SEVEN NETWORK (OPERATIONS) LIMITED (ACN 045 845 262)

Practice and procedure - Discovery - Claim of legal professional privilege by plaintiff - Adequacy of description of documents - General claim of privilege - Turns on own facts

Plaintiff to provide further affidavit of discovery

Alfred Crompton Amusement Machines Ltd v Customs & Excise Commissioners [1971] 2 All ER 843

Beecham Group Ltd v Bristol Myers Co [1979] VicRp 27; [1979] VR 273

Buttes Gas & Oil Co v Hammer (No 3) [1981] QB 223

Cape Wools SA v KPMG Corporate Finance (Vic) Pty Ltd [2002] VSC 571

Gardiner v Irvine [1879] 4 Ex D 49

Halliday v ACN 003 075 394 Pty Ltd, unreported; SCt of Vic App Div; 11 April 1994

Holmes v Deputy Commissioner of Taxation (1987) 19 ATR 1278

Kadlunga Proprietors v Electricity Trust of South Australia (1985) 39 SASR 410

Water Authority of Western Australia v AIL Holdings Pty Ltd (1991) 7 WAR 135

Guinness Peat Properties Ltd v Fitzroy Robinson Partnership [1987] 2 All ER 716

Key International Drilling Co Ltd v TNT Bulkship Operations Pty Ltd [1989] WAR 280

Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1

Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority [2002] VSCA 59; (2002) 4 VR 332

Taylor v Batten (1878) 4 QBD 85

Warner v Women's Hospital [1954] VicLawRp 59; [1954] VLR 410

1 MASTER NEWNES: This is an application by the defendant for inspection of certain documents, some of which the plaintiff says are irrelevant and others of which he says are the subject of legal professional privilege.

2 The plaintiff's initial list of discovered documents, verified by the plaintiff's affidavit of 11 April 2005, contained as document 59, "IBM Thinkpad laptop computer - original", and in the column for the date there appeared the word "various". On inspection of the plaintiff's discovered documents by a solicitor acting for the defendant, the solicitor understood that what had been discovered as item 59 was not the laptop computer itself, but rather the documents contained on its hard drive. The solicitor therefore turned on the computer and went through the documents on the hard drive. He made a list of the documents.

3 The defendant's solicitors subsequently sought copies of the documents on the hard drive. The plaintiff's solicitors responded that discovery had not been given of the documents on the hard drive, but only of the computer itself, and in particular, of a bar code located on the underside of the computer. It was said that the bar code was relevant to the defendant's plea in its defence that a laptop computer had been provided by it to the plaintiff in the course of his employment and unlawfully retained by him following the termination of that employment.

4 An affidavit has been sworn by a solicitor acting for the defendant, Mr Komorowski, on 20 May 2005 to which is annexed a list of 103 documents, dating from April 2004, which Mr Komorowski says were located on the hard drive of the computer.

5 There has since been correspondence between the solicitors for the parties regarding the plaintiff's obligation to make the documents on that list available for inspection. It is unnecessary for present purposes to go into the detail of that correspondence. Suffice it to say that after the defendant made an application for production of the documents, the plaintiff filed an affidavit sworn 3 June 2005 in which he says that the computer was included in the list of documents because it had affixed to it a barcode indicating it was formerly the property of the defendant. The plaintiff says that it was never his intention to produce the documents on the laptop for inspection by the defendant and that he understood they were the subject of legal professional privilege and fell within the claim for privilege in his affidavit verifying the list of documents.

6 The plaintiff has sworn a further affidavit, dated 25 July 2005, in which he lists 79 of the documents referred to by Mr Komorowski and claims that they are the subject of legal professional privilege. It was submitted on behalf of the plaintiff that the balance of the documents are simply irrelevant to the matters in issue in the action and are therefore not discoverable.

7 The defendant's application is in two parts. First, the defendant seeks inspection of the 24 documents for which legal professional privilege is not claimed, on the basis that their relevance has been acknowledged by the plaintiff. Second, the defendant seeks inspection of some of the documents for which legal professional privilege has been claimed on the basis that the grounds for such a claim have not been made out, or an order that the plaintiff provide a proper list of documents verified by the affidavit adequately identifying the documents for which privilege is claimed. In respect of the latter application, it was submitted on behalf of the defendant that the descriptions used in the list of documents annexed to plaintiff's affidavit of 25 July 2005 do not adequately identify each of the documents.

8 I will deal first with the application for inspection of the documents for which legal professional privilege is not claimed (the "non-privileged documents").

9 It was not in issue that the onus of displacing the conclusive nature of the plaintiff's affidavit of discovery lay on the defendant. Nor was it in issue that in determining whether to make an order for further discovery, the Court must have reasonable grounds for being fairly certain that there are other relevant documents which ought to have been discovered: Beecham Group Ltd v Bristol Myers Co [1979] VicRp 27; [1979] VR 273.

