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 304

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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

LTD

Western(2) 1 13/10/93

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) 13/10/93

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 WEDNESDAY, 13 OCTOBER 1993, AT 2.21 PM

Copyright in the High Court of Australia

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

learned friend, MR J.G. JUDD, for the first

appellant, the Western Australian Government

Holdings Ltd. (instructed by Clayton Utz)

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

with my learned friends, MR P.J. JOPLING and

MR K.M. PETTIT, for the State of Western Australia,

the second appellant. (instructed by

P.A. Panegyres, Crown Solicitor for Western

Australia)

Western(2)	13/10/93
MR C.L. ZELESTIS, QC:	May it please Your Honours, with my

learned friend, MR C.B. EDMONDS, I appear for the

third appellant, the State Energy Commission of

Western Australia. (instructed by Jackson

McDonald)

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

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

respondents. (instructed by Parker & Parker)

MASON CJ: Yes, Mr Sher.

MR SHER:  If Your Honours please, in this matter detailed

written submissions have been prepared by all the

parties and exchanged and filed in the Court, and

since the receipt by us of the submissions of our
learned friend, Mr Shaw, on behalf of the
respondents, we have prepared a written reply which
also deals with the respondents' notice of
contention. That was filed in the Court this

morning and I hope Your Honours each have a copy of that document. We have also handed to the tipstaff

a small folder, Your Honours, of the American

authorities referred to in our list of authorities

which were apparently not available, and there
should be a small folder of American cases we have

referred to which should now be in Your Honours'

hands.

Your Honours, in light of the very detailed

submissions that have been made in this matter by

all the parties, including our reply, it is our

intention to keep our submissions to the Court very short and to deal only substantially with one major

issue that is not dealt with precisely in our
submissions but which is, in effect, our

submissions as to an overview of the case.

The case concerns a claim to legal

professional privilege. It is clear from the

notice of appeal that was lodged in the Full Court

by the respondent, which succeeded in the

Full Court, that they sought to protect the

affidavit in this case under the rubric of legal

professional privilege.

We contend, Your Honours, that it is

indefensible under that rubric, and that what had

happened in the judgment is something which has

happened on other occasions in judgments is there

has been a tendency to confuse three separate,

possible heads of privilege. The first, legal

professional privilege, which is a well-established

form of privilege.

Secondly, a form of privilege known as "own

case" privilege, to which Your Honour the Chief

Western(2) 4 13/10/93

Justice referred in passing in Waind's case, and

which has been abrogated by statute or by rule of

court in most States, although not in all and

certainly not in Western Australia. Own case

privilege is a rather strange form of privilege.

It protects only evidence in support of one's own

case, it does not protect evidence which would

advance the case for the other side, or which was

destructive of your own case. No claim for such

privilege was ever made here, and it may well be it

could never have been made because the affidavit

may not have complied.

There also seems to be, Your Honours, a third

class of privilege discussed in the authorities under different names. The one that my learned

friends for the respondents have chosen to use is

litigation privilege, but in a recent text in the respondent's list of authorities, an English text

on discovery published in 1992, which is No 64 on

the respondent's list of authorities, the learned
authors there refer to, and discuss, as a separate
head of privilege, a form of privilege described as

"materials for evidence" privilege.

Now, Your Honours, the Court is not concerned

in this appeal with either own case privilege or

materials for evidence privilege because protection

is not claimed under either rubric. But the

existence of them, we submit, explains some of the

confusion in the authorities which has taken place

in discussing these topics and is best illustrated

by a recent decision of Mr Justice Pincus, which is

referred to by us in our list of cases as case

No 32, the case of Dingle v Commonwealth

Development Bank of Australia and if I could,

perhaps, take Your Honours shortly to that case to

illustrate the point?

BRENNAN J:  What is the reference?

BRENNAN J:  What is the reference?

MR SHER: The reference, Your Honour, is 23 FCR 63. It is

case number 32 on the list of cases we provided to

the Court.

DAWSON J:	We do not have that list of cases, Mr Sher.
MASON CJ:	We do not have them on the bench in front of us.

The list of cases is provided to the tipstaves so they can get the books.

MR SHER:  I am sorry, Your Honours, it may well appear that

Your Honours do not have that report.

Western(2)	13/10/93
McHUGH J:	We have the report, but it helps if you name the case and the reference rather than - - -
MR SHER:	I am sorry, I just assumed Your Honours had the

list of authorities. The case is Dingle v

Commonwealth Development Bank of Australia. It is a decision of His Honour Mr Justice Pincus. It is

a Federal Court decision and it is reported in

(1989) 23 FCR 63.

The issue in this case was whether or not

documents which were notes which were equivalent to

witness' statements and which had been obtained in

one suit were discoverable in a second suit, and

the claim that was made in relation to them to

protect them from discovery was based upon legal

professional privilege. It appears from page 64 at

approximately the centre of the page, precisely the

documents with which His Honour was concerned.

Your Honours will see the paragraph commencing:

The question of protection of the

documents by legal professional privilege is

not quite so easily disposed of. The

Commission has explained by its counsel, notes and the like which may, for present

purposes, be equated to statements taken from

potential witnesses.

Then down the page at the penultimate paragraph:

The second suit is a claim concerned with

the same basic subject-matter as the first.

His Honour went on to recite that the claim for

privilege was in effect in respect of documents

that were equivalent to witness statements. The

claim was based on legal professional privilege and

in discussing the matter, His Honour on page 65, at

the top of the page in the paragraph that commences near the top of the page, said this: Although there is much in the cases to

support the Commission's claim that the

documents from the first suit are privileged

in the second suit, it is not quite clear
whether that is the position in this country;

further, it is not even clear whether the

claim is properly described as one of legal

professional privilege.

Indeed, we would respectfully suggest that

His Honour put his finger right on it because it

really was not claimable as such, we would contend.

His Honour went on:

western(2) 6 13/10/93

Suppose a party wishes to obtain access in a

second suit to information one of the parties

in a previous suit has obtained from a

potential witness, either through a solicitor

or directly. Particularly in the former

case - for example where a party's solicitor

(perhaps without the client's knowledge) has

simply taken a statement from or obtained

information from a person with a view to

litigation - it is not easy to see why the

information should be regarded as protected as

if it were a confidential communication

between solicitor and client. The information

obtained by the solicitor may not be, indeed often will not be, used in the litigation on behalf of the client, or even divulged to the

client. Yet there is authority that the

client has, at least in general, a right to

prevent others having access to that

information, either in documentary or oral

form.

We would respectfully suggest His Honour was

circling round in effect another issue - not legal

professional privilege, but either own case
privilege or litigation privilege. His Honour went

on:

What is the basis of that right? The

question has importance because if the basis

is purely legal professional privilege of the

kind dealt with in Grant v Downs, and the

subsequent discussions of that privilege in

O'Reilly v Commissioners of State Bank of

Victoria and Baker v Campbell, then Australian law's protection of such information may not

have survived the expression of these

definitions of the scope of legal professional

privilege.

Then His Honour went on to consider how, in the light of the explanations in those cases as to	the rationale behind legal professional privilege,
this claim here, for these documents, could fit
into it. And His Honour could see real
difficulties in so doing and after discussing the
observations, particularly in O'Reilly, concerning the rationale for legal professional privilege,
His Honour continued on page 66 at about point 2, as follows:

If one were free to ignore these general

statements as to the scope of legal
professional privilege, the structure of the
relevant rules would be fairly clear.
Material gathered by the solicitor or client
in preparation for litigation is privileged as

Western(2) 13/10/93

if it were a confidential communication

between solicitor and client, even if it is

not such a communication; the existence of the

relevant privilege does not depend upon there

being any relevant communication in fact

between the solicitor and client or persons

acting on their behalf -

His Honour there refers to a line of authority.

