Western Australian Government Holdings Ltd & Ors v Southern Equities Corporation Ltd & Ors; The State of Western Australia v Southern Equities Corporation Ltd & Ors (P12-93

[1993] HCATrans 253

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No Pl2 of 1993

B e t w e e n -

WESTERN AUSTRALIAN GOVERNMENT

HOLDINGS LTD

First Applicant

THE STATE OF WESTERN AUSTRALIA

Second Applicant

THE STATE ENERGY COMMISSION OF

WESTERN AUSTRALIA

Third Applicant

and

SOUTHERN EQUITIES CORPORATION LIMITED (Scheme Adminstrators

Appointed)

First Respondent

BOND PETRO~HEMICALS (NO 1) PTY

LTD

western 1 27/8/93

Second Respondent

BOND PETRO~HEMICALS (NO 2) ~TY

LTD

Third Respondent

Office of the Registry

Perth No Pl3 of 1993

B e t w e e n -

THE STATE OF WESTERN AUSTRALIA

Applicant

and

SOUTHERN EQUITIES CORPORATION

LIMITED (Scheme AdministratorE

Appointed)

First Respondent

BOND PETROCHEMICALS (NO 1) PTY

LTD

Second Respondent

BOND PETROCHEMICALS (NO 2) PTY

LTD

Third Respondent

Office of the Registry

Perth No Pl4 of 1993

B e t w e e n -

WESTERN AUSTRALIA GOVERNMENT

HOLDINGS LTD

First Applicant

THE STATE OF WESTERN AUSTRALIA

Second Applicant

THE STATE ENERGY COMMISSION OF

WESTERN AUSTRALIA

Third Applicant

and

Western 27/8/93

SOUTHERN EQUITIES CORPORATION

LIMITED (Scheme Administrators

Appointed)

First Respondent

BOND PETROCHEMICALS (NO 1) PTY

LTD

Second Respondent

BOND PETROCHEMICALS (NO 2) PTY

LTD

Third respondent

Applications for special leave

to appeal

MASON CJ
DEANE J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 27 AUGUST 1993, AT 9.37 AM

Copyright in the High Court of Australia

MR J.L. SHER, QC:  May it please the Court, I appear with my

learned friend, MR J.G. JUDD, for Western

Australian Government Holdings Limited.

(instructed by Clayton Utz)

MR E.M. HEENAN, QC:  May it please Your Honours, I appear

with my learned friend, MR P.J. JOPLING, for the

State of Western Australia. (instructed by P.A.

Panegyres, Crown Solicitor (Western Australia))

MR C.B. EDMONDS:  May it please Your Honours, I appear on

behalf of the State Energy Commission of Western

Australia. (instructed by Jackson McDonald)

Western 27/8/93

MR B.J. SHAW, OC: If the Court pleases, I appear with my

learned friend, MR K.J. MARTIN, for the respondents

in each of the applications. (instructed by Parker

& Parker)

MASON CJ:	Mr Sher.
MR SHER:	If the Court pleases. Your Honours, in this

matter each of the parties have prepared and sent

to the Court fairly detailed outlines. Could I

inquire from Your Honours whether the outline of the submissions of Western Australian Government

Holdings has been received by Your Honours?

MASON CJ: Yes.

MR SHER: Might I also assume that Your Honours are already

familiar with the content of that document?

MASON CJ:  I cannot say for my part that I have read the

document before, Mr Sher, I had not realized that

it had been filed and circulated.

MR SHER:  Yes. What each of us has done, Your Honour, is

set out in some detail the argument which we

advance, and if I could just shortly then tell

Your Honours the points that we make.

MASON CJ:  Mr Sher, I can quickly read through it and that

is probably the best thing to do.

MR SHER: If Your Honours read through it, I would take

about five minutes. I want to draw to

Your Honours' attention a very recent unreported

decision in the Supreme Court of Victoria, which is

squarely in point and which supports our

submissions. We have copies of that judgment here,

and I draw Your Honours attention to it.

MASON CJ: Well, you might hand that in while we are reading

the outline.

MR SHER:  We have better quality copies of our outline, if

Your Honour would prefer to read something that is

not on photostat material.

DEANE J: Mine is quite good.

MASON CJ: Yes, so is mine. Visual quality may be the best

thing about it.

MR SHER:  I hope not, Your Honour. I think that was

Mr Shaw's first point.

MASON CJ: Yes, Mr Sher.

