 9 8 q A . C . 521,

b u t I do n o t t h i n k t h e r e i s anything in any of those cases which

i s c o n t r a r y t o the view I have expressed, and I do not consider

t h a t h e r e i s a n y t h i n g i n the m a t e r i a l before me which w o u l d

warrant m y B e c l i n i n 9 t o a c c e p t t h e s t a t e m e n t of V i s s Irannon i n

parag-aph 3 of her a f f i d a v i t o f 11 J u n e 1981.

I th ink , gen t l emen , t ha t cove r s t he pos i t l on .

I Associate