Western Australian Government Holdings Ltd & Ors v Southern Equities Corporation Ltd & Ors; The State of Western Australia v Southern Equities Corporation Ltd & Ors (P24-93

[1993] HCATrans 305

..

.

• ~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P24 of 1993

B e t w e e n -

WESTERN AUSTRALIAN GOVERNMENT

HOLDINGS LTD

First Appellant

THE STATE OF WESTERN AUSTRALIA

Second Appellant

THE STATE ENERGY COMMISSION OF

WESTERN AUSTRALIA

Third Appellant

and

SOUTHERN EQUITIES CORPORATION LIMITED (Scheme Adminstrators

Appointed)

First Respondent

BOND PETROCHEMICALS (NO 1) PTY

Western(2) 40 14/10/93

LTD

Second Respondent

BOND PETROCHEMICALS (NO 2) PTY

LTD

Third Respondent

Office of the Registry

Perth No P25 of 1993

B e t w e e n -

THE STATE OF WESTERN AUSTRALIA

Appellant

and

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

Office of the Registry

Perth No P26 of 1993

B e t w e e n -

WESTERN AUSTRALIA GOVERNMENT

HOLDINGS LTD

First Appellant

THE STATE OF WESTERN AUSTRALIA

Second Appellant

THE STATE ENERGY COMMISSION OF

WESTERN AUSTRALIA

Third Appellant

and

Western(2) 41 14/10/93

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

MASON CJ
BRENNAN J
DEANE J
DAWSON J
TOOHEY J
GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 14 OCTOBER 1993, AT 10.23 AM

(Continued from 13/10/93)

Copyright in the High Court of Australia

MASON CJ: Yes, Mr Heenan.
MR HEENAN:	May it please Your Honours, I will endeavour to

be brief and to complete the submission within a

short time, if it please the Court. At the

adjournment I was at paragraph 5 of the written

submissions dealing with those authorities of the

Full Court which, we have said, ought be

distinguished or not followed.

Western(2) 42 14/10/93

The particular case which we said ought not be

followed was Handley v Baddock, for the reasons

given yesterday. As to the other cases, I was

submitting that Anderson v Bank of British Columbia

is not against us; it does not deal with affidavits

but with routine correspondence. Kennedy v Lyell

deals with an interrogatory, the answer to which
depends on knowledge on the parties' behalf
obtained only by a solicitor in the courts of

inquiry into title.

North Australian Territory Company v

Goldsborough Mort is a case where discovery of

depositions in an examination of company officers

was refused on the basis that access to them was

had solely for the purposes of litigation. We say

that that decision, nowadays, would not survive the

sole purpose test in Grant v Downs and, in any

event, the refusal was based on discretionary

matters and was not final.

In the case of H.W. Strachan, referred to in

paragraph 5 of our footnotes, that was a case in

lunacy. Again, it was a case in which documents

were refused in the exercise of a discretion which

did not depend on questions of privilege but rather

the practice in lunacy, and the remarks which were

cited and relied upon are dicta.

Your Honours, might I pass to the propositions

which we advance in paragraph 8 of our written

outline speaking of the difference between the

common law and chancery views of discovery, and for

this purpose cite the decision of the House of

Lords in Waugh v British Railways Board,

(1980) AC 521. This was a case similar in factual

background to Grant v Downs and it is notable

because the House of Lords preferred a substantial

purpose test to the sole purpose test which this

Court has adopted in Grant v Downs.	Save for that
distinction, we suggest, with respect, the

observations by Their Lordships are pertinent.

Can I take Your Honours to the passage in the

speech of Lord Wilberforce at page 532C where

His Lordship undertook reference to previous

authority and spoke of the comprehensive review of

the authorities which had been conducted by

Mr Justice Havers in Seabrook's case, a case cited

with approval by Justice Seaman in the Full Court,

and said that it was not easy to extract a coherent

principle from those authorities. In the speech of

Lord Simon of Glaisdale at page 534H, again after a

review of the authorities and an observation that the House had indicated that they may be ripe for

review in the Alfred Crompton case, said:

Western(2) 43 14/10/93

The upshot of this cursory conspectus of the authorities is that your Lordships are, in

my view, free to consider the issue on grounds

of principle and convenience, unembarrassed by

previous authority, which, rather constitutes

diverse springboards.

And finally in this case, again to the speech

of Lord Simon at page 536, between letters D and E,

His Lordship said:

Historically, the second principle - that

a litigant must bring forward his own evidence

to support his case, and cannot call on his
adversary to make or aid it - was fundamental

to the outlook of the courts of common law.

The first principle - that the opponent might

be compelled to disclose a relevant evidence

in his possession - was the doctrine of the

Chancery, a court whose conscience would be

affronted by forensic success contrary to

justice obtained merely through the silent

non-cooperation of the defendant -

and a reference to a year book authority -

and which therefore had some inclination to

limited inquisitorial procedures. The

conflict between the Chancery and the courts

of common law was, here as elsewhere,

ultimately resolved by compromise and

accommodation.

I can see no intrinsic reason why the one

principle rather than the other should prevail

in a situation where they are counter-

indicative. Neither is absolute: both are

subject to numerous exceptions. For example,

if a document protected by legal professional

privilege (or secondary evidence of it) has

been obtained by the opposite party

independently - even through the default of

the legal adviser - even by dishonesty -

either will probably be admissible -

That observation may now be somewhat controversial.

The numerous exceptions to the principle that all relevant evidence should be disclosed

arise partly from historical reasons (the

tensions between the courts of common law,

where questions of fact were tried, and the

Court of Chancery, where the remedy of discovery was developed), partly from considerations of justice, partly from wider

social considerations -

Western(2) 44 14/10/93

and then His Lordship cites with approval the

remarks of Lord Justice James in Anderson's case,

that -

" ... as you have no right to see your

adversary's brief, you have no right to see

that which comes into existence merely as the

materials for the brief."

The adversary's brief will contain much

relevant material; nevertheless, you cannot

see it because that would be inconsistent with

the adversary forensic process based on legal

representation. i would, though, draw

attention to the word "merely" in James LJ's

dictum.

There is, then, no a priori reason why

the one general principle should yield to the

other. But in my judgment each party's main

contention would virtually result in the total

exclusion of the principle relied on by the

other. The rule in Ogden in effect means that

reports such as that in the instant case will

always be excluded, because it is unlikely

that there is not in such circumstances even
the subsidiary purpose of informing the legal

advisers. On the other hand, to enjoin that

privilege can only be claimed if the

information of legal advisers is the sole

purpose of the report will in effect mean that

such reports must always be disclosed, because

it is unlikely that in such circumstances

there will not be even the subsidiary

purpose -

His Lordship goes on to explain how in the end the

result should be the basis of a compromise solution

in which neither principle emerges in the

ascendant.

Similar observations are in the speech of

Lord Edmund-Davies at page 542G, where His Lordship

identifies:

Preparation with a view to litigation

pending or anticipated - being thus the

essential purpose which protects a

communication from disclosure -

Your Honours, similar factors underlying the origin and the rationale for the privilege were identified

by the Court of Appeal of the Supreme Court of

New Zealand in the case of R v Uljee,

(1982) 1 NZLR 561, and in the judgment of

Mr Justice Cooke there is again reference to the

historical basis of authority at page 566, lines 5

Western(2) 45 14/10/93

to 15 and 50 and following, in which His Honour

indicates that the past history of precedent

provides no sure foundation for a rational analysis

of the policy. His Honour's words were:

Dating as it does from an unsettled era in the English law of professional privilege,

Meath v Winchester, must be like

Calcraft v Guest, of limited cogency in New

Zealand -

and then going on:

One should start in the frame of mind

recommended by Lord Hailsham of St Marylebone

in D v NSPCC ..... that any attempt to withhold

relevant evidence must be jealously

scrutinised.

And then, at the foot of page 567, His Honour identifies the concept of candour as underlying the basis for the privilege, referring to Waugh at

line 50, but then comes to other considerations at

page 569, line 20:

There are several reasons why, on

balance, it has been seen to be in the public

interest to allow consultations with a legal

adviser to be uninhibited by fear of
disclosure in evidence. They include more

efficient administration of justice; bringing

to light and better presentation of defences;

encouragement of lawful conduct; avoidance of
litigation; possibilities of guilty pleas or
co-operation with the police. In criminal

matters there is also, notwithstanding

Bentham's black-and-white argument to the

contrary, a strong sense that any person

charged or in peril of a charge has a

fundamental human right to professional

advice - which may not be effectively given if

facts are withheld.

That concept was taken up two paragraphs on at

line 40:

In Coplon it was said in a majority

judgment of the United States Court of

Appeals, District of Columbia Circuit, that

"The sanctity of the constitutional right of

an accused privately to consult with counsel

is generally recognized and zealously enforced

by state as well as federal courts".

And, there are some echoes of that as an underlying pinion for the principle in perhaps the judgment of

Western(2) 46 14/10/93

Your Honour Justice Deane in Lees case and possibly

elsewhere.

We cite these authorities, Your Honours,

simply to suggest, with respect, that the apparent

monolithic line of authority running through the
19th century and the first half of the

20th century, on discovery, is not as formidable or

convincing as it may appear, and that courts at the

highest level have regarded the expressions of the

rationale in the past as being unsatisfactory and

have embarked on a new quest for principle, and it

is to such a principle which we invite the Court's

attention.

Now, in paragraph 10 of our outline we dwell

on these matters having drawn attention to some of

the hesitations which other judges in Australia

have expressed about the possible meaning of the

Grant v Downs test in paragraph 9.	I shall not
take Your Honours to those passages.

In paragraph 11 we refer to some literature on

the subject. The most notable article is by

Mr Williams in the Canadian Bar Review referred to

in subparagraph ll(a). Can I add a reference to

the last chapter in Storey, Equity Jurisprudence,

dealing with discovery in the equitable

jurisdiction as to the origin and history of the

equitable practice immediately before and after the

Judicature Acts. A copy of that text has been

handed to Your Honour's tipstaff yesterday and will

be available.	I do not direct attention to it
immediately.	It is not direct or on the point at

issue in this case but it gives very helpful

historical background.

In paragraph 12 we outline the traditional

rationale for the privilege which has already been

noticed and we emphasize at page 8 how

Mr Justice Pincus in Dingle argued that this

rationale was not a convincing one in the case of

third party communications obtained for the conduct

of litigation because they did not involve

communications between the solicitor and the

client.

Your Honours, that argument may or may not be

attractive. It depends on whether one dissociates

the solicitor from the client because, if one

identifies the solicitor as the agent of the client

or the alter ego of the client conducting the

inquiries and the negotiations on the client's

behalf, it is possible to preserve the principle of

communication for that rationale.

Western(2) 47 14/10/93

DEANE J:  Would it also need to be qualified in the case of

an employee of the client or someone who owes the

client a fiduciary duty, such as Mr Beckwith in the

present case?

MR HEENAN:  Perhaps it would, Your Honour. There is a

series of cases in which the status of an employee

is scrutinized to see whether or not communications

from him can be regarded as a communication from

the client to its solicitor for the purpose of the

privilege, and the - - -

DEANE J:  Not much seems to have turned on that in the

courts below, except it is something that - - -

MR HEENAN:  He was the managing director. He was a very

senior man and he was the individual directly
associated in the negotiations on behalf of the

respondents for the alleged agreement, but we would not in this case attempt to argue that he could not

be identified with the client. But those cases

endeavour to develop tests in which privilege will
only be accorded if the employee can be identified

as the client or the agent of the client. If he is

a mere servant with independent knowledge and makes

a report, it would not be regarded as within the

purview of the privilege.

DEANE J:  I do not want to delay you, Mr Heenan, but have

you in your mind a reference to what you think is

the most helpful of those cases in terms of

instruction rather than helpful to your argument?

MR HEENAN:  The matter is discussed in the Court of Appeal

in New Zealand in Guardian Royal Assurance v

Stuart, (1985) 1 NZLR 596, which is in paragraph 29

of our outline, where the New Zealand approach

seems to treat the employees as third parties and

outside the purview of the privilege. I will

endeavour to identify some of the American

authorities where this matter has been more closely

examined, where the quest in the judicial reasoning	is to find a test which allows an employee or agent
of sufficient seniority to be identified with the client for the purpose of the privilege, as distinguished from more routine or prosaic
employees who are outside that bound. But the
purpose of this analysis, as Your Honour has
perceived, is to see whether or not the
communication rationale can be preserved by
extending the network to agents.

Now, at page 8, about half-way down the page,

we make the observation about the Grant v Downs

test, that the difficulty appears to be that while

this sole purpose test, or even the dominant

purpose test in Waugh, can be applied in a

Western(2) 48 14/10/93

practical and reliable fashion to documents

prepared by a client, or his servants or agents,
for the purpose of obtaining advice, that test is
not sufficiently discriminating when it comes to

materials created or obtained for use in

litigation. The reason for this is that there is

no, or no sufficient, differentiation between the

various purposes for which material may be used in
the conduct of litigation, and I will leave

Your Honours to read the balance of our proposition

in that regard, but one comes back to the example

of a pleading.

