Domain Paper (Australia) Pty Ltd v Galloway

REASONS FOR JUDGMENT 1 The interlocutory application before me, which I will treat in substance as an application by the applicant for the production for inspection of various documents contained in the file of Maddocks, concerns a challenge to a claim for legal professional privilege. The privilege claim has been made by the first and second respondents in relation to 69 documents which have been extracted from the file of Maddocks, who at one stage acted as the legal advisors to the first and second respondents. The other respondents are not parties to this application. 2 The matter has been referred to me by the docket judge, Murphy J. Given that the assessment of the privilege claim may require the Court to inspect the relevant documents from the Maddocks file, it was thought appropriate that the privilege question be referred to another judge. 3 The background to the present issue has been well summarised by his Honour in his reasons given on 28 August 2014 in relation to an earlier contest on privilege (see Domain Paper (Australia) Pty Ltd v Galloway [2014] FCA 936) in relation to the contents of the Maddocks file. I do not need to repeat that background, and the present reasons should be read in the light of the earlier reasons. 4 Suffice it to say that on 28 August 2014, his Honour formed the view that the first and second respondents' claim to privilege had not been made out for two reasons that his Honour summarised in the following terms at [32]: 32. I have reached the view that Mr and Mrs Galloway's claim of legal professional privilege must fail. I do so for two main reasons, namely: (a) they failed to adduce any evidence to meet their onus to establish their claim; and (b) the evidence adduced by Domain tends to show that, at least in respect of some important parts of the legal advice and services sought and obtained by Mr Galloway from Maddocks under file number 5637569, Mr Galloway was instructing Maddocks in his capacity as a director of Angus Agencies. At least in respect of such legal advice and legal services I am not satisfied that the documents in the Maddocks file were created or procured for the dominant purpose of providing legal advice and legal services to Mr and Mrs Galloway personally. While I accept the possibility that there may be other documents in the file which were brought into existence by Maddocks for Mr and Mrs Galloway in their personal capacity, the respondents did not identify any such documents or set out the specific ground for their claim. Again, they did not adduce any evidence to meet their onus to establish a claim of privilege in respect of such documents. … 5 Subsequently, and for reasons that I do not need to elaborate on, his Honour permitted the issue of privilege to be reopened. On 11 September 2014, his Honour made the following order in paragraph 3 thereof: 3. By 4.00 pm on 22 September 2014, the Respondents in respect of any document dated on or after 1 September 2010 in respect of which they wish to assert a claim for privilege are to prepare a list in accordance with the requirements of r 20.17, but including therein identification of the basis on which it is asserted that the disclosure of the documents would cause substantial injustice. Such a claim to be made only in respect of documents concerning: (a) advice in relation to threatened court proceedings by various parties including the Applicant; including advising in relation to and attending a privately arranged mediation with the Applicant, and the former Applicant Angus Agencies Pty Ltd in this proceeding in August 2011; (b) acting as solicitors on the record for the First and Second Respondents in Victorian Magistrates Court proceeding A13472206; being proceedings commenced by Angus Agencies Pty Ltd against the First and Second Respondents; and (c) acting as solicitors on the record for the First and Second Respondents in the District Court of NSW proceeding 2011/235408 (known as the Paperlinx proceedings) until 5 September 2012; and the list is to be prepared by reference to those categories. 6 There were two matters raised before me. The first issue is whether the first and second respondents have established that the relevant documents, being the 69 documents in question, are privileged and fall within the scope of paragraph 3(a) of the order made on 11 September 2014. The second issue is whether in any event there has been a waiver of privilege in relation to some of these documents.