The privilege is not that of the person

(potential witness or otherwise) who supplied

the information; it is a matter for the client

whether or not the privilege is

waived: ..... The rule "once privileged always

privileged" applies; the privilege is

permanent:

In Grant v Downs the principal judgment

did not expressly accept the validity of the

principle underlying the privilege, in so far
as it was thought to be based upon encouraging people to use lawyers in litigation. It would

seem odd, and one might say unjust, if

information collected by an unrepresented
party in a case were discoverable, whereas
corresponding information collected by his
represented opponent's solicitor were not
discoverable. But leaving that consideration

aside, the difficulty about this body of

doctrine, in so far as it protects

communications other than between solicitor

and client, is simply that it is not

defensible as preserving the confidentiality

of communications between solicitor and

client.

Now we say, thus far, in that observation,

His Honour is absolutely correct. You cannot

defend this sort of material on the basis of

confidential communications and that, of course,

would lead to the question, "Well, how do you

protect it under the rubric of legal professional

privilege?" His Honour continued:

For that reason, the relevant rules may, in

the end, be held to be more soundly based on a separate and narrower principle, namely that a

party is not in general bound to reveal to the

Court statements taken from witnesses and the like for the purposes of litigation.

That is a hint at, and a very broad hint at, what is described otherwise as either litigation

privilege or material evidence privilege.

His Honour goes on to refer to it, and then refers

western(2) 8 13/10/93

at the end of that paragraph to another form of

privilege. He said in the last sentence:

It should be added that another possible means

of protection of witness statements and the

like is the privilege for documents relating

solely to one's own case: but see O 15, r 7

of the Federal Court Rules.

The reason His Honour referred to that particular

rule, Your Honours, is because that rule has, in

effect, emasculated in the Federal Court own case

privilege. We have given Your Honours a reference

to that; it should be in the material. The

relevant rule in the Federal Court Rules provides

that a person may rely on it only in special cases,

and that with the leave of the court.

Having posed the problem, and having

identified that legal professional privilege did

not seem apt to protect the material under

consideration before him, His Honour concluded at

page 67, and we would submit erroneously, that it

was protected by legal professional privilege, where His Honour said at the top of that page:

It appears to me, however, that the general statements made in the three High

Court cases cannot be said to be clearly

inconsistent with the rather unattractive body

of doctrine I have summarised above. Further,

although the applicants in the second suit here cannot be legally identified with the

applicant in the first suit (the Commission),

the first suit was brought at least largely in

their interests and their position may be said

to be analogous to that of clients of the

Commission's solicitor. I accordingly uphold

the claim to legal professional privilege.

What we say that case graphically illustrates as do

some other cases, is the confusion between the

three types of privilege. His Honour experienced

difficulty in fitting the claim here into legal

professional privilege. We say it is a confusion

and difficulty which was appropriate, but then

having discussed the other possibilities His Honour
none the less did it.

We say what His Honour failed to recognize, as our submissions we hope make clear, is that there

are differences between the three, and you cannot

justify under the rubric of legal professional

privilege what really is a non-communication, and

what really is not intended to remain confidential.

If it is to be protected by any form of privilege

at all it cannot be legal professional privilege.

Western(2) 13/10/93

Other cases which illustrate the point,

Your Honours, are Kennedy v Lyell,

(1883) 23 ChD 387, and Wheeler v Le Marchant,

(1881) 17 ChD 675.	I am not going to take
Your Honours to those cases.	I merely mention them

as illustrative of the same degree of confusion.

But I would ask Your Honours to turn to Your Honour

the Chief Justice's observations in Waind's case,

141 CLR 648.

In Waind's case, which was concerned with

legal professional privilege, at page 654

Your Honour the Chief Justice made this observation

in the centre of the page, in the sentence

commencing "Documents submitted".	Your Honour
there said:

Documents submitted by the client to his solicitors for advice or for use in

anticipated litigation attract the privilege,

but it is very doubtful whether there is a

privilege for documents coming into existence

as materials for the purposes of an action to

be conducted by a litigant in person - And Your Honour went on to say, after reference to

authority:

Of course it may be that privilege can be

claimed on the ground that a document relates

solely to the case of the party, a head of

privilege still available in New South Wales.

We would respectfully submit that what

Your Honour the Chief Justice there said, that the

documents in Waind's case not being protected, was

correct and Your Honour's observation about

materials coming into existence for the purpose of

an action to be conducted by a litigant in person

is true of legal professional privilege, because

legal professional privilege involves, of

necessity, the legal practitioner. Whether it

would be accurate to say that in relation to

materials for the brief privilege or litigation

privilege might be another question, depending on

whether or not that form of privilege requires a

lawyer as well.

If the rationale for that form of privilege is

the advantage that is gained by the use of skilled

lawyers, then it may be said that even in that form

of privilege it is necessary to have a legal

practitioner. But if that is not the rationale,

then there is no reason why a litigant in person

should not be also able to claim litigation

privilege.

Western(2) 10 13/10/93

BRENNAN J: It never has been put on that basis, has it?

The loss assessors always went out and took the witness statements from the scene of the accident.

MR SHER:  Yes, but it has always been claimed as legal

professional privilege, Your Honour. What we are

saying to the Court in our submission is that what

this case throws up is that it is often a disguised

claim for one of the others and that in this
particular case, it never having been put on any

other basis than legal professional privilege, we

say in effect the claim cannot succeed because it

does not satisfy the legal professional privilege

test.

The point Your Honour the Chief Justice made

about sole case privilege is an interesting point

because that form of privilege, which clearly must
be taken to have existed at some time, has been

abrogated by statute in Victoria and abrogated or

emasculated by rules of court in other States. For
example, in the Federal Court, to which I have
referred Your Honours already, it needs leave of

the court under Order 15 rule 7.

In the New South Wales Supreme Court, where

own case privilege has not been abrogated, it still

requires the leave of the court to rely on it.

That is Part 23 of the Supreme Court Rules,

rule 6A. In Victoria, Tasmania and two other

States, Queensland, and I think the other is South

Australia - certainly not Western Australia - it

has been abolished altogether. So that it still

exists in Western Australia.

Your Honours, what we suggest has happened

here and what the Full Court has done and what the
submissions of our learned friend for the

respondents attempt to do is to take up complaints

about deficiencies in litigation privilege or own

case privilege and attribute them to legal

professional privilege. They adopt and rely upon	criticisms of the kind voiced by Mr Neil Williams
in his article in Canada in which he discusses at length the question of legal professional privilege
and its deficiencies and in the concept of
litigation.

It is taken up in cases such as In re Strachan

and Benbow v Low. If I can just take Your Honours

quickly to those two cases just to read short

passages. In re Strachan is (1895) 1 Ch 439, and

the relevant passage is at page 445. All we are

concerned with here, Your Honours, is an

observation - and the facts do not matter - but

this is an observation which we say is really an

observation not about the deficiencies of legal

Western(2) 11 13/10/93

professional privilege or any advantages of it, but

about effectively what is litigation privilege. At

page 445 Lord Justice Lindley said this at about

point 8 of the page:

In England it is considered contrary to

the interests of justice to compel a litigant
to disclose to his opponent before trial the

evidence to be adduced against him.

I am sorry, Your Honours, I am a decade out; it was

1895. It commences at 439 and the passage is at

445. Perhaps I should start again:

In England it is considered contrary to

the interests of justice to compel a litigant
to disclose to his opponent before trial the
evidence to be adduced against him ..... It is

considered that so to do would give undue

advantages for cross-examination and lead to
endless side issues; and would enable

witnesses to be tampered with, and give unfair

advantage to the unscrupulous.

Now, this is said to be the rationale for this form

of privilege, to prevent all those vices.

Benbow v Low, (1880) 16 Ch D 93, contains

similar statements of the dire consequences of

allowing your opponent to know something about the

case he has to meet, and at page 95, the Master of

the Rolls said this at the commencement of his

judgment - this was concerned with whether an

interrogatory had to be answered, and whether what

was sought after was protected by privilege.	The
Master of Rolls said:

I think there is no doubt as to what the construction of the rules in Order XXXI. It

ought to be such as to prevent dishonest

persons taking advantage of the rules, because

if all men were honest the rules would not be

wanted at all. If you give one side the

opportunity of knowing the particulars of the

evidence that is to be brought against him,

then you give a rogue an enormous advantage.