May I give another example: an open letter

written in the course of a litigation by the
solicitors for one party to another concerning some
dispute material to the action which has arisen

during the contact; it may be the preservation of

the subject-matter, it may be some factor going to

aggravation or mitigation of damages, or it may be

a letter of demand for the abatement of a nuisance

or something of that matter.

Now, such a letter, we say, would satisfy the

Grant v Downs test if it were stripped of the

requirement of confidentiality which, we say, it

does, in fact, contain, because such a letter would

have been prepared solely for the purpose of

litigation, it would be the result of a

communications by the client to the solicitor, and

it would have been written by the solicitor. But

we venture to suggest that nobody would contemplate

such a correspondence as privileged, and the reason

plainly is, is that it is open, disclosed and

non-confidential, and that that exhibits in another

way the assumptions upon which the Grant v Downs

test should depend. We give other examples in

paragraph 13 of our outline.

Then one comes to the question of the adversary nature of litigation. The purposes of

encouraging candour and allowing full disclosure

can be fully achieved by the advice privilege, and

in this case Mr Beckwith was perfectly free to go

to his company's solicitors and make a clean breast

of the entire background of this transaction and

have it recorded by them confidentially.

Everything that could be done for them to conduct

the case properly and to give advice, in our

respectful submission, could be afforded by that

being given and his information being kept

confidential. But if he commits all that
information to an affidavit in a form which is

plainly intended to be published eventually in an

admissible form, then a river has been crossed, a
different purpose is being served, and the purpose

is to communicate the evidence to the court.

Western(2) 49 14/10/93

DAWSON J: Is affidavit evidence in these circumstances an

alternative to evidence on commission, Mr Heenan?

MR HEENAN:	Your Honour, the position in Western Australia in this regard is no different from the general
common law position. Evidence in the ordinary
course has to be given orally, but under
section 79C of the Evidence Act where a person who
has made a written record of events and has
personal knowledge of them is dead or cannot be
brought to the State without undue convenience, the
written record may be admitted into evidence, subject to a discretion to exclude.

So in this case it is not essential that the

Beckwith account is in affidavit form, but putting

it into affidavit form makes its purpose even more

unequivocal.

DAWSON J: But getting it as evidence on commission would

even

MR HEENAN:  I am sorry, I misunderstood Your Honour's

question.

DAWSON J:  What are the alternatives? You have a written

document which you get in on common law principles,

or you could have evidence on commission?

MR HEENAN:  Quite. The most frequent and the traditional

method in these circumstances is to take evidence

on commission.

DAWSON J:	And no one would suggest that was privileged.
MR HEENAN:	No, not for a moment.

DAWSON J: But that is all I was saying: there is an

alternative to taking evidence on commission.

MR HEENAN:  Yes. And resort to this alternative has, if the

respondent's argument is correct, the advantage

that early disclosure and the chance of cross-

examination can be avoided.

BRENNAN J: But that is the very point, is it not, which

distinguishes this from evidence on commission?

Evidence on commission is evidence in the trial.

MR HEENAN:	Yes.
BRENNAN J:	And this may or may not be evidence in the

trial, according to the conduct of the case by

counsel or the party claiming privilege.

Western(2) 50 14/10/93

MR HEENAN: That is true, Your Honour, except we have the

statement that it was obtained with the intention

of being filed.

BRENNAN J: Let it be so. That intention in the

circumstances must have been a contingent intention
at the best - contingent, at least, upon the death

of Mr Beckwith, is that not so?

MR HEENAN: 

If he had not died, and gave oral evidence, and

had been asked if he had sworn an affidavit giving
an account of these matters, we would be arguing

that that affidavit would have to be produced in

the course of the trial and made available for use

in cross-examination.

BRENNAN J: 

On what basis?

MR HEENAN: 

On the same basis that we argue here, that it

was not a confidential document, it was a document

intended to convey communication to the Court and

that putting it into that form was not an act which

was necessary or part of the giving of advice, or

the preservation of professional confidences. Its

utility is that it has evidence available in a

potentially admissible form which arguably, on the

respondent's argument, need not be disclosed before

trial and its advantage is surprise.

BRENNAN J: Would there have been any difference in point of discoverability or the liability to produce whether it was kept confidential by counsel in his brief at

the trial or not, in your argument? You said in

cross-examination they would be obliged to produce

it. Does cross-examination make any difference?

MR HEENAN:  No, Your Honour. That was just an expression of

the occasion in which the question would arise.

BRENNAN J:  I suppose the cross-examiner may wish to know

whether there has been a previous inconsistent

statement, for example.

MR HEENAN:  Yes.

BRENNAN J: What is the section under which it would be

admissible?

MR HEENAN:  Section 79C of the Evidence Act of Western

Australia.

BRENNAN J: What, if any, provision is there which

authorizes the administration of an oath for the

purpose of taking an affidavit in circumstances

such as this?

MR HEENAN:  No special provision.

Western(2) 51 14/10/93

BRENNAN J:  Is there an Oaths Act in Western Australia?

MR HEENAN: There is an Act authorizing statutory

declarations to be made under section 106 of the

Evidence Act. Those are declarations which may be

taken for a variety of legitimate purposes.

BRENNAN J:	They are not affidavits though.
MR HEENAN:	No, they are statutory declarations where a

person's statement requires authentication or a

certain sanction of the law, the practice being

that it is illegal to swear voluntary oaths.

BRENNAN J: That is why I was wondering what was the

authority for the administration of an oath or the

taking of an affidavit.

MR HEENAN:	In this case there were proceedings pending.
BRENNAN J:	Be it so.
MR HEENAN:	An affidavit was taken from the witness or from

the deponent in anticipation that it might be used

in some way or another during the course of the

action. It may have been for some interlocutory

proceeding. For example, had there been an

application by the defendant for summary judgment
and it had been necessary for the plaintiffs to

verify their claim on oath, there would have an

affidavit available, but there was no particular

occasion imminent, or in contemplation, we suggest,

which would call for the swearing of this

affidavit. It is an unusual step.

BRENNAN J: Then it is right to say, I take it, that it is

not competent for a witness to give evidence
otherwise than orally, subject to section 79C, at

the trial of an action?

MR HEENAN:  No, it is always open to a judge to direct that

certain evidence may be received on affidavit and

in certain proceedings, notably originating

summonses and petitions and matrimonial causes,

there are rules of court requiring that to be done.

But, in an ordinary nisi prius action such as this the evidence is given orally.

DEANE J:  Mr Heenan, while you are being interrupted in that

area, I had intended at some stage to ask you

whether any consideration has been given on your

side to the consequences from the point of view of
privilege of the fact that an oath is a public

matter with public consequences?

MR HEENAN:  Yes, Your Honour. We intended to draw

that - - -

Western(2) 52 14/10/93

DEANE J: In that case, deal with it later. In other words,

what I was directing my question to was whether

privilege can attach to preserve secrecy of what is

involved in the taking of an oath under the law of

Western Australia which would focus, not so much on

the document but on the act of taking the oath.

MR HEENAN: Your Honour, can I deal with this in two ways?

DEANE J: Deal with it at your own time if I am taking you

out of - - -

MR HEENAN: Yes, it is convenient to deal with it now, since

it has been raised. In the first place there are

the sanctions on the deponent for swearing falsely.

There is the ultimate sanction of criminal

prosecutions for perjury and there are less extreme
offences of swearing falsely or fabricating
evidence for a variety of offences. We have
carried out some research in relation to the
question of the law of privilege, and we have not

been able to find authorities which would

conclusively demonstrate that an affidavit which

was sworn falsely but not filed or used, would

constitute, nevertheless, the offence of perjury.

But, one wonders why it would not.

In our respectful submission, if it may not

constitute perjury because of lack of materiality

or something of that matter, it may nevertheless

constitute an offence of swearing falsely, and

there are authorities, for example, that it may be

perjury to swear a false affidavit even if the

affidavit is inadmissible.

It would be curious to find that a false

swearer could be relieved of the consequences of

his offence merely because the affidavit was being kept back by the solicitors for tactical purposes.

DEANE J:  I was not thinking so much of that and, indeed, I

am not really thinking at all, I am just wondering.

I was wondering more about the position as regards

secret aids and the position when one takes
advantage of legislative procedures, or legislative

provisions, allowing the taking of an oath for the

purposes of litigation. It just seemed to me, it

may be of some peripheral relevance if it is

permissible to concentrate here on the taking of

the oath and what was involved in it rather

than - - -

MR HEENAN:  Could I take Your Honours to a case which is

referred to in paragraph 50 of our outline,

The Queen in right of the Province of Alberta -

western(2) 53 14/10/93

DEANE J: Well, as I say, I am perfectly content for you to

deal with it in your course.

MR HEENAN:  I am at Your Honour's disposal.

DEANE J: Well, why do you not deal with it, if you intended

to come to it, when you would come to it naturally?

MR HEENAN:  My enthusiasm has been aroused, I must confess,

Your Honours. The Queen in right of Alberta v

Stearns Catalytic Ltd, (1991) 81 DLR (4th) 347, the

Alberta Court of Appeal. This was a case very

similar to the present, where investigators had

gone out and interviewed a whole series of

witnesses, taken statements from many of them and, of the five most helpful, reduced their statements

to affidavit form. The question arose as to

whether those affidavits, so obtained, should be

discovered, and it was held that they ought be.	In
a joint judgment, commendably short, at page 348,
the court said:

The issue here is whether there is privilege for a number of notes or reports by adjusters or solicitors of interviews with ex-employees of the opposite party. All were made for the

purpose of litigation, and to brief counsel

for that litigation. If the witnesses had

been strangers, the notes would plainly be

privileged. If these had been signed witness

statements by the opposing party himself, they

would plainly not be privileged.

There is reference to Strass v Goldsack, which we

have already cited, and that is consistent with the

Aydin case in New South Wales. So the main

question is where the boundary line falls.

We may at once dispose of one corner of the

dispute. Among the large number of interviews

made, five alone resulted in a sworn statement

by the witness. Presumably that means an
affidavit.	An affidavit not intended to be

used in judicial proceedings has somewhat

shaky legality. Tying down someone who may

later testify in court by having him privately

swear to certain facts is an undesirable

practice which needs no encouragement by the

courts. In our view, a sworn witness

statement is not something to which litigation

privilege (sometimes called solicitor's-brief
privilege) should extend. Those five sworn

statements are producible, and the appeal

fails with respect to them.

BRENNAN J:  I suppose there might have been some question of

self-incrimination.

Western(2)	14/10/93
MR HEENAN:	That would not be the privilege of the client

but the potential liability of the deponent, unless

he had aided or abetted the offence.

BRENNAN J: Counsel will procure it.

DEANE J: It is still a little apart, but I will resist

after this, from what I have in mind. Could I

exemplify the point that I am endeavouring to
direct your attention to. Assume Mr Beckwith had

gone into the witness-box, and his statement had

not been opened up at all, but he was asked had he

made an earlier statement about the matter.	He
replied, "Yes, he had made a statement to the

solicitor for a proof of evidence in counsel's
brief." He was then asked about it and the proof

of evidence was called for, one can see very real

problems about privilege that would arise.

Would the position be the same if he were

asked, "Have you sworn an oath in relation to these

matters?" and he answered, "Yes," and he was then

asked, "Was that oath effectively in written form?"

and he answered, "Yes," and the document, as it

were, embodying that oath had then being called

for, I just cannot help wondering whether the

principles that would apply to privilege and to
proofs have anything to say at all to the

production of what is the evidence of the oath.

MR HEENAN:  We would say they had no bearing on the matter

at all, Your Honour.

DEANE J:  I am not surprised you say that, but I was just

wondering whether there was some learning that

dealt with the problem.

MR HEENAN:  We have not been able to find any, Your Honour,

but that does not relieve us of the dilemma.	One
constantly, in applying any of the tests for
privilege, is directed to the attention with which
the document was prepared.	If the man swears an

oath one must ask, "What is the intention of it

being sworn? What use is to be made of this

material?" And the answer in all probability must

be that it is not for legal advice; it is not to

inform the solicitors; it is not to allow the

solicitors to decide how they should conduct the

litigation, but it is evidence to be used in the

litigation. It is to be communicated to another,

to the court. It is not a matter of confidence.

But then one crosses our Rubicon and faces the question whether there is nevertheless some

legitimate professional purpose which would allow

the disclosure of that material to be withheld

until trial, and all experienced lawyers will

western(2) 55 14/10/93

immediately leap to the recognition, which they may
disguise in their articulation of the answer, the
advantage of surprise. It is the tactical

opportunistic desire to derive advantage by

surprise which makes the lawyer cling to the

document, a much cherished forensic practice. But

is that an advantage or a purpose which legal

professional privilege properly understood will

protect?

In our respectful submission, it is not,

because it is not vital to the giving of advice or

the conduct of the litigation. It is an attempt to

draw advantage from the position, and it is an

attempt to keep back material documents which would

otherwise be significant for the case.

