X and Y v Z - [2015] SASC 96

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
X AND Y v Z
[2015] SASC 96
Judgment of The Honourable Justice Blue
2 July 2015
EVIDENCE - FACTS EXCLUDED FROM PROOF - ON GROUNDS OF PRIVILEGE - PROFESSIONAL CONFIDENCE - LEGAL PROFESSION - COMMUNICATIONS
EVIDENCE - FACTS EXCLUDED FROM PROOF - ON GROUNDS OF PRIVILEGE - PROFESSIONAL CONFIDENCE - LEGAL PROFESSION - DOCUMENTS
EVIDENCE - FACTS EXCLUDED FROM PROOF - ON GROUNDS OF PRIVILEGE - PROFESSIONAL CONFIDENCE - LEGAL PROFESSION - GENERAL PRINCIPLES
The plaintiffs seek a declaration that eight documents created by or on behalf of the plaintiffs or their solicitors between September 2008 and October 2013 are the subject of legal professional privilege.
Held:
1.       It was appropriate in the circumstances for the Court to inspect the documents to assist in determining the privilege claims (at [24]).
2.       Legal professional privilege protects from disclosure confidential communications made for the dominate purpose of, inter alia, seeking or giving legal advice (at [28]).
3.       “Legal” advice extends beyond formal advice as to the law to incorporate advice as to what should prudently and sensibly be done in the relevant legal framework. However, legal advice is to be distinguished from purely commercial advice. The advice must be characterised as a whole and if it comprises integrated legal and commercial advice that cannot be disentangled, it will be characterised as legal advice (at [31]-[33]).
4.       Document 4 is not protected by legal professional privilege because it does not record the content of any legal advice or the content of instructions to obtain any legal advice (at [47]).
5.       The remaining 7 documents are protected by legal professional privilege (at [62]).
Asahi Holdings (Australia) Pty Ltd Pacific Equity Partners Pty Ltd [2014] FCA 796; Attorney General for the Northern Territory v Maurice (1986) 161 CLR 475 ; Attorney-General for the State of South Australia v Kowalski (No 5) [2012] SASC 169; Balabel v Air India [1998] 1 Ch 317; Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237, (2004) 210 ALR 220; BHP Billiton Olympic Dam Corporation Pty Ltd v Bluestone Apartments Pty Ltd [2013] SASC 64; (2013) SASR 586; Buttes Gas & Oil & Co v Hammer (No 3) [1981] QB 2; Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543; DSE (Holdings) Pty Ltd v InterTAN Inc [2003] FCA 1191; (2003) 135 FCR 151; Esso Australia Resources Limited v Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49; Grant v Downs (1976) 135 CLR 674 ; Trade Practices Commission v Sterling (1979) 36 FLR 244 , considered.

X AND Y v Z
[2015] SASC 96
Civil:
BLUE J:

This is an action for a declaration that certain documents are the subject of legal professional privilege.
Between September 2008 and October 2013, eight documents were created by or on behalf of the plaintiffs or their solicitors.[1] The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] SASC 96
Decision Date: 2 July 2015

CaseChat Overview and Summary

In the case of X and Y v Z, the plaintiffs, X and Y, sought to establish that eight documents created between 2008 and 2013 were protected by legal professional privilege. The defendant contested the privilege claim in relation to some or all of the documents. The Federal Court of Australia was tasked with determining whether the documents were subject to legal professional privilege.

The legal issues before the Court centred on whether the documents in question were protected by legal professional privilege. This involved assessing whether the documents were created for the dominant purpose of providing legal advice and whether they were intended to be confidential. The Court needed to examine the nature of the documents, the context in which they were created, and whether they related to the provision of legal services.

The Court found that Document 8 was protected by legal professional privilege. It held that the document was created for the dominant purpose of providing legal advice and was intended to be confidential. The Court was satisfied that the document related to the provision of legal services and met the criteria for legal professional privilege. However, the Court concluded that the other documents were not protected by legal professional privilege, as they did not meet the required criteria.

The Court ordered that a declaration be made that the documents other than Document 8 were not subject to legal professional privilege. The Court invited the parties to make submissions on the wording of the declaration and any consequential orders.

Orders

Orders of the court

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Background

Background to the litigation

Between September 2008 and October 2013, eight documents were created by or on behalf of the plaintiffs or their solicitors.[1] The plaintiffs claim that each document is the subject of legal professional privilege, a claim with which the defendant takes issue. [1] One of the eight documents (document 1.8) comprises four different copies of what is essentially the same underlying document.Background The second plaintiff Y is the holding company of a group of companies that undertake development. The first plaintiff X is a director of those companies. This action has been conducted on the basis that, for the purpose of considering legal professional privilege issues, no distinction is drawn between the holding company and its subsidiaries. I therefore treat Y as encompassing its subsidiaries and “the plaintiffs” as encompassing the companies in the group. Since 2008, the plaintiffs were, amongst other things, contemplating or embarking on a particular development project (the Project). P is a solicitor practising in planning and development law. Since not later than 2009, P’s firm and P in particular were engaged by the plaintiffs to provide legal advice in relation to planning and development matters in respect of the Project. L is a solicitor practising in commercial law. Since not later than 2008, L’s firm was engaged by the plaintiffs to provide legal advice in relation to contractual and commercial matters in respect of the Project. In 2008, L in particular was engaged to provide that advice. T is a solicitor practising in taxation law. In 2008, T’s firm and T in particular were engaged by the plaintiffs to provide legal advice in relation to taxation matters in respect of the Project. On 2 September 2008, a meeting was scheduled to take place between X, an employee of the plaintiffs (E1), L, T and a specialist taxation accountant (A) engaged by the plaintiffs to provide taxation advice in relation to taxation matters in respect of the Project. The purpose of the meeting was to discuss, and for the plaintiffs to receive advice concerning, taxation issues associated with the Project. A draft version and a final version of an agenda for the meeting were prepared setting out the issues and factual basis on which the taxation advice was sought and was to be given at the meeting.[2] In addition, brief notes were made on two copies of the final version of the agenda of aspects of the discussion at the meeting.[3] I refer to the four versions of the agenda as Document 1. A claim of legal professional privilege is made in respect of the narrative under each heading in the four versions of the agenda.[2] Document 1.8.[3] Document 1.8. On 10 March 2009, P sent a letter to X providing advice in answer to a request to recommend the most efficient way to proceed with the Project (Document 2).[4][4] Document 1.5. On 10 August 2009, P had a telephone discussion with a Council officer in relation to the Project. The purpose of the conversation was to obtain information on which to provide legal advice to Y. P made notes of the conversation. There is no suggestion that the communication or the notes are the subject of legal professional privilege.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Document 8 is protected by legal professional privilege.Conclusions I will make a declaration that the documents other than Document 4 are the subject of legal professional privilege. I will hear the parties as to the wording of the declaration and any consequential orders.

Ratio Decidendi

Legal Principle Established

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