He then may be able, although he has no

evidence in support of his own case, to shape

his case and his evidence altogether in such a

way as to defeat entirely the ends of justice.

Now, Your Honours, we would quarrel with these

fears. It is our respectful submission that they

are unrealistic in the modern era. The thought

that if you give proper disclosure your opponent's

lawyers are going to cook up some false case

against you, as we say, are very easily answered

suggestion because if they have to reveal their own

Western(2) 12 13/10/93

case, with all their manufactured evidence, then

you will be able to expose it yourself.

McHUGH J:  It may be sheer coincidence, but the length of

trials in New South Wales seems to have increased

dramatically after all these old rules were

abolished in New South Wales, after 1970. It was

always trial by ambush at the civil bar in New

South Wales. There was no discovery, no

interrogatory.

MR SHER:  I detect a sense of nostalgia in what Your Honour

has just said, which if I may say so, I detected

from one member of the bench in the special leave

application. Be that as it may, Your Honour, the

fact is that now there is massive disclosure and if

litigation has increased in length as a consequence
then perhaps it might justify a reconsideration if

that is the cause. It might not be the cause.

But these fears expressed, we would suggest,

not about legal professional privilege, these are

fears that are being expressed about litigation

privilege or materials for evidence privilege or

own case privilege. They are not criticisms of

legal professional privilege. The remedy for these criticisms lies not in expanding legal professional privilege to cover the sort of material that is

under attack here, but in rules of court or in

legislative steps. In Victoria, Queensland,

Tasmania and I think it is South Australia, own

case privilege has been abolished. In

New South Wales it has been, and in the

Federal Court, it has been effectively emasculated,

and there has been, for example, in South Australia

a special rule passed to cope with what is thought

to be a forensic need. That, Your Honours, is rule

58.07(4) of the South Australian Supreme Court

Rules. I do want to take Your Honour to that rule

shortly to illustrate the point. It should be

amongst the material that Your Honours' tipstaves

Australia Supreme Court Rules, rule 58.07. I can	were advised of. It is the Civil Procedure South	read it to the Court. It is about two and a half
lines and it is a very short rule. Subrule (4)
provides as follows:

An investigatory film of the plaintiff in

action claiming damages for personal injury

which is brought into existence solely for the

purposes of the litigation is not

discoverable.

In other words, if in a personal injury claim the

plaintiff claims he has got a back which renders

him incapable of bending or lifting anything and

the defendants have taken a film of him throwing an

Western(2) 13 13/10/93

eight foot log over a 15 foot fence, they do not

have to discover that film.

TOOHEY J:  Do you mean literally, Mr Sher, that they do not

have to discover it, or they can discover it but

claim privilege for it?

MR SHER:  No, they do not have to discover it. That is what

the rule - - -

TOOHEY J: So, its existence need not be referred to?

MR SHER: That is so, Your Honour. "Is not discoverable" is

what the rule says.

I am not suggesting that is a good or a bad

rule, it is really irrelevant to our argument.

What I would point out to the Court is that is an

example of steps being taken to deal with an aspect
of privilege to ensure that litigation is conducted

on an appropriate basis.

So, our submission to the Court amounts to

this: that in the lengthy submissions my learned
friends have made in which they raise all sorts of

problems about confining legal professional

privilege, we say they are really complaining, not
about legal professional privilege at all, they are

really complaining about the deficiencies of own case or litigation privilege, and the remedy for

those deficiencies lies not in expanding legal

professional privilege, but in appropriate

legislative steps or rules of court.

We respectfully submit that their arguments

about legal professional privilege in their

submissions that deal with these issues are not

apposite to the issue before the Court.

The final point we want to make, Your Honours,

is this, that if there is any basis for any claim

to privilege in respect of this affidavit, it

either lay in own case privilege, which still

exists in Western Australia, which was not claimed,

and it may well have not been claimed because it

could not have been claimed, because own case

privilege protects only material in support of

one's own case, and the affidavit may have revealed

material that was destructive of the plaintiff's

case or probative of the defendant's case. We do

not know, the affidavit has never been revealed and

such a claim has never been made.

If, on the other hand, they seek to justify it

under the rubric of legal professional privilege,

which we say is inappropriate, and it might have

been protected under the heading of litigation

western(2) 14 13/10/93

privilege or materials for evidence privilege, we

say the rationale for that form of privilege would not favour the sort of tactic that was indulged in

here where the party deliberately avoided using an

appropriate rule where the evidence of the dying

witness could have been taken on deposition,

exposed to the other side and tested on

cross-examination, which we say is the fair way to

do it, but by producing an affidavit, which they

were going to seek to tender under the evidentiary

rules which enable documentary-evidence to be

tendered, and put it into the form of an affidavit
to give it added weight. We say, it is essentially

an irrelevant proposition because they make no such claim, but we say, had they done so they would have

still failed under that head because the Court will

not countenance that sort of tactic, and we say

that is not what litigation privilege was designed

to protect in any event.

Now, those additional submissions,

Your Honour, to what is contained in our written

submissions is all I wish to put to the Court, so

unless there is any matter that Your Honours wish

to put to me, that is all I will have to say about

it.

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

MR HEENAN:  Your Honours, whatever may be difficult about

this case, it is perfectly clear that the Beckwith

affidavit was not prepared for the purpose of

giving legal advice; such an intention was

expressly disavowed by counsel in the

Royal Commission, Mr Siopis.

It is also clear, we suggest, that in its form

it was final and not preparatory. From those

observations can clearly be inferred the conclusion

that it was prepared with a view to use in

litigation and if that formula is the determinant

of the second limb of legal professional privilege

as accepted by the Court in Grant v Downs, that

would bring it under the formula for legal

professional privilege, but for reasons which we

set out to address in our written submissions and

which I hope to speak to in this oral submission,
we say that the formulation in Grant v Downs

necessarily connotes another element, namely,

confidentiality and in relation to litigation

privilege, would exclude any form of communication

which is intended for disclosure in the proceedings

themselves.

Before I develop those submissions in any more

detail, might I just invite attention to our

Western(2) 15 13/10/93

written submissions and mention some findings of

fact in the Full Court which we seek to challenge.

In the appeal book at page 44, in the judgment

of Mr Justice Seaman at line 18, there is the

following passage:

I do not accept the submission that as

there is no ground of appeal which challenges
the express finding of the learned Master that
the affidavit was brought into existence for

the sole purpose of filing it for use in this

action it is not open to this Court to

substitute its own view of the evidence. In

my opinion the learned Master did no more than

adopt the portions of the transcript which are

set out above.

And those Your Honours will have already seen.

He enjoyed no advantage over this Court in

deciding their meaning, and in my opinion they

bear only one reasonable construction, namely

that the affidavit was taken to be used in due

course if the late Mr Beckwith did not survive

to give evidence at the trial. It must, in my

view, follow that at the time of its creation

it was a matter for future decision whether or

not the affidavit would be filed or used.

Indeed it is not axiomatic that it will be

filed or used.

So the finding in the Full Court is that there

was a conditional, or provisional, confidentiality

about this affidavit in the sense that a decision

as to its disclosure would be deferred until trial

and that that was sufficient to clothe it with the

protection which the claim for privilege invoked.

The learned Chief Justice in the appeal book

at page 26 evidently endorsed that finding.

His Honour said, at line 10:	The only evidence available was that before
the Royal Commission.

His Honour is referring to evidence capable of

rebutting the claim in the affidavit of documents

that the materials were confidential.

That evidence -

meaning the Royal Commission evidence:

make it clear the affidavit was made for the

sole purpose of obtaining evidence in relation

to the litigation which was then pending. At

western(2) 16 13/10/93

one stage reference was made to the fact that
the sole purpose of the affidavit was to "file

the affidavit in due course when the

proceedings came on". I agree with Seaman J

that this Court is in as good a position as

the learned Master to form a view about the

significance of that evidence.

TOOHEY J:  Mr Heenan, where does that language come from,

the language in quotations "filing the affidavit"

is it from the Master's reasons?

