Sugden v Sugden

Case [2007] NSWCA 312

NEW SOUTH WALES COURT OF APPEAL

CITATION:      Sugden v Sugden  [2007]  NSWCA 312

FILE NUMBER(S):
40732/06

HEARING DATE(S):               19 July 2007

JUDGMENT DATE: 1 November 2007

PARTIES:
Timothy Bain Sugden (Appellant)
Nicole Emily Sugden (Respondent)

JUDGMENT OF:       Mason P Ipp JA McDougall J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          DC 40/2004 (Orange)

LOWER COURT JUDICIAL OFFICER:     Phegan DCJ

LOWER COURT DATE OF DECISION:    20 October 2006

COUNSEL:
P R Garling SC / J Morris / E Elbourne (Appellant)
M L D Einfeld QC / D Brogan (Respondent)

SOLICITORS:
Hunt and Hunt (Appellant)
Boyd and Longhurst (Respondent)

CATCHWORDS:
PROCEDURE – Production of documents on subpoena – Appellant (father of respondent) gives instructions on behalf of respondent to respondent’s solicitor –Whether solicitor’s file notes of those instructions are “privileged documents” – Where investigator retained by solicitor for respondent takes draft statement from appellant – Where draft statement later settled in conference by counsel for respondent – Whether draft statement is a “privileged document” – Where appellant on own account instructs solicitor in relation to police inquiries – Whether file notes of those instructions are “privileged documents”.
EVIDENCE – Client legal privilege – Whether file notes and settled draft statement record confidential communications – Whether in any event file notes and settled draft statement are confidential documents.
EVIDENCE – Loss of client legal privilege – Related communications and documents – “Proper understanding” – Question, whether one document, is “reasonably necessary to enable a proper understanding” of another document, to be answered taking into account circumstances in which and purposes for which that “proper understanding” is required and other information available. 

LEGISLATION CITED:
Evidence Act 1995
Motor Accidents Compensation Act 1999
Uniform Civil Procedure Rules

CASES CITED:
Attorney-General for the Northern Territory v Maurice (1986) 161 CLR 475
Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526
Aydin v Australian Iron and Steel Pty Limited [1984] 3 NSWLR 684
Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501
Feuerheerd v London General Omnibus Co Ltd [1918] 2 KB 565
Flack v Pacific Press Ltd (1970) 14 DLR (3d) 334
Grant v Downs (1976) 135 CLR 674
Jamison v The Government Insurance Office of New South Wales (1988) Aust. Torts Reports 80-214
Mann v Carnell (1991) 201 CLR 1
Nickmar Pty Ltd v Preservatrice Skandia Insurance Ltd (1985) 3 NSWLR 44
Raunio v Hills (2001) 116 FCR 518
State of New South Wales v Jackson [2007] NSWCA 729
Telebooth Pty Ltd v Telstra Corporation Ltd [1994] 1 VR 328
Towney v Minister for Land and Water Conservation (NSW) (1997) 76 FCR 401

DECISION:
Appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL  

CA 040732/06
DC 40/2004 (Orange)

MASON P
IPP JA
McDOUGALL J

Thursday 1 November 2007 

Timothy Bain SUGDEN v Nicole Emily SUGDEN

Judgment

  1. MASON P:          I agree with McDougall J.

  2. IPP JA:  I agree with the reasons of McDougall J and the…

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AGLC
Sugden v Sugden [2007] NSWCA 312
Case
[2007] NSWCA 312
Decision Date

CaseChat Overview and Summary

The appeal concerned the discoverability of certain documents, specifically file notes of instructions given by the appellant to his solicitor and a draft statement prepared by an investigator. The respondent, the appellant's son, had instructed his own solicitor, and the appellant had provided instructions to that solicitor, as well as instructing his own solicitor in relation to police inquiries. The central dispute revolved around whether these documents were protected by client legal privilege under the *Evidence Act 1995* (NSW) (as applied in the relevant jurisdiction).

The court was required to determine whether the file notes of instructions given by the appellant to the respondent's solicitor, and subsequently to his own solicitor, constituted confidential communications or confidential documents prepared for the dominant purpose of providing legal advice or for use in anticipated or pending proceedings. Additionally, the court had to consider whether a draft statement, taken by an investigator for the respondent's solicitor from the appellant and later settled by counsel, was a privileged document. The court also had to assess whether any privilege that might have existed had been lost under sections 122 or 124 of the *Evidence Act 1995* (NSW).

