Verson International Clearing Pty Ltd v Ward and Partners No. SCGRG 96/601 Judgment No. 5909 Number of Pages 12 Legal Practitioners

[1996] SASC 5909

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA PERRY, LANDER AND COX JJ

CWDS
Legal practitioners - solicitor and client - a firm of practitioners acted for an insurer and, in the exercise of its right of subrogation, for the insured in the defence of District Court proceedings for damages arising from a work related injury in which the insured, the employer of the plaintiff, was defendant - a member of the firm furnished two opinions to the insurer on its instructions, which included, inter alia, advice as to its obligation to indemnify the insured - subsequently it ceased to act for the insured and purported to continue acting only for the insurer, which denied liability to indemnify the insured - held on appeal that a Master correctly exercised the discretion conferred by s39 of the Legal Practitioners Act 1981 to order delivery up to the insured of the two opinions, being "papers ... relating to proceedings taken ... by the practitioner or former practitioner on behalf of" the insured - furthermore, the opinions were not the subject of legal professional privilege vis a vis the insured. Legal Practitioners Act 1981s39; Workers Rehabilitation and Compensation Act 1986s54(1), referred to. Grant v Downs (1976) 135 CLR 674, considered.

HRNG ADELAIDE, 12 September 1996 (hearing), 4 December 1996 (decision) #DATE 4:12:1996 #ADD 29:1:1997

Counsel for appellants:     Mr S Walsh QC with him Mr M Steele

Solicitors for appellants:    Ward and Partners

Counsel for respondent:     Mr N Swan

Solicitors for respondent:    Elston and Gilchrist

ORDER
appeal dismissed.

JUDGE1 Perry J1. The appellant, a firm of solicitors, appeals against an order made by a Master that it deliver up to the respondent its file, or "a legible copy of the contents of its file", with respect to a District Court action in which the respondent is one of two defendants.

1. The District Court action was commenced in 1993. In it the plaintiff, Douglas Merritt, sues General Motors Holdens Automotive Ltd ("GMH") and the respondent for injuries alleged to have been suffered on 12 December 1990 when Mr Merritt suffered a fall during the course of his work as an electrician at GMH's premises at Elizabeth.

2. The respondent had previously contracted with GMH for the installation of certain equipment at the latter's premises. Mr Merritt's services were provided by an employment agency, Chandler Industrial ("Chandler"), pursuant to a contract between Chandler and the respondent.

3. At all relevant times SGIC was the insurer of the respondent pursuant to a policy known as a "combined business commercial" policy of insurance.

4. Acting pursuant to its right of subrogation, SGIC instructed the appellant on 27 August 1993 to conduct the respondent's defence to the District Court action. Ms Rositano, a member of the appellant firm, filed an appearance to the District Court proceedings in the name of the respondent, and subsequently, in March 1994, she filed a defence on its behalf.

5. On a date which is not entirely clear from the papers, SGIC engaged an assessor to investigate the circumstances of the accident in question. Ms Rositano had some discussions with the assessor leading up to September 1994, when she received the assessor's report. The assessor had in the course of his investigations spoken to employees of the respondent. According to an affidavit filed in this Court by Ms Rositano, when she received the assessor's report in September 1994, she decided that she should seek the opinion of counsel. She did so by a written memorandum directed to Mr Davis of counsel. In fact Mr Davis was, and is, a partner in the appellant firm.

6. Mr Davis prepared what Ms Rositano describes as a preliminary opinion in the form of a memo to Ms Rositano dated 20 April 1995. A further opinion was given by Mr Davis by a letter addressed to SGIC dated 8 August 1995. Subsequently, on the instructions of SGIC, Ward and Partners indicated to the respondent by letter dated 9 August 1995 that "in the course of investigating the circumstances of the claim" they had given consideration to "the nature of the relationship" between the respondent and Mr Merritt at the time of the accident. For reasons which they explain briefly, they go on to express the view that at the time he suffered the fall, the relationship between Mr Merritt and the respondent was that of employee and employer. The appellant asserts in the letter that if Mr Merritt was the employee of the respondent at the time, this gave rise to two consequences.

