Trade Practices Commission v Sterling

[1979] FCA 59

TRADE PRACTICES COMMISSION v. STERLING (1979) 36 FLR 244
Evidence

COURT

FEDERAL COURT OF AUSTRALIA

GENERAL DIVISION
Lockhart J.(1)

CATCHWORDS

Evidence - Discovery and inspection - Legal professional privilege - Inspection by court - Principles applicable to consideration of claim of legal professional privilege discussed.

HEADNOTE

The applicant objected to the production of certain documents listed in its affidavit of discovery on the ground of legal professional privilege. On the respondent's application for inspection,

Held: (1) The court, being in doubt as to whether the documents as described fell within the category of legal professional privilege, should examine the documents and satisfy itself that the claim was well founded.

Grant v. Downs (1976), 135 CLR 674, followed.

Westminister Airways Ltd. v. Kuwait Oil Co. Ltd., (1951) 1 KB 134, considered.

(2) The principles laid down in Grant's case relate to the question of privilege attaching to communications and materials submitted by a client to his legal adviser for the purpose of legal advice or for use in existing or anticipated litigation: they do not affect other well-established categories of legal professional privilege.

HEARING

Sydney, 1979, May 22-24; June 8, 15. #DATE 15:6:1979

TRIAL OF ACTION.

During the course of the trial an order for mutual discovery and inspection of documents was made. In its affidavit the applicant objected to the production of certain documents on the grounds of legal professional privilege as follows: "(b) documents numbered from 24 to 52 inclusive are communications passing, directly or through an agent, between the applicant's legal adviser and a non-professional agent or third party which came into existence after this proceeding was contemplated and which were made with a view to this proceeding for the purpose of obtaining evidence to be used in it, or of obtaining information which might lead to the obtaining of such evidence."

Details sufficient to identify each document were then set out in Pt II of the schedule. The respondent sought inspection of the documents.

D.M.J. Bennett and Susan Crennan, for the applicant.

J.H. Tuchen and N.A. Cotman, for the respondent.

Cur. adv. vult.

Solicitor for the applicant: Alan R. Neaves (Commonwealth Crown Solicitor).

Solicitors for the respondent: J.W. Walker & D.K.L. Raphael.

D. LEVIN

JUDGE1

June 15.

The following judgment was delivered.

LOCKHART J. (After setting out the facts, continued:) The sole ground advanced by the respondent to support its application for inspection of the documents is that the claim for legal professional privilege is bad on its face as the language of par. 5(b) and of Pt II of the schedule to the affidavit does not fall within any recognized head of legal professional privilege. . . . (at p245)

1. The applicant does not suggest that the court has no power to make the orders sought by the respondent. Hence the matter falls for determination in accordance with the well-established principles relating to discovery and inspection to which I shall now turn. (at p245)

2. Legal professional privilege extends to various classes of documents including the following: (at p245)

3. (a) Any communication between a party and his professional legal adviser if it is confidential and made to or by the professional adviser in his professional capacity and with a view to obtaining or giving legal advice or assistance; notwithstanding that the communication is made through agents of the party and the solicitor or the agent of either of them. See Wheeler v. Le Marchant (1881) 17 Ch D 675 ; Smith v. Daniell (1874) LR 18 Eq 649 ; Bullivant v. Attorney-General for Victoria (1901) AC 196 ; Jones v. Great Central Railway Co. (1910) AC 4 , and O'Rourke v. Darbishire (1920) AC 581 . (b) Any document prepared with a view to its being used as a communication of this class, although not in fact so used. See Southwark Water Co. v. Quick (1878) 3 QBD 315 . (c) Communications between the various legal advisers of the client, for example between the solicitor and his partner or his city agent with a view to the client obtaining legal advice or assistance. See Hughes v. Biddulph (1827) 4 Russ 190; 38 ER 777 . (d) Notes, memoranda, minutes or other documents made by the client or officers of the client or the legal adviser of the client of communications which are themselves privileged, or containing a record of those communications, or relate to information sought by the client's legal adviser to enable him to advise the client or to conduct litigation on his behalf. See Woolley v. North London Railway Co. (1869) LR 4 CP 602, at p 604 ; Greenough v. Gaskell (1833) 1 My & K 98, at p 102; 39 ER 618, at p 620 ; Corporation of Bristol v. Cox (1884) 26 Ch D 678, at pp 681-682 ; Woolley v. Pole (1863) 14 CBNS 538; 143 ER 556 ; Seabrook v. British Transport Commission (1959) 1 WLR 509 ; Grant v. Downs (1976) 135 CLR 674 , and Bray, Principles and Practice of Discovery (1885) pp. 388-389. (e) Communications and documents passing between the party's solicitor and a third party if they are made or prepared when litigation is anticipated or commenced, for the purposes of the litigation, with a view to obtaining advice as to it or evidence to be used in it or information which may result in the obtaining of such evidence. See Wheeler v. Le Marchant (1881) 17 Ch D 675 ; Laurenson v. Wellington City Corporation (1927) NZLR 510 , and O'Sullivan v. Morton (1911) VLR 70 . (f) Communications passing between the party and a third person (who is not the agent of the solicitor to receive the communication from the party) if they are made with reference to litigation either anticipated or commenced, and at the request or suggestion of the party's solicitor; or, even without any such request or suggestion, they are made for the purpose of being put before the solicitor with the object of obtaining his advice or enabling him to prosecute or defend an action. See Wheeler v. Le Marchant (1881) 17 Ch D 675 ; Cork v. Union Steamship Co. (1904) 23 NZULR 933 , and In Re Holloway (1887) 12 PD 167 . (g) Knowledge, information or belief of the client derived from privileged communications made to him by his solicitor or his agent. See Kennedy v. Lyell (1883) 23 Ch D 387 and Lyell v. Kennedy (No. 2) (1883) 9 AC 81 . (at p246)