Western	27/8/93
MR SHER:	Your Honours, the relevant evidence of Mr Siopis,

to which the outline refers, is found at page 64 of

the application book, and it is the only really

relevant factual matter that we submit is with

which the matter is concerned. Your Honours will

see that what happened before the royal commission

is that Mr Siopis, he was the solicitor for the

respondent in these proceedings - he was the

solicitor who was handling the matter and who was

responsible for the preparation of the document,

which was an affidavit sworn by a Mr Beckwith who

who had since died. The affidavit was subpoenaed

and he claimed privilege for it and at page 65 he

said:

It's in the petrochemical case proceedings -

Supreme Court proceedings. What happened was

that in March we were told Peter Beckwith was

very poorly and as a consequence of that we

took an affidavit from [him] in these very

proceedings. The sole purpose of the

affidavit, of course, was to file them ---

file the affidavit in due course when the

proceedings came on. It is out submission

that the -

KENNEDY C:

Does that come into the concept of seeking

advice?

SIOPIS MR:

No; it's a document which came into existence

solely for the purposes of existing

proceedings. That's the ground which we claim

the privilege on.

So that is the short factual background to the

creation of the document.

Your Honours, in our submissions we submit

that the law is in accordance with the High Court's

professional privilege, but in none of which the	frequent pronouncements in recent years on legal
question of lawyers' brief privilege or work
product privilege has been specifically considered.
But the essence of it, the rationale of it, is
confidentiality. Our submission is that unless a
document is intended when created to be kept
confidential, it does not satisfy the test of
confidentiality.

Mr Justice Hedigan's decision, in a decision

that was handed down ten days ago, can be added to
the five first instance decisions that we have

referred the Court to in paragraph 10 of our

submission in which different views have been

expressed about this topic by justices in different

Western 27/8/93

States and even within the same State.

Mr Justice Hedigan was concerned in Telebooth Pty

Ltd v Telstra Corporation Ltd that the question of

whether a tape recording and a transcript of a tape

recording of a conversation between parties to

litigation, which recording and transcript were

said to have been made solely for the purpose of

being submitted to the solicitors for the party,

were privileged.

DEANE J:  Mr Sher, are you not in one sense eliding the

issues? Must not the starting point be

Justice Seaman's conclusion at page 20 to the

effect - it is set out at page 14 of the appeal

book again:

"It must, in my view, follow that at the time

of its creation it was a matter for future

decision whether or not the affidavit would be

filed. Indeed, it was not axiomatic that it

would be filed or used."

I understand that you attack that, but so far

as we are concerned in granting leave, should we

not approach it on that basis to see what the legal
points then are, because unless you have a legal

point on that basis the primary question on any

appeal would be whether or not we disagree on that

narrow question of fact.

MR SHER:  Even if that view of the facts be accepted, we

submit that the decision is erroneous, because that

finding accepts that it was the intention to file

that document if thought appropriate. That is to

say, that it was clearly produced with a view to

the confidentiality being waived. Our submission

is that a document must be produced with the

intention it remain confidential at all times and

even the existence of the possibility that it cease

to be confidential, we say, is sufficient.

DEANE J:  I follow that, but that is a slightly different

point, that if we approach it on the factual basis you were first putting, that is that it was solely

produced for filing, whereas Justice Seaman points

out, using language in the ordinary terms, it could

not have been filed anyway.

MR SHER:  I appreciate Your Honour's point that we seem to

be challenging a finding of fact, and we do

challenge a finding of fact, but might I say in

answer to that, it does not matter whether the

solicitor was right or wrong about his view of what

could happen to this document. The judgment of

His Honour Justice Mason, in particular in Waind's

case, makes clear that it is the reason for which

the document is created that is the compelling

Western 6 27/8/93

reason. His Honour said at page 654 of National

Employers' Mutual General Insurance Association Ltd

v Waind, in dealing with two preliminary comments:

the argument did not always make clear the
distinction between the purpose for which the

information is obtained and the purpose for

which a document recording information is

brought into existence. It is the latter
purpose with which the law professional legal
privilege is concerned.

Here, the creator of the document said - and he may well have been wrong about this - "I created

it to file it". That, in our submission, is

enough, whether he is right or wrong.