MR HEENAN:  It is from the explanation of the origin of the

affidavit given by Mr Siopis' counsel answering the

summons in the Royal Commission, and it begins in

one of several places at page 29 of the appeal

book, Your Honour. In the paragraph commencing at

the foot of page 29, in answer to a question from

Mr Commissioner Kennedy about this matter, an

explanation is given it, but the particular passage

may be taken from the first answer given:

Sir, this is an affidavit which was sworn by the late Peter Beckwith. It was sworn

solely in relation to the existing

proceedings.

They are identified, and then there is an

explanation:

What happened was that in March we were told

Peter Beckwith was very poorly and as a

consequence of that we took an affidavit from

him in these very proceedings. The sole

purpose of the affidavit, of course, was to

file them -- file the affidavit in due course

when the proceedings came on. It is our

submission that -

interruption, the Commissioner asks:

Does that come into the concept of

seeking advice?

Answer:

No; it is a document which came into

existence solely for the purposes of existing

proceedings. That is the ground which we

claim the privilege on.

TOOHEY J: Yes. There is some discussion in the judgments

about what is meant by filing, but the answer seems

to suggest that almost as a matter of course, the

document would simply be filed as if that gave it

some evidentiary force. I mean, filing an

affidavit does not do anything, does it?

Western(2) 17 13/10/93

MR HEENAN: Except that it discloses its contents,

Your Honour. Our submission is that the language

of Mr Siopis, fairly construed in its contents,

means that the affidavit was to be tendered in due

course; but tendered or filed, each would involve

disclosure, and that the sole purpose was for the

document to be disclosed eventually, and that that

is sufficient for our purpose.

Coming back to the findings, the finding of the learned master was quite at variance with this.

His finding is at page 15. At line 16 on that page

the learned master says, after all the submissions

have been received:

On the facts disclosed I find that the

affidavit was brought into existence for the

sole purpose of filing it for use in this

action -

a finding, if I may say so, with respect, squarely

in accordance with the evidence -

It was therefore created in order to be filed

and thus cannot be equated to a proof of
evidence.

In my view, therefore, the affidavit

attracted no privilege because it lacked
confidentiality by its very nature.

As to this question of whether the document was

confidential, and perhaps we get into a difference

in approach by the opposing parties as to what is

meant by "confidential", but there is a clear

divergence in approach by the parties because in

the notice of appeal to the Full Court at page 68,

we challenge the finding by the Full Court that the

affidavit was taken in circumstances where the

confidentiality attached.	We challenge that
finding.

On the evidence, may I take the Court to

page 6. There is another extract from the

transcript before the Royal Commission, the passage

which I have already read to Your Honour

Justice Toohey. I will not repeat that.

At page 9, on the second occasion when the matter came before the Royal Commission before the

Commissioner Sir Ronald Wilson, to deal with the

question of whether or not it should be accorded

privilege, the Commissioner asks:

So the reason it was taken is quite

obvious, that he may not have been around in

the event of litigation that was anticipated?

Western(2) 18 13/10/93

That was acknowledged and Mr Siopis says the

litigation had already commenced.

Was there any other purpose for which it

was taken?

No, it was a simple purpose. It's

actually in the form of an affidavit which has

got the number of the action on it.

So it is clear the purpose for which the affidavit

was taken.

All this may gather some significance from the issues which have been joined in the action because one of the critical parts of the respondent

plaintiff's claim in the present action is the

assertion that there was a principal agreement,

largely oral, between the State of Western

Australia and the respondents, and between

representatives of SECWA, the State Energy

Commission, and the respondents, on 16 and

17 October 1988 that the State and SECWA would give

certain support to the so-called petrochemical

project. In the particulars which have been

delivered in the action it is alleged that the oral
content of that agreement was a telephone
conversation, or a series of telephone

conversations, between Mr Beckwith and between the

former Deputy Premier of the State,

Mr David Parker.

So their account of that oral telephone

conversation is absolutely vital to the proof of

the existence of the alleged principal agreement.

So it therefore arises not a necessary but a very

probable inference that the Beckwith affidavit was
necessary, or may be necessary, to prove the

existence of the alleged principal agreement or

important segment of it.

So, in our respectful submission, that renders

it very improbable that the affidavit would not be
used and that accounts for the unequivocal language

used by counsel before the Royal Commission that

the affidavit was prepared for the sole purpose of

being filed in the proceedings and the language
cannot be dismissed as being incautious or

unguarded.

In our respectful submission, it was not

argued before the learned master that this

affidavit was confidential; it was argued that

because it was prepared for use in pending

litigation, it was thereby privileged and

confidentiality was not an ingredient of that

second component of privilege. We say that the

Western(2) 19 13/10/93

master was correct in that regard and the of confidentiality in the second leg of the

privilege is essential.

Now in the present respondent's notice of

appeal to the Full Court at the appeal book

pages 20 to 21, this same attitude, which regards

the presence or absence of confidentiality as

irrelevant to a claim for legal professional

privilege under the litigation leg, is apparent. In the grounds of appeal, commencing at line 18, the present respondents say that:

The learned Master erred in law in holding

that because the Beckwith affidavit:-

"was brought into existence for the sole

purpose of filing it for use in (the) action"

and thus lacked confidentiality, that it could

not therefore attract any form of legal

professional privilege.

And secondly:

The learned Master erred in law in holding

that legal professional privilege could not be

made out where a document "lacked

confidentiality by its very nature", when an
established category of legal professional

privilege, applied by Master Seaman, QC (as he

then was) in Handley v Baddock [1987] WAR 98)

extended to documentary materials brought into

existence by a party for the purpose of being

used as its evidence at trial.

Now, in our respectful submission, Your Honours,

that makes it clear that in the Full Court the

respondents were taking the position, as they had

before the master, that confidentiality was not an

ingredient of litigation privilege within the

second limb of the Grant v Downs test; that that

test could be satisfied merely by demonstrating

that the document had come into existence solely

for the purpose of litigation and, if any further

confirmation of that posture be required, it is

recited by Mr Justice Seaman in his reasons for

decision at page 32 of the appeal book, commencing

at line 5:

Leading counsel for the applicants -

that is the applicants for leave, the present

respondents -

Western(2) 20 13/10/93

did not seek to establish that the affidavit

was a confidential communication between the

applicants and their solicitors for the

purpose of advice but his submission was that

the learned Master, having correctly

recognised the principle that no one is to be

fettered in obtaining material for his defence

and if for the purpose of his defence he

obtains evidence, the adverse party cannot ask

to see it before the trial, then erred in

holding that confidentiality was an essential

element of that protection.

It is also apparent from His Honour's reference to the decision of Handley v Baddock at lines 15 to 20

on page 33, because the only point of the reference

to that authority can be to say that privilege is

available in the litigation limb, even if

confidentiality is absent. We say Handley v

Baddock is wrong and should not be followed, but it

reveals the posture taken in the Full Court.	The
quotation at line 17 from that case:

"I have considerable difficulty in

categorising the contemporaneous note as a
confidential communication between the

solicitor and his clients, although no doubt

it formed part of the file, and if

confidentiality is an essential element of all

aspects of legal professional privilege, then

the plaintiff will be unable to show that it

exists.

But His Honour went on to find that it was not

essential and the claim to privilege could be

satisfied merely by satisfying the sole purpose

test in preparation for litigation. At page 38

His Honour recites a submission obviously made on

behalf of the present respondents at line 18:

It was submitted that the learned

Master's decision was erroneous in that he

held that legal professional privilege could

only attach to the affidavit upon proof of a

confidential element of the same kind as is

necessary to create privilege for

communications between solicitor and client

for the purpose of legal advice.

Finally, at the foot of page 54:

It follows that I accept the submissions of

leading counsel for the applicant -

that is, the respondents -

Western(2) 21 13/10/93

that the learned Master misplaced reliance

upon the authorities which he cited and erred

in requiring the same quality of

confidentiality for the affidavit as is

required for legal professional privilege to

attach to communications between legal

advisers and clients for the purpose of

advice.

