Whiteley Partners Pty Ltd v Tyndall Life Insurance Co Ltd

[2000] WASC 189

WHITELEY PARTNERS PTY LTD -v- TYNDALL LIFE INSURANCE CO LTD [2000] WASC 189

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASC 189
Case No:	CIV:1941/1998	Heard:	24 JULY 2000
Coram:	MASTER BREDMEYER	Delivered:	25/07/00
No of pages:	8	Judgment Part:	1 of 1
Result:	Claim allowed in part
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Parties:	WHITELEY PARTNERS PTY LTD TYNDALL LIFE INSURANCE CO LTD
Catchwords:	Legal professional privilege Communications between client and bank Communications between solicitor and bank
Legislation:	Nil
Case References:	Nil Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 168 ALR 123 Mann v Carnell (1999) 168 ALR 86

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : WHITELEY PARTNERS PTY LTD -v- TYNDALL LIFE INSURANCE CO LTD [2000] WASC 189 CORAM : MASTER BREDMEYER HEARD : 24 JULY 2000 DELIVERED : 25 JULY 2000 FILE NO/S : CIV 1941 of 1998 BETWEEN : WHITELEY PARTNERS PTY LTD

Plaintiff

AND

TYNDALL LIFE INSURANCE CO LTD
Defendant

Catchwords:

Legal professional privilege - Communications between client and bank - Communications between solicitor and bank

Legislation:

Nil

Result:

Claim allowed in part

(Page 2)

Representation:

Counsel:

Plaintiff : Mr R J L McCormack
Defendant : Mr M H Zilko

Solicitors:

Plaintiff : Dwyer Durack
Defendant : Jackson McDonald

Case(s) referred to in judgment(s):
Nil

Case(s) also cited:

Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 168 ALR 123
Mann v Carnell (1999) 168 ALR 86

(Page 3)

1 MASTER BREDMEYER: This is an application by the plaintiff for legal professional privilege to a number of documents subpoenaed by the defendant from third parties. The defendant has not inspected the documents which have been shown to me. The trial is due to start on 3 August and this necessitates quick and rather brief reasons.

2 I will refer to the documents set out in the plaintiff's list:

NATIONAL AUSTRALIA BANK DOCUMENTS

1. Bundle of loose papers and files relating to progress of legal claim.

3 This bundle consists of handwritten faxes from Mr Whiteley to National Australia Bank ("NAB") officers in the period 20 August 1999 to 26 June 2000. In these faxes Mr Whiteley is commenting to the bank on the progress of the action. Mr Whiteley has borrowed large sums from the bank for the purposes of this litigation. The bank is Mr Whiteley's agent. It is also a third party. According to Cross on Evidence, 5th Aust ed, par 25210, legal professional privilege includes communications between the client and third parties if made for the purpose of obtaining information to be submitted to the client's professional advisers for the purpose of obtaining advice upon pending or contemplated litigation. The communications between Mr Whiteley and his bank do not fall into this category. However included in the papers are a few documents which are privileged. These are:

(a) Letter Ross Harrison to Mr Whiteley 23 May 2000 headed Funding of Trial. Clearly this is legal advice.

(b) - Litigation costs agreement Dwyer Durack and Mr Whiteley dated 9 November 1998.

- Litigation costs agreement between Dwyer Durack and IDW Pty Ltd of 9 November 1998.

- Litigation costs agreement between Dwyer Durack and TranState Securities Pty Ltd of 9 November 1998.

(c) Three letters of Dwyer Durack to Mr Whiteley IDW Pty Ltd and TranState Securities Pty Ltd of 6 November 1998 re costs agreement.

(d) One page document 2 November 1998 with headings

(Page 4)

Claim Negotiation Range Strike Rate Settlement Amount

(I consider this was prpeared by Mr Whiteley for his solicitors)

(e) Fax Dwyer Durack to Adam Tout 2 April 1998 re "without prejudice" offer.

(f) Fax Dwyer Durack to Mr Whiteley 15 January 1999.

(g) File - National Australia Bank - Application For Line of Credit Section.


This bank file contains numerous faxed reports by Mr Whiteley to the bank on the progress of the action. Consistent with my ruling above, none of it is privileged, with the exception of Mr Harrison's letter to Mr Whiteley of 15 April 1999 of six pages, which is privileged. That is the same letter found at item 2(d) below. I consider the attachments to that letter were prepared by Mr Whiteley largely for submission to the bank and are not privileged.

2. Documents in blue folder entitled "Customer Name I D Whiteley & Associates Accounts Manager Mark"

4 At the outset I mention a document included in this file which is not enumerated in the plaintiff's list. It is a letter dated 18 June 1999 from Mr G W Page to Mr Ross Harrison attaching a report headed:

WHITELEY PARTNERS PTY LTD
REPORT & ANNEXURES
TO DWYER DURACK

I consider this document is privileged. It was prepared by an expert for use in the litigation. It may be, however, the subject of an order for the exchange of experts' reports.

(a) copy facsimile from Ian Whiteley to Ken Workman with attachments (8 pages) 9/6/2000

5 I consider the letter itself, which is one page, is not privileged. However, I consider the attachments are privileged. The attachment includes a letter dated 9 June 2000 from Dwyer Durack to Ian Whiteley and five pages of attachments.