10 The plaintiff says in respect of the non-privileged documents that the defendant has not displaced the conclusive nature of his affidavit of discovery. The defendant, on the other hand, says the plaintiff has acknowledged that the documents are relevant.

11 Counsel for the defendant referred to the plaintiff's affidavit of 3 June 2005 and noted that the plaintiff had there simply claimed that all of the documents on the hard drive were privileged, not that any were irrelevant. Counsel also referred to correspondence between the solicitors for the parties regarding production of the documents. In response to a request for production, by a letter of 29 April 2005 the plaintiff's solicitors said, among other things, "The computer's C drive, distinct from the computer itself, contains confidential documents belonging to our client and documents protected by privilege. On that basis, copies of these documents will not be provided". In a letter of 16 May 2005 the plaintiff's solicitors said, "The contents of the computer hard drive are privileged documents".

12 It was submitted on behalf of the defendant that in response to repeated requests by the defendant's solicitors that the plaintiff identify the grounds upon he resisted production of the documents on the hard drive there was no assertion by the plaintiff that some of the documents were irrelevant; rather it was contended that the documents were protected by legal professional privilege. Although the claim for privilege in respect of the non-privileged documents has now been abandoned, the fact that they were relevant was properly to be inferred from the correspondence.

13 I do not consider that there has been an acknowledgement by the plaintiff that the non-privileged documents are relevant. I do not think that such an acknowledgement can be drawn from the terms of the correspondence and affidavit to which reference has been made. It seems to me that plainly the plaintiff's solicitor's focus was solely on the assertion of a claim of legal professional privilege for documents on the hard drive. The absence of any distinct reference to the separate question of the relevance of documents which were not the subject of legal professional privilege is to be considered in that light. Moreover, the statement in the plaintiff's affidavit of 3 June 2005 that "[i]ncluded on the hard drive ... is confidential correspondence between myself and my solicitor ..." is capable of being understood as meaning that material of other types is also contained on the hard drive.

14 In the circumstances, I do not consider that questions of relevance are appropriately to be determined by a close textual analysis of the correspondence and affidavits. In my view, the absence of specific reference to a separate category of irrelevant documents is not sufficient to give rise to an inference that any documents on the hard drive for which privilege is not now claimed are relevant. That, it seems to me, is to draw more from the correspondence and the affidavit than they reasonably yield.

15 There is no other basis from which it could be concluded that the documents are relevant. It is not, for instance, evident from the index attached to Mr Komorowski's affidavit that the documents contain material relevant to the matters in issue in the action. Nor do I consider it can properly be inferred that only documents relating to the litigation were stored on the laptop. There is no other evidence to suggest that the documents are relevant.

16 I do not, therefore, consider that the defendant has shown that there are grounds for being reasonably certain that the non-privileged documents are relevant and I would not order production of them.

17 That leaves the question of the documents for which legal professional privilege is claimed by the plaintiff. The claim for privilege in the plaintiff's discovery of 11 April 2005, in which discovery was given of the laptop computer, is as follows:

"Letters and copies of letters and other written communications which have passed between the Plaintiff and Bennett & Co solicitors and other persons either in anticipation of or during this action, instructions to counsel and various notes and memoranda prepared and given in anticipation of and during the progress of this action."

18 In the plaintiff's affidavit of 3 June 2005 the basis of the claim for privilege was said to be that:

"[i]ncluded on the hard drive of the laptop is confidential correspondence between myself and my solicitor and personal notes prepared by myself regarding the evidence that I intend to lead in the prosecution of my case against the Defendant and in answer to the Defendant's amended defence."

19 In the further list of discoverable documents, verified by the plaintiff's affidavit of 25 July 2005, the claim for privilege is in the following terms:

"The Plaintiff objects to producing the documents enumerated in Part II of the First Schedule on the ground that the said documents are privileged. They consist of professional communications of a confidential nature made to the Plaintiff by his legal advisers for the purpose of giving the Plaintiff legal advice, instructions to Counsel prepared and given in anticipation of and during the progress of this action, letters and copies of letters passing between the Plaintiff and his solicitors and other persons therein in anticipation of or during this action and draft memoranda and opinions made and given by the Plaintiff's Counsel and solicitors for the purpose of this action."

20 The defendant accepted that, from their description, a number of the documents in the further list of discoverable documents were privileged and therefore it did not pursue their production. The defendant sought production of the documents numbered 50 to 54, 58 to 59, 62 to 63 and 68 to 79.

21 I was provided with copies of the documents at the hearing of the application. Having now had the opportunity to review them, I do not consider it is possible to make a proper determination as to whether or not they are privileged until the plaintiff's discovery is put in proper form.

22 There are two problems with the form of the discovery. The first is the description of the documents and the second is the form of the claim for privilege. It is the second which causes me the current difficulty, but I also accept the submission of counsel for the defendant that the description of a number of the documents is inadequate. There are, for instance, ten documents which are simply described as "Document" and four documents which are simply described as "Draft Letter".

23 I think the relevant principles as to the form discovery should take where legal professional privilege is claimed for documents are reasonably well established.