7. In the first place, he would be prevented by s54(1) of the WorkersRehabilitation and Compensation Act 1986 from recovering against the respondent anything other than WorkCover benefits. The letter continues:
    "The second consequence is that you are not indemnified by SGIC
    in relation to Mr Merritt's claim. Specific Exclusion 3 on page
    17 of the attached policy states that SGIC is not liable for
    claims submitted by a person in your service for which liability
    is provided under Workers Compensation legislation.We are
    therefore obliged to give you notice that in view of the fact
    that SGIC considers that Mr Merritt was your employee at the
    relevant time, your company is not indemnified against this claim
    and you should consult Workcover and/or arrange your own legal
    representation in the District Court proceedings as soon as
    possible.The current position in the proceedings is that we
    advised the District Court Master at an interlocutory hearing
    today that we could no longer represent your company in the
    proceedings. As a consequence the proceedings have been
    adjourned to a further interlocutory hearing on 23rd August 1995
    at 9.55 am. The court has ordered that you should file an
    Amended Defence and that order should be complied with by the
    solicitors who take over your representation."

8. With the letter the appellant attached copies of the District Court summons and subsequent pleadings. Also enclosed was a document described as an "amended defence" of GMH. Presumably that was the amended defence which the appellant suggested to the respondent should be filed by the solicitors who took over its representation. That document is not before this Court, but I assume that unlike the defence filed by the appellant, the amended defence was intended to raise s54(1) as a defence or partial defence to the action.

9. Following its receipt of the appellant's letter, the respondent engaged another firm of solicitors, Elston and Gilchrist, to act on its behalf. Mr Swan of that firm took over the conduct of the defence on behalf of the respondent.

10. Mr Swan contacted Ward and Partners seeking the release of further documents. It is not clear just what documents he sought, but at all events, under cover of a letter dated 18 August 1995 the appellant released three further documents.

11. In the letter the appellant states:"We have now obtained our client's instructions to release to you the following documents:-1. Record of Interview of Michael John Harrison.2. Record of Interview of Robert Dean George Trenwith.3. Documents from Chandler Industrial Recruitment.We further confirm that the records of interview are released on the basis that our client does not waive privilege over any other documents related to this matter."

12. Not satisfied with that response, by letter dated 12 September 1995 Mr Swan sought from the appellant copies "of all the documents, including counsel's opinion, obtained in respect of the defence of the District Court action". There was no response from the appellant to that letter or to a further follow-up letter prior to the institution of these proceedings by a summons issued on 28 February 1996.

13. In the summons the respondent sought an order for the delivery up to the respondent of what amounted to the balance of the appellant's file, apart from the documents which had already been released.

14. After hearing argument, a Master granted the application. He published brief reasons for his decision. It is from that decision that the appeal is brought to this Court.

15. I should add to what I have observed as to the history of the matter, that before the matter came to be dealt with by the learned Master, SGIC had been joined by the respondent as a third party to the District Court proceedings.

16. The application was based on 39(1) of the Legal Practitioners Act1981. That section provides:
    "39(1) The Supreme Court may, on the application of any person,
    order a legal practitioner or former legal practitioner to
    deliver up papers -
    (a) held by the practitioner or former practitioner on behalf of
    the applicant; or
    (b) relating to proceedings taken or work done by the
    practitioner or former practitioner on behalf of the
    applicant.

(2) The powers conferred by subsection (1) may be exercised
    notwithstanding the existence of a lien on the papers.

(3) An order may be made under this section on such terms and
    conditions as the Supreme Court thinks fit and, in particular, on
    conditions protecting the rights of the legal practitioner or
    former legal practitioner to costs for legal work done by the
    practitioner on behalf of the applicant."

17. It was put to the learned Master that the proceedings before him were an abuse of process in that they represented an attempt to obtain by means of an order under s39, access to documents which could not be obtained by the ordinary process of discovery in the third party proceedings in the District Court.

18. In my opinion, the learned Master correctly dismissed that argument. Whether or not the respondent's rights as to discovery as against SGIC could, if fully exercised, give rise to the production of the same, or a copy of the same, documents as those which comprise the target of the orders sought in the application before the Master cannot affect the respondent's rights pursuant to s39 vis a vis the appellant.

