Practice and procedure - Claim of legal professional privilege for photographs - Whether photograph capable of being subject of legal professional privilege - Turns on own facts

Practice and procedure - Application by defendants to be released from undertaking to court to preserve documents - Documents deleted from computer hard drive - Subsequent application by plaintiff to commit defendants for contempt for disposing of documents - Whether two applications should be heard together - Whether release from undertaking should be heard first - Turns on own facts

Application to be released from undertaking to be heard before contempt application

Boyes v Colins [2000] WASCA 344; (2000) 23 WAR 123

Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1996) 188 CLR 501

Esso Australia Resources Limited v Federal Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49

J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (WA Branch) (No 1) (1992) 38 FCR 452

R v West Australian Newspaper Holdings Ltd (1995) 16 WAR 508

1 NEWNES J: There are a further two interlocutory matters which fall for determination in this long-running litigation. The first involves a claim of legal professional privilege by the defendants in respect of certain photographs. The second involves the future conduct of an application by the first and third defendants to be relieved of an undertaking to the court and an application by the plaintiff that the first and third defendants be punished for contempt for breach of that undertaking, respectively. I will deal first with the claim of privilege.

2 On 19 August 2008, the defendants were ordered to make available for inspection the hard drive of a computer owned by and in the possession of the first defendant, subject to any claim the defendants may make of commercial confidentiality or legal professional privilege in respect of any of the documents on the hard drive. The defendants now claim that 12 of the documents on the hard drive are the subject of legal professional privilege. The documents consist of six original photographs and one 'thumbnail' copy of each of those photographs. The plaintiff contests the claim of privilege.

3 Before turning to the grounds on which the claim for privilege is made, it is necessary to describe briefly the matters in issue in the action.

4 In the action, the plaintiff alleges that the defendants obtained possession of five used thermal facsimile rolls belonging to the plaintiff which had previously been used in the plaintiff's private facsimile machine. The plaintiff says that images of his private correspondence and other confidential documents were imprinted on the facsimile rolls, which he says were removed without his knowledge from one or other of his two residences in Cottesloe, or in the course of transit between them, on or about 1 or 2 December 2005. The plaintiff says that he was at all material times the owner and entitled to possession of the facsimile rolls and the defendants came into possession of them without his knowledge or consent.

5 The plaintiff says that, on 17 December 2005, the first defendant published an article (the newspaper article) in The West Australian newspaper referring in detail to some of the documents imprinted on the facsimile rolls. He pleads that by accessing the facsimile rolls and creating copies of the plaintiff's documents, the defendants converted the facsimile rolls to their own use. He also pleads that, by printing copies of the plaintiff's documents and by publishing them, the defendants dealt with the plaintiff's documents in a manner inconsistent with his ownership and rights in them and thereby converted them to their own use.

6 The plaintiff further pleads a claim for breach of a duty of confidence. He alleges that the contents of the facsimile rolls were obviously his private documents and were confidential. He says the defendants came into possession of them otherwise than from the plaintiff and (as the defendants knew) without the permission, consent or authorisation of the plaintiff. The plaintiff pleads that the defendants owed a duty of confidence to him in respect of the material on the facsimile rolls and that they breached that duty by publishing the contents of some of the documents in the newspaper article.

7 The defendants' claim of privilege is supported by an affidavit of a senior employee of the first defendant, Mr Hummerston. In the affidavit, Mr Hummerston says that the original photographs were taken by the second defendant (Mr Drummond) on 15 December 2005 at the request of the third defendant (Mr Cowan). The photographs were taken just prior to the publication of the newspaper article. Mr Hummerston says Mr Cowan asked Mr Drummond to take the photographs in the belief that the plaintiff would be likely to issue legal proceedings after the publication of the newspaper article and in anticipation of such proceedings being taken against each of the defendants. Both Mr Drummond and Mr Cowan believed that legal proceedings were likely as the plaintiff was a 'litigious person' and had issued proceedings against the first defendant in the past.

