Wilmer v King Island Dairy Pty Ltd
[2000] TASSC 42
•5 May 2000
[2000] TASSC 42
CITATION: Wilmer v King Island Dairy Pty Ltd [2000] TASSC 42
PARTIES: WILMER, David
v
KING ISLAND DAIRY PTY LTD (ACN 006 681 524)
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 835/1999
DELIVERED ON: 5 May 2000
DELIVERED AT: Hobart
HEARING DATES: 2 May 2000
JUDGMENT OF: The Master
CATCHWORDS:
Procedure - Discovery and interrogatories - Production and inspection - Grounds for resisting production - Legal professional privilege - For purpose of seeking or being furnished with legal advice - Disclosure of document to person with a common interest.
Esso Australia Resources Ltd v Commissioner of Taxation (1999) 74 ALJR 339; Nickmar Pty Ltd v Preservatrice Skandia Insurance Ltd (1985) 3 NSWLR 44; Thiess Contractors Pty Ltd v Terakell Pty Ltd [1993] 2 Qd R 341; Reitler v NZI Insurance Australia (1992) Tas R 173, referred to.
Aust Dig Procedure [445]
REPRESENTATION:
Counsel:
Plaintiff/Applicant: B C Hilliard
Defendant/Respondent: P W Tree
Solicitors:
Plaintiff/Applicant: Watling Roche Lawyers
Defendant/Respondent: Lander & Rogers
Judgment Number: [2000] TASSC 42
Number of Paragraphs: 9
Serial No 42/2000
File No 835/1999
DAVID WILMER v KING ISLAND DAIRY PTY LTD
REASONS FOR JUDGMENT THE MASTER
5 May 2000
By an action commenced by writ on 19 October 1999, the plaintiff claims damages for personal injuries suffered by him on 4 February 1999. In the course of the proceedings, the defendant has caused to be made an affidavit verifying a list of its documents. The list discloses that the defendant has in its possession, custody or power, documents relating to the matters in question enumerated in the first schedule. Part II of the first schedule, item 6, contains the entry "Australian Security Holdings Investigation Report dated 26 February 1999 including witness statements". The plaintiff has applied for an order requiring the defendant to produce for inspection that document.
In par2 of its list of documents, the defendant claims that the documents are privileged because they came into existence for the purpose of enabling solicitors to provide legal advice. Paragraph 2 is as follows.:
"The defendant objects to produce the documents enumerated in Part II of the first schedule hereto on the ground that the same are privileged and came into existence and were made after this litigation was anticipated, threatened or in contemplation for the purposes of obtaining for and giving to the solicitors for the defendant evidence and information as to the evidence which could or might be obtained for the use of the solicitors to enable them to advise upon the case of the defendant in this litigation."
The relevant facts are as follows. On 4 February 1999, the factory manager for the defendant company made a facsimile transmission to insurers HIH Casualty and General Insurance Limited ("HIH") in the following terms:
"It has been reported to myself that at about 4.07 a.m. this morning, an employee (David Wilmer) received injuries to his right arm from below his shoulder to his elbow. Allegedly, David was taking milk from a vat for an unknown reason when the agitator which was on at the time, jammed his arm between the agitator and the top (roof) of the vat.
David is a trained operator but was not the rostered operator of the vat today and until I can see David in the King Island Hospital, all the details of the incident will not be known. The departmental supervisor has reported that David will be in hospital for about 2 days and has the impression that surgery will not be required off the Island.
The modifications to the vats following the previous incident are in the process of being carried out. A training session was held for the operators and a lock out / tag out procedure was implemented immediately and is in place until the works are completed.
I will contact Bob Thomson or yourself when I have completed the investigation and inform you of the results.
HIH, through a claim's officer employed by it, made a facsimile transmission to the private investigating organisation, Australian Security Holdings, on 8 February 1999 in the following terms:
"Please find following details of an incident at King Island Dairies. I have recently instructed Lander and Rogers to appoint you to investigate another King Island claim for Elizabeth Smith which is a disputed claim. You may or may not have received those instructions. Can you please do both these claims in the one trip. We have not yet received the claim form for Wilmer. Can you please report on both matters to Lander and Rogers in Launceston.
In relation to the Wilmer claim can you please undertake the following investigations -
1 Statement from the worker - why was he taking milk form [sic] the vat with the agitator on
- safety training
- details of what happened
2 Statement from Ian Lumley
3 Statement form [sic] any witnesses
4 Common law factors
5 Anything else that is relevant to our handling of the claim
Please let me know if there are any questions."
An affidavit read into evidence on behalf of the defendant discloses that the report from Australian Security Holdings Investigation was transmitted directly by that organisation to solicitors Lander & Rogers on 26 February 1999. The affidavit contains evidence which was not challenged that the purpose of the claim's officer in commissioning the investigator's report "was to facilitate obtaining legal advice in respect of apprehended litigation by Mr Willmer [sic] in respect of the incident on 4 February 1999".