DEANE J: In this area, have you come across any writings or

learning on the question whether secret oaths are

contrary to the public interest?

MR HEENAN:  The answer is, we have not discovered anything,

Your Honour.

DEANE J:	Thank you.
MR HEENAN:	Your Honours, why we say that this is not a

legitimate area for the protection of legal

professional privilege to be deployed is because

that is not essential in the tradition of the

common law for the proper conduct of litigation,

because no similar protection is given to the

litigant in person.

The Court has already been taken to the

references in Waind's case in that regard and the
authorities are set out at the top of page 11 of

our outline.

In our respectful submission, if the proper of surprise, why should it require it if one party conduct of adversary procedure, where a litigant appears in person, does not require the protection has the benefit of legal representation. So the

rationale is not adequate, in our respectful

submission, resting solely on the basis of the

adversary procedure. It is adequate if based on

the need for candour and information and the
preservation of confidences, but that is all. That
is why we say that temporary confidentiality of
this nature is foreign to the proper understanding

of the privilege.

DAWSON J:  But it must be essential to what you are saying,

that the document has been put in a public form.

You have to differentiate it from the witness's

Western(2) 56 14/10/93

statement which is privileged and it is the form of

the document itself which is significant.

MR HEENAN:  Yes. The form discloses the intention.

DAWSON J:	What intention?
MR HEENAN:	The intention with which the document was

prepared.

DAWSON J:  The intention is that it should be in a public

form.

MR HEENAN:  Yes. I am sorry. It has been pointed out to me

that order 36 rule 2 of the rules of the

Supreme Court of Western Australia deals with

evidence by affidavit.	The relevant rule reads,
rule 2(1):

The Court may, before or at the trial or hearing of an action, order that all or any of

the evidence therein shall be given by

affidavit if the Court thinks that in the

circumstances of the case it is reasonable so

to order.

No such application had ever been made or direction

to that effect sought.

BRENNAN J:  What would have been your argument had the form

of the document been not affidavit but none the

less in a form in which it would have been

admissible under section 79C? In other words, it

might have served two purposes: had he survived it

was a written statement, had he not survived the
witness statement would have been open to being

tendered under 79C?

MR HEENAN:  Our submission is that if the intention was that

the document was ever to be disclosed in the ,

proceedings, it would not be privileged, whether it

is in the form of an affidavit, a signed or an

unsigned proof - - -

BRENNAN J: And it is sufficient that the intention of

disclosure is contingent on the death of

Mr Beckwith.

MR HEENAN:  Yes.

DAWSON J: Could a document which was previously privileged

lose the privilege when he changed the intention?

MR HEENAN:  Yes, as any other confidential document can lose

its confidentiality if it is published. There is

authority in the cases that we have referred

to - - -

Western(2) 57 14/10/93

DAWSON J: That is a little different. It certainly does if

it is published but if merely there is a change in

a person's mind as to what use he is going to make

of a document, you say it loses its status as a

privileged document, or may.

MR HEENAN: It may. That would be very difficult to

establish and it would be difficult to devise a

sure test as to whether there had been a change of

intention and perhaps repentance of that and so on.

That poses many practical difficulties but all I

need address, I hope, Your Honour, is the question

in this case, that it was the declared intention to

use it in the proceedings. Indeed, my learned

friend's written submissions say that that is still

the present intention of the respondents. I think

we have covered a fair area in the answers to the

questions. If I may take the Court to - - -

DEANE J:  Can I just ask you one further question, and that

is:  who can administer an oath under the law of

Western Australia?

MR HEENAN:  A commissioner of the supreme court for taking

affidavits or a notary public can administer oaths

for use in the supreme court. A justice of the

peace or a commissioner appointed for taking

declarations, known as a commissioner for

declarations, can take statutory declarations under

section 106 of the Evidence Act and, if my
recollection is sure enough, there has been an

amendment to the rules or the Evidence Act in the

last 10 or 15 years which will allow a justice of

the peace to take an affidavit for use in the

supreme court or the district court. Then there is

a whole variety of other officials such as clerks

of petty sessions, magistrates and others referred

to in section 104 of the Evidence Act. The form of

administering the affidavit is set out in

section 98A of the Evidence Act.

DEANE J: Thank you.
MR HEENAN:	At page 11 of our outline dealing with this

question of the unrepresented litigant, we make the

submission that while an unrepresented litigant has

no need of privilege to protect confidential

information for legal advice, he is just as likely

as a litigant who has legal representation to

withhold the document he has prepared for the

litigation from disclosure, and a rationale for the

privilege which rests upon the adversarial nature

of litigation would not accommodate that

distinction.

On page 12, we draw attention to the line of

authority in the New South Wales Supreme Court in

Western(2) 58 14/10/93

Maddison v Goldrick, and in this Court in the

Attorney-General for New South Wales v Findlay, the

same case on appeal, where witness' statements in a
prosecuting police officer's brief in petty

sessions are producible, and are not subject to

legal professional privilege, notwithstanding that

they are prepared for the conduct of prosecutions.

It was recognized in this Court in the

Attorney-General v Findlay that had such documents

been subject to legal professional privilege, they

would have been immune from production but their

use in the adversary system was not regarded, of

itself, as being sufficient.

In paragraph 16, and following, we deal with a

number of the exceptions to the rule; the fact that

not everything that a solicitor learns from his

client is privileged; objective facts, such as

entries in trust accounts, whether or not the

client swore an affidavit, whether he executed a

document, whether a document brought to the

solicitor by the client, on one date, had an

endorsement on it, which appeared, someone said,

"Later", are all matters upon which the solicitors

can be compelled to give evidence, because they are

objective facts, and the disclosure of those facts,
by the solicitors, will not inhibit the purpose of

the privilege, namely, facilitating the giving of

evidence.

As a consequence, we say on page 14 that for

this reason these authorities provide support for a

submission that a test for the existence of legal

professional privilege in relation to litigation, which is confined to inquiring whether or not the

communication or documents were imparted to the

solicitors solely for use in the conduct of the

litigation would be incomplete. We then refer to

the decisions of this Court, and other courts,

where emphasis has been laid on the requirement for
confidentiality.	The reference is in Grant v

Downs, as set out in paragraph 18. In Wainds' case

the reference is set out on page -

MASON CJ: There is no need to go through these, they are

set out here.

MR HEENAN:  Yes, very well, Your Honour. There is a series

of authorities coming from other areas.

Paragraph 22 gives an indication of how the text

writers, almost universally, support the concept

that confidentiality is an essential requirement of

the litigation privilege: Phipson, Stone and

Wells, Dr Peter Gillies, Cross, McNicol, Halsbury,

are all at one in seeing confidentiality as an

essential requirement to the privilege.

Western(2) 59 14/10/93

Paragraphs 23 and following set out our submissions based on Maurice, and there is

reference to the judgment of Chief Justice Gibbs in

Maurice and the judgment of Justices Mason and

Brennan in that case dealing with this aspect of

the matter. Can I also refer, on this question of

the limited nature of the purposes which will

attract litigation privilege, to an observation by

Justice Dawson in Baker v Campbell, (1983) 153 CLR

at page 123, where His Honour made the observation

that the privilege did not extend in the cases of
litigation privilege where the materials were to be

filed or used in the Court.

BRENNAN J:	Mr Heenan, I take it that it is implicit in your submissions that if a solicitor, acting cautiously,
has all his witness' statements signed as against
possibility of the untimely demise of any of the witnesses prior to trial, that at least at the time when they are signed with a view to their being potentially available for the purposes of
section 79C, they becomes discoverable?
MR HEENAN:	No, we would not say that, Your Honour.
BRENNAN J:	Why would you not say that?
MR HEENAN:	Because the situation is that the purpose of

creating the document is to keep it confidential.

BRENNAN J: Unless the witness dies?

MR HEENAN: Unless the witness dies.

BRENNAN J:  I thought you said earlier that a contingent -

an intention to use was sufficient.

MR HEENAN:  I did say that and we were speaking specifically

of the Beckwith affidavit. The answer which I gave

on that occasion resulted from the significance

which, in our submissions, we place on the

significance of the oath and the public nature of

the affidavit and the plain intention that it be

used as a communication. That may have been an
unguarded answer but our position is that if the

document is prepared with the purpose of

communicating to the Court, it becomes

discoverable.

BRENNAN J: With the purpose or a purpose?

MR HEENAN:	The purpose.
BRENNAN J:	I suppose the dominant purpose.

Western(2)	60	14/10/93
MR HEENAN:	That is a difficulty, that is a difficulty.	I

realize that these answers are not, perhaps,

consistent but that is because of that difficulty.

BRENNAN J: · In all events you say that the form of the

affidavit carries you over the line.

MR HEENAN:  Yes, and the unequivocal declarations, and the

absence of any attempt to adduce further evidence

in these proceedings on this issue. Your

Honours, I will rest with our written submissions save as to the other jurisdictions, and may I just

speak briefly to those?

Might I take Your Honours to pages 23 and

following of our outline and the New Zealand cases.

I have already cited Reg v Uljee. Guardian Royal

Assurance v Stuart was the case in which the

New Zealand Court of Appeal opted for the dominant purpose test, rather than the sole purpose test in

Grant v Downs. In page 601 of the report in

(1985) 1 NZLR 596, His Honour Mr Justice Cook said

at lines 40 to 45:

There is also an increasing awareness in the common law world that the tactics of the adversary system are not the be-all and

end-all of the route to justice.

We would suggest, with respect, that this is

another recognition that the time-honoured and

cherished practices of the Court of Common Pleas

and other common law courts are yielding place

steadily and progressively to a new era of

disclosure.

MASON CJ:  How does that affect principle or any suggested

change in principle?

MR HEENAN:  It dilutes the force of the philosophy that

regards the adversary nature of proceedings as

justifying - - -

MASON CJ:  I follow that, but what is the consequential

change in principle that should follow from that?

MR HEENAN:  The consequential change in principle is that

privilege should be more narrowly confined, and

confined only to confidential exchanges between

lawyer and client. Many of those confidential

exchanges will be necessary in the conduct of

litigation, but the conduct of litigation will

involve many other steps which do not require that.

Can I take Your Honours then very quickly to

the United States position and refer to the passage

cited in pages 26 from Wigmore and McCormick. I

Western(2) 61 14/10/93

will leave Your Honours to read the passage from

Wigmore. It is important in that again it

exemplifies the need for confidentiality, and

contains the observation that once confidentiality

is lost, privilege is lost. But may I take

Your Honours to McCormick on Evidence,

4th Edition 1992, and we cite in our outline

paragraph 91, but paragraph 87 has some interesting

and helpful material upon the background of the

privilege, and again explains at the foot of the

second column on page 120 and the top of the first

column on page 121 how the historical expressions

of the principle are unsatisfactory, and how the

law is in need of reform; and at page 128 and

paragraph 91 is the passage which has found its way

into our written submission, again expressing the

need for confidentiality.

Looking at the cases on page 27, they simply

are a whole series of examples of where privilege

was refused where the facts showed that one way or

another the information was not confidential

because it was intended to be disclosed, or it was,

in fact, disclosed or not treated as confidential.

Can I say to Your Honours immediately, that there is some need for care in looking at the

United States authorities because their view of

legal professional privilege is, in one important

way, quite different from ours. Their concept of

legal professional privilege appears to be confined
to what we would call legal advice privilege, and
the litigation privilege, in so far as it relates

to the acquisition of opinions, briefs, advices on

evidence, witness proofs, and things of that

nature, comes under a different rubric to lawyers

work product privilege or work product immunity.

That is not an absolute privilege. It is a

qualified immunity and resort may be permitted to

lawyers brief materials or work product materials

on application to the court if the party seeking

that access can demonstrate that he cannot obtain

access to such materials conveniently or without

undue hardship by any other means. Such, for
example, if the witness were dead or was out of the

State or could not be traced. There is a fairly liberal practise of allowing recourse in those circumstances.

Even then, however, when granting leave to

access to such materials which are within the
lawyer's brief, under the work product rule

disclosure is not allowed of material which would

disclose opinions, impressions, theories, tactics

or other abstract formulations of the manner in

which the case will be conducted, but as a means of

Western(2) 62 14/10/93

obtaining access to facts there is that recourse

available.

Can I then take the Court to paragraph 45 of our outline and the reference to the work,

American Jurisprudence, which is a text on American

law, volume 23. We quote from paragraph 62 but,

might I take Your Honours to paragraph 50 of the

document. It has been distributed to Your Honours'

tipstaves. If I may just read from this as to the

work product rule. This is a subsequent

codification of the decision of the United States

Supreme Court in Hickman v Taylor which we have

referred to and discussed. Hickman v Taylor at

pages 28 and 29 of our outline, and the work

product rule is in these terms:

A party may obtain discovery of documents and

tangible things otherwise discoverable and
prepared in anticipation of litigation or for
trial by or for another party or by or for
that other party's representative (including
his attorney, consultant, surety, indemnitor,

insurer or agent) only upon a showing that the

party seeking discovery has substantial need

of the materials in the preparation of his

case and that he is unable without undue
hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of trial preparation materials where

this showing has been made, a court is

required to protect against disclosure of the

mental impressions, conclusions, opinions, or

legal theories of an attorney, or other

representative of the party concerning the

litigation.

