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[2001] QSC 180
Supreme Court of Queensland
2001-06-15
Holmes, J
Original judgment source is linked above.
PROCEDURE - DISCOVERY AND INTERROGATORIES - PRODUCTION AND INSPECTION - GROUNDS FOR RESISTING PRODUCTION - LEGAL PROFESSIONAL PRIVILEGE - WHAT CONSTITUTES - FOR PURPOSES OF OR IN CONTEMPLATION OF LITIGATION
Report commissioned by "in-house" lawyer - wh legal professional privilege attached - wh dominant purpose in bringing report into existence was its use in contemplated
litigation or for legal advice - dominant purpose for legal advice therefore privileged
Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners (No. 2) [1972] 2 QB 102
Attorney-General for the Northern Territory of Australia v Kearney [1985] HCA 60; (1985) 158 CLR 500
Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526
Australian Hospital Care (Pindara) Pty Ltd and Anor v Duggan (No. 2) [1999] VSC 131
Australian Rugby Union Ltd v Hospitality Group Pty Ltd & Ors [1999] FCA 1061; (1999) 165 ALR 253
Commissioner of Federal Police v Propend Finance Pty Ltd
Electricity Trust of South Australia v Mitsubishi Australia Limited [1991] SASC 3105; [1999] 57 SASR 48
Glengallan Investments Pty Ltd & Ors v Arthur Andersen and Anor [2001] QCA 115
Gold Securities Australia Pty Ltd and Anor v Siebe PLC and Ors, Giles J, Supreme Court New South Wales, 31 October 1990 unreported
Grant v Downs [1976] HCA 63; (1976) 135 CLR 674
James v WorkCover Queensland [2000] QCA 507
Leader Westernport Printing Pty Ltd (t/a Waverley Offset Publishing Group) v IPD Instant and Duplicating Pty Ltd (1988) 5 ANZ Insurance Cases 60-856
McIlwraith McEacharn Operations Limited v C.E. Heath Underwriting and Insurance (Australia) Pty Ltd (No. 2)
Morlea Professional Services Pty Ltd v South Brisbane Insurance Co Ltd, Foster J, 27 September 1984, unreported
National Employers Mutual General Insurance Association v Waind [1979] HCA 11; (1979) 141 CLR 648
Nickmar Pty Ltd and Another v Preservatrice Skandia Insurance Ltd (1985) 3 NSWLR 44
Seabrook v British Transport Commission [1959] 1 WLR 509
Waterford v The Commonwealth [1987] HCA 25; (1987) 163 CLR 54
Waugh v British Railways Board [1979] UKHL 2; [1980] AC 521
Wheeler v Le Marchant [1881] 17 Ch D 675
O'Mara Patterson and Perrier for the applicant / fifth defendant
Minter Ellison for the respondent SimsMetal Limited
[1] The applicant, the fifth defendant in the action, seeks an order that SimsMetal Limited, which is not a party to the action, produce a copy of a report prepared for it by PricewaterhouseCoopers. In the action in which the application is brought, the plaintiff claims various forms of relief in respect of the alleged conversion of "swarf" (scrap metal) belonging to the plaintiff. The first, second, third and fourth defendants to the action are former employees of the plaintiff and their wives; the fifth defendant was employed by the respondent to this application, SimsMetal Limited.
[2] On 23 April 2001 a Notice of Non-Party Disclosure was forwarded to SimsMetal Limited. It sought disclosure of the PricewaterhouseCoopers report already mentioned, and, as required by r 243 of the Uniform Civil Procedure Rules 1999, specified the allegations in the Statement of Claim to which the document was said to be directly relevant. The allegations as specified were
"1. That the fifth defendant was employed by SimsMetal Limited.
2. That the fifth defendant would pay cash of unspecified and variable amounts to the second defendant for division between the second defendant and the first defendant for them to apply them for their own respective uses ("the dishonest and fraudulent design")."
A further allegation in the Statement of Claim, to the effect that the misappropriated swarf was taken to SimsMetal premises where it was weighed and cash paid over for it, was not relied on as an allegation to which the document sought was directly relevant.