24 Where a claim of privilege is made it is necessary that any documents for which privilege is claimed be properly described. Unless such documents are sufficiently described, it will be impossible for the other party to discern whether the claim of privilege is properly made. It is not sufficient merely to assert that the documents are privileged, which is a statement of law, but the facts relied upon as giving rise to the privilege must be set out so the claim for privilege can be tested, although the facts should not be set out in such detail as would enable the contents of the documents to be ascertained indirectly: Gardiner v Irvine [1879] 4 Ex D 49 at 53. That is, an adequate description is required of each of the document for which privilege is claimed, but not one which indirectly reveals its contents: Buttes Gas & Oil Co v Hammer (No 3) [1981] QB 223 at 265. In Kadlunga Proprietors v Electricity Trust of South Australia (1985) 39 SASR 410, White J said [at 414]:

"It is both necessary and desirable that the description of a particular document for which protection is claimed should be sufficient to disclose quite readily (without disclosing contents) whether or not it is in fact a document to which the head of privilege relied upon can extend ... "

25 In Halliday v ACN 003 075 394 Pty Ltd, unreported; SCt of Vic App Div; 11 April 1994, in respect of a general description of documents for which privilege was claimed, Ormiston J, with whom the other members of the Court agreed, said [at 7]:

"It is not appropriate, as has been laid down on many occasions, for a claim for privilege to be made simply en globo and by reference to three classes of documents of the kind set out. It is of course not uncommon to see affidavits in this form, and often no objection is taken to them, but it is not a proper description, and one may look at work such at Atkins' Court Forms Vol 15 1983 ed. at 117 - 119 to see that the appropriate method of describing privileged documents is to enumerate them, that is to list them, and then to identify the bases upon which the privilege is claimed.

It is not necessary for the purpose of this judgment to go further and identify precisely how Pt 2 should have been drafted, except to indicate ... there should have been an enumeration and listing of the relevant documents so that, if necessary, the claim for privilege might be challenged ... It is, of course, not required that the documents be listed in a manner which would result in the loss of the benefit of privilege, but that does not mean that some listing should not be required."

26 Where more than one ground of privilege is relied upon, the specific ground or grounds relied upon for each document must be related to that document, and it is not sufficient to state a number of grounds without specifying which of them relate to which document. That does not mean that a number of documents cannot be grouped together in some way under one or more grounds of privilege. The form is not important so long as it is clear in respect of each document on what basis or bases the privilege is claimed: Cape Wools SA v KPMG Corporate Finance (Vic) Pty Ltd [2002] VSC 571 at [24].

27 See also Holmes v Deputy Commissioner of Taxation (1987) 19 ATR 1278 per Davies J at 1286, Alfred Crompton Amusement Machines Ltd v Customs & Excise Commissioners [1971] 2 All ER 843 per Eveleigh J at 847 - 848, Cape Wools SA v KPMG Corporate Finance (Vic) Pty Ltd (supra), Water Authority of Western Australia v AIL Holdings Pty Ltd (1991) 7 WAR 135 at 140.

28 Accordingly, a claim for privilege asserted by a generally worded or mechanical formula, even one apparently having the status of a time-honoured incantation, may be inadequate to establish a claim to privilege.

29 In the present case, I do not consider that the description of a document for which privilege is claimed simply in terms such as "document" or "draft letter" is adequate. I accept that a document is not to be described in terms which disclose privileged information but I consider that the descriptions could be more informative than those to which I have referred. It seems to me it is possible, at the least, to give a generic description of the contents of the document, or to give a generic description of the recipient, or intended recipient, of the letter, such as "prospective witness" or such like, so that if it becomes necessary to do so the particular document can be related to the document described in the list.

30 I also consider that the various "rolled up" claims of privilege are confusing and inappropriate. In this jurisdiction normally no objection is taken to a claim for privilege in that form, except when a dispute arises as to the claim for privilege. However, where there is, or there might reasonably be, a bona fide challenge to the claim for privilege by the other party such a form is not appropriate. In those circumstances, the convenience of that form must give way and the specific ground or grounds upon which privilege is claimed for each document must be stated and clearly related to the particular document or documents for which it is claimed.

31 From my examination of the documents for which privilege is claimed, I think that in respect of some of them at least it can be said that they may clearly be capable of falling within one or other of the various grounds of privilege claimed by the plaintiff. But it is not clear in respect of each particular document what ground (or grounds) of privilege is relied upon and therefore the basis upon which the document is said to be privileged from production.

32 It seems to me that in the circumstances the appropriate course is first to require the plaintiff to put in order the discovery of the documents for which privilege is claimed. I would therefore order the plaintiff to file and serve an affidavit containing a description of each such document sufficient to identify it (without disclosing its contents), and stating in respect of each document the specific basis, or bases, upon which legal professional privilege is claimed. Once that has been done, and subject to any further submissions either party may wish to make, I would propose to determine the defendant's application for inspection of those documents.