19. In the course of his reasons the learned Master said:"S39(1)(a) refers to papers 'held by the practitioner É on behalf of the applicant'. That would seem to contemplate a situation where solicitors were said to hold papers on behalf of a client who was responsible for the payment of the solicitors' costs. But s39(1)(b) refers to papers 'relating to proceedings taken or work done by the practitioner É on behalf of the applicant'. In my view, the company comes within the ambit of paragraph (b). The papers held by the solicitors relate to work done by the solicitors on behalf of the applicant in respect of the District Court proceedings. It is true that the work was also done on behalf of the insurer but in light of my findings set out above, the solicitors must also be taken to have been acting for the company in the defence of the District Court action.the District Court proceedings does not necessarily mean that the file must be produced. S39 of the Legal Practitioners Act confers a discretion upon the Court. In ordinary circumstances, in the absence of a lien, once the relationship of the solicitor and client is established, it would follow that an order for delivery up of the papers should be made. This is not an ordinary case. SGIC retained the solicitors and was liable for the fees. The documents held by the solicitors may be said to be held by them on behalf of SGIC (s39(1)(a)). SGIC is now a third party in the District Court proceedings. If the solicitors file is produced, the company will be aware of the assessor's report and counsel's opinion. That seems to me to be the only disadvantage to SGIC and I do not consider that it is sufficient to preclude an order for production. They each have, after all, a common interest as to the applicability of s54(1) of the WR and C Act. The company should not have to carry out again the work already completed on its behalf in relation to the defence of the proceedings."

20. He then went on to make the order under appeal.

21. Following the institution of the appeal and before it came on for hearing, the appellant voluntarily released to the solicitors for the respondent the assessor's report which was one of the documents in issue. We were informed by counsel for the appellant that this was on the footing that his client waived privilege with respect to that document, without abandoning its argument that the document was privileged and that there was no legal obligation to release it to the respondent.

22. This meant that the appeal proceeded as to two documents only, namely, the two opinions furnished by Mr Davis.

23. Put shortly, the argument put by the appellant before this Court was that the two opinions were brought into existence for the sole purpose of advising SGIC and not for the purpose of advising the respondent; that the documents were therefore subject to legal professional privilege; that that privilege belonged to SGIC to the exclusion of the respondent; and that s39 of the Legal PractitionersAct, properly construed, did not operate to destroy any privilege attaching to papers in the hands of the legal practitioner to which the section might otherwise be of application.

24. In almost all conceivable circumstances where s39 may be invoked, there would not be any basis for a claim for privilege. That would appear to be so with respect to both limbs of s39(1). As to s39(1)(a), it is hard to imagine a claim for privilege arising which could operate to defeat a claim for a delivery up of papers held by a legal practitioner "on behalf of the applicant". Likewise as to s39(1)(b), it is hard to imagine circumstances in which a claim for privilege could properly be advanced with respect to papers relating to "proceedings taken or work done" by a legal practitioner on behalf of the applicant.

25. In this case the claim for privilege arises notwithstanding the fact that, as I have indicated, such a claim does not sit comfortably with most circumstances to which this section will be of application, by reason of the fact that the appellant was acting for two parties whose interests eventually diverged.

26. That situation should never have arisen. When a solicitor acts for an insurer exercising its right of subrogation under a policy of insurance and conducts the defence of proceedings in the name of the insured, there is always the potential that the interests of the insurer may not coincide with those of the insured. The existence of the potential for that to happen does not have any effect upon the ability of the solicitor properly to act for both. But if at any stage the insurer raises any question such as its obligation to indemnify the insured, the solicitor cannot continue to act for both. A solicitor cannot act for two clients whose interests conflict.

27. Although the appellant effectively ceased to act for the respondent when it wrote the letter dated 9 August 1995, it should have ceased acting for it earlier than that. Once it was apparent that a question arose as to the liability of SGIC to indemnify the respondent, the appellant should have intimated to SGIC that it was not in a position to offer any advice as to that, but that SGIC would have to engage other solicitors if they wished advice or legal representation as to that aspect of the matter.

28. The letter of 9 August includes a clear intimation made by the appellant on behalf of SGIC that the latter was under no obligation to indemnify the respondent with respect to Mr Merritt's claim. That intimation was no doubt in consequence of the advice tendered by Mr Davis. To the extent that the advice dealt with SGIC's obligation to indemnify the respondent, it should not have been given while the appellant acted for the respondent. The appellant should have diverted SGIC elsewhere when the need to give advice on that topic arose.

29. I recognise that the appellant's position was difficult. The question whether Mr Merritt was to be regarded as an employee of the respondent was central both to the availability of a defence to his claim based on s54(1) of the Workers Rehabilitation and CompensationAct and to the question whether or not SGIC was obliged to indemnify the respondent. While this made it more difficult for the appellant properly to act both for SGIC and the respondent, it was nonetheless possible for it to draw the line at offering any comment or advice to SGIC as to its liability under the policy. That is the course which should have been followed.