In my opinion, it is enough to support the

privilege that this was a document which
passed between the applicants' solicitors and

Mr Beckwith which was prepared when litigation was commenced and was created solely for the

purposes of advancing the litigation by

obtaining evidence to be used therein. Words

to the precise effect are contained in the

claim to privilege.

BRENNAN J: Where do we find the claim to privilege in the

appeal book? Perhaps I should ask, where was it

made?

MR HEENAN:  At page 28, Your Honour, in the judgment of

Mr Justice Seaman, line 15. It is put forward as a

confidential document:

made or prepared when litigation is

anticipated or commenced and created solely

for the purposes of advancing the preparing

for or of the by obtaining evidence to be used

therein or the obtaining of facts or

information necessary for the gathering of

such evidence.

BRENNAN J:  Now, is our attention to be directed to the claim thus made, or to the facts as found?

MR HEENAN:  The facts as found. I wonder if I could take my

answer in some stages, Your Honour, because it

involves some elements of procedure. As we are all

aware, a claim for privilege in a affidavit of

discovery will stand unless challenged, and the
challenged is supported by affidavit evidence

traversing the claim. Once the claim is contested,

in the requisite way, and evidence is before the

court traversing the claim, we would say the onus

is on the person claiming the privilege to

establish that it exists.

All that happened in this case. There were affidavits put forward on behalf of the State of

Western Australia, which are referred to in the

reasons but which are not in the appeal books,

simply annexing the requisite pages of the

transcript in the Royal Commission. Those passages

have found their way into the judgment and, for

western(2) 22 13/10/93

that reason, the affidavits are regarded as

unnecessary for this record. In the light of the

evidence before the Royal Commission, the master

made the finding that the material was not

confidential.

That finding, although not expressly challenged in the notice of appeal to the Full Court, and as we have seen tacitly accepted,

and the appeal argued on a basis that

confidentiality was not a requirement, nevertheless

resulted in a finding of the Full Court that there

was a species of confidentiality about the document in the sense that it was to be held until filing or tendering, whichever verb one uses, at the trial.

It is that finding in the Full Court which we

challenge, and we say that the finding of fact made

by the master should be restored.

BRENNAN J: 

Is there any dispute as to the fact that the

relevant document was prepared when litigation was
commenced and it was created solely for the

purposes of obtaining evidence to be used in that

litigation?

MR HEENAN: 

We say that it was prepared when litigation was

actually pending for the sole purpose of that

litigation and with the intention of being used in

that litigation.

BRENNAN J: Then, you accept the proposition that one matter

at least for our determination is whether on those

facts a claim for privilege is made out?

MR HEENAN:  Yes. Your Honour will see, still at page 28,

that the affidavit had been preceded by a series of

drafts - of proofs of witnesses including drafts of

the Beckwith affidavit which had been:

destroyed in accordance with normal office

procedures.

So that this affidavit was the final product.

Obviously it would have been a document prepared

with some care, not only because of the high

responsibility which rests on all people preparing

documents, but with the fear of the imminent demise

of the deponent. It was a document for which there

would be no opportunity of elaboration or

correction.

TOOHEY J:	Mr Heenan, if I am taking you ahead of your argument, just tell me, but what is meant by
"confidential" in this context.  I mean, it is not
confidential in one sense, I take it, that the author of the affidavit would have been free to

Western(2) 23 13/10/93

make copies available to whomever he chose is that . ,

right or not?

MR HEENAN: If he had a copy.

TOOHEY J: Yes, assuming he was sent a copy.

MR HEENAN:  Yes, well, that is true. The question

Your Honour poses has several dimensions. One

dimension is the area of confidentiality, who is

entitled to enforce it. The orthodox answer is

that it is the client's document, it is the client

which has the right of confidentiality, and it is

his confidentiality which will be protected. If it

goes outside the perimeter of the client's control,

and his protection is lost subject to the right of

a court of equity to relieve against improper

interference with confidential information.

TOOHEY J:  You can understand that in the context of

communications between a client and his or her

legal advisers. It makes sense to say it is the

privilege of the client, but if somebody has given

a statement - a witness to a traffic accident, for

instance - what is meant in that context by saying

that there is some privilege attaching to the

client? Surely, the witness is free to make

whatever use he or she chooses of the document.

MR HEENAN:	Perhaps it can only mean, Your Honour, that to the extent, and only to the extent, that the client
has exclusive control of the document that will be
protected.

DAWSON J: But what is the confidentiality? For all we

know, the affidavit may contain facts which a lot

of people know. The confidentiality is only that

you do not want the other side to get their hands

on it to know what you know.

MR HEENAN:  Your Honour, I have deliberately avoided

attempting to give that answer because that would

elevate that tactical consideration as a subject

deserving of protection by the court. In our

respectful submission, that is something which the

court should not protect and historically will not

protect except in special circumstances. Perhaps

the difference can best be illustrated by citing
the conventional proof of evidence of a witness

obtained - let us take a party's own proof, to

begin with: in the confines of the solicitor's own

office and used for the purpose of transmission to

the party's counsel for the purpose of leading the

evidence in-chief of the witness at trial.

That is a document which in the ordinary course will never be disclosed. The evidence would

Western(2) 13/10/93

be given in-chief, the witness would be cross-
examined, the case would be finished and the proof
would stay on the file. That document, to answer

Justice Toohey's question as best I can, in the dimension of the area of the protection of the

confidentiality, would be protected at the suit of

the client, it would remain under the control of

his agent, and the second dimension which I have

deferred addressing in answer to Your Honour's

question is the dimension of time. It would remain

confidential permanently, even once the litigation

was over. That is the classic type of litigation

privilege arising from confidentiality which the

court protects, and it does so because it is

necessary to allow freedom of communication between

the solicitor and his legal advisers.

McHUGH J:  I have difficulty in understanding that. It

seems to me that your argument leads to the view

that the confidentiality is in the piece of paper;

it cannot be in the information otherwise a

witness's proof must be discoverable. I mean, take

the ordinary case, the information may be anything

but confidential that the witness gives to the

solicitor. Then the witness might run off to the

other side and give the very same information.

MR HEENAN: That cannot be enjoined.

McHUGH J:  No, of_ course he cannot, and it does not make the

proof given to the first solicitor discoverable.

So I have, apart from recording some consequence of

a legal rule, I just do not at the moment

understand what confidentiality has got to do with

it, unless you are talking about the

confidentiality in the piece of paper.

MR HEENAN: Well, in all the cases, certainly in

Grant v Downs and in Waind's case, there are dicta

to the effect that it is the document which is

privileged and not the information.	And,
consistent with that body of opinion, the question

usually arises only on the question, usually in the

situation of discovery or interrogatories or

answers to subpoenas, when a particular document or

set of documents are being called for, and it is

the privilege relating to the particular document

rather than any information in it, which is

protected. True enough, the document is only a

piece of paper serving as a record for the

information, but that is all that is protected, in

our respectful submission.

TOOHEY J: Well there is no difficulty, perhaps, with that

as far as it goes, but once you introduce the

notion of confidentiality, you must be, I think,

Western(2) 13/10/93

talking about the contents of the document as

opposed to the document itself, must you not?

MR HEENAN: Well, that is true, Your Honour, and the premise

would appear to be that communications between
solicitor and client, which are intended to remain

confidential as between the solicitor and client,

that is private to them, so as to enable the

solicitor or the counsel, as the case may be, to

render the services which the legal profession

offers and to render them effectively, should

remain private.

TOOHEY J: But in the context of the witness, as opposed to

the party, there can be no confidentiality in the

ordinary run of events, attaching to the

information. If someone is asked to go to a

solicitor's office and makes a statement, that

person is quite free to go down the road to the

opposite party's solicitor and convey the same

information. It may be that that person cannot

insist upon the first solicitor handing them over a

copy of what was said, but it just seems to me

where you introduce the notion of confidentiality,

there is a gloss on what essentially we are

concerned with, which is the production or

non-production of documents.