8 According to Mr Hummerston, the photographs were taken by Mr Drummond for the sole purpose of submitting them to the defendants' legal advisers to assist in the defence of proceedings expected to be commenced by the plaintiff against the first defendant, and/or employees of the first defendant, including Mr Drummond. Mr Hummerston says that the photographs have not been disclosed to anyone other than himself and the defendants' legal advisers.

9 Mr Hummerston says, specifically, that the photographs were taken in order to assist the defendants in proving that the plaintiff could not have had possession and/or ownership of the facsimile rolls at the time the defendants came into possession of them. He says that they therefore go to the issue of whether the plaintiff had the possession or ownership necessary to support a claim of conversion. Mr Hummerston says that no better description of the photographs can be provided without disclosing their contents, and thereby destroying the privilege in them. The only further information the defendants can offer is that the photographs are not photographs of the facsimile rolls or of any of the individual documents contained on the facsimile rolls.

10 In relation to the copies of the photographs, Mr Hummerston says that 'thumbnail' copies of the photographs were created when Mr Cowan transferred the photographs to a computer owned by the first defendant. 'Thumbnails' are miniature low resolution copies of the original photographs and were generated automatically by the computer's software to enable easy identification and retrieval of photographs on the computer.

11 It was not suggested that any separate issue of privilege arises in respect of the 'thumbnail' copies of the photographs.

12 Counsel for the plaintiff expressed some bewilderment at what images the photographs could possibly contain and both parties invited the court to inspect the photographs. I was provided with copies of them for that purpose and I have inspected them.

13 It is obvious that counsel for the plaintiff was at some disadvantage in advancing submissions on the question of whether legal professional privilege attached to the photographs. He did, however, submit that the photographs could not be the subject of privilege because by their nature they must simply record images of things that could be inspected by persons other than the defendants or their legal advisers. There was therefore nothing confidential about them.

14 The general principles applicable to a claim of legal professional privilege are well-established. The privilege protects the confidentiality of certain communications made in connection with the giving or obtaining of legal advice or the provision of legal services, including representation in proceedings in a court: Esso Australia Resources Limited v Federal Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49, 64. Although privilege, where it applies, attaches to communications, not to pieces of paper, if a document is created for the dominant purpose of seeking or giving legal advice, or obtaining or providing legal services, it will be privileged. The test is 'anchored to the purpose for which the document was brought into existence': Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1996) 188 CLR 501, 508.

15 Although counsel for the plaintiff did not specifically refer to it, I took his submission (that the photographs could not attract privilege as they were simply images of things that were accessible to others) to be a reference to the decision of French J (as his Honour then was) in J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (WA Branch) (No 1) (1992) 38 FCR 452. That case concerned proceedings by J-Corp against the Builders Labourers Federated Union (BLF) in respect of alleged contraventions of s 45D of the Trade Practices Act 1974 (Cth). The BLF arranged for videotape recordings to be made of events which took place at J-Corp's Rivervale building site, where the BLF and other unions had established a picket line which was said to be obstructing or hindering the supply of goods and services to J-Corp. The BLF contended the videotapes were made in anticipation of and for the purposes of legal proceedings and were therefore the subject of legal professional privilege. French J rejected that contention. His Honour said (relevantly):

The videotapes have, it may be accepted, been brought into existence for the sole purpose of possible litigation. They are in one sense analogous to witness statements. But they are more than that. They are real evidence of events which occurred in public. They were not taken in circumstances to which any confidentiality attached. To attach legal professional privilege to these materials would be to accord excessive respect to the adversarial aspects of litigation and insufficient weight to the objective of determining in litigation the facts in issue. To allow inspection of these materials, in my opinion, infringes no public interest and no established category of privilege (457).

16 In Boyes v Colins [2000] WASCA 344; (2000) 23 WAR 123, the Full Court of this court declined to follow that decision. In Boyes, the defendant had caused surveillance video film of the plaintiff to be taken covertly for the purpose of defending legal proceedings brought by the plaintiff, who claimed that she had suffered certain physical disabilities as a result of the defendant's negligent driving. The defendant intended to rely upon the video surveillance at trial. Ipp J (with whom Pidgeon and Wallwork JJ agreed) held that the video surveillance film was privileged.

