Taylor v Santos Ltd & Ors No. Scgrg-96-2015 Judgment No. S450

[1999] SASC 450

TAYLOR v SANTOS LTD & ORS
[1999] SASC 450

Appeal from a Master

1 Millhouse J.  This is a puzzling appeal.  On the face of it the appeal is from a Master who ordered:-
"1.  That the first defendant produce to Judge Burley a copy of the letter from M G Roberts, Group General Counsel of the Santos Group, to Mr C F Woodhouse, Farrer & Co dated 27 September 1996."
2 That order has been made during the Master's consideration of an application by the plaintiff:-
"1.  That the first defendant do produce to the plaintiff for the purpose of inspection and copying a two page letter from M G Roberts, Group General Counsel of the Santos Group, to Mr C F Woodhouse, Farrer & Co dated 27 September 1996 ..."
3 The plaintiff alleges several causes of action against the defendants arising out of his alleged wrongful dismissal by the first defendant, Santos.  The actual causes of action do not matter in deciding the appeal. There have been many interlocutory applications so far.  The learned Master has been hearing the present application.  The first defendant has been resisting it on the grounds of legal professional privilege.
4 The letter was written by Mr M G Roberts, in-house counsel for Santos, to Mr C F Woodhouse, a solicitor and partner in the London firm Farrer & Co, solicitors for Santos.  So much shews from the application itself.  What does not shew from the application is that Mr Woodhouse is not only a partner in Farrer & Co but he is also an "independent director" of Santos Europe Ltd, a subsidiary, down the line, of Santos.  The plaintiff is, or was, an employee of Santos but working in England for Santos Europe.  Santos had suggested to the plaintiff that he should return to Australia before his expected term in England was up.  He did not want to come back, arguing that by obliging him to return, Santos was in breach of the contract of employment between them. He threatened proceedings.  After the threats but before proceedings began,  Mr  Roberts wrote the letter to Mr Woodhouse.  The question is whether it was written for the sole purpose - Mr Tom Gray QC with Mr Charles Bagot for the appellant Santos concedes that is the test - of instructing Mr Woodhouse in his professional capacity, or whether it was written to him as a director of Santos Europe Ltd, or in both capacities.
5 The fact is that after receiving the letter Mr Woodhouse went to see Mr Taylor (and his wife) at home and tried to persuade him to resign. When he failed  Mr Woodhouse handed Mr Taylor a letter of dismissal.
6 The application has proceeded on affidavit evidence.  One affidavit is that of Mr Grant Kingsley Feary, a partner in the firm of solicitors acting for Santos.  After carefully considering the facts and reviewing the law the Master ends his Reasons by saying:-
"     In those circumstances I have some hesitation in refusing the application because the facts and submissions advanced by the plaintiff have cast some doubt on the question of the sufficiency of the hearsay material in Mr Feary's affidavit.  On the other hand, I have some hesitation in granting the application because of the clear statement made by Mr Feary in paragraph 7 of his affidavit that the document sought information for submission to legal advisers in regards to the plaintiff's threat of litigation.  If the document were confined to material of that nature, there is no doubt in my mind that the claim for privilege has been properly made.  If the letter goes beyond that description, different considerations may apply.
     I bear in mind that the document may be inspected by the Court.  It is clear from Grant v Downs that the Court is entitled to inspect the document if that is necessary.  Normally that power is only exercised where there is some doubt as to whether or not privilege has been correctly claimed.  In view of my state of uncertainty, I think it appropriate to direct that a copy of the letter be produced to me so that I may inspect it before making a ruling on the application."
7 The master is, pursuant to Rule 59.04, perfectly entitled to view the document.  He has a wide discretion whether or not he should.  Mr Gray early in his oral argument conceded as much.  Indeed he went further and said that his client's concern is not the production of the letter for the Master's inspection but that the Master should then "address" the letter "with the right principles in mind".
8 That's why it's a puzzling appeal.  The appellant doesn't want to oppose the wish of the Master to see the letter - the very object of the appeal, I would have thought - but to make sure that once having seen it, he acts judicially.  All I can think is that either Mr Gray wants me to advise the Master how he should view the letter or, more likely perhaps, Mr Gray wants to give the Master a message using me as the conduit.  Well, I am not much good nowadays - whether I ever was is questionable - at telling people how to do their jobs (except in hindsight when sitting on appeal) and I doubt if it's appropriate for Mr Gray to use appeal procedures to send a message to the Master through me.