The court reasoned that client legal privilege, as defined in sections 118 and 119 of the *Evidence Act 1995* (NSW), protects confidential communications and documents made for the dominant purpose of giving legal advice or for use in anticipated or pending litigation. It was held that a document can be privileged even if the communication it records was not confidential, provided the document itself was brought into existence for the dominant purpose of legal advice or litigation. The court applied this principle to find that the file notes and the draft statement were indeed privileged, as they were created for the dominant purpose of obtaining legal advice and for use in anticipated proceedings. The court found no basis for the loss of privilege under the relevant sections of the Act.

The appeal was dismissed with costs, with the court agreeing that the documents in question were protected by client legal privilege.

Orders

Orders of the court

Appeal dismissed with costs. (McDougall J, with Mason P and Ipp JA agreeing)

Background

Background to the litigation

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Evidence

Evidence Before The Court

Part 3.10 of the Evidence Act deals with the topic of “privileges”. The first privilege dealt with, in Division 1, is “client legal privilege”. Section 117 sets out definitions of “client”, “confidential communication” and “confidential document” So far as those definitions are relevant, they read as follows: Section 118 provides for what is often known as advice privilege (although the section does not use the word “privilege”):[118] Legal adviceEvidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of: (a)a confidential communication made between the client and a lawyer, or(b)a confidential communication made between 2 or more lawyers acting for the client, or(c)the contents of a confidential document (whether delivered or not) prepared by the client or a lawyer,for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client. Section 119 provides for what is often known as litigation privilege (again, the section does not use the word “privilege”): [119] LitigationEvidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of: (a)a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made, or(b)the contents of a confidential document (whether delivered or not) that was prepared, for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party. Sections 121 to 125 deal with loss of privilege in certain circumstances. Mr Garling placed reliance on section 122(2) and (4): (2)Subject to subsection (5), this Division does not prevent the adducing of evidence if a client or party has knowingly and voluntarily disclosed to another person the substance of the evidence and the disclosure was not made: (a)in the course of making a confidential communication or preparing a confidential document, or(b) as a result of duress or deception, or(c) under compulsion of law, or(d)if the client or party is a body established by, or a person holding an office under, an Australian law—to the Minister, or the Minister of the Commonwealth, the State or Territory, administering the law, or the part of the law, under which the body is established or the office is held.(4)Subject to subsection (5), this Division does not prevent the adducing of evidence if the substance of the evidence has been disclosed with the express or implied consent of the client or party to another person other than: (a) a lawyer acting for the client or party, or(b)if the client or party is a body established by, or a person holding an office under, an Australian law—the Minister, or the Minister of the Commonwealth, the State or Territory, administering the law, or the part of the law, under which the body is established or the office is held.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The authorities were reviewed, again at length, by Hedigan J in Telebooth Pty Ltd v Telstra Corporation Ltd [1994] 1 VR 328 at 340 and following. In that case, a representative of one party spoke to a representative of the other, made a tape recording of the conversation and transcribed that tape recording. These acts were done with a view to the transcript’s being delivered to the legal advisers of the parties of the party making it, to obtain legal advice and for use in anticipated proceedings. Hedigan J held that the recording was not privileged because it, or more accurately the conversation that it recorded, was not confidential. I do not propose to discuss Feuerheerd. That is because I do not regard the answer to the first issue in this case as turning on the reasoning in the cases to which I have referred. Those cases are important insofar as they illustrate the state of the relevant principles under the common law. They are thus the background against which the legislative intention embodied in ss117 and 119 must be analysed and understood. In that sense, they are indicative of “circumstances” in which, under the common law test, privilege might (or might not) attach. To that extent, I think, the better view is that at common law communications between parties to litigation, or their representatives (including legal representatives) are not to be treated, without more, as confidential for the purposes of the common law relating to legal professional privilege. (Of course, I except from this communications of a “without prejudice” character, undertaken in an attempt to resolve the dispute. The confidentiality of those communications rests on a different, and for present purposes irrelevant, basis). But it does not follow that the solicitor’s document recording a communication with an opposing party or the opposing party’s legal representative is not privileged. Whether it is or not depends on the question of whether the document is, even though the communication that it records was not, confidential within the statutory definition. In Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526, Goldberg J reasoned to similar effect. His Honour noted at 563 that a document could be privileged from production even if it were a copy of a non-privileged document: Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501. Thus, his Honour observed, “[a] document recording or containing a witness statement can be regarded as a document privileged from production if it is brought into existence for the dominant purpose of use in anticipated legal proceedings, even though it may be said that the communication of the information recorded in the document by the witness to the maker of the document…is not confidential because, for example, it is a communication between two parties with adverse interests”. His Honour restated the proposition in slightly different language a little later on the same page. He said “that the recording of a non-confidential conversation in a document can similarly be protected from production if the document was brought into existence for the dominant purpose of apprehended proceedings”. This was because “the context in which a document comes into existence and its proposed use makes it a confidential document”.