[3] SimsMetal has taken objection to the production of the report on the ground that it is the subject of legal professional privilege. Mr Francis Moratti, who describes himself as holding the position "legal counsel" with SimsMetal Limited, has sworn an affidavit as to the course of events. In it he says that around 13 April 1999 the plaintiff alleged that two of its staff had been selling scrap metal to SimsMetal without authorisation, and that a SimsMetal transport contractor and SimsMetal management were also involved. At about that time Queensland Police interviewed some of SimsMetal's staff. As a result, senior SimsMetal management in Sydney decided to have an investigation carried out "to determine the nature and extent of the alleged criminal activities and the extent of the potential exposure of SimsMetal and/or its officers and employees to legal proceedings (including criminal prosecutions) arising from such activities."
[4] For that purpose, PricewaterhouseCoopers was retained in April 1999 to investigate what criminal activity, if any, had been carried out, and the extent of any involvement of SimsMetal staff. The impact of the alleged criminal activity on SimsMetal was to be determined. In addition, PricewaterhouseCoopers was to establish whether there were deviations from proper corporate purchasing and payment procedures; if so, whether they were sanctioned by other staff; and whether there was any corruption within the trading, purchasing and payment operations at SimsMetal's Brisbane premises.
[5] According to Mr Moratti, it was his intention and that of other senior SimsMetal management, depending on the outcome of the report, to obtain legal advice. He considered that legal advice might have been necessary as to whether SimsMetal or its staff had any civil or criminal liability; whether there was any redress available to SimsMetal for any financial loss suffered by it; and whether there was cause to sack any employee. The advice would have been obtained from himself as legal counsel or from the company's solicitors, Minter Ellison. Mr Moratti says that he anticipated the possibility of legal proceedings being brought against SimsMetal by the plaintiff, and perhaps others.
[6] PricewaterhouseCoopers acknowledged its retainer in a letter of engagement which was signed and returned to it by Mr Crabb, the managing director and chief executive officer of SimsMetal, on 16 April 1999. On 23 April 1999, Mr Moratti wrote to the firm instructing it to conduct the review and forward all reports and relevant correspondence to him. He marked his letter "strictly confidential client/attorney privilege", and in it requested that the material be provided "on a strictly confidential and privileged basis".
[7] On 7 May 1999, SimsMetal received from the plaintiff's solicitors a letter asking for copies of "full and complete records ... of all by-product recycle and its cash value". The records were requested to enable the plaintiff to "pursue (its) right of recovery". It appears that the letter was forwarded to Minter Ellison for advice. The latter firm wrote back on 25 May 1999 advising that the writer (a Mr Williams) had spoken to the plaintiff's solicitors and been unable to obtain any assurance that the plaintiff would not proceed against SimsMetal. A letter was sent by Minter Ellison to the plaintiff's solicitors offering to provide copies of records provided the plaintiff gave SimsMetal a release and indemnity from any proceedings. No such indemnity was forthcoming.
[8] Mr Moratti says that he had communications with PricewaterhouseCoopers before receipt of the report on 31 May 1999 which confirmed his view that SimsMetal should seek legal advice in relation to matters raised by the investigation. On 26 and 27 May 1999 he gave instructions to Minter Ellison and provided a draft version of the report to enable the solicitors to advise. A letter of advice was duly received from them on or about 8 June 1999. In that month, SimsMetal terminated the fifth defendant's employment because of his involvement in purchasing swarf from the plaintiff's employees.
[9] On the basis of that history of events, the respondent argued that the report attracted legal professional privilege as a confidential communication between SimsMetal's agent (PricewaterhouseCoopers) and SimsMetal's lawyer (Mr Moratti) for the dominant purpose of enabling or obtaining legal advice, whether given in the event by Mr Moratti or Minter Ellison. Alternatively, it should be regarded as brought into existence for the dominant purpose of obtaining information necessary for contemplated litigation. That litigation could, Mr Logan for the respondent argued, have emanated from three sources: the plaintiff; the fifth defendant by way of a wrongful dismissal application; or the institution of criminal proceedings against SimsMetal. In supplementary submissions, Mr Logan advanced a broader proposition: that it did not matter whether Mr Moratti was acting as a lawyer, nor whether litigation was anticipated, provided that the report was obtained for the dominant purpose of submission to Minter Ellison for advice.