Your Honours, dealing with witness statements there

is paragraph 62 at page 399 of the text which is in

our written outline and it may be useful by way of

analogy to look also at paragraph 65 on page 404 Although the Federal Rules and state

dealing with expert opinions.

counterparts that deal with the disclosure of

expert opinions are designed to exclude facts

and opinions developed by experts from the

operation of the work product rule state laws

that do not incorporate the federal expert

witness rule, but grant a privilege to any

writing created in preparation for litigation

may encompass the opinions of experts prepared

in anticipation of litigation at least where

the expert's report is prepared at the

direction of a party's attorneys. In order to
qualify as work product, the expert's report

or appraisal must be solely prepared for

Western(2) 63 14/10/93

litigation and not, for example, for the

purpose of negotiating with third parties.

The work product privilege may not be

used to limit the disclosure of a physician's

report, if a state's rules require the

exchange of medical information -

and so on. In our respectful submission, the

tendency of the United States jurisprudence is to

require full and complete disclosure of all facts
pertinent to the matter under consideration,

preserving for the lawyers work product a scope of

limited immunity absolute only as to what might be

regarded as tactical matters, but this is designed

to ensure that all material facts would come before

the court.

The Canadian position has already been

adverted to in the submissions which I have made,

resting on Strass v Goldsack and The Queen in right

of Alberta in pages 33 to 35. In our respectful submission, Your Honours, the essential point in

this case is, that if there is an interest which

would justify the non-disclosure of the Beckwith

affidavit, it should be perceived as the desire to

preserve the tactical advantage of surprise in the

litigation.

It is our submission that that is not a

criterion which legal professional privilege will

or should protect. Might I say one final word.

There is a decision of the Queen's Bench Division

of the High Court in London, General Accident Fire

& Life Assurance Corp Ltd v Tenter (Zephyr),

(1984) 1 All ER 35, which is on the respondent's

list of authorities, where the question at issue is

whether certain written statements need to be

disclosed before trial. There is an observation by

Mr Justice Hobhouse in the text of the judgment

that affidavits, before being filed, are
privileged.	No doubt my learned friends will rely

significantly on that observation. I am sorry, it is in the list of authorities for the State Energy

Commission.

His Lordship expresses no authority for that

proposition. It is not essential to the reasoning

in the case, it is not refined or developed.	It
may be correct or it may be the expression of a
common fallacy.	It is clear that it is the view

which His Lordship holds. Whether it is right or
not cannot be perceived, but it is one instance
where there is a reported occasion of judicial

expression that an affidavit, before filing, is

privileged. We suggest, for the reasons that we

Western(2) 64 14/10/93

have argued, that that is not an accurate

expression of the law. May it please Your Honours.

MASON CJ: Thank you, Mr Heenan. Mr Zelestis.

May it please Your Honours, we intend to make some supplementary oral submissions to our written

outline, and to direct our attention to the central

matters of principle with which this case is

concerned, and also to attempt for ourselves some

answers to some of the questions which have fallen

from Your Honours.

We begin with the proposition that legal

professional privilege is a single principle which

has two broad limbs, which might be loosely called the advice limb and the use in litigation limb. I

will attempt to describe them more specifically in

a moment. We say that there is no separate

privilege, which may be described as a materials

for evidence privilege, which provides some

all-embracing protection against disclosure of the

things you are getting ready to tender. We say

that that concept either comes within - - -

BRENNAN J: That is not the proposition though, is it? It

is not that you are getting ready to tender, it is

that you are keeping in your brief for use?

MR ZELESTIS: Yes, but even with respect to that,

Your Honour, we say there is no separate privilege.

We say that either it comes within one of the two

branches of the legal professional privilege limb,

or head of privilege, or it does not come at all.

So we say that the case is, from beginning and end,

a case about legal professional privilege and there

is no other category which protects prospective

evidence which is being prepared.

Secondly, we say that it is well established

that the object of legal professional privilege is	to protect confidential communications. It is the
confidence which is at the heart of the
relationship between the solicitor and the client
which must be protected. If the confidence is
lacking, there is nothing to protect.

Now, one has to, in applying the candour of

rationale, which is the reason why one wishes to

protect the confidential communication, one has to

recognize the distinction between removing a
disincentive to the use of legal services, the
disincentive being the risk of disclosure of what

you have put to the lawyer or what the lawyer has

put back to you, and quite another matter, that is,

giving a positive incentive to citizens to use

lawyers by enabling them to obtain a greater degree

Western(2) 65 14/10/93

of secrecy for their materials than they would

obtain if they were litigants in person.

We say, it is that distinction which is

central, that one must bear steadily mind in

determining what are the limits to which the

doctrine of legal professional privilege will
extend, because if it travels too far past the

stage of removing the disincentive, and too far

into the stage of providing a positive incentive,

then it is travelling beyond the rationale.

Now, of course, when you remove the

disincentive you are always going to, to some

extent, provide some advantage. But that is not to

deny the importance of the distinction we seek to
draw, it is simply to emphasize the importance of

endeavouring not to travel past the point

completely where you are merely removing a
disincentive and you run into the territory of

conferring an advantage which an ordinary litigant

in person would not enjoy. In Waind's case, I

think it was Your Honour the Chief Justice, made

the observation that it is extremely unlikely that

a litigant in person may have his own materials

prepared for trial protected. That provides the

contrast between the position of the represented

and the unrepresented person.

Next, Your Honours, we attempt a statement of

what the principle of legal professional privilege

is, bearing in mind the sole purpose test which has

been advocated or established in Grant v Downs. In

our submission, legal professional privilege

attaches to communications which are created or

made for the sole purpose of obtaining or giving

legal advice or for use in litigation where the

intention of the party, that is the client, is that

the communication will be and remain confidential.

We say that implicit in the Grant v Downs test is a necessary link between the sole purpose of creation

and confidentiality, so that if at the time a

document is created for the purpose of submission

to lawyers, one of the purposes actually in mind is

possible disclosure - not definite disclosure but

possible disclosure - then the sole purpose test

cannot be and is not satisfied.

To deny that proposition, in our respectful

submission, would be to extend the protection of

privilege beyond the true rationale. It would be

to extend it beyond protecting what is solely

intended to be a confidential communication into

something which the party has in mind he might

publish. Your Honour - I think it was

Justice Brennan - put to my learned friend,

Mr Heenan, questions about taking proofs in

Western(2) 66 14/10/93

circumstances where although there is no immediate

evidence to suggest that the witness will die, be

unavailable, be overseas, be mentally incapable, or

for some reason be unable to give evidence,

nevertheless the prudent solicitor has very much in

the back of his mind the prospect that he had

better do a good job because the occasion may arise

when he needs to seek to tender it under

section 79C.

We say that problem, Your Honour, is simply to

be resolved by the application of the sole purpose

test. If it is nothing more than the kind of

situation I have just described, in the back of his

mind with no particular fact which would support a

basis for concluding that there was a reasonable
prospect of the witness being unavailable, then the

sole purpose test would be satisfied. The sole

purpose of the proofs would be to instruct counsel

to lead the witness, there would be no intention to

publish them.

But, if the facts were different and you had a

case where the witness was almost certainly about

to die, or almost certainly to be unavailable, then

you would easily conclude, as we urge should be

concluded here, that the sole purpose test cannot

be satisfied. So, it is a question of fact, in

every case, that the mere theoretical prospect that
a witness may die, or be otherwise unavailable, is

not enough to destroy the sole purpose of

confidential use.

Now, here we say that the line between

intended confidential use and intended possible

disclosure was firmly passed because it is clear

that the respondents' and their solicitors' state

of mind was that Mr Beckwith was unlikely to

survive, unfortunately, and the form in which the

statement was put was eloquent testimony, testimony
of the intention with which it was taken.	Its

intended use was, in certain events, to tender it.

So, we say that the question of fact, which is

raised by the sole purpose test, is easily answered

here.

There was some discussion with my learned

friend -

BRENNAN J: There is a logical attraction about that

proposition, Mr Zelestis, but in practical terms I
am not sure that it is easily to be applied. Take,
for example, the case of a witness who is going

overseas, and it is uncertain when the case will be

called on. So, if the document is taken and signed

with a very real and substantial intention that it

might be used if the case is called on. It means

Western(2) 67 14/10/93

that the advantage is lost of using that document

merely as a proof of evidence. It is a

considerable disincentive then to take such a

document. I am not saying that that is an answer

to your argument but it does seem to me to be a

practical sort of a problem which means that 79C

has substantially revolutionized solicitors'

practice.

MR ZELESTIS: Your Honour, can I say in answer to that. If

it does pose a practical problem, and I recognize

the force of Your Honour's observation, then it

poses because of what you might decide as the

sharpness of the sole purpose test. One can see a

similar practical problem, in a different case,

raising a sole purpose question. A person prepares

a document, he has in mind that depending upon the

nature of the advice which his lawyer gives and to

whom he is going to submit the document, he may put

the document to another use. A kind of - not a

parallel purpose, but a consequential possible

purpose. You get the same very severe practical

difficulty of what is the answer to the sole

purpose test. In the meantime, he is awaiting the

legal advice, but if it is a certain way, then he

may wish to publish the document.

The sole purpose test, as I say, is the root

cause because it has a certain sharpness to it, and

it is going to produce answers which may, at first

blush, appear to be a little discordant, but when one sees the reason why the sole purpose test was

adopted, one sees the reason why a strict approach

is adopted, and why it is such a sharp point. We

say that if the cases which Your Honour has

postulated fall on the side of the line which is

disclosure, well, so be it. You are simply making

the legal professional privilege principle
subservient to the greater principle of disclosure.

As I say, one has to accept that you are always

going to get problems of that kind.

With respect to the form of the affidavit,

some questions were put to my learned friend

concerning the significance of the fact that it was

taken on oath. I am certainly not aware of any

provision in Western Australian law which prohibits

the taking of a voluntary oath, but oaths or

affidavits are specifically provided for under a

series of sections of the Supreme Court Act,

section 171 and then 174 to 177, and
section 177(1), for example, provides that -

Affidavits for use in the Court or in any other court, or for any purpose or in any way authorized by law, may be sworn and taken in

Western(2) 68 14/10/93

any place out of the State in accordance with

the Rules of Court.

So there is statutory authority for the taking of

affidavits, but it is not expressed in terms which

would narrowly confine the circumstances in which
you could take an affidavit, and it would

seem - - -

DEANE J:  I notice Coke's Institute say:

It is high contempt to administer an oath without warrant of law to be punished by fine

and imprisonment -

and stress that unless it is one of the rare common law cases you need to identify statutory authority.

MR ZELESTIS:  The position may be - I do not wish to

advocate for the respondents - that if you intend

to make an application under, I think my learned

friend, Mr Heenan, referred to Order 36, or indeed

under section 79C, to have affidavit evidence

admitted, it would seem reasonable that you might

obtain the affidavit in advance. If the

application is lost, well so be it.

DEANE J: But may not the relevance be in the nature of an

oath, and that is that you go before the duly

appointed representative of the community on an

occasion allowed by the law of the community and
call on God, in the case of an oath, or in the case

of an affirmation you perform the step which the

community has decreed is the appropriate step to

attach a certain validity to the content of the

oath?

MR ZELESTIS: Yes, we say that the inference from it is not

only does it have that force - - -

DEANE J: There seems to be nothing before us on that area.

Has anybody looked to see what there exists on

secret oaths and that area of the law?

McHUGH J:  The Tolpuddle Martyrs were sent out to Australia

for taking a secret oath.

BRENNAN J: 

Does not the Criminal Code contain a general

provision against the administration of oaths
without authority?

MR ZELESTIS: 

I think, with respect, it does, Your Honour,

but we have not - and I do not think any of the
appellants in this case have - advocated the

proposition that this was an oath administered

without authority. Indeed, as I understand it,

Western(2) 69 14/10/93

although I was not there in the Full Court, one of

the appellants sought to make use - - -

DEANE J: But that is not the area that we are discussing.

It is the existence of the offence, not the

suggestion of the offence.

MR ZELESTIS: 

We have rather sought to draw from the fact

that it was taken on oath the point that the takers
of it, the party who procured the taking of the
affidavit, intended to give the evidence added

weight, the force of having been sworn testimony,

and also that it spoke eloquently of the intention

to use the material if he died. We say that those

facts are sufficient for us to succeed because of
the necessary relationship between confidentiality

and the sole purpose. At the risk of repetition,

our contention is - - -

DEANE J: That has all come through quite clearly.

MR ZELESTIS:  The sole purpose test really requires that

there be no collateral purpose of disclosure,

otherwise you are merely allowing the lawyer to be

the client's refuge and extending a protection

which the client should not enjoy on account of

legal professional privilege.