4. It is not open to doubt that the court has power, in a proper case, to inspect documents where a claim of privilege is made to resist an application for inspection of documents by the opposite party. See Grant v. Downs (1976) 135 CLR 674 , and Westminster Airways Limited v. Kuwait Oil Co. Limited (1951) 1 KB 134 . However, it is as well to bear in mind what was said by Jenkins L.J. in Westminster Airways Limited v. Kuwait Oil Co. Limited: "But there is nothing in the rule, or in the authorities, to constrain the court to hold that, in every case where a claim to privilege is made and disputed, the party seeking production is entitled to come to the court and (as it were) demand as of right that the court should go behind the oath of the opposite party and itself inspect the documents. The question whether the court should inspect the documents is one which is a matter for the discretion of the court, and primarily for the judge of first instance. Each case must depend on its own circumstances; but if, looking at the affidavit, the court finds that the claim to privilege is formally correct, and that the documents in respect of which it is made are sufficiently identified and are such that, prima facie, the claim to privilege would appear to be properly made in respect of them, then, in my judgment, the court should, generally speaking, accept the affidavit as sufficiently justifying the claim without going further and inspecting the documents" (1951) 1 KB, at p 146 . (at p247)

5. In Grant v. Downs Stephen, Mason and Murphy JJ. said: "It is well accepted that the court in allowing production and inspection of documents exercises a judicial discretion. In so doing it needs to scrutinize with care claims of privilege made on the ground now under consideration. It is for the party claiming privilege to show that the documents for which the claim is made are privileged. He may succeed in achieving this objective by pointing to the nature of the documents or by evidence describing the circumstances in which they were brought into existence. But it should not be thought that the privilege is necessarily or conclusively established by resort to any verbal formula or ritual. The court has power to examine the documents for itself, a power which has perhaps been exercised too sparingly in the past, springing possibly from a misplaced reluctance to go behind the formal claim of privilege. It should not be forgotten that in many instances the character of the documents the subject of the claim will illuminate the purpose for which they were brought into existence" (1976) 135 CLR, at pp 688-689 . (at p247)

6. I reached the conclusion that I should inspect the documents numbered 24 to 52 inclusive, not because each party agreed that I could do so if I wished, but because I had some doubt as to whether the description of the documents in par. 5(b) of the affidavit and in Pt II of the schedule fell within the recognized categories of exclusion from inspection. I was also mindful of the passage from the judgment of the majority in Grant v. Downs which I have extracted above and what was said by Barwick C.J. in that case as follows: "Whether or not a document does so qualify is a question ultimately to be decided, if need be, upon an inspection by the judge of the document itself, and by the application of the stated principle. I say 'if need be' because where the judge who hears the application for inspection may possibly be the trial judge, sitting without a jury, it may be better to decide the matter upon the evidence as to the purpose of the production of the document rather than upon an inspection of it, thus avoiding any complication which might arise from the document having been seen by the judge and privilege from inspection accorded to it" (1976) 135 CLR, at p 677 . (at p248)

7. Having inspected the documents, which were not numerous, I am satisfied that they are privileged from inspection by the respondent. . . . (at p248)

8. It was submitted by Mr. Tuchen of counsel for the respondent that Grant's case is authority for the proposition that legal professional privilege is confined to documents which are brought into existence for the sole purpose of their being submitted to legal advisers for advice or for use in legal proceedings. He submitted that the other categories of legal professional privilege, some of which I have set out above, although having been part of the law for well over a century have now gone. The submission fails. It is clear that the High Court in Grant's case was considering the relevant principles of law governing privilege attaching 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 and not otherwise (1976) 135 CLR, at p 682 . Grant's case has nothing to say as to the other well-established categories of legal professional privilege. (at p248)

9. For these reasons the application (of the respondent) fails. (at p248)

ORDER

Order accordingly.