When is legal professional privilege available?
"a document which was produced or brought into existence either with the dominant purpose of its author, or of the person or authority under whose direction, whether particular or general, it was produced or brought into existence, of using it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation, at the time of its production in reasonable prospect, should be privileged and excluded from inspection."[3]
[12] As was made clear in Commissioner of Australian Federal Police and Anor v Propend Finance Pty Ltd [6], it is the communication between client and legal adviser which is protected, not the document in which that communication may be contained. There can be no doubt that the communication of the contents of the report by SimsMetal to Minter Ellison was for the purpose of obtaining legal advice and is thus protected by privilege. Ought the communication of the report by PricewaterhouseCoopers to Mr Moratti be regarded as distinct and if so, was it capable of attracting privilege?
Was Mr Moratti a legal adviser acting as such?
[13] Mr Moratti describes himself in his affidavit as "legal counsel", and says that he holds the position of legal counsel with SimsMetal. His correspondence describes him similarly, and his letterhead notes his academic qualifications as "B.Com. LLB". There is no amplification in the material submitted on behalf of the respondent as to what the position of legal counsel entails, and it is not asserted that Mr Moratti is admitted to practise as barrister or solicitor.
[14] There is no doubt that legal professional privilege may attach to communications with a lawyer who is a salaried employee. The question was considered in The Attorney-General for the Northern Territory of Australia v Kearney[7] and answered in the affirmative, at least in relation to government employees, in Waterford v The Commonwealth of Australia[8]. In Ritz Hotel Ltd v Charles of the Ritz Ltd[9] McLelland J concluded that a company employee who was a qualified lawyer and a member of the New York State Bar, was acting as a professional legal adviser whose communications were capable of attracting legal professional privilege. It is to be noted, however, that the lawyer in that case was admitted to practice, albeit in another jurisdiction.
[15] The qualities which an "in-house" legal adviser must possess to warrant a conclusion that his communications should attract privilege were discussed in Waterford. Brennan J expressed the view that competence and independence were required for the purpose of legal professional privilege to be fulfilled.[10] As to competence, he considered that there was "much to be said for the view"[11] that admission to practise was necessary. Dawson J took the view that "the legal adviser must be qualified to practice law"[12].
[16] The applicant relied on Australian Hospital Care (Pindara) Pty Ltd v Duggan (No. 2)[13]in which Gillard J, in isolating the qualities necessary for the attraction of legal professional privilege to communications involving a legal practitioner employed by a private sector company, identified a number of criteria, one of which was independence. In that context, he isolated as a concern the absence of evidence that the lawyer in question held a practising certificate.
[17] Whether admission to practise be relevant to independence or to competence, it is clear, in this State at least, that privilege exists only in respect of legal advisers admitted as barrister or solicitor: Glengallan Investments Pty Ltd & Ors v Arthur Andersen and Anor[14]. Having regard to that authority, and the absence of any evidence that Mr Moratti was an admitted practitioner, I conclude, inevitably, that his communications, whether involving legal advice or not, could not attract privilege as the communications of a legal practitioner.
[18] In any event, I think it is doubtful that Mr Moratti was, in fact, acting in a legal capacity when he requested and received the report, as opposed to acting as a member of SimsMetal management. It is revealing that in his affidavit he speaks of "the intention of myself and other senior SimsMetal management" in instructing PricewaterhouseCoopers, suggesting a perception of himself as part of the executive. Of some signficance too, in my view, is the fact that upon receiving the report he did not himself provide legal advice, but rather instructed Minter Ellison. Accordingly, Mr Moratti is to be regarded, for the purposes of this application, as might be any other employee of SimsMetal sufficiently senior to take the steps of seeking and obtaining advice.
Is it significant that PricewaterhouseCoopers, not the respondent, was the source of the report?
[19] Wheeler v Le Marchant[15] is authority for the following propositions. Firstly, documents of third parties communicated to solicitors and prepared for the purposes of litigation "either for the purpose of obtaining advices to such litigation, or of obtaining evidence to be used in such litigation, or of obtaining information which might lead to the obtaining of such evidence"[16] are privileged. Secondly, communication by a client with his solicitor for the purpose of obtaining legal advice, whether he communicates in person or through an agent, is protected.