BRENNAN J:  I understand why you put it on the basis of

disclosure, having regard to the confidentiality

observations in the cases, but is it not really a
question of whether a document is one which can

advance one client's case or impeach another

client's case of its own force?

MR ZELESTIS:  We say that is not a test of legal

professional privilege or of disclosure.

BRENNAN J:  What I was suggesting to you was that if there

is a document of that kind, not being a document

which is ordinarily to be tendered - put another

way: if there is a document of that kind, not

being an ordinary proof of evidence, then the

ordinary rule with respect to discoverability

applies.

MR ZELESTIS: Yes. Can I illustrate, perhaps to show the

effect of the proposition for which we contend,

some circumstances in which it would lead to a

disclosure of materials and circumstances in which

it would not. We say - and I have already said -

that with respect to proofs of evidence, taken for the purpose of instructing counsel so as to enable

him to lead a witness, that the position would

remain that they would be privileged.

Western(2) 70 14/10/93

If a witness refreshed his memory out of court

from such a proof and it happened that, in

cross-examination, that fact was revealed and the

document was called for, then we would say that

what is happening there is a case of implied waiver

on the principle of avoiding unfairness of the kind

discussed in Maurice by several of Your Honours.

But that until that point the proof would be

privileged.

With respect to expert reports, it is common

these days for an order to be made, not that the

reports always be disclosed prior to trial but that

the substance of the expert evidence intended to be

relied upon by a party be disclosed. We would say

that if the party obtained a final expert's report

and not a draft, a version which was setted, signed

by the expert with a definite or possible intention

of tendering it then that would not be privileged

because it would not survive the sole purpose test

of confidential use. It would be a document which

was attended by an intention that it might be used.

So that notwithstanding the limited nature of

a disclosure order, the report itself would be

discoverable. Draft experts' reports would remain
privileged for the same reason that the witness
statement would remain privileged.

Now, another example perhaps illustrates the proposition. There may be cases in which a party submits material confidentially to an adviser

intending that it remain confidential. Privilege

would attach to the documents so created and

submitted. If advice is then accorded or provided

with an intention that it be confidential, that
would be privileged. If, as a result of the

advice, the client intends to take some action and,

for the purposes of preparing to take action, the

lawyer drafts a document - it might be an offer or

the client desires that that document drafted by	it might be public announcement or something - but
the lawyer with his legal expertise should remain
confidential until a time when it is appropriate to
make it public or to despatch it.

The force of our proposition is that it is not

privileged, and we say that that, while it might at

first blush be once again thought to be a

surprising result, is because at that point the

need for candour is gone and you are merely trying

to use the lawyer's cloak, the lawyer's gowns, as a

means of preserving a secrecy that would not be

yours if you had drafted the document yourself.

Drafting the document, having the legal services provided to prepare it, does not require the maintenance for a period of time of its

Western(2) 71 14/10/93

confidentiality against some disclosure by some

process. So we say, upon a careful analysis, even

that is not a result which should be rejected.

Now, there is a question in the case of onus

of proof. I am not sure, I am unable to really say

that it affected the resolution of the case but it
was certainly put very clearly by His Honour

Mr Justice Seaman that the effect of the rules of

the supreme court, which required a party seeking
to challenge a claim to privilege to put on some

evidence traversing the claim, that the onus of proof, the ultimate onus, rested upon the party challenging the claim to privilege.

We say that legal professional privilege is

such an important matter that such a clear

statement should not be allowed to pass without

comment if it be thought to be wrong, even if it is

not seen clearly to have affected the result here.

I say that because here His Honour has not -

MR : If the Court pleases, this goes to none of

the ..... in the notice of appeal .....

MR ZELESTIS:  Your Honours, that is true. We did put on a

motion for leave to amend the grounds of appeal. I

am unable to move the motion because I am unable to

say that the error, which we contend it was, caused
the court to reach the view which it did on the

facts or the result because Their Honours have not

said that it was by taking into account the

question of onus that they reached the construction

of the facts which they did. So, as I say, I am

unable to move the amendment. We simply say that

it is an important statement upon an important

topic which, if the Court thinks is wrong, as we

urge it is, ought be said to be wrong.

That is all, with respect, we really intended

to say about it, perhaps other than to say that

what Justice Seaman said was - he referred to

Your Honour the Chief Justice's remarks in Grant v

Downs and said he could not draw from them a

statement that the onus did lie on the party

claiming the privilege. We would have said, with

respect, that the remarks in question were clear

beyond all doubt and that all the rule does is cast

an evidentiary onus which, when satisfied, leaves

the ultimate onus where it began.

Several of Your Honours have asked the question whether there is any direct statement of

authority, English or Australian, which supports

the propositions for which the appellants contend.

None of us has been able to give Your Honours a

clear statement, even at a lower judicial level,

Western(2) 72 14/10/93

which supports it. We say that the proposition for

which we contend is implicit in some passages in

the cases.

Might I briefly take Your Honours to Maurice's

case, 161 CLR 475. In the judgment of the
Chief Justice at page 480 at about point 2 on the

page, there is a reference to the status of the
claim book. His Honour says at about point 2 or

point 3:

Although it does not matter, it does not

seem to me right to suggest that the 1982

Claim Book was privileged. It was not a

document which had been brought into existence

for the sole purpose of being submitted to

legal advisers for advice or use in legal

proceedings ..... On the contrary the completed

claim book ..... was intended to be, and was,

communicated to all the parties concerned -

It is those two sentences beginning, "It was not a

document" which we seek to rely upon, for this

reason, that on one view the claim book was

certainly a document submitted to legal advisers

for use in the legal proceedings, in the sense that

the lawyer obtains instructions, he drafts the

claim book, he shows it to the clients, and the

clients, in effect, instruct him and authorize him

to use it in the proceedings.

So, in that sense, it is a communication made

for use in the proceedings, but the reason why it

does not come within the Grant v Downs test is that

it was not accompanied by an intention of

confidentiality. It was accompanied by an

intention that it be published. Now, true it is,

in the sentence beginning, "It was not a document"

there is no reference to confidentiality but, with

respect, it is the next sentence which supplies the

obviously implicit in the test that there is an	reason why it is not within the test, and it is
element of confidentiality.

That perhaps does not travel far enough for us

because it does not deal directly with the central

question in this case which is what is the position

where there is a degree of confidentiality. The

party wishes to keep the document to himself for a

time, but there is another purpose attending its

creation, and that is its possible publication if a

decision is later made to adopt the version of the

facts which the Full Court have found.

But, nevertheless, we say that provides some

support for us, and we rely also upon the

observations of Your Honour Justice Dawson at

Western(2) 73 14/10/93

495 to 496, in which Your Honour also concluded

that the claims book did not ever attract privilege

because of the want of confidentiality about it.

So our central proposition, Your Honours, is that one cannot divorce the purpose, which must be

the sole and exclusive purpose, from the notion of

confidentiality and that confidentiality is an

integral element of the requisite purpose. For

those submissions, in our respectful submission,
the claim to privilege in this case was very much

bound to fail. Those are our submissions, may it

please the Court.

MASON CJ:	Mr Zelestis, could you, in conjunction with counsel for the other appellants, take steps to
ensure that the Court is provided with those sections in the Western Australian Act to which you referred, together with section 79C and Order 36?

MR ZELESTIS: Certainly, Your Honour.

MASON CJ:  And 104 and 106 as well.

MR ZELESTIS: Certainly, Your Honour.

MASON CJ:  Mr Shaw?

MR SHAW: If the Court pleases. There are only a small

number of points we want to make. The first one is

that we do not intend either to read or go through

our written submissions and we simply commend them

and the judgments in the Full Court to this Court and submit to Your Honours that Your Honours will

find much assistance and pleasure in both of them.

The next thing we wanted to say was this: the

classical statement of the rule is, in our
submission, to be found in the judgment of the

Master of the Rolls, Sir George Jessel, in Anderson

v Bank of British Columbia, (1876) 2 Ch D 644, at

pages 648 and 649. If I might briefly take the

Court to what is said by His Lordship since it is

the fountain of much that subsequently follows.	By
"follows", I mean follows in later cases. At the
bottom of page 648 His Lordship says:

What is the rule, and what is the meaning

of the rule?

And about five lines down on page 649, he said:

The object and meaning of the rule is this: that as, by reason of the complexity and

difficulty of our law, litigation can only be

properly conducted by professional men, it is

absolutely necessary that a man, in order to

Western(2) 74 14/10/93

prosecute his rights or to defend himself from an improper claim, should have recourse to the

assistance of professional lawyers, and it

being so absolutely necessary, it is equally
necessary, to use a vulgar phrase, that he
should be able to make a clean breast of it to
the gentleman whom he consults with a view to
the prosecution of his claim, or the
substantiating his defence against the claim

of others; that he should be able to place

unrestricted and unbounded confidence in the

professional agent, and that the

communications he so makes to him should be

kept secret, unless with his consent (for it

is his privilege, and not the privilege of the

confidential agent), that he should be enabled

properly to conduct his litigation. That is

the meaning of the rule.

Then, His Lordship goes on:

Now, as to the extent of the rule. It goes

not merely to a communication made to the

professional agent himself by the client

directly -

and he says it is wider. And then, in the last

paragraph on the page, His Lordship says:

Again, the solicitor's acts must be protected

for the use of the client. The solicitor

requires further information, and says, I will

obtain it from a third person. That is

confidential. It is obtained by him as

solicitor for the purpose of the litigation,

and it must be protected upon the same ground,

otherwise it would be dangerous, if not

impossible, to employ a solicitor. You cannot

ask him what the information he obtained was.

It may be information simply for the purpose

of knowing whether he ought to defend or

prosecute the action, but it may be also

obtained in the shape of collecting evidence
for the purpose of such prosecution or

defence. All that, therefore is privileged.

So, His Lordship is using confidentiality in

relation to this branch of the privilege in a

particular sense, and that statement led to

Lord Justice James saying, on appeal in this very

case, that one cannot ask to see one's adversary's lawyer's brief, and it led to Lord Justice Mellish saying later in the case that you could not ask to see one's adversary's evidence.

Judges of the most unimpeachable authority

have repeated again and again the rule in terms

western(2) 75 14/10/93

like that. Lord Blackburn, in Lyell v Kennedy

(No 2), says that you cannot ask to see what the

lawyer gets, or Justice Lindley, in Re Strachan, or

Justice Mellish, I have mentioned in Anderson

v Bank of British Columbia, Lord Justice Cotton in

Kennedy v Lyell, all talk in terms of, "Your cannot

ask to see one's opponent's evidence" and - - -

TOOHEY J:  Does this mean, Mr Shaw, that you place the

argument solely in terms of the traditional view of

legal professional privilege?

MR SHAW: All I am doing at the moment, Your Honour, is

saying that the traditional statements of the rule

in the places of the highest authority are stated

in terms which cover this case in our favour. I

was going to finally add, if one goes to Lord Simon

in Waugh v British Rail, (1980) AC, one finds the

same thing said. So in our submission, one has

statements of the rule which indisputably support

us. Then, one says - and Your Honour Justice Deane

said this - "Can't you have some form of temporary

confidentiality?" Is it not possible to say,

"Well, you've got it now and you intend to keep it

confidential"? Later on you may have decided to

use it, or pretty nearly decided to use it, or may

think you will use it, or whatever it might be, but

until you use it it is confidential. Your Honour

said, "Are there any examples of that?" The answer

given, as we understood the answer, was "No". In

our submission, the answer is "Yes".

The first example we give is the example of expert reports which are subject to the privilege,

whether or not they are intended to be used in
evidence. English authority in support of that

proposition will be found in Re Saxton,

(1962) 3 All ER 92, Causton v Mann Egerton,

(1974) 1 All ER 454, and Comfort Hotels v Wembley

Stadium, (1988) 3 All ER 53.	I will not go to
those cases, but I will simply say about the last

one, the last one was a case in which the rules of

court which provided for an exchange of expert

reports were challenged as being ultra vires the

judges because, so it was argued, rules providing

for such an exchange impinged on the privilege we

are talking about and the judges did not have

authority to do that. What was held by

His Lordship Mr Justice Hoffman was that the

privilege remained unimpaired, all the rules did

was regulate the way in which a case was to be

conducted and all it meant was that if there was to

be evidence it should be exchanged early rather

than wait until the hearing.

But in Western Australia the legislature has proceeded differently and in section 32A of the

Western(2) 76 14/10/93

Evidence Act it has given the judges power to make

rules of court derogating from the privilege in

respect to expert evidence or expert reports. That

enactment obviously proceeds on the basis that the

privilege is as we have submitted that it is.

There are, it is submitted, other examples of

the same kind of confidentiality and if we might
refer first of all to the case of Learoyd v Halifax

Joint Stock Banking Company, (1893) 1 Ch 686, a

decision of His Lordship, Mr Justice Stirling.

