Wookey v Radio 6PR Perth Pty Ltd
[2012] WASC 132
•24 APRIL 2012
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: WOOKEY -v- RADIO 6PR PERTH PTY LTD [2012] WASC 132
CORAM: KENNETH MARTIN J
HEARD: ON THE PAPERS
DELIVERED : 24 APRIL 2012
FILE NO/S: CIV 1062 of 2010
BETWEEN: DARRYL ANNE WOOKEY
Plaintiff
AND
RADIO 6PR PERTH PTY LTD
Defendant
Catchwords:
Privilege - Inspection - Legal professional privilege - Inspection by judge other than CMC List case manager
Legislation:
Nil
Result:
Inspection of two documents allowed
Category: B
Representation:
Counsel:
Plaintiff: No appearance
Defendant: No appearance
Solicitors:
Plaintiff: Bennett & Co
Defendant: Kelly Hazell Quill
Case(s) referred to in judgment(s):
Dalleagles Pty Ltd v Australian Securities Commission (1991) 4 WAR 325
Perdaman Chemicals & Fertilisers Pty Ltd v The Griffin Coal Mining Company Pty Ltd [No 3] [2012] WASC 94
Public Transport Authority of Western Australia v Leighton Contractors Pty Ltd [2007] WASCA 151; (2007) 34 WAR 279
KENNETH MARTIN J: I have completed an examination of the parties' pleadings and written submissions, on a reference from the CMC List judicial case manager concerning a dispute over the plaintiff's assertion of legal professional privilege against inspection made in respect of the plaintiff's discovered documents 31, 32 and 34 (all being dated 23 December 2008).
I address this privilege/inspection issue over three documents on the papers on the basis of the parties' written submissions which include the defendant's outline of argument dated 28 October 2011 (filed 31 October 2011), the plaintiff's submissions in response filed 27 January 2012, the defendant's supplementary submissions filed 15 March 2012 and the plaintiff's supplementary submissions in response filed 4 April 2012. I have also inspected and reviewed copies of each of the three documents which were provided to me by the parties to facilitate this exercise.
As regards documents 32 (described as an MCR instruction form) and 34 (Lavan Legal's email to the plaintiff), I reach a firm conclusion that there should be an inspection of these documents. The basis of the plaintiff's articulated objection to inspection is expressed only as 'privilege'. Ordinarily, such a description will be inadequate. But, bearing in mind the extensive exchange of written submissions and the context of the CMC List, I have proceeded on a basis that the class of privilege against inspection which is invoked by the plaintiff is legal professional privilege (alternatively known as client legal privilege).
As Martin CJ did in Perdaman Chemicals & Fertilisers Pty Ltd v The Griffin Coal Mining Company Pty Ltd [No 3] [2012] WASC 94, I also proceed on the basis that:
[T]he scope of legal professional privilege extends beyond documents created for the dominant purpose of the provision of legal advice, and extends to and includes documents created for the purposes of providing legal assistance, including the preparation of draft agreements and observations with respect to the terms of agreements which have been entered into or are under contemplation.
See Perdaman [No 3] [5] and cases there cited.
Within this class of privilege, I have considered a potential application in favour of the plaintiff of both its manifestations, namely (dominant purpose) advice privilege, but also what is known as litigation privilege applicable to documents created for the purpose of litigation.
As to litigation privilege, in Public Transport Authority of Western Australia v Leighton Contractors Pty Ltd [2007] WASCA 151; (2007) 34 WAR 279 [13] McLure JA (as she then was) said:
Litigation privilege is recognised in this jurisdiction as a separate category of legal professional privilege with a different rationale to that of advice privilege: Southern Equities Corporation Ltd v West Australian Government Holdings Ltd (1993) 10 WAR 1.
After inspecting documents 32 and 34, it is clear that neither relates to a giving or receipt of instructions by the plaintiff as regards a provision of legal advice, or the furtherance of legal advice. My inspection also shows these two documents are not arguably within a character of documents brought into existence in furtherance of actual or potential litigation even allowing for the considerable amplitude of an approach as explained by Anderson J in Dalleagles Pty Ltd v Australian Securities Commission (1991) 4 WAR 325, 333.
Inspection by the defendant of the plaintiff's discovered documents 32 and 34 must follow.
As regards document 31, considerations are slightly different. Document 31 is described as a 'file note' (it is also dated 23 December 2008). Again, the objection raised against inspection is on the basis of 'privilege'. Once again, the assumption should be made in the plaintiff's favour that the category of privilege invoked is legal professional privilege and that the objection raised against inspection is to be assessed on the potential application of either advice or litigation privilege.
Having said that, my inspection of document 31, which is a file note written out in longhand, shows its content to be largely illegible. For the purposes of an inspection exercise, I am prepared to make a further assumption as regards document 31, that the file note was made by a certified legal practitioner who, at the time (23 December 2008) was either an employee solicitor or partner within the firm of solicitors (Lavan Legal) then acting for the plaintiff.
But even with such assumptions made as regards document 31 (in the plaintiff's favour), and having now viewed the file note, its content remains unintelligible due to its illegibility.
Without a translation (or interpretation as to the shorthand by the author of the note), it is simply not possible for me to gain any more reliable appreciation as to the content of this file note.
Whilst it is open to speculate over some longhand words on the file note (possibly detecting the name 'Wookey' on occasion), beyond that, the exercise becomes largely guesswork.
In this state of affairs I am left to follow the approach of Anderson J in Dalleagles (333). The communication should be assessed as professional discourse and regarded as 'prima facie for the purpose of giving and receiving advice'.
As regards documents 32 and 34, inspection can follow within seven days. Document 31 remains protected from inspection by the assertion of (legal professional) privilege.
I am of the view that the costs of the application should be the defendant's costs in the cause.
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