2 The plaintiffs owned and occupied premises at Golconda in Tasmania. The first defendant is an insurance broker. The second defendant is alleged to have been an employee or agent of the first defendant. The plaintiffs' claim is that the defendants arranged insurance in respect of the plaintiffs' residence to commence on 28 July 1985. The policy was renewed on several occasions and was current until 28 July 1988. The policy was with Mercantile Mutual Limited and insured the plaintiffs' residence against loss or damage by fire in the sum of $20,000 and the contents in the sum of $12,000.

3 The plaintiffs' house and contents were destroyed by fire on 23 October 1987. It is alleged that the then value of the residence was $50,000 and its contents, $25,000. The insurer has paid the plaintiffs in accordance with the terms of the policy. The plaintiffs claim that the defendants were negligent and/or in breach of an implied term of contract of services and by reason thereof they suffered damage being the difference between the actual value of the residence and its contents and the sums insured.

4 The defendants, by their defences, joined issue with a number of the allegations in the statement of claim including the allegations that they were negligent and/or in breach of any term of any contract. By one of its directors, the first defendant made discovery in accordance with the Rules of Court. Amongst the documents discovered are:-

"3 Copy documents comprising the file kept by Mercantile Mutual Insurance Limited in relation to the claim made by the Plaintiffs on the Mercantile Mutual Insurance policy in issue in these proceedings, including the following documents:

(i) Letter dated 10th December 1987 from Mercantile Mutual Insurance Limited ('MM') to JW Henty & Associates ('JWH').

(ii) Report dated 13th November 1987 from JWH to MM.

(iii) Letter dated 23rd February 1988 from MM to Plaintiffs' solicitOrs

(iv) Report dated 30th November 1987 from JWH to MM.

(v) Report dated 29th October 1987 from JWH to MM.

(vi) Letter dated 21st January 1988 from Plaintiffs' solicitors to MM.

(vii) Letter dated 11th January 1988 from JWH to MM.

(viii) Copy Westpac documents concerning transfer of $32,000.00 to the Plaintiffs' account.

(ix) Report dated 29th October 1987 from Bruce S. Walker Pty. Ltd to JWH.

(x) Report dated 29th October 1987 from JWH to MM.

(xi) Claim form completed by the Plaintiffs."

5 The first defendant objects to the production of (inter alia) the above documents on the grounds that:-

"The same are privileged and came into existence or were made after this litigation was in contemplation and in view of and solely for the purposes of the same."

6 The plaintiff applied for an order that the first defendant produce these documents for inspection. The application was determined by the Master. He ordered that the documents be produced for inspection and from that order this appeal is brought.

7 The insurer opened and maintained a file of documents dealing with the plaintiffs' claim following the fire. No privilege attaches to these documents. Apparently, the insurer will not give the plaintiffs or their advisers pre-trial access to this file. It has not adopted the same attitude to the first defendant and its legal advisers. The solicitors for the first defendant asked it to obtain a photocopy of the contents of the insurer's file and this was done. The first defendant sent those photocopy documents to its solicitOrs The sole purpose for which the documents were photocopied and sent by the first defendant to its solicitors was for confidential utilization as part of the solicitors' brief in this litigation. Legal professional privilege is claimed with respect to those photocopy documents.

8 The basis on which legal professional privilege rests has been authoritatively stated by the High Court in Grant v Downs [1976] HCA 63; (1976) 135 CLR 674; National Employees Mutual General Insurance Association Limited v Waind [1979] HCA 11; (1979) 141 CLR 648; Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52. This basis was effectively summarized by Cosgrove J in Electrona Carbide Industries Pty Ltd v Tasmanian Government Insurance Office & Ors [1982] Tas R 21 at pp26, 27 :-

"1 The onus of establishing that a document is privileged lies on him who claims the privilege.

2 Only those documents are privileged 'which are brought into existence for the sole purpose of submission to legal advisers for advice or use in legal proceedings'.

3 The privilege will not attach to documents which 'would have been brought into existence for other purposes in any event'.

4 ...

5 'The privilege requires a combination of dedication to the stipulated purpose and reasonable anticipation that litigation will ensue'.

6 The documents themselves are important evidence and their character will in many instances 'illuminate the purpose for which they were brought into existence'."

9 Neither counsel disputed the correctness of the above. However, counsel for the appellant in a well reasoned and careful argument, submitted that privilege attaches to the communication in the document and not the document itself. Learned counsel for the respondent, in an equally able argument, submitted that the privilege attaches to the document and the principles set out above must be applied to the document and its contents.