(Page 5)

(b) facsimile from Ian Whiteley to Ken Workman with attachments 30/5/2000

6 Not privileged.

(c) facsimile from Ian Whiteley to Ken Workman with attachments (3 pages) 7/5/2000

7 Not privileged.

(d) copy letter Dwyer Durack to Ian Whiteley (6 pages not 8 as stated) 15/4/1999

8 Privileged letter of legal advice.

(e) undated document entitled "Status of claims at 23 March 1999" (2 pages)

9 Not privileged, apparently prepared by Mr Whiteley inter alia for submission to the bank.

(f) facsimile from Ian Whiteley to Ken Workman with attachments (3 pages and not 2) 20/12/1999

10 Not privileged.

3. File headed "National Australia Bank Consumer Loan checklist"

(a) facsimile from Ian Whiteley to Graham Thompson with attachments (3 pages) 19/9/1997

11 I consider the letter itself of one page is not privileged but the attachment is. The attachment is a letter dated 18 September 1997 from Dwyer Durack (Mr Harrison) to Graham Thompson of the National Australia Bank. It is headed confidential and in another place "Strictly private and confidential". The opening words are:

"Progress of insurance claims - Ian Douglas Whiteley

We have been instructed by Mr Whiteley to advise you in relation to the progress of his claim and we advise as follows."

The letter of advice is two pages. Although NAB is not the client of Dwyer Durack, the letter was sent to the bank at the request of the client, Mr Whiteley. I consider the bank is the agent of the client and I consider

(Page 6)

the communication of legal advice is really to the client and the client's privilege has not been waived. I note that the litigation had commenced when this letter was sent and, although not sent for the purpose of obtaining advice or evidence from the bank for possible use in the trial, it was undoubtedly sent to comfort the bank, which is largely funding the plaintiff's action. I consider it covered by legal professional privilege. The privilege as to lawyer-client communications extends to a communication between the lawyer and an agent of the client. The agent is treated as the alter ego of the client. Cross on Evidence, 5th Aust ed, par 25230. Dwyer Durack's letter to the bank falls into the category.

4. Documents in undated manilla folder entitled "Whiteley Partners"

(a) facsimile from Ian Whiteley to Ken Workman with attachments (3 pages) 20/12/1999

12 Not privileged. (Same document as 2(f) above).

(b) facsimile from Ian Whiteley to Ken Workman (2 pages) 1/12/1999

13 Not privileged.

(c) facsimile from Ian Whiteley to Ken Workman (1 page)

14 In the plaintiff's list this fax is not dated but in fact it bears the date 24/11/99. Not privileged.

(d) facsimile from Ian Whiteley to Graham Thompson with attachments (15 pages) 15/4/1999

15 The letter itself of two pages is not privileged. It is like all the others, a fax from Mr Whiteley reporting to the bank on the progress of the action. However, I consider the attached letter of 15 April 1999 from Dwyer Durack to Mr Whiteley of six pages is a letter of legal advice and clearly privileged. I consider the attachments to that letter are not privileged. They comprise seven pages of flow charts etcetera and I consider they were prepared by Mr Whiteley inter alia for submission to the bank. This letter of legal advice is the same letter referred to in par 2(d) above.
(Page 7)

(e) original letter from Dwyer Durack to Graham Thompson, National Australia Bank
(2 pages) 18/9/1997

16 This is the same letter which I ruled on under item 3(a) above. I repeat the ruling here. Although addressed to the bank I consider it is really sent to the bank as agent for the client and is covered by legal professional privilege.

(f) facsimile from Ian Whiteley to Graham Thompson National Australia Bank with attachments
(14 pages) 15/7/1997

17 I consider the letter itself of eight pages if not privileged. It falls into the same category as the other letters reporting to the bank. I consider the attached letter of 10 July 1997, Dwyer Durack to Mr Whiteley of three pages is a letter of legal advice to him and is privileged. I consider the annexures to that letter which consist of tables are not privileged. I consider they have been prepared by Mr Whiteley for submission to the bank.

PAGE KIRK & JENNINGS DOCUMENTS

5. Files numbered 2/21, 3/21 and 4/21 being files of Whiteley Partners Pty Ltd

File 2/31

18 This file includes a number of letters of legal advice from Mr Harrison to Mr Whiteley and correspondence from Mr Whiteley to Mr Harrison, which was apparently sent to the accountants. All of that is privileged. In addition there is correspondence between Mr Whiteley and Mr Page, whom I consider is an expert. There is also correspondence between Mr Page and Price Waterhouse & Cooper, whom I understand have given some expert advice in connection with this case. I consider the whole of this file is privileged.

File 3/21

19 In general terms this file is privileged. It includes a letter of legal advice from Mr Harrison to Mr Whiteley of 15 April 1999, a copy of which I ruled as privileged at item 2(d) above. It also includes a deed of release undated about approximately May 1999 relating to settlement of an action between Mr Whiteley and Colonial Mutual Life Assurance Co.

(Page 8)

The deed includes a confidentiality clause under which Mr Whiteley is not permitted to disclose the contents. One stated exception to that is he is permitted to disclose the settlement to his accountant, Mr Grant Page of Page Kirk Jennings. That is why it is on this file.

20 I consider the file is privileged apart from the following two documents which are not privileged:

1. Whiteley Partners Pty Ltd, Special Purpose Financial Report for Year Ending 30 June 1996 prepared by Page Kirk & Jennings (unsigned).

2. Certified Copy of Amending Deed, Whiteley Superannuation Fund dated 21 May 1990.

File 4/21

21 I consider none of the documents in this file are privileged.

22 Although not enumerated in the list, included in the papers are four green folders. Each folder contains a copy of the same document "Background information for aggravated damages consideration" and marked confidential. This is an report prepared by Mr G W Page of Page, Kirk and Jennings, chartered accountants, dated 21 June 1999 and submitted to Mr Harrison of Dwyer Durack with a covering letter of that date. I consider this is an expert report prepared for use by the plaintiff and is privileged.

23 I will reserve on the questions of costs.