[20] In Nickmar Pty Ltd and Another v Preservatrice Skandia Insurance Ltd[17] the distinction between third parties acting as a client's agent and third parties not acting as agents, implicit in Wheeler v Le Marchant, was emphasised. Wood J. in that case followed a decision of Foster J in Morlea Professional Services Pty Ltd v South Brisbane Insurance Co. Ltd[18], accepting that documents requested by the client from third parties and delivered to a legal adviser could properly be regarded as having been brought into existence and communicated to the solicitors by the client's agents. That was equivalent then, to collection and communication of information by the client to its legal adviser. In Nickmar, the relevant documents had been obtained for an insurer by insurance loss adjusters and provided to the insurer's solicitors.
[21] A similar conclusion was reached by Gobbo J in Leader Westernport Printing Pty Ltd (t/a Waverley Offset Publishing Group) v IPD Instant and Duplicating Pty Ltd[19], in circumstances where loss adjusters, as agents of an insurer, produced reports which were then provided to the insurer's solicitors. Again, in Australian Rugby Union Ltd v Hospitality Group Pty Ltd & Ors[20] Sackville J accepted the distinction between communications between a party's solicitor and a third party (privileged only if made when litigation was anticipated or commenced) and communications between an agent of the client and solicitor with a view to providing legal advice to the client. In the latter case, it was of no moment that proceedings had not been instituted or were not contemplated.
[22] On the evidence in the present case, I consider that PricewaterhouseCoopers is properly to be regarded as the agent of SimsMetal for the purpose of collecting and communicating the information contained in the report. It remains then to consider the purpose for which the report was brought into existence and communicated.
What was the dominant purpose in the bringing into existence of the report?
[23] There were a number of purposes, which can be identified in the affidavit of Mr Moratti, for retaining PricewaterhouseCoopers to prepare the report. One was the investigating of whether there was criminal activity for which SimsMetal might in some way find itself legally responsible. Another was to establish whether proper purchasing and payment procedures had been followed and whether staff had acted corruptly. A third was to obtain legal advice, which it was thought would be necessary "depending upon the precise outcome of the PricewaterhouseCoopers investigation and report". Mr Moratti says that this intention was confirmed before the provision of the report, after he had received some information from PricewaterhouseCoopers. A fourth purpose which Mr Moratti says he had in contemplation was use of the report in the event of litigation.
[24] At this point I should say that at the request of the respondent's counsel I examined the report and associated correspondence[21]. That examination, consistent with Mr Moratti's affidavit, confirmed as the primary concerns behind the report
[25] whether criminal activity had taken place; whether there had been corruption of SimsMetal staff; whether records had been falsified, and whether senior management was involved. The report had annexed to it statements of witnesses with knowledge of the relevant events.
[26] Ascertaining which purpose among a number is dominant is not without difficulty, as McHugh J observed in Esso v Federal Commissioner of Taxation[22]. Branson J in in Sparnon and Others v Apand Pty Ltd and Others[23] noted an absence of helpful authority as to what constituted a dominant purpose. She pointed out that where two purposes were of equal weight, one could not be said to dominate the other.
[27] Instances where reports have been obtained for different and simultaneous purposes - for investigative purposes, with an eye at the same time to the need for legal advice, or the possibility of litigation - are not difficult to find. In Waugh v British Railways Board[24] a report was obtained in relation to a fatal railway accident. Having concluded that it was prepared for a dual purpose, one being railway operation and safety purposes, and the other the obtaining of legal advice, each being of equal weight, the House of Lords concluded that since neither purpose was dominant the claim for privilege must fail. In National Employers Mutual General Insurance Association v Waind[25] reports were obtained by an insurer for two reasons: in the first instance to decide whether to admit liability, and in the second, to submit it to solicitors in the event that decision was in the negative. Again, the fact there was a dual purpose was fatal, Mason J observing that it met neither the sole purpose test nor the dominant purpose test. Clearly co-existent purposes of equal weight will not suffice to meet the dominant purpose test.