10 The authorities are in conflict. The issue was the subject of a recent decision of the Queens Bench Division, R. v Board of England Revenue, Ex Parte Goldberg (1988) 3 All ER 248. In that case, an instructing solicitor photocopied certain documents and transmitted them to Mr Goldberg's counsel. The sole purpose for doing this was to enable counsel to give Mr Goldberg legal advice. No privilege attached to the originals. The Inland Revenue Board served a notice on counsel requiring him to produce the documents. Mr Goldberg declined to consent to his counsel producing the documents. The relevant legislation required production of the documents unless a claim of professional privilege could be maintained. Counsel considered himself obliged to claim such privilege and the court was asked to make a declaration that it existed. The judgment of the court was delivered by Watkins LJ He reviewed a number of early English authorities. Referring to Minet v Morgan (1873) LR 8 Ch 361 and Anderson v Bank of British Columbia (1876) 2 Ch D 644, the court held at p 252:-

"Since at least 1873 it has been clear that a request for legal advice and the advice given are both privileged, whether they are written or oral, and whether the subject matter does or does not precede litigation."

"The privilege extends not only to the instructions given by the client to the solicitor, or by the solicitor to the barrister, but also to documents which come into existence for the purpose of instructing the lawyer and obtaining his advice ...".

11 With the rider that the stated purpose must be the sole purpose, those propositions are in accordance with the common law in Australia. See Grant v Downs, Baker v Campbell, National Employee Mutual General Insurance Association Limited v Waind (supra).

12 His Lordship then referred to The Palermo (1884) 9 PD 6 and Pearce v Foster & Ors (1885) 15 QBD 114 as authority for the proposition that privilege attaches to copies of documents which are not themselves privileged because of the copies, it can be shown that they only came into existence to obtain legal advice. However, it is fair to observe that, in The Palermo, although it may be inferred from the report of the case that no privilege attached to the original documents, Butt J made no enquiry about this and held that the determining factor was the purpose for which the copies came into existence.

13 Watkins LJ then referred with approval to Watson v Cammell Laird & Co (Shipbuilders and Engineers) Limited (1959) 2 All ER 757. In that case, the Court of Appeal rejected a submission indistinguishable from the one put in this case by counsel for the appellant. Lord Evershed MR said at p758:-

"The question of privilege does not really have any significance in regard to the original: that is a document which is not, and never has been, in the possession or power of the plaintiff. It is a document which is in the possession of a third party, and, undoubtedly, by the appropriate means, it can be produced at the trial. But that fact seems to me to have very little to do with the question whether this copy document did or did not come into existence in the way I have indicated, namely, by being obtained by the solicitor for the purpose of advising the plaintiff in regard to the litigation."

14 In Buttes Gas and Oil Co v Hammer & Ors (No 3) (1980) 3 All ER 475 Lord Denning said (obiter dicta) of _Watson v Cammell Lai_d and The Palermo at p484:-

"In applying this principle, a word is necessary about copies. If the original document is privileged (as having come originally into existence with the dominant purpose aforesaid), so also is any copy made by the solicitor. But, if the original is not privileged, a copy of it also is not privileged, even though it was made by a solicitor for the purpose of the litigation: see _Chadwick v Bo_wman (1886) 16 QBD 561. There are some cases which appear to give a privilege to copies on their own account, even when the originals are not privileged. They range from The Palermo down to Watson v Cammell Laird & Co (Shipbuilders & Engineers) Ltd. But those cases are suspect. They were adversely commented on by the 16th report of the Law Reform Commission on Privilege in Civil Proceedings (Cmnd 3472 (1967)). Since Waugh's case [Waugh v British Railways Board [1980] AC 21] it is open for us to reconsider them. In my opinion, if the original is not privileged, neither is a copy made by the solicitor privileged. For this simple reason: that the original (not being privileged) can be brought into court under a subpoena duces tecum and put in evidence at the trial. By making the copy discoverable, we only give accelerated production to the document itself."

15 However, his Lordship's view was rejected by the court in Goldberg on the basis (correctly, in my respectful opinion) that Chadwick v Bowman was not authority for the proposition claimed by Denning LJ for in that case, the copies did not come into existence for the purpose of the litigation or for obtaining advice. Watkins LJ said at p256:-

"As the law stands we have no hesitation in saying that because the documents came into existence for that purpose they do attract privilege so that the applicant cannot without the consent of his client comply with the requirements of the notice which has been served on him."

16 None of the judgments I have referred to so far cited Lambert v Home (1914) KBD 86, a decision of the Court of Appeal. Privilege was claimed in respect of some shorthand notes of evidence given in a court. The sole purpose for taking the notes was to obtain legal advice with respect to a related claim. Cozens-Hardy, MR, said at p91:

"A defendant who has obtained at his own cost a copy of a document, not in his possession, which is not itself privileged, cannot decline to produce the copy, although he obtained it in anticipation of future litigation. So here a mere reproduction in a physical form of material which was publici juris cannot, I think, be privileged."

17 His Lordship relied upon Rawstone v Preston Corporation (1885) 30 Ch D 116; Robson v Worswick (1888) 38 Ch D 370; Nicholl v Jones [1865] EngR 231; 2 H & M 588; 71 ER 592 and Ainsworth v Wilding [1900] 2 Ch D315. An examination of those authorities show that they are all confined to the proposition that privilege does not extend to statements or documents which are publici juris and documents which record such statements, such as shorthand notes of evidence given in court, even if prepared for the purpose of giving legal advice, are not protected from production. They do not support the broad proposition stated by Cozens-Hardy MR that privilege does not attach to a copy of a document which itself is not privileged. In that case, Buckley LJ took the same view as Cozens-Hardy MR. Channell J dissented and declined to follow the authorities relied upon by Cozens-Hardy MR.