17 Ipp J rejected a submission by the plaintiff that the general rules concerning legal professional privilege did not apply to 'real evidence' such as the videotape. His Honour considered that describing the video images as 'real evidence', or direct evidence of matters in issue, did not assist in determining whether legal professional privilege subsisted in respect of the videotape. The ordinary rules of privilege applied. There was no real distinction in principle between a witness statement and a surveillance video brought into existence for the purposes of the litigation. As with a witness statement, a videotape made in order to be provided to legal advisers for the purposes of contemplated litigation was privileged.

18 On the evidence, in the present case the photographs came into existence for the purpose of obtaining legal advice in anticipation of a claim by the plaintiff against the defendants. In my view, they are privileged. I would refuse to make an order that the defendants produce them for inspection.

Release from undertaking and contempt applications

19 At the time this action was commenced the plaintiff believed that the defendants had in their possession copies of the actual documents contained on the facsimile rolls, rather than the facsimile rolls themselves. On that basis, on 21 December 2005 the plaintiff applied for a mandatory injunction requiring the defendants to deliver the documents to the plaintiff within 24 hours. On 23 December 2005, in place of the orders sought, the defendants gave undertakings to the court, among other things, that they would not dispose of certain documents or copies of such documents.

20 On 13 March 2008, the first and third defendants (applicant defendants) made an application (the release application) to be released of their undertakings in respect of five documents. The release application was supported by an affidavit of the editorial manager of the first defendant, Mr Jeanes. In his affidavit, sworn on 6 March 2008, Mr Jeanes says that, prior to the undertakings given on 23 December 2005, the first defendant had created an electronic copy of each of five documents (the electronic copies). The electronic copies came within the terms of the undertaking given subsequently on 23 December 2005. The electronic copies were stored on the hard drive of a computer owned by and in the possession of the first defendant.

21 Mr Jeanes says that, in early October 2006, the third defendant was unable to locate the file containing the electronic copies on the computer. The first defendant's IT personnel took possession of the computer and attempted to retrieve the electronic copies from the hard drive. They were unable to do so. They then removed the hard drive from the computer and it has since been stored at the premises of the first defendant and has not been put back into service.

22 In November 2007, the first defendant's IT personnel sought external advice about retrieval of the electronic copies and again attempted to retrieve them, but without success. Mr Jeanes says it is the opinion of the first defendant's IT officer that the electronic copies have almost certainly been deleted and are irretrievable.

23 Mr Jeanes says the only person with access to the computer before the hard drive was removed was the third defendant and he has been informed by the third defendant that he (the third defendant) did not knowingly delete the electronic copies from the hard drive and had no reason to do so. Mr Jeanes says it appears the third defendant must have been responsible for the deletion but that the third defendant has no actual knowledge or recollection of having done so and that any such deletion on the third defendant's part was unintentional.

24 The applicant defendants apologise for the loss of the electronic copies and seek to be relieved of their undertakings to the extent necessary to take account of the loss of those documents.

25 Mr Jeanes says that the hard copy documents from which the electronic copies were made remain preserved and in the custody of the first defendant.

26 On 20 March 2008, the plaintiff applied for an order that each of the applicant defendants be punished for contempt of court (the contempt application) for breaching their undertaking by destroying the electronic copies. I should mention that there is no suggestion the release application was brought in anticipation of, or in some way to pre-empt, the contempt application. Rather, it seems that the contempt application was prompted by the revelation in Mr Jeanes's affidavit that the electronic copies had been deleted from the hard drive.

27 In the course of the applications, the plaintiff's counsel has made it clear that the plaintiff takes issue with the contention that the third defendant had no reason to delete the electronic copies. The plaintiff says that the date of creation of the electronic files on the computer would help to identify when the facsimile rolls came into the possession of the defendants. The plaintiff says at present he can narrow that time down only to a date between November 2005 and the date of the publication of the article on 17 December 2005.

28 The plaintiff seeks to have the release application and the contempt application heard together. The applicant defendants oppose that course. They say that the contempt application must go first and they should not be required to file any evidence on the contempt application, or any further evidence on the release application, until the plaintiff closes his case on the contempt application.