DEANE J:  You are going back to what I was suggesting was

your problem and that is I can understand your

attack on Justice Seaman's factual conclusion,

which was the conclusion of the Full Court. I

think, though - and this is all I am suggesting to

you - that you should either approach the case on

the basis that the first question in the appeal

will be asking this Court to disagree with that

finding of fact or, alternatively, you approach it
on the basis that even accepting that finding of
fact, there is an important question of law. It
does not help me if you simply ignore that the
finding of fact lies before one can approach it on

the basis of the evidence you referred us to, and a question of law flowing from that. That was all my

interruption was aimed at bringing to your

attention.

MR SHER:  We do contend that, even on the finding of fact of

Mr Justice Seaman, carrying with it that the

document was produced to be, when a decision was

made, produced in court is sufficient for our

purposes, although we do, also, attack that finding

of fact. And we say the matter is so important, in	the context of this litigation and in relation to
general principle, and because this Court is in
just as good a position as anyone else on a very
short issue to determine the question of fact, it
should also, notwithstanding it is a factual matter, grant leave. But we do say, even on the finding of fact of Mr Justice Seaman, the decision
is erroneous.

DEANE J: In your submission, does anything turn on the fact

that Mr Beckwith had died?

MR SHER: Well, it does, because we contend that what should have happened here was that the provisions of Order

38, which are found in the rules of court in all

States and Territories, which provides for the

western 27/8/93

taking of evidence on deposition in circumstances

such as those which existed, and we have that rule

in a booklet and the relevant legislation.	Do
Your Honours have a copy of that?

MASON CJ:	No.
MR SHER:	I will hand up to Your Honours a booklet which

contains the Australia-wide provisions of the

Evidence Act equivalents and the rules. If I can

ask Your Honours to look firstly at the section of

the Act which is under tab 1, that is section 79C
of the Western Australian Evidence Act.

Your Honours will be familiar with this section because it has an equivalent in every State and

Territory. It is the well known section about the

admissibility of a statement in a document from a

person who had direct oral evidence of a fact,

provided the document is signed then the person

does not have to be called as a witness unless the

court requires it, and if they are dead, obviously

it cannot happen.

That section was at the background,

apparently, of the decision to get the affidavit.

So it has been concluded, although Mr Siopis did

not say that.

The alternative procedure available under the

rules of court is under tab 9, and Your Honours

will see Order 38 provides for evidence by

deposition and it is provided there that:

The Court may in any cause or matter, if

it appears necessary for the purposes of

justice, make an order in Form No 25 for the

examination of any witness or person upon oath

before a Judge, or an officer of the Court, or

any other person, at any place in the State.

If I can take Your Honours to rule 8(3), which

deals with the practice on such an examination. It

is provided that:

The examination shall take place in the

presence of the parties, their counsel,

solicitors or agents, or such as them as

choose to attend.

And there is a power to cross-examine under (1).

There is equivalent section to section 79C in

every State and Territory, and they are in this

booklet. There is equivalent order to Order 38 in

all the States and territories, so the question

really is one of Australia-wide importance.

Western 27/8/93

What they did here was that they had a man who was said to have had a brain tumour who was going

into hospital for some exploratory surgery. Rather
than take his evidence under Order 38 in which the

other parties would have been present, heard his

evidence, been able to cross-examine him, they set

out to produce an affidavit, as Mr Siopis says, to

file in the proceedings. In fact, the evidence

discloses they produced a number of affidavits from

Mr Beckwith. By taking that course, they denied

the other parties any opportunity to hear the

evidence of this critical witness, or test it.

They obviously decided that the affidavit was a

useful way to do it, because perhaps it gave it

more weight because it was on oath.

We say that that is unfair and if, in fact, it

was intended, as we say it clearly was, to disclose

that affidavit at some stage, even as a

possibility, they have used lawyers brief privilege

as a means of obtaining what we say is an unfair

forensic advantage, and our submission is that the

Court should not countenance such behaviour. It is

inconsistent with the public policy considerations which justify legal professional privilege itself,

and there is no reason why the existence of lawyers

brief privilege needs to protect such behaviour.

That in a nutshell, Your Honours, is really

the factual matrix which is virtually not in

dispute. The reason why we say the Full Court's

decision should be investigated is because it

upholds a decision of Mr Justice Seaman, where

His Honour has, in effect said, that you do not have to have a requirement of confidentiality in

lawyers brief privilege.