MR HEENAN:  Your Honour, the answer may be that the

confidentiality is a qualified or limited concept,

and that it is protected and restricted from

disclosure only by the parties who have received

the disclosure from the witness, that is, the

client or the solicitor. If somebody else can

persuade the witness to give the information to

him, and the information is accessible in that way, then as several members of the Court have observed, there is no restriction whatever on that occurring.

Yet the version which has been obtained by the

legal representative of the party is nevertheless

private to them.

DAWSON J: That is because the communication is the thing

that is privileged, is it not, rather than the

information which is that which is communicated,

and because the document embodies the communication

it remains privileged.

MR HEENAN:	Yes indeed, Your Honour.
DAWSON J:	Or if you like, it is the occasion which is

privileged, whichever way you want to put it.

MR HEENAN:  Yes. The purpose is that the disclosure of the

information and the protection of that information

from disclosure by the solicitor is necessary to

allow the legal practitioner to perform his task,

Western(2) 26 13/10/93

that is, to advise the client or to conduct the

litigation. But its protection from disclosure is

only necessary to the extent that the performance

of those services require it, not one jot further.

McHUGH J: But take the ordinary case when a solicitor takes

a proof of evidence. He knows that there is a real

chance that that document may be tendered in

evidence. The witness may die or go overseas.

What is the relevant section - section 79C, is it,

in Western Australia?

MR HEENAN:	Yes, it is, Your Honour.
McHUGH J:	The moment he takes the proof he knows there is a

possibility, in some cases a real possibility, that

the document itself will find its way into

evidence, but that does not make it discoverable,

does it?

MR HEENAN: That, in our respectful submission, Your Honour,

depends on the facts of any particular case. If it

is a remote possibility which may be regarded as

negligible -

McHUGH J:  What about in the commercial ..... in New South

Wales, where every party has got to ultimately put

their proofs before the court, has it ever been
held that those proofs are discoverable? They may

have to be disclosed as a result of a court

direction, and always are, but - - -

MR HEENAN:  Your Honour, the answer to the question is that

we are not able to cite any Australian or English

case to that effect. We can point to some Canadian

and United States authority which is referred to in

our written submissions that suggest it is, and the

posture which a court will take to that very
question depends on the rationale which is given

for the privilege.

McHUGH J: That is the real problem, it seems to me, in this

area. You are trying to frame a general principle

to deal with this particular situation. It seems

to me that what has evolved is a very concrete rule

which has no rationale, and it is just a rule of

law made up by the judges and there it is.

MR HEENAN:  We will endeavour to persuade Your Honours that

however robust the rule may appear, it is by no

means as concrete or certain as common experience

suggests, and that it has been under periodic

assault through the centuries and that this assault

is due to the tensions between the different

approaches of the Court of Chancery in accordance

with common law, with the eventual emergence of the

equitable rules in the ascendent, and that there

Western(2) 27 13/10/93

has been a resulting compromise which has produced

a steady trend of decisions more advanced in other

jurisdictions than perhaps in Britain and until the

recent cases of this Court, in Australia, which

constantly favours the disclosure of documents and

will confine the privilege narrowly and that in the

search for a rationale, the quest has resulted in the boundary of the privilege being circumscribed because there is no satisfactory rationale for the

old practice.	We will come to these authorities,
Your Honour.

TOOHEY J:  Can I just ask you one more question, Mr Heenan?

Is it crucial to your argument that confidentiality

is an added or super-added element, or are you

arguing for an absence of privilege in a situation

such as exists here without necessarily resorting

to confidentiality?

MR HEENAN:  We say that confidentiality is an essential

ingredient of all aspects of legal professional

privilege, whether it be advice kind or the

litigation kind. Perhaps the best example of why

this is so is the illustration given by

Justice Dawson in Maurice's case in the Northern

Territory's Aboriginal land claims book which was

compared to a pleading. Take an ordinary statement

of claim: no one would deny for a moment that that

is a document which has been prepared solely for

the purposes of anticipated or pending litigation,

that it has been prepared as a result of

communications between the client and his

solicitors or counsel, and that it is intended for

use and used in the litigation, but that is not a

confidential document, nor is it privileged.

The language in the judgments in Maurice's case by Justice Dawson and by other Justices

expressly criticize a course of submissions that

suggested that the claim book was privileged until

filed and that the filing of the document waived
the privilege.	The analysis of those Justices

followed the route that because it was a document

which was intended to communicate information to

the Court, from first to last it was not

confidential and incapable of being privileged.

All pleadings stand in that situation, as do

affidavits which are filed, as do answers to

interrogatories, notices of appeal and many other

forms of process. Yet, if one applies the Grant v

Downs test, a document prepared solely for the

purposes of use in litigation, the initial

conclusion is that they would be privileged.

In our respectful submission an examination of the authorities, including Grant v Downs, and

Waind, and Baker, and Campbell, and Maurice, and

Western(2) 13/10/93

O'Reilly, and Leigh all show that confidentiality for an element of the privilege is either expressly

asserted as an ingredient or assumed, and that that

is not an ingredient which is not restricted to the

advice nature of privilege but extends to the

litigation privilege as well.

Now, in our respectful submission, how does one distinguish a proof from a pleading? The

answer is that it is not intended that the proof

should ever be disclosed.	Now, that is what we
call confidentiality.

McHUGH J:	The question does not arise in relation to a pleading, surely, does it? What about a draft
pleading that is never filed, is that privileged?

MR HEENAN: Justice Dawson in Maurice, Justice Anderson in

Dalleagles, took the view that drafts were

preliminary documents which were still being worked
on by counsel, in confidence, and were privileged.

But the final form of the document, the final form

of an engrossment was not privileged, even if not

filed. The reason lies consistently with the

purpose test, in Grant v Downs and in Waind, with

the intention with which the document was prepared.

A proof is prepared with the intention that it will

be confidential to the legal advisers for their use

during the conduct of the litigation, and never

disclosed. A pleading is prepared for use in the

litigation to communicate the party's case to the

court and to the others, and the difference, in our

respectful submission, is obvious. Unless one

builds that ingredient into the second limb of the
privilege, in our respectful submission, common

practice would be at variance with the principle.

But, our respectful submission, this submission is

not novel or radical or out of accord with

authority.

The only cases which, in our respectful

submission, suggest the contrary, are Handley v

Baddock, which we say is wrong and ought not to be

followed, and Dingle which articulates the

privilege on a different basis, but where the

privilege may nevertheless be justified under a

component of communication, possibly, but it is not

necessary for us to challenge the correctness of

Dingle.

To come back to this question of

confidentiality, we are in the position where we

say that confidentiality is a vital element in the privilege, that the present respondents have never

until this Court suggested that it is, that in this

Court they argue, by a notice of contention filed

Western(2) 29 13/10/93

after the written submissions were exchanged - this

is the notice of 30 September - that:

If "confidentiality" is a specific and

separate requirement in making out a valid

claim to privilege over the statement or

affidavit of a witness obtained for the sole

purpose of use in litigation, then that

requirement was satisfied with respect to the

affidavit the subject of this appeal.

By that, and by their written submissions, we take

them to be submitting that there was a qualified

confidentiality, in the sense that this affidavit

was to be kept like a playing card, face down,

until the trial and it would be disclosed then, and

that it is a legitimate scope for the litigation

privilege to protect an alleged confidence of that

kind, which we say is simply a desire to take a

tactical advantage against early disclosure of the

contents of a document.

In our respectful submission, there is no

evidence which would support a finding that it was

the intention of the solicitors for the respondents

to hold this document in reserve and to defer a

decision as to whether it would be filed or not,

until the trial or some later time. Such a

contention is at variance with the clear evidence

that was given that it has not been asserted before

now and that such a contention ought be rejected.

Nevertheless, if my learned friend, Mr Shaw,

can persuade Your Honours that, on a proper

construction of the evidence that was before the
court that is truly what was meant by Mr Siopis, or

truly the position of the respondents was, we would

say that that, in this case, is not a species of

confidentiality which the doctrine of legal

professional privilege will protect because this

was a document intended, always, for communication.