30. Be that as it may, in the events which have happened it is nonetheless necessary to address the question of the applicability of s39 to the two documents now in question, namely, the two opinions furnished by Mr Davis.

31. I accept the appellant's contention that s39 does not abrogate the entitlement of a party to claim privilege with respect to papers made the target of an application under the section, or the solicitor's obligation to raise the client's claim for privilege in the exceptional circumstance that such a claim arises with respect to papers sought to be delivered up under the section.

32. However, here no proper foundation was laid to support the claim for privilege. No proper evidentiary foundation is established in any of the affidavits filed in support of or in opposition to the application by the respondent which could support the conclusion that either of Mr Davis's opinions were brought into existence for the sole purpose of the giving of legal advice or for use in legal proceedings with respect to the question of SGIC's obligation to indemnify the respondent.

33. No objection was taken by either counsel on the hearing of the appeal to this Court perusing the two opinions. While my perusal of the two opinions fully supports the conclusion which I have just expressed, I have reached the view that the decision as to whether or not the documents are privileged should properly be based upon a consideration of the other evidence placed before the Court. I take that view as it is for a party who asserts that legal professional privilege attaches to documents to satisfy the court by evidence from the author of the documents or otherwise that the circumstances in which the documents were created satisfies the sole purpose test.

34. An affidavit was sworn by Ms Rositano which recites in outline the history of the appellant's conduct of the matter. Relevant paragraphs of her affidavit are as follows:
    "14. When I received the assessor's report in September 1994 I
    perused same and decided that I should seek the pinion of counsel
    which I did by written Memorandum dated 27 September 1994
    directed to Michael Davis of counsel.

35. A preliminary opinion was obtained from Counsel on 20 April
    36. Counsel sought further information which was supplied to
    him. A further opinion was obtained on 8 August 1995.

37. After receipt of counsel's Opinion the letter dated the 9th
    August 1995 was sent by certified mail to Verson which is exhibit
    CSES3 attached to the Swan Affidavit. To that time I had acted
    in the interests of SGIC from whom I had received instructions
    and Verson ...

38. All instructions received and communications made in this
    matter have been between SGIC and Ward and Partners. I have not,
    nor to my knowledge has any other member of Ward and Partners,
    spoken to any representative of Verson at any time in the course
    of the conduct of the file. I have not and do not intend to,
    send any account of my fees to Verson for payment by it ..."

39. There is nothing in those paragraphs of Ms Rositano's affidavit to suggest that the appellant did anything other than take the steps which are appropriate where the solicitor is acting on the instructions of the insurer in defence of proceedings brought against the insured, except for the sending of the letter of 9 August 1995. At no stage does she identify the purpose for which the opinions of Mr Davis were furnished. Neither her affidavit nor any other material before the Court could possibly be regarded as providing a basis for the conclusion that the sole purpose test was satisfied.

40. Mr Walsh QC of counsel for the appellant put the argument that in a practical sense the advice given and the steps taken by the appellant from the time they were first instructed by SGIC were for the purposes of SGIC alone to the exclusion of the respondent. He submitted that the two opinions in question had been brought into existence for the sole purpose of submission to SGIC and that this meant that they were privileged vis a vis the respondent.

41. But with respect to Mr Walsh QC, to put the argument in that way confuses the real issue. That argument could only be successful in the context of a claim for privilege if the opinions were strictly confined to the question of SGIC's obligations vis a vis the respondent. Such a situation might have arisen, for example, if independent counsel had been briefed simply to advise on that question alone.

42. But if Mr Davis (as opposed to independent counsel) had purported to advise simply on that question, given that he was a member of the same firm acting for the respondent, this may still have posed a difficulty.

43. However, it is unnecessary further to pursue that aspect of the matter given that, as I have indicated, no proper basis was established in the material put before the learned Master which could properly lead to the conclusion that the sole purpose test was satisfied.

44. It does not follow that an order should properly have been made under s39. The section identifies a discretion which, on the face of it, is at large. There is no apparent reason why the discretion should not be exercised in favour of the respondent's application.