Now that, we say, runs counter to every

pronouncement of this Court in relation to legal

professional privilege, and it is a view not shared
by a member of the West Australian Supreme Court,

Mr Justice Anderson. It is a view that

Mr Justice Hedigan specifically rejects in this

recent decision that he has handed down. It is a

view that is challenged by Mr Justice French of the

Federal Court, and Mr Justice McClelland, of the

Supreme Court of New South Wales has come to the

view that, in the case to which we refer

Your Honours, some witness statements are protected

by legal professional privilege because they are

witness statements of people who give their
statements in confidence, but independent

witnesses' statements are not protected because

they are not given in confidence.

So, we have got this array of different views

of the judiciary throughout Australia as to the

Western 9 27/8/93

nature and content of what is said to be a branch

of legal professional privilege. The cases in

favour of this decision say confidentiality is

effectively irrelevant. All that has to happen is

that there needs to be a document produced for use

in the proceedings.

Now, Handley v Baddock is worth examining on

the facts because it is our submission it is an

extraordinary decision. The facts were simply

these: there was a slander action and one of the

issues was whether the defendant had, in fact,

published the words complained of. He rang the

solicitor for the plaintiffs and it was alleged in

that conversation he made admissions about

publication which, in his defence, he was denying.

The solicitor had made a contemporaneous note of

that conversation, and claimed privilege for it on

the basis that it was produced for the brief, and

that claim to privilege was upheld by

Mr Justice Seaman in Hadley v Baddock. In our

submission, it is an untenable decision. In our

submission, nothing could demonstrate more clearly

the need to examine this area of the law to ensure

that that sort of - and it has been approved by the

Full Court - conduct is not countenanced.

MASON CJ:	Mr Sher, I am not sure at the moment how far your submission extends. Is it confined to what you
regard as the true facts of this case, namely, that
there was an intention to file this affidavit
without more, and no intention to retain
confidentiality? Or does it extend even further,
so that if a party procured the swearing of an
affidavit for possible use in proceedings but reserved to itself a decision at a later stage as
to whether the affidavit would be used in
proceedings, do you say then it would be the
subject of privilege or not?

MR SHER:  No, we challenge that. We say it would not be the

privilege in those circumstances either.

MASON CJ:	You say it would not be the subject of privilege in those circumstances?
MR SHER:	Yes, and Mr Justice French
MASON CJ:	Now, why do you say that?

MR SHER: Because, in our submission, the essence of legal

professional privilege in any form, we submit, is

an intention that the communication enshrining the

document remain confidential - be and remain

confidential, and the possibility that that

confidentiality - - -

Western 10 27/8/93

MASON CJ:  So that you say there must be, as it were, a

continuing and absolute intention to keep the

subject-matter confidential?

MR SHER:	Yes.
MASON CJ:	So that the moment you breach that by

introducing, as a possibility, an intention to use

it in the future, the confidentiality and therefore

the privilege goes.

MR SHER:  We do, and we say that because the rationale for

legal professional privilege is to ensure that

people, in effect, are candid with their lawyers

and make use of them in a proper fashion, which

overcomes the public interest in everyone's

evidence being available to the court and the court

making decisions on a properly informed basis.

Now, we say there is no reason why, applying that

rationale, the conduct under attack here should

attract privilege.

DEANE J: Well, that would mean that no affidavits are

privileged before the party decides to file them,
because the very fact that they were taken and

sworn in affidavit form would indicate that there

was not a firm intention to maintain

confidentiality.

MR SHER:  We would so contend but, if we are wrong about

that, we would say this, that Justice Dawson in

Maurice and Mr Justice Anderson in the case of

Dalleagles have explained that the reason why

certain documents, draft letters, draft agreements

and the like, are privileged is because they would

reveal the actual privileged communication, the

confidential communication. If the affidavit were

that of, for example, an expert witness which might

reveal the confidential instructions, there may

perhaps be more room for argument but we would

contend that in every case in which a party

prepares a document to tender in court, it loses

any privilege that might otherwise have attached to

the instructions.

Here we would contend that Mr Beckwith's

knowledge of the facts, being the knowledge of the

corporation for whom he was acting, is the

corporation's knowledge and would have to be
disclosed on interrogation. The fact that his knowledge of the facts has been enshrined in a court document giving the party the option - we say

the evidence is the intention - to tender it, we

say in those circumstances it means that there is

no privilege attached to it.