[28] One approach has been to adopt the test posited by Jacobs J in Grant v Downs[26]: "-does the purpose of supplying the material to the legal adviser account for the existence of the material?"; or, as put slightly differently by Branson J in Sparnon[27], to ask whether the document would have been brought into existence irrespective of any desire to ascertain facts upon which legal advice could be based. It may be argued whether the Jacobs test reflects a sole purpose test or a dominant purpose test. (It was cited in the former context by Brennan CJ in Commissioner of Australian Federal Police and Anor v Propend Finance Pty Limited & Ors[28]). However that may be, its use was eschewed by the majority in Esso Australia Resources v Federal Commissioner of Taxation[29].
[29] Whether a purpose was dominant is a question to be determined objectively. The intention of the document's maker, or, it follows, the person who authorised its production, cannot be conclusive of purpose.[30] Nor is the fact that the report was ultimately furnished to solicitors for advice decisive of the purpose for which it was obtained. "The test is anchored to the purpose for which the document was brought into existence; the use to which a document is put after it is brought into existence is immaterial"[31]. In similar vein is this passage from the judgment of Lee J in McIlwraith McEacharn[32]: "Merely because counsel's advices are given or advices are given by a solicitor with respect to a document does not of itself mean that the document came into existence for the sole purpose of being submitted to legal advisers for legal advice or for use in litigation". That reasoning remains apposite to a dominant purpose test.
[30] A further difficulty which arises in attempting to isolate a dominant purpose is that intentions may change, and the relative importance of different purposes may shift with time and events. The problem is one identified by McHugh J in Esso[33]: it becomes necessary "to examine the state of mind of the person creating the document"; or, in this case, directing its creation.
[31] In the present case, on an examination of Mr Moratti's evidence, it seems that the obtaining of legal advice was not the dominant purpose for which the report was initially sought. What was anticipated was, at best, a two-step process: Mr Moratti would receive the report and assess whether the information contained in it warranted legal advice. If he concluded that it did, he would either provide that advice himself or forward the report to Minter Ellison for that purpose. Had matters remained in that state I would have concluded that provision to solicitors for advice was not the dominant purpose for which the report was obtained. At its highest the seeking of legal advice at the stage the report was first sought was contingent on its contents. It could not, therefore, be said that the purpose of obtaining legal advice was a concluded, let alone a dominant, purpose when PricewaterhouseCoopers was retained to produce the report.
[32] However, before the report was supplied, Mr Moratti was, he says, told things by PricewaterhouseCoopers which changed the possibility of using it to seek legal advice into a concluded purpose. It is necessary to consider, therefore, the effect of that change, and to consider the time at which purpose becomes relevant.
[33] Cross on Evidence[34] gives some attention to the question of the relevant time at which a dominant purpose must be identified. Using the example of a loss assessor's report in a fire investigation which has begun as a routine matter and assumed increasing significance along the way, it is proposed that the relevant time for the purpose of identifying dominant purpose is that at which the assessor actually produces the report delivered to the party or solicitor. It cites as authority for that conclusion Electricity Trust of South Australia v Mitsubishi Australia Limited[35].
[34] In the Electricity Trust case, a committee of inquiry was appointed to investigate and report, as a matter of routine, on an incident at a power station. On the very morning of the investigators' attendance for that purpose, solicitors were engaged, and the investigators were then instructed to prepare the report on the solicitor's instructions. Clearly enough, there had been a change in purpose, albeit at the very start of the investigation, from preparation of a standard report to one which was for the purposes of legal advice. The Court accepted the document as being brought into existence for the sole use of legal advisers. Given the circumstance, however, that the investigators had done little more than arrive at the scene before receiving the change of instructions, the case is not as clear or compelling an authority on the point as one might wish.
[35] The Barwick test, as it is expressed in Grant v Downs, would support the Cross on Evidence view. The reference there is to the document being "produced or brought into existence" with a particular dominant purpose.[36] However, on the basis that the communication, not the document, is the subject of privilege, it is, I think, arguable that a later time is relevant. But to consider when a communication is made might involve breaking down communication into various steps, the earliest of which would be the placing of the report into a form in which it could be communicated, and the last of which would be its perusal by the recipient. That concept carries its own difficulties. I am content to proceed on the basis that it is the time of the document's production that is relevant.