BRENNAN J: Mr Heenan, is there any English or Australian

case, or any dictum in 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, either as to the information itself

or as to any document which contains it?

MR HEENAN:  There are many English cases which say that a

party is not obliged to answer an interrogatory

concerning his state of knowledge as to the
subject-matter inquired after if his only source of

information is inquiries made by his solicitor,

presumably for the conduct of the proceedings. I

western(2) 30 13/10/93

would not dare give an absolute answer to

Your Honour's question, but we have not been able

to find any Australian case which says, in terms,

in those circumstances, that there is an obligation

to discover that material.

But, in our respectful submission, much turns

on the question of whether the information is, in
the requisite sense, confidential because, for

example, if an interrogatory was directed as to the time an accident happened, and information had been conveyed by the client, and the solicitor had also

made inquiries from some public source, such as a

police accident bureau or hospital records or some

readily accessible public source, we would say that

that information was not confidential, and that an

answer directed to it would have to be given.

Your Honours, in our respectful submission,

there is a great temptation to deal in absolute and

broad categorizations in this area, whereas the

authorities impel one, we say with respect, to

judge every case from the perspective of the

intention of the preparation of the particular

document and hence the examples become multiple and varied. But in our respectful submission, we would

say that if there is an example of a notorious fact
or a public fact which comes to the knowledge of
the solicitor, then disclosure of that is

necessary.

My learned junior, Mr Jopling, has just

reminded me of the facts of J-Corp v ELF,

(1992) 110 ALR 510, a decision of His Honour

Mr Justice French in the Federal Court. This was a

case of a secondary boycott and an action under the

Trade Practices Act following an industrial

stoppage at a plant and the legal representatives

of one of the parties arranged for video filming to

be taken of the boycott or blockade at the works

for the purposes of use in the proceedings.	An
application was made for the discovery of the video

tapes and a claim was made for legal professional

privilege of the litigation type and it was

rejected.

At page 513, towards the foot of the page,

there is the passage in His Honour's judgment,

after referring to Grant v Downs:

It is a prerequisite to the operation of the privilege that the material for which it

is claimed should have been confidential in

the context of the solicitor/client

relationship -

Western(2) 31 13/10/93

a context which gives better expression to the

concept I was intending to convey in answer to some

previous questions.

Mason J observed in O'Reilly v Commissioners

of State Bank of Victoria that to be

privileged communications in writing "must

still be confidential communications between

solicitor and client made for the purpose of

advice or for use in existing or anticipated

litigation" .

Then there was a discussion of the facts in that

case and he went on to distinguish non-confidential

records such as solicitors' trust account records

such as were held discoverable in Allen Allen and

Hemsley.	His Honour says:
The requirement for confidentiality is

not affected by the fact that legal

professional privilege may extend to

categories of documents other than that of

communications or materials submitted by

clients to their solicitors which was under

consideration in Grant v Downs. Other

categories were listed in the judgment of

Lockhart Jin Trade Practices Commission v

Sterling. Nevertheless, it is a requirement

which may have underlain the difficulty

perceived by Pincus Jin Dingle v Commonwealth

Development Bank of Australia -

a decision which my learned friend, Mr Sher, has

read to the Court -

in relation to communications between a

solicitor and a third party such as a witness

from whom a statement is taken. His Honour

referred to Grant v Downs, O'Reilly and Baker

v Campbell noting that in the latter case

court tended to emphasise the foundation of

"statements by a number of members of the

privilege in the notion of confidentiality

between solicitor and client".

Then His Honour cites the passage from Dingle which had already been cited to the court. Going down to

line 43:

His Honour concluded that the privilege in respect of witness statements might be held

to be based on a separate and narrow principle
that a party is not in general bound to reveal
to the court statements taken from witnesses

and the like for the purposes of litigation.

He referred to an expression of that principle

Western(2) 32 13/10/93

by James LJ in Anderson v Bank of British

Columbia.

The privilege in relation to third party

communications and materials was asserted in

National Employers Mutual General Insurance

Association Ltd v Waind, Mason J (with whom

the other members of the court agreed) said:
"Documents submitted by the client to his

solicitors for advice or for use in

anticipated litigation attract the

privilege ... "

The privilege attaching to statements

taken from potential witnesses may not be

supportable by public interest considerations

of the same order as those enunciated in Grant

v Downs in relation to solicitor/client

communications although it arises in the

context of the solicitor/client relationship. is of a limited character.

His Honour has anticipated, perhaps,

Justice McHugh's criticisms.

There is nothing to stop a prospective witness

who has given a statement to a solicitor from

announcing that fact and the content of his

statement to the world at large. In the

ordinary course, neither the solicitor nor his

client could do anything to prevent such

disclosure. It may be that the time has come

to reconsider whether such privilege as

attaches to witness statements ought to

continue although it may be questionable

whether it can be affected by judicial

decision. But I see no reason for its

extension to the class of materials under

consideration in this case. The videotapes

have, it may be accepted, been brought into

existence for the sole purpose of possible

litigation. They are in one sense analogous

to witness statements. But they are more than

that. They are real evidence of events which

occurred in public. They were not taken in

circumstances to which any confidentiality

attached. To attach legal professional

privilege to these materials would be to

accord excessive respect to the adversarial
aspects of litigation and insufficient weight

to the objective of determining in litigation

the facts in issue. To allow inspection of

these materials, in my opinion, infringes no
public interest and no established category of

privilege.

Western(2) 33 13/10/93

That may be one answer to Your Honour

Justice Brennan's question, where documents or materials coming to a solicitor expressly for the purpose of actual litigation was held to be discoverable because of the public nature of the information which it contained. In our respectful

submission, that is a serviceable test, because

otherwise one gives sanctuary to a lawyer's brief
of a kind which is entirely indifferent to whatever

is in it.

There may be some things in the lawyer's brief

which are truly confidential, like the witness' or a map of a highway on an arterial trunk route in
proofs. There may be other things which are
notoriously public such as the plan of

some State which is simply for ease of reference,

or a photograph of a machine, or a pleading. The

trouble about the sole purpose test for the

purposes of conduct of litigation is that without

that ingredient of confidentiality, it fails to

distinguish between materials which should be kept

private to allow the legal practitioner to render

the services which are regarded as desirable to his

client, to the court and to the public, and those

which need no such protection.

In our respectful submission, that void can be accommodated by giving meaning to the notion of

confidentiality. We say, as these cases we hope

display, that that has been expressly or impliedly

accepted in the authorities to date.

Your Honours, the case then rests at two

levels. It rests on the finding of the Full Court
that there is this limited notion of
confidentiality of preserving the privacy of this

affidavit until it is filed or tended in Court and

it rests, we say, on the footing found by the

master, a finding which should be restored that

there was never any confidentiality about it and

our submissions address both of those

potentialities.

Can I say a little about Handley v Baddock,

because as I have already indicated, we challenge

the correctness of that decision. Handley v

Baddock, (1987) WAR 98, was a decision of

Master Seaman in 1985. What had happened was that

there was an alleged slander, proceedings had

commenced, a statement of claim had been delivered,

and the defendant, the alleged slanderer, had

adopted a posture where he had denied speaking the

defamatory remarks.

Western(2) 34 13/10/93

There was then a telephone conversation in

which this defendant spoke to the plaintiff's

solicitors and in the course of that telephone

conversation it is alleged that the defendant

admitted speaking the slanderous words. The

solicitor for the plaintiff made a contemporaneous

note of the telephone conversation and of the

alleged admission.

As the proceedings went on, the defendant was

legally represented and an application was made for

discovery of the written memorandum by the

plaintiff's solicitor recording this telephone

conversation and the alleged admission. A claim

for privilege was made on the basis that the

memorandum was prepared solely for the purposes of

pending litigation, with a view to the conduct of

that litigation.

The objection to the privilege was that it was

not a confidential occasion, it was a communication

between the defendant and the opposing party's

agent. There was nothing private or confidential

about it, and it was not eligible for protection by

privilege, and that contention was upheld. The

learned master concluding that for this second limb
of privilege, confidentiality was not required.