Western 11 27/8/93

Your He urs, Mr Justice Hedigan Telebooth

v Telstra wa2 concerned with a tape rec 1ing and a

transcript o a tape recording made bet~~en

parties, the evidence being that the actual

documents produced, that is the tape recording and

the transcript, were solely intended to be

submitted to the solicitors. His Honour held that

confidentiality was an essential ingredient of

legal professional privilege, including lawyers'

brief privilege. As the conversation in the first

instance was not confidential, no confidentiality

was attracted to the tape recording of the

document. That is absolutely opposed, we submit,

to Mr Justice Seaman's decision and to the approval

of it by the Full Court which effect holds that

confidentiality is essentiallv -=relevant to the

question of lawyers' brief pr · ege.

DEANE J:  What if it had been a tape o .e evidence which

the managing director of one o	:he plaintiffs
would give?

MR SHER: Well, that might be privileged because it has been

kept confidential. That is to say, it depends who

he is talking to when the tape recording is made. If he is talking to the solicitor, it would be no

different than giving instructions.

DEANE J:  No, I meant a tape of a statement he would make if

called as a witness?

MR SHER: Well, that could well be privileged, Your Honours.

DEANE J: Well then, I have probably got the parties mixed

up, Mr Sher, but does that not mean that the only

distinction between that and this case is that here

Mr Beckwith swore an affidavit and that he died?

MR SHER: Well, that is the distinction, Your Honours. It

is a critical one, in our submission, because - - -

DEANE J: Well, which is, that he swore the affidavit or

that he died?

MR SHER:  No, well, that he swore the affidavit is the

critical fact. The fact that this path was chosen,

that is, an affidavit rather than Order 38, we say

demonstrates how inappropriate it is.

DEANE J:  I just wanted to understand, I am not arguing with

you. So, what you are saying is if, in litigation,

the managing director of one of the parties swears

an affidavit on the basis that it.will be used if

the occasion arises for it to be used, that

affidavit is not privileged?

MR SHER: That is our submission, Your Honours.

Western 12 27/8/93

DEANE J:  So that, following it through, none of the

affidavits taken in preparation for a case are

privileged?

MR SHER: Well, I feel I need to answer that "yes", but

there may be - - -

DEANE J:  It would make a great difference to practice if my

recollection of it is correct, but that does not

mean anything, I suppose.

MR SHER: With respect, no, Your Honours. The question here

really is whether, taking a course for the purpose

of enshrining a version of events in the form of a

document for use in court so that you avoid

Order 38 where the other side can find out what the

witness says and test it, and that you do it,

bearing in mind that this may be the only available

evidence from this evidence because he is not
expected to live, that we say - - -

DEANE J: ,But you are now bringing in, "he is not expected to live". What I am talking about are affidavits

sworn so they will be available if occasion

requires, where my recollection of the approach of

the legal profession was always that they were

privileged.

MR SHER:	I hesitate to differ with Your Honour but - - -
DEANE J:	I should have put that more narrowly. My

recollection of the approach of the equity division

in the Supreme Court of New South Wales was

that - - -

MR SHER:  I feel more comfortable in disagreeing with

Your Honour now.	I cannot speak for the equity
division - - -

DEANE J: What about draft affidavits, because, there you

have reached the stage where - - -

MR SHER:  They are different, and the reason they are

different, Mr Justice Dawson pointed out in

Maurice, and Mr Justice Anderson commented about

this in his decision, is because the drafts will

tend to reveal instructions and advice and the

comparison between one draft and the other may

reveal the truly confidential communication. But

we would contend that - Mr Justice French, in

effect, has grasped the nettle, he says that

witnesses' statements are not privileged, because a

witness can go and talk to anyone, and why should

they be, in light of Grant v Downs, and the

expressions of principle as to why the privilege

exists at all.

Western 13 27/8/93

DEANE J: But that brings us back to the managing director,

does it not, so far as this case is concerned?

MR SHER:  He has to be treated as though he were the party

but, in our submission, by choosing to put his

evidence in a form which would make it more likely

to be accepted by the court; more likely to be

relied upon in circumstances where it could not be

tested, we say they went too far and, as Mr Siopis

says, ttI intended to file ittt - it does not matter

whether he was right or wrong. It does not matter
whether he understood the laws of evidence. It

does not matter whether he had section 79C in his

mind or not. He has said what the purpose of

creating that document was, and that purpose was to

breach its confidentiality. He did not say when he

intended to file it, but he said it was made to

file.