18 It may be that documents being no more than a record of statements or documents which are publici juris constitute an exception to the principle laid down in Watson v Cammell Laird and Goldberg's case. Shaw v David Syme & Co [1912] VicLawRp 62; [1912] VLR 336 is a Victorian authority which tends to support this view. See also Halsbury (4th Edn) 13 para73. At all events, having regard to Watson and Goldberg, Lambert v Home cannot be regarded as good authority for the general proposition stated by Cozens-Hardy MR. However, the circumstances of this case are such that it is unnecessary to consider this aspect of the matter further.

19 In the United Kingdom, the position is clear. Legal professional privilege attaches to a copy of a document which itself is not privileged when the copy was made for the dominant purpose of submission to legal advisers for advice or use in existing or anticipated litigation.

20 In Australia, the question appears to have been considered in Tasmania, New South Wales and Queensland. Wade v Jackson's Transport Services Pty Ltd (1979) Tas R 215 is a case indistinguishable on the facts from the present matter. In that case, although the learned Chief Justice did not refer to Lambert v Home (supra), he decided to follow Watson v Cammell Laird & Co (supra) and held at p218:-

"As the copy document in this case was brought into existence solely for the purpose of defending the proceedings and obtaining legal professional advice, I hold that by virtue of the general principle stated by the High Court in Grant v Downs (supra) the copy of the notice of injury form is privileged from production."

21 In McCaskill v Mirror Newspapers Limited (1984) 1 NSWLR 66, Hunt J at p69 expressed disapproval of Shaw v David Syme & Co but did not seek to distinguish it on the the basis that documents recording statements publici juris were an exception to the general rule. His Honour adopted and applied the reasoning of the learned Chief Justice in Wade v Jackson's Transport. This decision was also followed in Queensland by Master Weld in Kaye v Hulthen [1981] Qld R 289.

22 Clarke J expressed some contrary views, obiter dicta, in Vardas v South British Insurance Company Limited (1984) 2 NSWLR 652 at pp659-660. His Honour referred to Shaw v David Syme & Co and expressed approval of the dicta of Lord Denning in Buttes Gas and Oil Company v Hammer (No 3) but the latter has since been the subject of express disapproval in Goldberg's case and the former either distinguishable or not properly supported by authority as explained in Wade v Jackson's Transport and Kaye v Hulthen. His Honour then referred to and relied upon Lambert v Home but for the reasons I have expressed I do not think it is authority for the general proposition that privilege does not attach to copies of documents which are not themselves privileged. His Honour correctly pointed out that neither Grant's case nor Waind's case were concerned with copy documents and said at p660:-

"Neither of those cases was concerned to distinguish between originals and copies and as I understand the doctrine appearing from those cases it is that the court is concerned to enquire into the purpose for which the document in which information is recorded comes into existence. The cases were not concerned with, and do not deal with, the purpose of the mechanical reproduction or copying of a document. I regard the distinction between the collating and recording of information in a document and the mere reproduction of that document as one of substance. Again I find support in Lambert where Cozens-Hardy MR said (at 91)" [his Honour then set out the passage I have quoted above].

23 While some of the judgments in Baker v Campbell and Waind's case do refer to "communications" (Campbell at pp112 and 122; Waind at pp648 and 654), in my view, such references did not seek to draw any distinction between the contents of a document and the document itself. As the law of discovery is confined to documents (however statutorily defined), to determine the existence of privilege by reference to the contents of a document alone would defeat the whole basis on which the privilege rests.

24 In Nickmar Pty Ltd v Preservatrice Skandia Insurance Limited [1985] 3 NSWLR 44, Wood J considered this question at some length at pp59-62. His Honour took a view contrary to that taken by Hunt J in McCaskill's case. He relied on Lambert v Home but did not discuss the authorities relied upon by the majority of that court. His Honour also seemed to place some reliance of Lord Denning's dicta in Buttes Gas and Oil Co (supra) but of course, Goldberg's case had not then been decided. In reaching his conclusion, Wood J adopted the same reasoning as was expressed by Clarke J in Vardas v South British Insurance Co Ltd (supra).

25 In my opinion, the common law in England is settled by Goldberg's case. That decision is consistent with the earlier Australian cases of McCaskill, Wade, and Kaye v Hulthen. Nickmar and the dicta of Clarke J in Vardas which express a contrary view rely on dicta which was the subject of disapproval in Goldberg and on Lambert v Home which is not good authority except perhaps with respect to documents or statements publici juris. I find the common law on this point to be as expressed in Goldberg, Wade, McCaskill and Kaye v Hulthen and conclude that where a copy is made of a document (which is itself not privileged) for the sole purpose of the submission of that document to legal advisers for advice or use in existing or anticipated litigation, that copy document is protected from production in the discovery process on the ground of legal professional privilege. The documents in question on this appeal fall into that category.

26 The appeal is allowed and the application for production dismissed.