9 I had some difficulty too in discovering just on what principles Mr Gray wanted me to advise: what error Mr Gray was afraid the Master might make.   Mr Gray is afraid that on the Master's reasoning Mr Woodhouse could never act as solicitor for Santos in this matter because he is a director of the separate company, Santos Europe.
10 This fear is based, I think on three passages in the Master's Reasons:-
"    It is common ground that Mr Woodhouse, as well as being a partner of the firm of Farer and Co, was at the material time a member of the Board of Santos Europe Limited (SEL).  He was a non-executive director.  On earlier discovery applications, Mr Woodhouse has been described as an independent director, ie independent from the first defendant in the sense that he is not a member of the Board of the first defendant.  As I understand it, the fact that Mr Woodhouse was an 'independent director' of SEL, was evidence which, if taken in conjunction with affidavit evidence of the plaintiff, indicated, for the purposes of this application, that Mr Woodhouse could not be said to be in a solicitor/client relationship with the first defendant.
...
A comparison of the evidence respectively relied upon by the parties reveals that, on the one hand, the first defendant say (sic) that the letter was sent to Mr Woodhouse solely for the purpose of preparing for contemplated legal proceedings and that it sought information for submission to legal advisers in relation to that contemplated litigation.  As against this, the plaintiff said that Mr Woodhouse was an independent director of SEL, that he had never dealt with Mr Woodhouse as the solicitor for the first defendant, that on 1 October 1996 Mr Woodhouse said that he was not in attendance 'as a lawyer', that the issues in dispute between the plaintiff and the defendants as at 1 October 1996 were not discussed, and that it was not until the conclusion of their meeting that the letter of termination was handed by Mr Woodhouse to the plaintiff.
 In the circumstances referred to by Mr Dugan (a senior associate employed by the plaintiff's solicitor) and the plaintiff in their respective affidavits, it is difficult to see how a relationship of solicitor and client might have existed between the first defendant and Mr Woodhouse.  If, by the letter, Mr Woodhouse was instructed to speak to the plaintiff about resigning from the first defendant's employment but if that were unsuccessful to hand him the letter of termination, I cannot see that that would be covered by legal professional  privilege."
11 With due respect to Mr Gray, these are matters of evidence, not of law and the easiest, surest way for the Master to come to a conclusion is by looking at the letter.  He has properly exercised his discretion to do so and I cannot, even if I wanted to (which I do not), interfere.
12 There are a couple of other points I should mention.
13 As is permissible at the interlocutory stage, evidence by affidavit may be hearsay. The Master has mentioned that some of the information in Mr Feary's affidavit is hearsay. Mr Roberts has sworn an affidavit confirming, from his own knowledge I am told, the information given by Mr Feary. Mr Gray was keen that I should receive that affidavit. Mr Jonathan Wells QC (with Mr Paul Dugan for the plaintiff) demurred. Before I may receive fresh evidence it must pass the test that it could not have been given to the Master. Obviously this affidavit does not pass that test. He referred me to the remarks of Mullighan J in George v Dowling (1992) 57 SASR 579 @ 582. Having looked at them I agree with my brother Mullighan. I did not, nor will I, receive Mr Roberts' affidavit.
14 The second point is one taken by Mr Wells that the appeal is incompetent because the Master has not made "an order, decision or judgment" as contemplated by Rule 106.05(2)(b). Mr Wells skated round what it may be by using the word "direction": the Master has "directed" that he see the letter. I am against Mr Wells on this. The words "order, decision or judgment" are about as wide as I can imagine. The true position here, I suggest, is that the Master has "decided" that he should inform himself by seeing the letter: he has made a "decision" to call for it. That decision is appealable, pursuant to the Rule. I have come to this conclusion bearing in mind the words of King CJ in Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126 @ 127.
15 The appeal is competent but it is dismissed.

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