The information, the subject of correspondence referred to above, was that an employee of the insured defendant was injured at the defendant's premises. That the injury was sufficiently serious to require hospitalisation. That the injury was caused by equipment which the defendant proposed to modify following a "previous incident". The insurer requested that the investigator's report be sent direct to solicitors and that in fact occurred. In the circumstances, I can find no reason to doubt the evidence that the insurance claim's officer commissioned the report to facilitate legal advice in relation to the incident. It was not suggested that the report was commissioned for any other purpose and so I find that the sole purpose for bringing the document into existence was to obtain legal advice. (Since Esso Australia Resources Ltd v Commissioner of Taxation (1999) 74 ALJR 339, the "dominant purpose" test applies, but as I have found that the report was commissioned for the sole purpose of facilitating the provision of legal advice, I do not need to consider this aspect of the matter further.) Although the information might be used in the litigation, the subsequent use of the material is not relevant, it is the purpose for which it was obtained that determines its status.
Where the collection of material is by the servant or agent of a solicitor's client, that is to say, it is collected by a person at the specific direction of the client for submission to a solicitor for advice, the information is treated as information collected and supplied by the client, and so is privileged, regardless of whether litigation is in existence or in contemplation. Where, on the other hand, the person who collects the information is not the servant or agent of the client but provides information to the solicitor to assist the solicitor in providing advice to the client, the material collected is not privileged unless collected for the purpose of litigation in existence or in contemplation. This distinction is well explained in Nickmar Pty Ltd v Preservatrice Skandia Insurance Ltd (1985) 3 NSWLR 44 at 53G - 54A and 256F, where Wood J said:
"Each of Jessel MR and Cotton LJ recognized that there was a distinction between communications from third parties acting as agents of a client seeking advice, and from third parties not acting as agents. Communications by the former could perhaps be regarded as communications of the client itself, and on that account attract privilege, where made for the purpose of obtaining advice. Communications by the latter however stand in a different position. Although they may become employed on behalf of the client to do certain work, that work is not the communicating with the solicitor to obtain legal advice (at 684). It is only when their communications are in contemplation of litigation, or for the purpose of giving advice or obtaining evidence with reference to it, that privilege attaches.
…In Wheeler v Le Marchant (1881) 17 Ch D 675, the supply of documents to a solicitor for advice by an agent of the client, was placed on all fours with their supply by the client itself: see also Anderson v Bank of British Columbia (1876) 2 Ch D 644 (at 658 per Mellish LJ). It was submitted in the present case that reports obtained from investigators or experts retained formally by solicitors, but on the explicit instructions of the client, should be regarded in a similar light. I accept this submission. Any other view seems to place undue emphasis on form, and to ignore the substance of the engagement of the expert as an agent by direction. In such circumstances I believe the information could properly be regarded as collected and communicated confidentially on behalf of the client to its legal adviser, in the character, and for the purpose of obtaining legal advice."
In this case, the investigators, in producing the report and obtaining the witness statements, acted at the direction of the solicitor's client, HIH, and so the material is to be treated in exactly the same way as if had been collected and supplied directly by the client to a solicitor for advice. It attracts privilege provided that it is a confidential communication and is the property of the client. There is no need to embark upon a consideration of whether or not litigation was in reasonable contemplation at the time the report was commissioned, for the reasons mentioned above.
The report and the witness statements were sent directly by the investigators to the solicitors for HIH. There was no suggestion by counsel for the plaintiff that the documents were not confidential. Although it is apparent from the defendant's list of documents that the materials came into the possession of the defendant, the confidential status was not thereby lost. HIH, which commissioned the report and its insured, the defendant, have a common interest and so any privilege attaching to the materials is not defeated by the document being passed from the insurer to the insured. Thiess Contractors Pty Ltd v Terakell Pty Ltd [1993] 2 Qd R 341.
Although no argument was directed to the point, a brief mention of the status of the witness statements included with the report is appropriate. There was no assertion that those witness statements were signed by the persons providing them or for any other reason may have been the property of those witnesses. The investigator's record of conversations he had with witnesses or even with the plaintiff, is not, of itself, a communication by those witnesses or the plaintiff to the defendant and is not the property of the witnesses. Reitler v NZI Insurance Australia (1992) Tas R 173. There is no reason for me to treat the witness statements differently to the rest of the investigator's report.
The defendant is entitled to preserve the confidentiality of materials brought into existence for the dominant purpose of seeking or being furnished with legal advice by a practising lawyer. In this case, as I have found, that was the sole purpose. Accordingly, the material is privileged and the application for the production of it will be dismissed.
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