Now, any contest on the facts in this case, in

our submission, is almost illusory, and this Court can deal with it as easily and quickly as everyone

else has. But our submission is, this is a very

important issue because it, in effect, has an

Australia-wide connotation and there is clearly,

from the decisions which we have referred

Your Honours, at first instance, to which we - I

might say, Mr Justice Hedigan, in giving his

decision, differed from a decision of

Mr Justice Tadgell had given three years earlier,

who said, confidentiality was not essential, but

His Honour explained why he was not prepared to

follow that decision.	I am conscious of time
constraints, Your Honours.	They are our

submissions, if the Court pleases.

MASON CJ: Thank you, Mr Sher. Mr Heenan, do you have

anything to add to what Mr Sher has put to the

Court? There is no point in traversing ground

already covered.

MR HEENAN: That is quite true, Your Honour. There are some

submissions we would wish to advance. Like the

other applicants, we have an outline of submissions

which has been distributed to the Court. I trust

that Your Honours have it. Your Honours, like my

learned friend, we stress that an ingredient of

confidentiality is essential for the existence of
legal professional privilege, whether of the advice
or of the litigation kind.

We suggest, with respect, that all of the decisions in this Court from Grant v Downs down to

Maurice, including O'Reilly, Baker v Campbell and

Reg v Lees, express the test in a manner which

expressly refers to the existence of

confidentiality or assumes it. One good example is

Western 14 27/8/93

the dictum from the judgment of Justice Deane in

Baker v Campbell which is in paragraph 3 of our

outline. There are references to other passages in

other judgments of this Court of Your Honour the

Chief Justice in NEMGIA v Waind and in O'Reilly and

the joint judgment in Grant v Downs by

Justices Stephen, Mason and Murphy.

On page 3, in the content of paragraph 4 of

our outline, we draw attention to a series of other

cases in which that element of confidentiality is

regarded as essential, but we highlight the two

Handley v which, like him, we would wish to challenge, and

cases in which it has been questioned -

the decision of Justice Pincus in the Federal Court

in Dingle v Commonwealth Development Bank, where

His Honour expressed the view that the formulation

of the test for legal professional privilege by

this Court in Grant v Downs, Baker v Campbell and

O'Reilly was not sufficiently clear to insist on a

requirement for confidentiality in litigation

privilege and that the real hallmark of litigation

privilege might rather be - and that is far as

His Honour went: "might rather be" - the need for

the preservation of the court's procedures and its
adversary style allowing a party to withhold

disclosure of material evidence until the trial.

That was a sentiment picked up by

Justice French in J-Corporation, and it was one

which Justice French, along with Justice Pincus,

treated with distaste. Justice Pincus referred to

the earlier English authority from which he deduced

this possibility as a rather unattractive body of

doctrine.

Your Honours, the case that we would place

greatest reliance on is the decision of this Court

in Maurice v Attorney-General for the Northern

Territory, where the document in question was the

land claims book. The question at issue for the

Court was whether the tender and distribution among

the parties of the land claims book, a document

avowedly prepared for the purposes of conducting

the litigation, has had as a by-product the result

of waiving privilege to the documents upon which it

was based and to which it incidentally referred.

The answer of the Court was in the negative, but a

number of the Justices said that the land claims
book, although prepared for the litigation could

not be privileged at any time because it was a

means of communicating information to the Court,

that it was used for that purpose, that it was

created for that purpose and that it was not an

occasion of privilege being simply waived by its

distribution and exchange.

Western 15 27/8/93

In our respectful submission, an analogy with

that land claims book can be made with the

affidavit in this case. We would say that it is

not a case of privilege being waived at the point

of the tender of the affidavit. As with the land
claims book, the essential test is whether it was

intended to be a means of communicating information

to another.

A moment's reflection on that will disclose

that it is not a surprising decision, given the

rationale for legal professional privilege,

including litigation privilege which this Court

adopted in Grant v Downs, namely, the need for any

prospective client to have a feeling of security

that all his communications with his lawyer would

be confidential. There is all the difference in

the world, we suggest, between protecting

communications with a lawyer to facilitate

frankness and thorough investigation of a case, on

the one hand, and on the other a communication with

a lawyer for the purpose of transmitting

information to someone else.

No one would suggest for a moment that a

pleading was a privileged communication,
notwithstanding that it is the product of

information given to the lawyer by the client and

investigations for the case. The distinction is

that it is the considered statement of the client

to the court of his position. It is a means of

conveying communications.