That case concerned an application, in effect, for

discovery of depositions taken in bankruptcy in

proceedings to which the bankrupt was a party, and

at page 690 His Lordship referrs to the
authorities, Anderson v Bank of British Columbia -

right at the top of the page - Southwark and

Vauxhall Water Company v Quick - in the middle of

the page - and cites in particular

Lord Justice Cotton at the bottom of that long paragraph:

the principle was, that "if a document comes

into existence for the purpose of being

communicated to the solicitor with the object

of obtaining his advice, or of enabling him

either to prosecute or defend an action, then

it is privileged, because it is something done

for the purpose of serving as a communication

between the client and the solicitor."

Then, at the bottom of page 691, His Lordship says:

I will now look at the practical effect

of that rule. A person apprehensive of an

action goes to consult his solicitor, who says

that before advising he should like an

interview with a third party who is acquainted

with the matter. That person is invited to

come to the solicitor's office. He comes, and

the solicitor writes down what he says, and

that is preserved. Such a document would

plainly fall within the rules laid down by the

late Master of the Rolls, and would be

privileged against discovery.

In the present case the client is not an

ordinary litigant; he is a trustee in

bankruptcy, and he has power to compel

information to be given, which an ordinary

litigant has not. In such a case as I have

just referred to, the client could only rely

upon voluntary statements made by a person

acquainted with the case. Trustees in

bankruptcy and liquidators of companies have

wider powers. Sect 27 of the Bankruptcy Act,

1883, provides that the Court may -

Western(2) 77 14/10/93

and then it goes on to set out familiar provisions.

On page 692, His Lordship says in the long paragraph:

The nature of this 27th section is

explained by Mr Justice Chitty in In re Greys

Brewery Company, which was a case under

sect 115 of the Companies Act -

and he sets out what was said by His Lordship. At

the bottom of the page he cites a passage which

says that the proceeding is "in the nature of a

secret proceeding", and right on the last line:

The result of the examination - that which is

written down - is not evidence against anybody

else. It is the statement on oath of the

person under examination, but the examination

is not a proceeding in the nature of a

litigious proceeding between parties, the

object of the examination being ..... to get

information in order to see what course ought

to be followed -

Then, in the next paragraph, His Lordship says:

The client then, in this case, having the

power of obtaining information conferred upon

him by the 27th section of the Act of 1883,

goes to his solicitor and asks for his advice.

The solicitor says:  "You have the power of

getting information which I advise you to avail yourself of, so that I may have the

means of advising you." The trustee then

takes out a summons, and gets leave to examine

certain persons named. His solicitor

personally conducts the examination and gets a

transcript of the proceedings. That

transcript is a private document. It is true

evidence so taken is to be filed; but they do	that the Rules in Bankruptcy provide that the	not say that it is to be filed immediately. If that was done the main object of the
examination might often be defeated. The
point has often been considered both by myself
and by other Judges with reference to
depositions taken under sect 115 ..... The
practice under that section in all branches of
the Court is that the depositions, when taken, shall be returned to the Chief Clerk for use
in the liquidation; but they are not filed
until the Court is satisfied, through the
Chief Clerk, that no harm can be done by their
publication.

Western(2) 78 14/10/93

These depositions are accordingly

regarded as private documents; and why should
not a document obtained by a trustee in
bankruptcy for his own information, in order
to enable his solicitor to advise him as to

future proceedings, be privileged?

Then he goes on and says they are.

So that, it is there presented as a common

place of these kinds of proceedings, that you can

have such kinds of interim, or temporary,

confidentiality, and - - -

DEANE J: That case also supports you against the

suggestions I was making as to the relevance of the

MR SHAW: Indeed, it does, Your Honour. There is not only

that support, and the support of the passage that

my learned friend, Mr Heehan, referred to in The

Zephyr where Mr Justice Hobhouse said that

affidavits remained privileged until they are

filed. That is in The Zephyr, (1984) 1 All ER 35

at page 42. As my learned friend said, that

statement was made without authority but, in our

submission, it is supported by Goldstone v

Williams, Deacon in (1899) 1 Ch 47. This is

another decision of Mr Justice Stirling. If I

might go to the headnote:

In an action against G and her trustee in

bankruptcy for breaches of trust committed by

her as administratrix of her deceased

husband's estate, the plaintiffs' solicitors

had prepared certain which were produced to
her on examination before an examiner, and

admitted by her to be correct. The action was
afterwards compromised, and the depositions of

G to which the accounts were exhibited were

entered as read in the order of compromise.

The accounts related to transactions between G

and a firm of bankers with whom she had (in

alleged breach of trust) deposited securities

belonging to her husband's estate to secure

advances to herself. In another action by the
same plaintiffs against the bank, the

defendants claimed production of the accounts,

and of the office copy of G's depositions,
both of which were in the plaintiffs'
possession.

So, what they wanted was copy depositions, and

something which had been exhibited, but before

being actually introduced into evidence, the action

had been settled.

Western(2) 79 14/10/93

If I could go to page 51, Justice Stirling

sets out what the questions are, and says:

The first of these questions is by far

the more important, and is one of some nicety.

The ground on which production is resisted on

behalf of the plaintiffs is that the documents
are privileged. It must be taken that the
accounts were in the first instance
privileged, for they were prepared at the

instance of the plaintiffs' professional

adviser with a view to a former litigation

after that litigation had commenced. That

alone would be sufficient to confer privilege

even if they had not been prepared also with a

view to the present litigation.

And, going over to the next page, at about the 5th

or 6th line of the long paragraph:

But there is another line of decisions under

which it is sought to bring the present case.

It has been decided that notes of proceedings

in open court ..... or before an

arbitrator ..... are, as a rule, not privileged,

but must be produced. Those decisions proceed

on the ground, as I understand them, that the

administration of justice in this country is a

matter of public interest, and to be conducted

(again as a general rule) in public, and,

consequently, that there can be nothing

privileged or confidential which passes in

open court. If, then, the proceedings in the

former action had taken place in open court,

and if the plaintiffs had in their possession

a shorthand writer's note of them, it would
seem to me that such a note must be produced.

That, however, does not completely answer the

question with which I have to deal. Such a

note would only show that a particular

document had been placed in the witness's

hands and had been admitted to be correct.

The document itself is only made an exhibit,

and consequently, is not on the file at all.

The contents of the document did not get on

the examiner's notes. Beyond this no use was

ever made of the document in the former

action, except that it was read in the order

of November 13, 1897.

Then he goes on to describe the order. At the top

of the next page:

Such use was not a public disclosure, but was

in its nature confidential, and cannot affect

the question which I have to decide. It seems

to me that the case stands very much in the

Western(2) 80 14/10/93

same position as if on a trial in open court

after a document had been placed in a

witness's hands, and its contents had been

admitted to be true, but before it had been

read, a compromise had been arranged between

counsel. It appears to me that the document

in question was never effectually made public,

and that the use made of it does not amount to

a waiver of the privilege.

Then he refers to North Australian Territory Co v

Goldsborough, Mort & Co. He goes on to hold that

the exhibit was privileged because it had never

been disclosed and had not become what is described

as publici juris but the copies of the depositions,

which was simply a copy of the evidence which had

been taken in open court, was not privileged in the

same way.

So that, in our submission, that authority

we would submit that there is old and good

supports the statement which is made by

authority which supports the proposition that you

can have confidentiality which is intended only to

perhaps be temporary and that when my learned

friends make the proposition as they do, that in

order for this kind of privilege to operate it must

be intended that the communication in question be

and remain confidential, that submission is

contrary to both common sense, the practical

necessities of the conduct of litigation and the

authority that we have referred to.

In our submission, the obvious way to remedy any difficulties which might be felt with the

conclusion which we urge is the kind of

arrangements which have been made for the early

exchange of expert reports because if it is done on

that basis, each party is put to the same

difficulty, or disadvantage, or advantage, whatever

it might be, and one party is not advantaged

against the other.

Might I now go to the facts. In our

submission, the way in which the Full Court
approached the matter, at pages 24 and 44 of the
appeal book, is both a common sense approach and
one which this Court ought to follow rather than

the approach which my learned friends have urged on

the Court.

As to the foreign cases that my learned friend

has referred to, may we say this: in our

submission the United States cases are of little

assistance because of the different development of

the rule there. As to the Canadian cases, both the

Western(2) 81 14/10/93

case of Flack v Pacific Press and the case of

Strass v Goldsack are cases of statements taken

from the other party to the litigation. They, in

our submission, for that reason, really do not

impinge on the present question at all because a

very different question arises when one asks is

something intended to be kept confidential from the

other party when the something in question is

something which was, in fact, imparted to you by

the other party.

In our submission, those cases really do not

go to the point at all. The Queen in right of

Alberta v Stearns Catalytic, which was the other

case that was referred to, does go to the point.

That was the case about the statements taken from

five witnesses in the form of affidavits. The

relevant passage from the judgment which is a

judgment of the Alberta Court of Appeal has already

been read to the Court. The judgment of the court

seems to have been delivered in circumstances of

some urgency. It seems to be extempore and there

is substantial reference in the course of the

judgment to the necessity of delivering judgment

then and there. The passage in which the

affidavits were held to be not privileged turns on

two sentences, and I will read them out:

An affidavit not intended to be used in

judicial proceedings has somewhat shaky

legality. Tying down someone who may later
testify in court by having him privately swear

to certain facts is an undesirable practice

which needs no encouragement by the courts.

One does not know, of course, what the position is

in Canada, but Your Honour Justice Brennan

yesterday and Chief Justice Malcolm in the course of argument in the Full Court, referred to the frequent practice of insurance assessors and other	people acting for insurance companies taking sworn	statements as a matter of practice, and in our
submission, the suggestion which is made there has
no foundation either in practice in Australia or in
reason or common sense in Australia.

So that our submission is, when you look at

the rule, when it is stated in its classical form

it clearly gives us the privilege which we claim.

Obviously the circumstances demonstrate that the

affidavit has been kept so far confidential. The

criticism that confidentiality was possibly only

temporary is, in our submission, met by authority

and the submission that the fact that the affidavit

is sworn renders it in some measure public is also

met by authority. So that our submission is that

Western(2) 82 14/10/93

the Full Court was quite right.	If the Court
pleases.

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

MR SHER:  May it please Your Honours. The question

Your Honour Justice Brennan asked yesterday of

Mr Heenan at page 30 of the transcript was as to

whether there was any English or Australian case:

in which it has been held or said that

information acquired by a solicitor from a

third party for the purpose of pending

litigation is discoverable -

There are, we believe, two English cases which fit

that description, at least, and possibly a third.

Those cases, Your Honours, are referred to in our reply. The cases are Harmony Shipping Co v Saudi

Europe (CA), (1979) 1 WLR 1380, and Reg v King,
(1983) 1 WLR 411. They are both decisions of the

Court of Appeal and they are both concerned with the question of the evidence of experts.

They are to be contrasted with the decision of

Mr Justice Hoffman referred to by my learned friend

which we submit is easily distinguishable because

the rule in that particular instance specifically

provided that the rule was not to affect any
privilege, so the question of whether privilege

existed or not was not really in debate.

In the course of the judgment of Lord Denning

at page 1385 in Harmony Shipping, (1979) 1 WLR,

Lord Denning discusses the question of

communications of this nature and at a point

approximately half-way between paragraphs C and D

His Lordship said:

Many of the communications between the

privileged. They are protected by legal	solicitor and the expert witness will be
professional privilege. They cannot be
communicated to the court except with the
consent of the party concerned. That means a
great deal of the communications between the expert witness and the lawyer cannot be given
in evidence to the court.

Then down at paragraph E to F:

Subject to that qualification, it seems

to me that an expert witness falls into the

same position as a witness of fact. The court

is entitled, in order to ascertain the truth,

to have the actual facts which he has observed

adduced before it and to have his independent

western(2) 83 14/10/93

opinion on those facts. It is interesting to see that it was so held in Canada in McDonald

Construction Co Ltd v Bestway Lath &

Plastering Co Ltd. In this particular case the court is entitled to have before it the

documents in question and it is entitled to

have the independent opinion of the expert

witness on those documents and on those facts

- excluding, as I have said, any of the other

communications which passed when the expert

witness was being instructed or employed by

the other side. Subject to that exception it

seems to me (and I would agree with the judge

upon this) that the expert witness is in the

same position when he is speaking as to the

facts he has observed and is giving his own

independent opinion on them, no matter by

which side he is instructed.

What had happened in this case, Your Honours,

was that the independent expert had in fact, by

accident, been employed by both sides.

At page 1387D, Lord Justice Waller said:

The safeguard against an expert witness giving

evidence on more than one side is the

existence of professional privilege, and it is
clear that there is professional privilege for

all the discussions which took place between

Mr Davis and the plaintiff's advisers outside

the door of the court where the consultation

took place; and whether or not Mr Davis is put

in a situation of considerable embarrassment

has been a matter for him to consider.

At the top of the page, in the paragraph commencing

between A and B, His Lordship said:

As Lord Denning MR has said, the general

principle must be that no party has any

property in a witness; and the argument before

us has partly involved a discussion as to

whether there is a difference between a

witness of fact and an expert. In my view,
there is no difference between those two kinds

of witnesses as a matter of general rule.