[36] In this case, the report itself was produced at a time when SimsMetal had formed a firm purpose, which can fairly be described as dominant, to use it to seek legal advice. I conclude, therefore, that the report as it was provided to SimsMetal attracted legal professional privilege.
[37] For completeness I will turn to the respondent's argument that the report was obtained for use in anticipated litigation. Did SimsMetal have the purpose of "using it or its contents ... to conduct or aid in the conduct of litigation at the time of its production in reasonable prospect"[37]; or, to put it another way, was it brought into existence for the purpose of "obtaining evidence to be used in such litigation, or of obtaining information which might lead to the obtaining of such evidence"[38]? In the categories of privileged communications set out by Lockhart J in Trade Practices Commission v Sterling[39] is included the following
"Communications passing between the party and a third person (who is not the agent of the solicitor to receive the communication from the party) if they are made with reference to litigation either anticipated or commenced, and at the request or suggestion of the party's solicitor; or, even without any such request or suggestion, they are made for the purpose of being put before the solicitor with the object of obtaining his advice or enabling him to prosecute or defend an action."
[38] The first question which must be asked is whether litigation was anticipated. The substantive action in the present case was, of course, not against SimsMetal but against certain of its employees. As matters have fallen out, no action has ever been commenced against SimsMetal itself. However, as already indicated, Mr Logan suggested three forms litigation might have taken: civil proceedings by the plaintiff in the existing action; a wrongful dismissal action; or criminal prosecution.
[39] Varying approaches have been taken as to the degree of likelihood that must be attained before litigation can be said to be "reasonably anticipated". At one end of the spectrum is the relatively relaxed approach of Havers J in Seabrook v British Transport Commission[40], concluding that whenever a railway employee was fatally injured there was "at least a possibility that litigation will ensue"[41], such as to support a privilege claim. A similar, although differently expressed, approach was taken by Reynolds J in Cataldi v Commissioner for Government Transport[42]: "when personal injury is caused arising out of the use of a Government bus, there is a high probability that a claim will ensue necessitating legal advice". Shoal J in Di Pietrantonio v Austin Hospital - Heidelberg[43] took the view that the circumstances "were in the highest degree likely to lead a reasonable man to anticipate litigation" in the context of a hospital report on a scalded patient, where no claim had been made at the time it was made. Those cases all involved incidents where the occurrence itself was likely to lead to litigation, without any actual indication that litigation was in fact pending.
[40] In Gold Securities Australia Pty Ltd and Anor v Siebe PLC and Ors[44] Giles J expressed his view that the test had, in the wake of Grant v Downs, become more stringent than suggested by those cases: "the sole purpose test would normally mean that the litigation should have been anticipated as something very likely to occur". Mr Logan relies on that statement to support his argument that, in line with the softening of the purpose test, a lower standard should be set for the anticipation of litigation. Authority as to how the issue should now be approached is, however, scant.
[41] Mr Logan pointed to James v WorkCover Queensland[45], in which the question of when litigation can be said to be reasonably anticipated was given some consideration. The document in question was a witness statement annexed to a loss adjuster's report obtained by WorkCover Queensland in respect of a worker's back injury. Pincus JA concluded that, although the possibility existed that the document was privileged, it had not been shown to be so on the evidence before the Court; and it was unnecessary, in any event, to reach a conclusion. Thomas JA, on the other hand, thought it could properly be inferred that the statement was taken for the dominant purpose of "protecting the employer [and WorkCover] if litigation ensued"[46] (an approach more in line, it would seem, with the earlier cases discussed above). Byrne J considered there was no basis on the material to anticipate litigation, giving his opinion that "whatever the scope of litigation privilege, a speculative possibility or `vague apprehension' that litigation may ensue is not sufficient to attract its operation"[47]. By way of footnote his Honour observed that the boundaries of litigation privilege were "controversial".
[42] James v WorkCover is of limited assistance because of the lack of clarity of the circumstances in which the document had come into existence, and the differing bases of the three judgments. It is unnecessary, and probably inappropriate, for me to attempt any formulation of the limits of the privilege. It is enough to say that, even allowing for the proposition that the test for reasonably contemplated litigation should be regarded as having become less onerous in line with the loosening of the purpose test, I do not consider that the mere possibility of litigation will suffice.