Now, in our respectful submission, we say that that decision is wrong for a series of reasons.

First, and foremost, because it is at variance with

the decisions of this Court in Grant v Downs,

Baker v Campbell, Waind, Maurice and others which,

in our respectful submission, all hold that

confidentiality is an essential ingredient of both

limbs of the privilege. We say it is inconsistent

with the decision of the Supreme Court of New South

Wales in Aydin v Australian Iron and Steel Pty Ltd,

(1984) 3 NSWLR 684.

That was a case of a statement by an injured

worker to a representative of the employer, or its

insurer, following an accident, and the issue which

arose in Aydin's case, as in Handley v Baddock, was

whether the purpose of acquiring the statement for

the anticipated litigation conferred privilege or

whether privilege was denied because it was a

communication to which no confidentiality attached,

namely, from one side of the record to the other

and, in this case, the latter view was preferred.

The document was not regarded as confidential and

the claimed privilege was disallowed.

The same or similar result occurred in the

Canadian case of Strass v Goldsack, 58 DLR (3d)

333, at page 397, which is in our list. A similar

result occurred in the recent unreported decision

Western(2) 35 13/10/93

of Mr Justice Hedigan in the Supreme Court of

Victoria in Telebooth v Telstra Corporation Ltd, a

decision given in Melbourne on 17 August 1993,

where the document in question was the tape
recording of a non-confidential conversation

between the opposing parties to the action, held to

be discoverable, notwithstanding that it was

obtained for purposes of use in anticipated or

pending litigation.

We say that Handley v Baddock is also at

variance with the ratio decidendi of the decision

of Conlon v Conlons Limited, (1952) 2 All ER 462.

Conlon's case was a dispute which arose over the

efficacy of a compromise or settlement of an

action, and the question was whether the solicitor

had authority or had instructions from his client

with authorized him to enter into the alleged

settlement. For this purpose, the solicitor was

called to be examined on the question of what

instructions were given to him by the client and

the question of privilege was raised, it being said

on behalf of the solicitor that the instructions

were given by the client and in relation to pending

litigation.

The claim was disallowed on the basis that it

was the clear intention of the client that the

instructions, if given, should be communicated to

the opposing party or his counsel and that, in
giving the instructions to the solicitor, the

client did not clothe them with any aspect of

confidentiality, intending that they be conveyed.

That being the case, the solicitor was examinable about the instructions given. The determinant of

whether or not privilege existed in that case was

whether or not the information was intended to be

confidential.

We say that those decisions, along with the

formulations of this Court in the trilogy of major

cases dealing with legal professional privilege,

are all inconsistent with the reasoning in Handley

v Baddock and provide a basis upon which that judgment should not be followed and should be

regarded as incorrect.

Your Honours, in paragraphs 5 and 6 of our

written outline we draw attention to a passage in

the judgment of Chief Justice Malcolm in the

Full Court at page 24 in which His Honour said:

Evidence obtained for the purposes of

litigation, whether in the form of an unsigned proof of evidence, a signed proof of evidence,

or a sworn affidavit, is privileged from

disclosure or inspection.

Western(2) 36 13/10/93

Relying on Anderson v Bank of British Columbia,

Kennedy v Lyell, North Australian Territory Company
v Goldsborough Mort, Strachan and

Handley v Baddock.

Our submission in relation to that conclusion

is that none of the cases cited as authority for

the proposition that a sworn affidavit is

privileged dealt with an affidavit. We also say

that His Honour had overlooked the requirement of

confidentiality which we say is vital.

Can I just say briefly why we say those

decisions are largely distinguishable because of
their special statutory contexts or why they

otherwise ought not be followed. Can we take

Anderson v Bank of British Columbia,

(1876) 2 Ch D 644.

MASON CJ:  Mr Heenan, is it not possible to summarize this,

otherwise it is likely to take a good deal of time,

I think.

MR HEENAN:  Yes, I appreciate this, Your Honour. Can I say

that Anderson's case simply deals with a letter

written by a branch manager to head office giving

an account of a disputed transaction which the head

office was investigating because the head office,

having received a complaint, believed that

litigation would follow, believed for good cause.

It was held that the document was not privileged on
the basis that it was a mere routine report given
by the agent to the principal of a series of facts
which had occurred. It was like the psychiatric

reports in Grant v Downs. It was a report to the

principal as a matter of routine.

We would say that there is nothing in that

case which would support the proposition for which

it was relied on in the Full Court. Kennedy v

Lyell was a case dealing with answers to

interrogatories where the particular interrogatory

was directed to the party's knowledge of certain

matters which had come to his attention solely by the investigations of his solicitor conducted for the purpose of the proceedings. It related to a

root of title. It was held there that privilege

was sustainable again.

DEANE J:  Mr Heenan, your argument seems to assume that you

cannot have a temporal confidentiality. In other

words, the fact that a document is intended

ultimately to be made public somehow automatically

means that it is not confidential unless and until

it is made public.	Have you support for that
proposition?

Western(2) 37 13/10/93

MR HEENAN:  We do in the Canadian and the United States

authorities, Your Honour. The problem does not

appear to have been addressed in the Australian and

British authorities that we can find.

DEANE J:  I have trouble seeing how the fact that a document

might be intended ultimately to be used for a

certain purpose that involves it becoming public,

says anything at all as to its confidentiality in

the interim period. I mean, here we are with all

these people fighting to keep your client seeing a

document which you have never seen, but which

somehow it is assumed is not confidential because

it was intended at some stage to be made public.

So it just seems rather strange.

MR HEENAN:  The best answer I can give to Your Honour's

question is that the legal professional privilege

results from an interplay of confidentiality with

the engagement of a legal practitioner to render

particular services. The services may be to give

advice or to conduct litigation but only in so far
as a document needs to be kept confidential for

those services to be effectively performed that the privilege will be attracted. Confidentiality alone will never be a ground for privilege, witness the

failure of the courts to accord privilege to

medical advisers, and so on.

DAWSON J: Taking that up, the legal advisers here would

have to make a decision ultimately whether or not

to use that affidavit, to tender it in evidence,

and until that time why should it not be
confidential because if they choose not to, then it

simply remains confidential?

MR HEENAN:  Your Honour, the unequivocal statement is that

the intention in preparing the document was that it

was to be filed. There is not evidence to the

contrary. It is very probable, having regard to

the shape and issues in the litigation, that that

is what the intention was and the possibility that

the decision might be deferred was not put before the Royal Commission, or before master, or before the Full Court, and that possibility is a

perception which has arisen as a result of

His Honour Mr Justice Seaman's examination

procedure - - -

DAWSON J: Well, it maybe it is the way in which they want

to use it, for instance, that may be an element of surprise would be a great advantage in the conduct

of a litigation, and for that reason they may want

to keep the thing confidential.

MR HEENAN:  Yes, Your Honour, can we put it this way: if I

may return to my analogy that the legal

Western(2) 38 13/10/93

professional privilege to be properly attracted

depends on the interplay of confidentiality and the

proper performance of the legal services, one has

to look at what are the legal services which are

being performed, and they are essentially to give

advice; advice, both of a non-contentious kind, or

otherwise than in relation to pending litigation,

and advice in relation to the conduct of

litigation.

There are many examples of how advice can and

should be given in relation to litigation which

will be confidential, but a point will come, to

return to my example of the pleading, where a

position is adopted which the party intends to take
publicly in the litigation, and he will be required

to disclose that. The requirement for disclosure

of documents in the existing formulation of

discovery means that all documentary evidence has

to be discovered, subject only to claims of legal

professional privilege.

So there is no absolute protection against

disclosure of evidence, indeed, quite the contrary. from discovery or prior disclosure under the orthodox system of trial is the oral evidence of the witnesses.

MASON CJ:  Mr Heenan, we will adjourn now and resume at

10.15 am tomorrow.

AT 4.20 PM THE MATTER WAS ADJOURNED

UNTIL THURSDAY, 14 OCTOBER 1993.

Western(2) 39 13/10/93