29 It was argued on behalf of the plaintiff that the release application and the contempt application should be heard together as they involve common questions of fact and law. They are two sides of the same coin. There would be significant savings in time and costs if the two applications were heard together and there would be no prejudice to the applicant defendants in taking that course.

30 It was submitted on behalf of the applicant defendants that the contempt alleged by the plaintiff, whether or not it is properly described as criminal, is clearly punitive in nature; the plaintiff seeks an order that the applicant defendants be committed for contempt. Accordingly, on the contempt application the plaintiff will be required to prove the charge beyond reasonable doubt and it would be unjust for the applicant defendants to be required to expose their evidence on the contempt application in advance of the plaintiff closing his case. It is open to the applicant defendants to put the plaintiff to proof of every element of the offence and to withhold absolutely their defence at least until cross-examination of the plaintiff's witnesses and/or until they call evidence. A defendant in contempt proceedings (like any criminal proceedings) cannot be compelled to go into evidence: Evidence Act 1906 (WA), s 8(1)(a); and R v West Australian Newspaper Holdings Ltd (1995) 16 WAR 508.

31 It was also submitted that the two applications involve different burdens of proof and proof according to different standards, one being civil and the other criminal, so that there would not be common questions of law and nor should there be any intermingling of evidence.

32 Accordingly, it was submitted, the plaintiff should have to close his case on the contempt application before the applicant defendants are required to disclose their defence by filing affidavits in response. Directions should be made that the applicant defendants prepare, but not be required to file, any evidence in response until such time as the plaintiff has closed his case on the contempt application.

33 In the meantime, it would be inappropriate to make orders for the filing of additional evidence by the applicant defendants on the release application, given the disclosed intention of the plaintiff to attempt to deploy such evidence on the contempt application.

34 It is not in issue that the applicant defendants have disposed of the electronic copies contrary to the terms of their undertakings. Having regard to the contents of Mr Jeanes's affidavit and the substantial time that has passed since the problem was detected, I think it is for the moment to be assumed that the applicant defendants have made all reasonable enquiries into the circumstances in which the electronic copies came to be deleted and, by Mr Jeanes, have put before the court a full and proper description of the result of those enquiries.

35 The plaintiff, of course, does not know the circumstances in which the electronic copies were deleted. That is a matter which, to the extent it is known, is wholly within the knowledge of the applicant defendants. The plaintiff has been given inspection of the hard drive but that inspection has apparently not assisted in determining how the electronic copies were deleted.

36 In the circumstances of this case, I do not think it is appropriate that the release application and the contempt application be heard together. To do so may be productive of difficulties. But I am not persuaded that it is necessary in the interests of justice that the contempt application should be disposed of before any further steps are taken in the release application. The applicant defendants have not referred to any actual difficulties that might lead to a miscarriage of justice if the contempt application is not resolved first, but have simply relied upon general concepts of fairness and a right to silence.

37 It is difficult, however, to see how those concepts might come into play in circumstances where, through Mr Jeanes, the applicant defendants have apparently already provided on affidavit the best explanation they can as to how the electronic copies came to be deleted. It is not apparent what (if anything) of substance the applicant defendants might wish, or indeed would be able, to add to that. Nor is it apparent how cross-examination of the applicant defendants on the release application might lead to injustice on the contempt application. It would not be sufficient that simply for tactical reasons the applicant defendants wished to see what evidence the plaintiff was able to adduce on the contempt application before they exposed themselves to cross-examination, or before they revealed any further evidence they might seek to rely on, on the release application.

38 In short, nothing has been put before me which indicates that the applicant defendants are likely to suffer any real prejudice if the release application were to be heard first and I do not consider that the interests of justice require otherwise. The release application was filed before the contempt application and logically falls to be determined first. If the release application is successful the contempt application necessarily falls away.

39 In my view, the appropriate course is that the release application be heard before the contempt application and I would so direct. The contempt application should be stood over pending the outcome of the release application. The question of how the contempt application should be conducted - including at what point the applicant defendants should be required to file any evidence on that application - is a matter that can be dealt with, if it arises, after the release application has been disposed of.