Now, what Their Lordships were doing, with respect

we submit, is this. They were drawing a

distinction between what a witness could say as to

fact, and including an expert's opinion, and the

material on which he was basing his opinion, and

the instruction he had received from the solicitor

by which that opinion was elicited.	So distinction
is drawn there between a confidential

communication, namely, his instruction, "Mr Expert,

Western(2) 84 14/10/93

please direct your attention at this particular

issue because it is of importance to us in the

case", that would be privileged. But his opinion,

and the basis for it, is not privileged at all.

To similar effect is the Reg v King. The

passage in that judgment is very short. It is at

page 414.

BRENNAN J:	Do you mean to say that an expert's written report obtained by a solicitor for the purpose of
litigation is not privileged?

MR SHER:  No. What they are saying in these two cases -

BRENNAN J:  Even though there is no distinction between an

expert witness and a non-expert witness?

MR SHER: That is exactly right, and the point is,

Your Honour - - -

BRENNAN J:  The logic is a little difficult to follow.

MR SHER: Well, there is something to the effect in this

Court in Grant v Downs.	I will take Your Honours
to it in a moment.	The passage in the Reg v King,

(1983) 1 WLR 411, in the judgment of the court,
delivered by Lord Justice Dunn, at page 414,

between paragraph A and B, was to this effect:

Dealing first with the general position, the

rule is that in the case of expert witnesses
legal professional privilege attaches to

confidential communications between the

solicitor and the expert, but it does not

attach to the chattels or documents upon which

the expert based his opinion, nor to the

independent opinion of the expert himself: see

Harmony Shipping Co SA v Saudi Europe Line

Ltd.	The reasons for that are that there is
no property in an expert witness any more than
in any other witness and the court is
entitled, in order to ascertain the truth, to
have the actual facts which the expert has
observed adduced before it in considering his opinion.
Now, to those cases, Your Honours, could I

refer the Court to a short passage in Grant v

Downs, 135 CLR 686, in the joint judgment of

Mr Justice Stephen, Your Honour the Chief Justice

and Mr Justice Murphy. I observe the time,

Your Honours; I might be about another 10 or 15

minutes altogether.

Western(2) 85 14/10/93

MASON CJ:  We will adjourn now and we will resume at 2.15.

AT 12.47 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.17 PM

MASON CJ: Yes, Mr Sher.

MR SHER:  I was about to take Your Honours to a short

passage in Grant v Downs at page 686 which also,

inferentially at least, deals with the question of

third party witnesses. At that page at the last

paragraph, the joint judgment states:

An individual seeking legal advice cannot

be required to disclose the information he
communicated to his legal adviser nor the

nature of the advice received nor may the

legal adviser disclose it. However, a

litigant is, of course, bound to disclose his

own knowledge of relevant facts. It would be

curious if, because the litigant happens to be

a corporation the rule was for that reason

different.

That suggests that a litigant is bound to disclose,

even though they have been communicated to his or

her lawyer, relevant facts and obviously if a

litigant is bound to do so, we would suggest so

would a third party.

The other case that deals with this issue and

quite specifically, is the case of Wheeler v

Le Marchant, but before taking Your Honours to it,

might I just say something about one of the cases

my learned friend, Mr Shaw, referred to this

morning, the case of Learoyd v Halifax Joint Stock

Banking Company (1893) 1 Ch D 686, and point out an

observation to Your Honours. at page 691. As

Your Honour Mr Justice Deane observed, this is a

good case for my learned friend and it is not

surprising he sought to rely on it.

But, what the judge was trying to do in that

particular case was trying to overcome some

problems that he was confronted with by the case of

Wheeler v Le Marchant, and Your Honours will see at

691 in about the middle of the page, His Honour

said, just before the passage that was quoted:

Western(2) 86 14/10/93

I do not think that the Court of Appeal

intended, in Wheeler v Le Marchant, to limit

the rule of the Court with regard to

communications to solicitors in contemplation

of litigation, or for the purpose of obtaining

evidence with reference to it.

So His Honour was well aware of Wheeler v Le

Marchant, and clearly aware that it was presenting

something of a problem to him in the case before

him.

If I can now take Your Honours to Wheeler v Le Marchant, (1881) 17 Ch D 675, Your Honours will see

from passages in the judgments of the Court of

Appeal a distinction which has never been

at the very bottom of the page, the second-last

recognized in this country was made by the Court of

line:

What they contended for was that documents

communicated to the solicitors of the
Defendants by third parties, though not communicated by such third parties as agents

of the clients seeking advice, should be
protected, because those documents contained
information required or asked for by the

solicitors, for the purpose of enabling them

the better to advise the clients. The cases,

no doubt, establish that such documents are

protected where they have come into existence

after litigation commenced or in

contemplation, and when they have been made

with a view to such litigation, either for the

purpose of obtaining advice as to such

litigation, or of obtaining evidence to be

used in such litigation, or of obtaining

information which might lead to the obtaining

of such evidence, but it has never hitherto

been decided that documents are protected

merely because they are produced by a third
person in answer to an inquiry made by the

solicitor. It does not appear to me to be

necessary, either as a result of the principle

which regulates this privilege or for the

convenience of mankind, so to extend the rule.

Then the Master of the Rolls went on to point out

that:

the principle protecting confidential

communications is of a very limited nature -

that it did not protect all confidential

communications, and he went on to discuss doctors

and priests receiving confidential material. At

Western(2) 87 14/10/93

the bottom of the page he continued in the fifth

last line:

Therefore it must not be supposed that there

is any principle which says that every

confidential communication which it is

necessary to make in order to carry on the

ordinary business of life is protected. The

protection is of a very limited character, and in this country is restricted to the obtaining

of assistance of lawyers, as regards the
conduct of litigation or the rights to

property. It has never gone beyond the

obtaining legal advice and assistance, and all

things reasonably necessary in the shape of

communication to the legal advisers are

protected from production or discovery in

order that the legal advice may be obtained

safely and sufficiently.

Now, keeping that in view, what has been

done is this:  The actual communication to the

solicitor by the client is of course

protected, and it is equally protected whether

it is made by the client in person or is made

by an agent on behalf of the client, and

whether it is made to the solicitor in person
or to a clerk or subordinate of the solicitor

who acts in his place and under his direction.

Again, the evidence obtained by the solicitor,

or by his direction, or at his instance, even

if obtained by the client, is protected if

obtained after litigation has been commenced

or threatened, or with a view to the defence

or prosecution of such litigation. So again,

a communication with a solicitor for the

purpose of obtaining legal advice is protected

though it relates to a dealing which is not
the subject of litigation, provided it be a

communication made to the solicitor in that

character and for that purpose. But what we
are asked to protect here is this.	The

solicitor, being consulted in a matter as to

which no dispute has arisen, thinks he would

like to know some further facts before giving

his advice, and applies to a surveyor to tell

him what the state of a given property is, and

it is said that the information given ought to

be protected because it is desired or required

by the solicitor in order to enable him the

better to give legal advice. It appears to me

that to give such protection would not only

extend the rule beyond what has been

previously laid down, but beyond what

necessity warrants.

Western(2) 88 14/10/93

Even more succinctly, Your Honours, at page 683

Lord Justice Brett made it clear that the protection of third party communications was

confined solely to litigation communications and

not to advice communications. His Lordship said

this at the commencement of his judgment:

The proposition laid before us for

approval is, that where one of the parties to

an action has in his possession or control

documents which passed between his solicitor

and third parties, they are protected in his

hands from inspection, on the ground that they

were documents which passed between the

solicitor and the third party for the purpose

of enabling the solicitor to give legal advice
to his client, although such information was

obtained by the solicitor for that purpose at

a time when there was no litigation pending

between the parties, nor any litigation
contemplated. It seems to me that that

proposition cannot be acceded to. It is

beyond any rule which has ever been laid down
by the Court, and it seems to me that it is

beyond the principles of the rules which have

been laid down. The rule as to the non-

production of communications between solicitor

and client is a rule which has been

established upon grounds of general or public

policy. It is confined entirely to

communications which take place for the

purpose of obtaining legal advice from
professional persons. It is so confined in

terms, it seems to me it is so confined in

principle, and it does not extend to the

suggested case.

And, Lord Justice Cotton, at page 684, at about

point 7 of the page:

In fact, the contention of the Respondents

comes to this, that all communications between

a solicitor and a third person in the course

of his advising his client are to be

protected. It was conceded there was no case

that went that length, and the question is

whether, in order fully to develop the

principle with all its reasonable

consequences, we ought to protect such

documents. Hitherto such communications have

only been protected when they have been in

contemplation of some litigation, or for the

purpose of giving advice or obtaining evidence

with reference to it. And that is reasonable,
because then the solicitor is preparing for

the defence or for bringing the action, and

Western(2) 89 14/10/93

all communications he makes for that purpose,

and the communications made to him for the

purpose of giving him the information, are, in

fact, the brief in the action, and ought to be

protected. But here we are asked to extend

the principle to a very different class of
cases, and it is not necessary, in order to

enable persons freely to communicate with

their solicitors and obtain their legal

advice, that any privilege should be extended

to communications such as these. In my

opinion the Plaintiff is entitled to have an
order for production of the documents as to

which the contest has arisen, except such, if

any as the Defendants shall state by affidavit

to have been prepared confidentially after

dispute has arisen between the Plaintiff and

Defendants and for the purpose of obtaining

information, evidence, or legal advice with

reference to litigation existing or

contemplated between the parties to this

action.

BRENNAN J:  Mr Sher, if you take it back to its

fundamentals, the problem is this, is it not,

however a solicitor obtains a document which is

admissible as real evidence, there is no question

of privilege?

MR SHER:	Yes.
BRENNAN J:	The privilege attaches in relation to a document which contains information that can only be proved
in the court by oral evidence, but under 79C we
have now got a new kind a document, a document
which, on being tendered, will be received as evidence in proof of the facts stated therein, and
the question is whether or not you assimilate that
to real evidence or to a proof of evidence.
MR SHER: It is a substitute, we would suggest,

Your Honours, for the oral testimony that the witness would otherwise give.

BRENNAN J:  If you put it into that category, then it ought

not to be discovered.

MR SHER: It depends what it is. In Grant v Downs it is

made clear that not everything that a person tells

their lawyer is privileged. In our submissions we

refer to a great deal of authority on this

question, particularly American authority, and one

can think of a simple example. If you instruct

your lawyer to communicate something to the other side, or communicate it to some public authority,

for the improvement of your position, it is not

intended to be confidential.

Western(2) 90 14/10/93

Now, one of the American cases that deals with

that concerned an ex-serviceman who instructed his

solicitors in relation to the paternity of a child

and wanted to have representations made on his

behalf to seek to have that matter decided in his

favour and it was said those instructions were not

privileged because they were intended to be

communicated. The case is the Estate of James M.

Ragen Junior Deceased, (1979) 398 NE 2d 198, and it

is referred to in paragraph 24 of our submissions.

It is clear, Your Honours, that communications

to a solicitor to enable him to conduct a case

about facts are not privileged because the evidence

in relation to those facts has to be given, and can

be given by the client. But, if in the course of

communicating instructions about factual matters, a

client also communicates confidential instructions,

then that is privileged. And Justice Dawson picked

up the point which appears to be agreed by everyone

at the Bar table, in his judgment in Maurice, to

the effect that if what would otherwise be

admissible because it is really a discussion about

facts, reveals confidential instructions, it is

privileged because of that fact, because it would

reveal something which is entitled to be kept

secret.

What the cases that my learned friend,

Mr Shaw, referred to in Wheeler v Le Marchant have

demonstrated, in our submission, is that the

English approach is dramatically different to that

taken by this Court in Grant v Downs and in

Waind's case. Now, they were both cases

concerning, at least, litigation privilege because
in each case the documents were obtained, inter

alia, with a view to possible litigation.

In neither of those cases did this Court suggest

that there is a difference between communications

communications in a litigation situation, and yet in an advice situation protected by privilege, or	Wheeler v Le Marchant makes that dramatic
distinction.

McHUGH J:  Does it? Did Wheeler v Le Marchant not turn on

the fact that the third parties were not acting as

agents of the clients?

MR SHER: That is clear, Your Honour, but the point -

McHUGH J: But that is the whole point. I mean, if a

solicitor says to his local newsagent, "Send me a
copy of today's Herald so I can advise my client as

to whether my client is being defamed", that

document is not privileged, that communication is

not privileged.

Western(2) 91 14/10/93

MR SHER:  No, Your Honour, we are not suggesting in that

circumstance - - -

McHUGH J: But if he says to the newsagent, "Will you see if

anybody has been discussing the story about my

client today", that is.

MR SHER: With respect, we would suggest not.

McHUGH J: What about the ordinary case where a solicitor

sends his client to a doctor to have an examination

for the purpose of litigation?