45. The appellant put itself in a position of conflict by continuing to act in circumstances in which it should have ceased to do so. Mr Davis's opinion as to the liability of SGIC to indemnify the respondent insofar as that is one of the matters (but not the only matter) dealt with in his opinions, must necessarily turn upon a consideration of the question of Mr Merritt's status as an employee of the respondent. That is an issue which, as I have explained, is central to one aspect of the defence which the respondent wishes to pursue against Mr Merritt's claim. The opinions must necessarily be taken to relate not only to the question of indemnity under the policy, but also to the respondent's defence to the District Court proceedings. That defence is "a proceeding" taken by the practitioner on behalf of the respondent within the meaning of s39(1)(b).

46. There do not appear to be any substantial countervailing considerations. No doubt it may be a source of some embarrassment for SGIC that its solicitors should have to hand over the two opinions. But while acting for two clients, a solicitor cannot give advice to one of them to the exclusion of the other. If he or she does so, the advice should be made available to both.

47. In any event, there is nothing in the two opinions (the contents of which I take into account for the purpose of determining the soundness of the Master's exercise of the discretion, as opposed to the question of privilege) which could cause any serious harm to the exercise by SGIC of whatever rights it may have vis a vis the respondent.

48. In my opinion, the Master correctly exercised the discretion in favour of the respondent.

49. I would dismiss the appeal.

JUDGE2 Lander J
50. The facts in relation to this appeal are set out in the judgment in the reasons for judgment of Perry J which I have had the advantage of reading in draft. I agree in substance with His Honour's reasons and conclusions but I wish to add a few words for myself.

51. The contract of insurance by which SGIC undertook to indemnify the respondent required inter alia that the respondent provide SGIC with all particulars and information that the insurer might require and give all information and assistance that the insurer might require in the defence or settlement of any claim.

52. The contract also provided:"We (SGIC) shall have full discretion in the conduct of any negotiations and the settlement of any claims."

53. SGIC purported to assume conduct of the defence on behalf of the insured and instructed the appellant on 27 August 1993 accordingly.

54. In accepting instructions from SGIC to conduct the respondent's defence in the District Court proceedings the appellant not only undertook a solicitor and client relationship between itself and SGIC, but immediately upon accepting those instructions from SGIC entered into a solicitor and client relationship with the respondent. From the time when the appellant was originally instructed it owed all of the obligations, including fiduciary obligations, arising out of a solicitor and client relationship to both SGIC and the respondent.

55. In re Crocker (1936) 1 Ch 696 at 701 Clauson J said:
    "It was in accordance with that condition that the selection of
    the solicitors to act for the applicant in the action was made.
    The selection was admittedly made by the insurance company, and
    they employed solicitors who, I presume, though I do not know
    that this is material, are frequently employed in such matters by
    the insurance society. In virtue of that condition and under the
    authority which the insured accordingly gave to the insurance
    company to select the solicitor and to have the absolute conduct
    and control of proceedings the action was carried on. I wish to
    emphasise this, that throughout - and this, of course, is not in
    dispute - the solicitors though selected by the insurance
    company, were in all matters concerned with the action solicitors
    for the present applicant who was a party to the action (the
    insurance company, I may remark parenthetically, not being
    parties to the action), and it is in respect of the duties which
    the solicitors owe to the applicant as being solicitors for him
    that the right of the applicant arises to have access to all the
    documents concerned with the matter in which the solicitors were
    acting as solicitors for him."

56. In later litigation involving the same parties (Groom v Crocker
(1939) 1KB 194) the Court of Appeal approved the statement of principle by Clauson J. See also Halsburys Laws of England 4th Edition (Reissue) Vol 25 para 104; The Laws of Australia Vol 27.3 para 5; Sutton Insurance Law in Australia 2nd Edition at 832.

57. It must be that the appellant was, upon accepting those instructions, in a solicitor client relationship with the respondent because thereafter the appellant acted in the proceedings ostensibly for the respondent, and thereafter the respondent needed to be protected in its own right in relation to those proceedings. There can be no doubt in my opinion that the solicitor client relationship between the appellant and the respondent arose at the same time as a solicitor client relationship arose between the appellant and SGIC.

58. When those co-existing solicitor client relationships arose the appellant was under a duty to act in the best interests of both SGIC and the respondent and it was not entitled to prefer one of its clients to the other or to put one of its clients interests ahead of the interests of the other client. Therefore it could only act for both of the clients whilst there was no potential or actual conflict of interest between those two clients.