In Maurice's case, notably in the judgment of

Justice Dawson at pages 495 to 496, are passages

which indicate that if a document is brought into

existence for the purpose of communicating

information to the court or to some third party

rather than to the solicitor, then no question of

privilege ever arises. That is not a document

which has ever been prepared for the purpose of

advice by the solicitor, or communications to the

solicitor which need to be kept confidential.

Indeed, it is not necessary to make an affidavit to achieve the benefit of frank and reliable advice

after full disclosure with a lawyer. An affidavit

connotes much more than that. It connotes an

intention to be used in public.

Those, in our respectful submission,

Your Honours, are the principal factors of law which we would wish to advance, but in view of the

submissions which have attracted some comment that

have been made by Mr Shaw, can I, as briefly as

possible, address the question raised by

Justice Deane as to the significance of the finding

of Justice Seaman.

Western 16 27/8/93

Can I take Your Honours first to the

application book at page 28. In the judgment of

Justice Seaman in the Full Court, in the top of the

page:

Leading counsel for the applicants did

not seek to establish that the affidavit was a

confidential communication between the

applicants and their solicitors for the

purpose of advice but his submission was that

the learned Master, having correctly

recognised the principle that no one is to be

fettered in obtaining material for his defence

and if for the purpose of his defence he

obtains evidence, the adverse party cannot ask

to see it before the trial, then erred in

holding that confidentiality was an essential

element of that protection.

That passage, in our respectful submission,

Your Honour, suggests that the position of the present respondents in the Full Court, as before

the Master was, that this was not a confidential

document, not even provisionally, but that it came

within the second limb of Grant v Downs, namely

documents obtained for litigation for which

confidentiality was unnecessary.

That sentiment, or that concept, is implicit in the very grounds of appeal which were filed by

the present respondents in the Full Court. Those

can be found at page 16 and 17 of the application
book, and I draw attention to grounds 1 and 2 which

proceeded on the basis that the document was

privileged, even though it was not intended to be

confidential. That, Your Honours, was certainly

the finding of the master, at pages 10 and 11, in

particular at page 11 between lines 10 and 20, and

that finding was never formally challenged by the

respondents in the Full Court, whether in their
notice of appeal or otherwise.

So we say, Your Honours, that this is not a

case where this affidavit was intended to be kept

confidential on a provisional basis, or on a

contingent basis that it might never be used.	The
clear language of the solicitor was that it was intended to be filed, and that constitutes the
difference between this affidavit and other
affidavits, to which Your Honour Justice Deane
referred by way of example.	The question is, is it

intended to be confidential or not?

Now, Your Honours, whichever way the finding of fact is treated, whether it be on the basis that

the document was never intended to be confidential,

which was the finding and which we contend is the

Western 17 27/8/93

correct position, or whether it be on the basis

that Justice Seaman inferred, at page 20 in the

passage referred to to Justice Deane, that it was,

in spite of all that went before, intended to be

confidential on a temporary or professional basis,
this case will expose the question as to whether an

element of confidentiality is vital to legal

professional privilege. The result in the case

will depend on the presence or absence of such a

requisite degree of confidentiality, and that is a

long way from the approach taken by the Full Court

which disregarded any need for confidentiality and

which we say is at variance with the decisions of

this Court, and a major potential for future error.

We might be challenged with the proposition

that it will be of no advantage to us to come to

come to this Court and have a case argued at length

simply to find that, on a proper construction of

the events, there was some intention to keep the

document confidential on a provisional basis. But,

in our respectful submission, that will throw up

equally important subsidiary questions, because
then one gets to the question of sole or dominant

purposes, which agitated the Court in

Grant v Downs, which was examined by the

House of Lords in Waugh's case, and led to a

preference for dominance rather than sole purpose.

We say, whichever way the finding is viewed, an

important question arises. That is all I need to

trouble the Court with.

MASON CJ: Yes, thank you, Mr Heenan. Now, Mr Edmonds, do

you wish to say anything in support of the

application? You might just give us an indication

of any additional grounds you want to put to us in

support of the application, because there is no

point in covering what has already been dealt with

by Mr Sher and Mr Heenan.

MR EDMONDS:  Yes, quite so, Your Honours. There are only

two additional points that I think can be made
really quite briefly.	The first is that in

Waind's case Your Honour Chief Justice there said

at page 654:

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 corning into existence

as materials for the purposes of an action to

be conducted by a litigant in person.