[43] In the present case, no dismissal of an employee appears to have been in contemplation pending the receipt of the report. A wrongful dismissal action seems, therefore, a distant prospect. Although employees had been charged, there had been no indication of a police investigation of the respondent; so I would take a similar view of the likelihood of criminal investigation. Finally, there existed no more than a possibility, which, it is true, the plaintiff had refused to dispel, of an action by it.
[44] As to purpose, it seems to me that at its highest the evidence went no further than establishing that "the document was at the time of its production conceived as possibly useful if litigation which ... might not be unlikely, did in fact ensue".[48] That level of satisfaction was not considered by Barwick CJ in Grant v Downs to satisfy the dominant purpose test. I reach the same result in the present case.
[45] However, for the reasons already given as to the communication having been for the purpose of legal advice, the privilege claim should be upheld. The application for production of the report is dismissed.
[2] [1976] HCA 63; (1976) 135 CLR 674 at 677.
[3] Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 at p 677.
[4] Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 at p 689; McIlwraith McEacharn Operations Limited v C.E. Heath Underwriting and Insurance (Australia) Pty Ltd (No. 2) [1995] 1 Qd R 363 at 371.
[5] McIlwraith McEacharn Operations Limited v C.E. Heath Underwriting & Insurance (Australia) Pty Ltd (No. 2) [1995] 1 Qd R 363 at 371.
[6] (1997) 188 CLR 501 at pp 508, 515-516, 525, 543, 552, 568.
[8] [1987] HCA 25; (1987) 163 CLR 54 at p 70.
[10] [1987] HCA 25; (1987) 163 CLR 54 at p 71.
[11] [1987] HCA 25; (1987) 163 CLR 54 at p 70
[12] [1987] HCA 25; (1987) 163 CLR 54 at p 96.
[16] [1881] 17 Ch 675 at p 681
[18] Foster J, 27 September 1984, unreported.
[21] Such a procedure was endorsed in Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners (No. 2) [1972] 2 QB 102 at p 129 cited with apparent approval by Mason and Wilson JJ in Waterford v The Commonwealth [1987] HCA 25; (1987) 163 CLR 54 at p 61. See also Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 at pp 688-689; Trade Practices Commission v Sterling [1979] FCA 33; (1978) 36 FLR 244 at p 247.
[22] Esso v Federal Commission of Taxation [1999] HCA 67; (1999) 201 CLR 49.at pp 77-78.
[23] (1996) 68 FCR 322 at pp 327-328.
[26] Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 at p 692.
[27] (1996) 68 FCR 322 at 328.
[29] Esso v Federal Commission of Taxation [1999] HCA 67; (1999) 201 CLR 49.at p73
[30] Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526 at 545; Sparnon v Apand Pty Ltd (1996) 68 FCR 322 at p 328.
[31] Commissioner of Australian Federal Police and Anor v Propend Finance Pty Limited & Ors (1997) 188 CLR 501 per Brennan J at p 508.
[32] [1995] 1 Qd R 363 at p 373.
[33] Esso v Federal Commission of Taxation [1999] HCA 67; (1999) 201 CLR 49.at p77.
[34] Ed. J.D. Heydon, Butterworths looseleaf 1996, para 25240.
[37] Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 per Barwick CJ at 667.
[38] Wheeler v Le Marchant [1881] 17 Ch D at p 681.
[39] [1979] FCA 33; (1978) 36 FLR 244 at p 246.
[41] [1959] 1 WLR 509 at p 529.
[43] [1958] VicRp 51; [1958] VR 325 at p 328.
[44] Unreported Giles J, Supreme Court New South Wales, 31 October 1990.
[48] Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 per Barwick CJ at p 678.
Alfred Crompton Amusement Machines Ltd
Customs and Excise Commissioners
(1985) 158 CLR 500
(1998) 81 FCR 526
(1999) 165 ALR 253
(1997) 188 CLR 501
(1991) 201 CLR 49
(1976) 135 CLR 674
(1979) 141 CLR 648
(1985) 3 NSWLR 44
(1987) 14 NSWLR 100
(1996) 68 FCR 322
(1978) 36 FLR 244
(1987) 163 CLR 54
(1999) 201 CLR 49
(1976) 135 CLR 74