59. Moreover when the potential for a conflict of interest arose between the two clients the solicitors were not only thereafter not entitled to act for the respondent, they were thereafter disentitled to act for SGIC, because to do so would be to prefer one client to the exclusion of the other and when that potential for a conflict of interest between SGIC and the respondent arose, the appellant had an obligation to advise both SGIC and the respondent that they must seek advice from independent solicitors.

60. The obligation to give that advice to both the insurer and the insured arose as soon as there was a potential for a conflict of interest. That is so because as soon as the potentiality arose then of course the appellant was not in a position to be able to give advice to one of SGIC or the respondent to the exclusion of the other.

61. Reliance was placed by the appellant upon the fact that the advice which was given was given by "counsel" rather than by the solicitor who had the day to day carriage of the file.

62. The person who gave the advice was a partner of the person who had direct responsibility for the file. Whilst that person may be described as "counsel" or "in-house counsel" the fact of the matter is that that person was no more independent of the insurer and the insured than the partner from whom he took his instructions. He was as much bound by the solicitor client relationship with both the insurer and the insured as was the partner who had the day to day management of the file. He cannot be placed in a better position by being described as "in-house counsel".

63. In my opinion therefore the appellant ought to have advised both the insurer and the insured that it could not act as soon as it appeared to it that there was a possibility that the respondent would not be entitled to indemnity under the policy. At that stage both of the parties ought to have been advised that they needed to obtain separate advice in relation to that matter.

64. That would mean that the appellant ought to have ceased acting by 20 April 1995 if not earlier. It was inappropriate for the solicitors to thereafter offer an opinion to SGIC, which it did on 8 August 1995 which opinion gave advice and made recommendations to SGIC adverse to its other client, the respondent. The appellant did not claim to cease to act for the respondent until 9 August 1995.

65. There can be no doubt that the appellant had been acting for both SGIC and the respondent to that date. As the letter of 9 August 1995 discloses the appellant had appeared on behalf of the respondent in the District Court that day.

66. The letter of 9 August 1995 contained this advice to the respondent.
    "We are therefore obliged to give you notice that in view of the
    fact that SGIC considers that Mr Merritt was your employee at the
    relevant time, your company is not indemnified against this claim
    and you should consult Workcover and/or arrange your own legal
    representation in the District Court proceedings as soon as
    possible.The current position in the proceedings is that we
    advised the District Court Master at an interlocutory hearing
    today that we could no longer represent your company in the
    proceedings. As a consequence the proceedings have been
    adjourned to a further interlocutory hearing on 23rd August 1995
    at 9.55am. The court has ordered that you should file an Amended
    Defence and that order should be complied with by the solicitors
    who take over your representation."

67. The communication also shows that the appellant had already received an instruction from SGIC contrary to the interests of the respondent, and the appellant had accepted the instruction and acted upon it. That is apparent from the first paragraph to which I have referred.

68. Moreover the second paragraph referred to above shows that the appellant advised the Court before it advised it's client, the respondent, that it would no longer act for the respondent.

69. It is not clear from the letter whether the appellant purported to act for the respondent in relation to the order made by the Court that an Amended Defence should be filed. Such an order would have been in the interests of SGIC, because it would allow for the raising of a defence, which would have allowed if successful SGIC to escape a liability to indemnify. However whilst the defence would have also allowed the respondent to avoid liability in the proceedings, the defence apparently by reason of SGIC's attitude put the respondent to the expense of defending itself. That was not necessarily in the respondent's best interests.The two documents which were sought by the respondent were prepared by the appellant at a time when they were acting for both the insured and the insurer and at a time when in my opinion they ought not to have been acting for either.

70. Since the appellant has declined to act for the respondent, the respondent has joined the SGIC as a third party in the proceedings in the District Court. Of course the letters the subject of this application will have to be discovered in those other proceedings. Whether the discovery of these documents will give right to a rise of inspection depends upon whether or not those documents are subject to legal professional privilege.

71. I agree with Perry J that in the circumstances of this case SGIC would not be entitled to claim legal professional privilege in respect of either communication, because it would not be able to satisfy the sole purpose test.

72. I also agree, as there can be no claim for privilege, that the documents are of a kind that must be produced pursuant to s39 of the Legal Practitioners Act.

73. I agree that the appeal ought to be dismissed.

JUDGE3 Cox J
74. In my opinion this appeal should be dismissed. I agree with the reasons of Perry J.