What we say arises from that is that the rationale

underlying legal profession privilege, whether it

be, what might be called, advice privilege or

Western 18 27/8/93

litigation privilege, is the protection of the

solicitor/client relationship and the

confidentiality therein. There is no rationale

underlying a lawyer's brief privilege based merely

on keeping secret the evidence, because if that

were so then that privilege ought to be equally

available to a litigant in person. But it is not,

as Your Honour has said, and it is not because the

object of both heads of privilege is to protect the

confidential relationship between solicitor and

client.

The second point that I wish to make,

Your Honours, and it is contained in the third

applicant's outline of submissions, is this, that

we support what has been said but, as a matter of

fact, the correct construction of what Mr Siopis

said before the royal commission, is that the

plaintiffs - - -

MASON CJ: There is no need to deal with that. I mean, we

will hear what Mr Shaw has to say and, need be, you

will have a chance to respond to it.

MR EDMONDS: Certainly. Well, the only other point then is

this, that if we are wrong on the factual issue and

if the respondent's case is that there was a

provisional intention to keep this document

confidential, then we say that that does not meet

the required test of confidentiality.

MASON CJ:	Mr Sher has already put that to us.
MR EDMONDS:	We say that because there is a similar parallel

with the sole purpose test. The sole purpose test

requires a single purpose, and the effect of that

single purpose may at some point be that you

undermine the confidentiality of the relationship.

We say that the single intention, the intention

that it be kept confidentially absolutely, is

equally necessary even in that event that it cuts

across that privilege. Those are the only two

points we wish to make.

MASON CJ: Thank you, Mr Edmonds. Mr Shaw.

MR SHAW:  If the Court pleases, we filed some submissions.

Has the Court had the opportunity to see those?

MASON CJ: Yes.

DEANE J:	I have seen them.
GAUDRON J:	I have read them.
MR SHAW:	If the Court pleases, it is perfectly clear from what has been put to the Court so far that one of

Western 19 27/8/93

the principal matters that is desired to be

established if special leave were allowed is an

alteration to the finding of fact which was made in

the Full Court and which appears at page 40 of the

appeal book and that one of Your Honours - I cannot

remember which one - referred to earlier.

MASON CJ: Justice Deane referred to it earlier.

MR SHAW:  Yes. At the top of paragraph 5 of our outline we

point out that in fact the proposed grounds of

appeal - - -

MASON CJ: It includes that ground of challenge.

MR SHAW:  Includes those grounds, yes. The second thing we

would submit is this, that the suggestion that
somehow or other the what is called lawyers' brief

privilege so far as confidentiality is concerned

should be assimilated to other kinds of legal

professional privilege finds no support, it is

submitted, in any of the authorities. The cases in

this Court dealing with other kinds of privilege

expressly acknowledge the existence of lawyers'

brief privilege. In addition to the various

matters that are referred to in our submissions, it
will be found in Waterford v The Commonwealth,

163 CLR 54, in the judgment of Your Honour

Justice Deane at page 80 at about point 3 of the

page, the statement:

It has long been recognized that claims of

privilege based upon the fact that the

relevant materials were procured for the

purposes of anticipated litigation (in which

independent counsel would in any event be

expected to be briefed) are plainly

distinguishable from a claim to privilege

based upon the mere fact that a document

contains or concerns confidential professional

legal advice.

In our submission, it is perfectly clear from the

authorities that there is a species of legal

professional privilege which one might call - I

think my learned friends referred to it as lawyers'

brief privilege or work product privilege. It is

also perfectly clear that if the finding of fact made in the Full Court stands, the affidavit had

the necessary quality of confidentiality, to put it

at the highest, namely that the document was

intended to be used if and when - we have four

copies of that if Your Honours would like.

MASON CJ: No, it would take up too much time. It is just

idle curiosity on my part.

Western 20 27/8/93

MR SHAW: It is submitted, therefore, that, really, this

application raises no question of general

importance, unless it is suggested, as indeed it is

in the affidavits and others of the grounds of

appeal, that there is not any species of privilege

called "lawyers' brief privilege" at all. It is

submitted that it is perfectly clear that there is.

Otherwise, if the Court pleases, we rely on the

submissions which we have put in our outline.

MASON CJ: Thank you, Mr Shaw. There will be a grant of

special leave to appeal in these cases.

AT 10.35 AM THE MATTER WAS ADJOURNED SINE DIE

Western 21 27/8/93