MR SHER: That is intended to be confidential, Your Honour,

but evidence that a third party can give about

facts, matters that are observed by the senses:

the newsagent looking at the paper and identifying

in fact it does refer to the client, they are not

confidential matters. They are matters which can

be proved, which would have to be proved and, in

our submission, the newsagent could be subpoenaed

by the other side to produce the paper and point

out the passage in it that refers to the plaintiff.

So that our point, really, is this, that this

Court has never recognized and indeed has, in our submission, made it clear, as Mr Zelestis

submitted, that there is no difference between the

legal professional privilege attaching to advice

and legal professional privilege attaching to the

litigation situation. The rationale for them both

is precisely the same and it is subject to the same

requirement, namely, that of confidentiality. In
our submission, the cases on which my learned

friend has relied in the older English cases

demonstrate that there is a significant gap in

approach between the English courts in the last

century and this Court in the 1990s.

We respectfully adopt what Mr Zelestis said

about it and respectfully submit to this Court that

there is no difference between the two classes of

legal professional privilege, two branches of it,

and the rationale for both of them is precisely the

same. If that is so, confidentiality is a

necessary ingredient; which brings me to some hard
questions asked of my learned friends by

Mr Justice Brennan in particular this morning - I was pleased I did not have to answer them.

It is the question of the situation that would

develop where you have got - Mr Justice McHugh, you

did it yesterday if I may say so - you postulated

that a document might always be subject to being

put in evidence. You get a proof of evidence from

a client, there is always the possibility that it

may be put in evidence, and Your Honour

Western(2) 92 14/10/93

Mr Justice Brennan posed the situation of the proof

of evidence which as a matter of caution the
solicitor gets somebody to sign so, in the event

that they take ill or go overseas, you can then

seek to tender it.

The answer we would give to that is slightly

different than our learned friends, and it is this;

that the Court is concerned to establish the

appropriate principle upon which those situations
are to be dealt with. In our submission, the

appropriate principle is that the document has to

be intended to remain confidential, and unless it

is intended to remain confidential there are going

to be practical difficulties, and the theoretical

possibility of waiver in the situation postulated

by Mr Justice McHugh, and it would not be the

situation postulated by Your Honour

Mr Justice Brennan, we say waiver does not affect

that. That if, as Mr Heenan correctly pointed out,
it is contemplated because of absence overseas or

pending death that the document may be used, it is

not intended to remain confidential. We say that

is a simple test. It may be difficult of

application from time to time but it is a simple,
easily stated proposition, it must remain

confidential.

We say there is another reason why that is an

appropriate statement of principle, and this

answers a question that both Mr Justice Deane and

Mr Justice Dawson posed. That is the question of

temporal; the temporal issue. What happens if a

document is intended to remain confidential for a

time and then ultimately not to remain

confidential.

The answer to that lies in the rationale for

the privilege. If the rationale is candour, then a person giving instructions or giving information is

in no different position if he believes that the

instructions or information may well be disclosed

than if he is told it will be disclosed. It is the

risk of disclosure, the real risk of disclosure,

which will bring about the candour or lack of it.

So if there is going to be a situation in

which a witness is told, "We're going to keep this

up our sleeve and use it at trial", so he knows

full well that it may well be used, then in those

circumstances his attitude to giving instructions,

we submit, would be no different if he were told it

was going to be used. For that reason, we

respectfully submit that the question of the

temporal matter does not militate against our

submissions.

Western(2) 93 14/10/93

McHUGH J:  What about a case which is not unusual in

practice where a document may be prepared with the

intention that it will probably be used in evidence

in one case but not in the first of a series of cases. Is it privileged for the purpose of the

first action?

MR SHER:  We would say not. The reason why it is not,

Your Honour, is because, if one goes back to the

rationale, the real question is: is a person going

to tell fully and frankly his tale to the solicitor

if he believes there is a risk of it being

disclosed, or will he have to be assured there is

no such risk? Once he is told there is a risk, we

say the rationale no longer applies.

The only thing against that argument - and it

is an argument which we thought appropriate to

mention in our submissions and in my oral

submissions to the Court - is that there seems to

have developed, certainly in the United Kingdom -

and, we would suggest, never in this country - a

different series of reasons for legal professional

privilege. They are the sort of reasons that I

referred the Court to as being expressed by the

Court in Benbow v Low and in Re Strachan; the evil

consequences that are going to befall litigants if

the other side gets wind of what is about to happen

to them in the litigation.

In the appeal book at page 54 Your Honours

will find that the Full Court took up this theme by adopting something said by Mr Neil Williams, QC, in

his article in the Canadian Bar Review.

Your Honours will see at page 54 a quotation from

his article in the leading judgment of

Mr Justice Seaman. The quotation commences at

line 15. This is Mr Williams' modern version of

the fears that were expressed last century in

Benbow v Low:

"the efficacy of the adjudicative process

depends on the readiness and ability to each

party to vigorously search for evidence.	A
party might be discouraged from making

anything but the most cursory inquiries were

he to be required to hand over unfavourable

evidence to the adversary. Also, under such a

system each party might be tempted to simply

rely on the adversary to investigate the facts

and then wait for discovery to get the

results. Either situation would likely

produce inaccurate fact-finding as the court

would not be presented with all the

information that would have been uncovered

from a diligent search made by both parties."

14/10/93

.Western ( 2) 94

Well, that is the quote, and then

Mr Justice Seaman continued:

I respectfully adopt those statements as

to the public interest in litigation

privilege.

Now, with respect, we suggest that those

statements are really just not acceptable as

appropriate explanation for litigation privilege.

It assumes that the way in which litigation will be

conducted by lawyers is for one party to act

inappropriately, be a lazy solicitor, and wait for

the other. It does not contemplate the situation

where they both may do that. Nor does it

contemplate the situation where the lazy solicitor

has to make disclosure in his case to the other side

of how far he has gone, and it also would involve a
very remarkable degree of timing skill on the part
of the lazy solicitor to make sure he got all the

material from the other side in time.

We say they are unrealistic fears, and provide

no rational basis for litigation privilege and our

respectful submission to the Court is that that

sort of reasoning, and the reasoning in Benbow v

Low and Re Strachan is just not the justification

excepted by this Court for the existence of

litigation privilege. The justification for it is

the need to have lawyers, and the need for candour

and communications to them.

Your Honour Justice McHugh posed an example to

me.	One of the American cases deals with precisely
that sort of situation.	I will not trouble

Your Honour with reading from it, but the case is -

in this little folder we have given you - case No

16, it is the case of Sharma v Chemical Bank.

But, there is one case in that folder, a page

of which I would like to read to Your Honours. It

is the second case in that folder, under tab 20, it

is Sequa Corporation v Gelmin, 91 Civ 8675, a

decision of a United States district court judge,

and it was about an affidavit, at page 6 of the

judgment.

One reason for citing this case to

Your Honours is to make this response to my learned

friend, Mr Shaw. He put to the Court that the

American authorities were not of much assistance

because there were differences. But on the

question of attorney/client privilege, as they call

it there, there are no relevant differences at all.

They do have a different system of work product

privilege and in many of these cases you will find

they discuss both. But, this is a discussion about

Western ( 2) · 95 14/10/93

attorney/client privilege, and in the middle of the

page, the Judge said this:

Second, plaintiffs fail in two respects to demonstrate the requisite confidentiality.

Most obviously, they fail to establish that it

was the intent of the corporation, when the

affidavits were prepared, to maintain the
affidavits in confidence. Indeed, they say

almost nothing explicitly about the intended

use of those affidavits, and we are left to

infer that they were intended for possible use either in support of an insurance claim or, as

plaintiffs themselves contend, in a future

litigation. Affidavits serve no evident

purpose, in either of those contexts, if they

remain concealed in an attorney's file

cabinet. Thus the logical assumption is that

plaintiffs intended or expected to disclose

them either to the insurers or in the context

of a lawsuit, as needed. Such an intent,

which is also suggested by correspondence between counsel for Sequa and Mr Piszko's

attorney is of course entirely inconsistent

with the confidentiality requirement of the

attorney-client privilege.

We respectfully submit that that succinctly

describes the reason why the affidavit in this case

is not privileged.

If I might say this finally, Your Honours. What this appeal throws up for decision by this

Court on a matter of principle is the question of

whether or not witness statements are privileged at

all, and that is the question that

Mr Justice French posed in the J Corporation case,

to which Your Honours have been taken, the reason

for that being there is no property in witnesses,

and a witness is as free to go to the other side as

he is to the side that gets the statement from him

and tell them not only the same or a different

story, but what he has told the first lawyer.

What the case also throws up for decision is

the question of whether or not the rationale for

litigation privilege is different to advice

privilege. We suggest it is not. If it is

different, if the considerations referred to by the

Full Court's adoption of Mr Williams' article in

Benbow v Low are correct, then an unrepresented

person has as much right to the privilege as a

represented person because all the same things can happen. But if the rationale for the privilege is

the presence of a lawyer, which in turn is designed

to ensure a candid client based on confidentiality,

we respectfully submit that confidentiality is a

Western(2) 96 14/10/93

requisite of all forms of legal professional

privilege. If that is so, this affidavit fails to

satisfy the test.

Finally, Your Honours, can I just make a short

comment about Anderson v Bank of British Columbia

which was referred to by my learned friend, it is

in (1876) 2 Ch D 614 and the passage is at

page 649. I think Your Honours might already have

been taken to some part of this page, and Mr Shaw

read this, he read I think a lot of the page and

the last paragraph is as follows:

Again, the solicitor's acts must be

protected for the use of the client. The

solicitor requires further information, and says, I will obtain it from a third person.

That is confidential. It is obtained by him

as solicitor for the purpose of the

litigation, and it must be protected upon the

same ground, otherwise it would be dangerous,

if not impossible, to employ a solicitor.

That is a case decided in the same decade as some

of the other cases referred to, and it seems to be putting litigation privilege squarely on the basis

of the need for lawyers in which event we say,
confidentiality is the key and it is thus a part of

the privilege which this affidavit must claim for

protection.

For those reasons, Your Honour, we

respectfully submit this appeal ought to succeed.

If the Court pleases.

MASON CJ:  Thank you. Mr Heenan.

MR HEENAN:  Your Honours, there are only two observations

that we wish to make in reply. The first is in

relation to the point raised by Justice Deane as to

a section in the Criminal Code of Western	secret or voluntary oaths. There does appear to be
Australia, section 86, which may be pertinent. It
reads:

(1) Any person who administers an oath or

takes a declaration or affirmation without

having lawful authority so to do is guilty of

a misdemeanor and is liable to imprisonment

for 2 years.

(2) This section does not apply to an oath,

declaration or affirmation administered or

taken -

(a) as authorized or required by law of; or

(b) for purposes lawful in,

Western(2) 97 14/10/93

another country, State or Territory.

Now, we do not suggest that this oath was taken without authority, but it does show that an oath is

a public and significant act.

The second point we would wish to make is to

address the question which Justice Brennan just

addressed to my learned friend, Mr Sher, about the

choice as to assimilation of a written statement

admissible under section 79C to real evidence, or

oral evidence. We would give a different answer

than my learned friend and seek to assimilate it to real evidence, and we say that the reason for doing

so is because there is no protective measure to

test the veracity of the evidence by
cross-examination, and one reason for permitting
the deferment of oral testimony until trial is that
the forensic experience has been that the system of
cross-examination before a judge or jury is a

rigorous check of the reliability of the evidence.

Those are the only submissions.

BRENNAN J:  What is the authority for the administration of the oath?

MR HEENAN: In this?

BRENNAN J: Yes.

MR HEENAN:  It may be dubious, but it would, presumably,

have been for an affidavit for use in the pending

cause, just as an affidavit in support of an

application for an interlocutory injunction.

Whether the authority requires that there must be a

present purpose or contingency in existence is a

matter which would require more examination than I

have - - -

DAWSON J:  Surely, you would take it further than that? You

would say the only purpose of placing this on oath

was as a vehicle for use in litigation, would you

not?

MR HEENAN:  Yes, indeed.

DAWSON J: But it would not be dubious purpose. They must

be used eventually but, nevertheless, that is the

purpose.

MR HEENAN:  Yes, I do accept that. May it please

Your Honours.

MASON CJ:	Thank you, Mr Heenan. Mr Zelestis.
MR ZELESTIS:	May it please the Court, we only have two

points as well; the first is, in response to the

Western(2) 98 14/10/93

cases which my learned friend, Mr Shaw, put against
us, the English cases, we would simply point out

that the English have never had a sole purpose test

and accordingly, the cases have to be read in that

light. If the courts were there considering a

dominant purpose test or some variant of that

theme, then it follows, of course, that they have

never explored the relationship between sole

purpose and confidentiality and it is much easier

to find the privilege applies if the test is more

flexible as is the dominant purpose test, and all

of the cases have to be considered in that context.

Secondly, we would, like Mr Heenan, give a

different answer to Your Honour Justice Brennan's

question than my learned friend, Mr Sher, did.	May
it please the Court.

MASON CJ:  Thank you. The Court will consider its decision

in this case.

AT 2.52 PM THE MATTER WAS ADJOURNED SINE DIE

Western(2) 99 14/10/93