Filipowski v Nikolaos; Filipowski v Pontain Shipping Co Limited

LEGAL REPRESENTATIVES: DEFENDANT Mr P Byrne SC with Mr J Sheller SOLICITOR Ebsworth & Ebsworth

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

50052 of 2004 FILIPOWSKI v PONTAIN SHIPPING CO LIMITED

JUDGMENT 1 HER HONOUR: Ms Filipowski, as Prosecutor on behalf of Sydney Ports Corporation, has brought proceedings under s 8 of the Marine Pollution Act 1987 against both the master and the owner of the ship "Frixos" in relation to an oil spill which occurred on 30 April 2002 at Port Jackson.

2 Both the owner, Pontain Shipping Co Limited and the master, Mr Nikolaos, are represented by the same solicitor. The solicitor for the Defendants issued the Prosecutor with a notice to produce dated 15 July 2004 on behalf of both the Defendants ("the Notice to Produce"). There are two contentious paragraphs, par 1 and 2. These paragraphs require the Prosecutor to produce the following documents: (1) All correspondence passing between the Sydney Ports Corporation (and its officers) and Mr John Leeder or Leeder Consulting Pty Limited between 30 April 2002 and 18 May 2004. (2) Copies of all draft reports prepared by Mr John Leeder or Leeder Consulting Pty Limited between 30 April 2002 and 25 September 2003 in relation to an alleged discharge of oil from the MV "Frixos" on 30 April 2002. 3 For the sake of convenience I will refer to these two categories simply as "the documents". The Prosecutor asserted legal professional privilege in relation to these documents on the grounds that Mr Leeder of Leeder Consulting Pty Limited is an independent expert retained by the Prosecutor for the purpose of these proceedings, these documents arose as a result of his preparation of evidence for these proceedings and the Prosecutor has filed two affidavits prepared by Mr Leeder in these proceedings.

4 By notice of motion dated 20 July 2004 the Prosecutor seeks either: (a) an order that par 1 and 2 of the Notice to Produce by set aside; or (b) a direction that any documents produced pursuant to par 1 and 2 of the Notice to Produce not be open for inspection by the Defendants until any further order; on the grounds that they seek material the subject of privilege.

5 The parties agreed that the applicable law governing the production of documents in relation to the pre-trial phase of a criminal prosecution in this Court is Pt 75 r 10A of the Supreme Court Rules which is adopted by Pt 6 r 2 of the Land and Environment Court Rules. Part 75 r 10A(1) of the Supreme Court Rules provides as follows: Where the Court, by subpoena or otherwise, orders any person to produce any document or thing, and any person makes and substantiates sufficient lawful objection to production on grounds of privilege, the Court shall not compel production of that document or thing except production to the Court for the purpose of ruling on the objection. It is clear that Pt 75 r 10A has an incorrect heading in Ritchie's Supreme Court Practice where it is headed "Evidence of Service". The heading to Pt 75 r 10A as gazetted correctly refers to "Privilege".

6 It is agreed by the parties that Pt 75 r 10A(1) of the Supreme Court Rules adopts the common law approach to legal professional privilege. Accordingly, the dominant purpose test as enunciated by the High Court in Esso Australia Resources Limited v Commissioner of Taxation (1999) 201 CLR 149 applies. This is to be contrasted with the approach for pre-trial discovery in civil cases which is to be determined by reference to the Evidence Act 1995 ("the Evidence Act") as provided for in Pt 36 r 13 of the Supreme Court Rules.

7 As a consequence of Pt 75 r 10A(1) adopting the common law approach to privilege, Div 3 of the Evidence Act which deals with privilege and which includes s 123, does not apply. It was submitted that s 123 of the Evidence Act has the effect that evidence adduced at trial by a defendant in criminal proceedings is admissible despite any claim for legal professional privilege. If this section applied, the Defendants argued that it would have the effect of overriding a claim for privilege raised by the Prosecutor at the pre-trial stage. However, the parties agreed that this issue did not arise.

The Submissions 8 The Prosecutor argued that a claim of privilege is sufficient, provided there is evidence to demonstrate that legal professional privilege exists, to repel any claim for access to the documents by a defendant on the grounds of the Prosecutor's duty of disclosure. In this regard the Prosecutor relied on a number of cases, including Ritz Hotel Limited v Charles of the Ritz Limited (No 22) (1988) 14 NSWLR 132 and Dingle v Commonwealth Development Bank of Australia (1989) 23 FCR 63, to support its argument that the documents were subject to legal professional privilege as being communications between a party and a witness concerning the preparation of evidence to be given by the witness at the hearing of the proceedings.

9 The Defendants did not ultimately dispute that the material which the Prosecutor did not wish to produce was the subject of legal professional privilege, although the Defendants' submissions were confusing in that they suggested that more substantiation was necessary because the Prosecutor's evidence as to when the decision to prosecute was made was conflicting. In this regard, the Defendants argued that the statement made by Mr Hobday, General Manager, Port Operations of the Sydney Ports Authority, at par 18 of his affidavit of 29 July 2004 to the effect that by 30 April 2002 he "formed the view that a prosecution against the owner of the ship and the appropriate crew members was highly likely and I thereafter proceeded to gather evidence to support a prosecution" conflicted with statements made by Ms Filipowski, the Prosecutor, to the Defendants' solicitors in a letter dated 21 October 2002. That letter stated that the Prosecutor's investigation and consideration of the evidence was ongoing and no decision had yet been made whether or not to prosecute. Even if the Defendants had not conceded that the documents were privileged I do not think that the two statements made on behalf of the Prosecutor are in conflict, and accordingly, would have held that the Prosecutor's evidence showed that there was a real possibility that litigation would result after 30 April 2002 so that the material referred to in par 1 and 2 of the Notice to Produce is subject to legal professional privilege.

10 The Defendants argued that the decision of Martin J of the South Australian Supreme Court in R v Bunting & Ors (2002) 48 SASR 378 provided authority for the proposition that any common law claim for legal professional privilege by a prosecutor must be assumed to have been waived if the prosecutor would otherwise have to disclose the material in relation to which privilege is asserted pursuant to the prosecutor's duty of disclosure. Accordingly, the Defendants argued that I should look at the documents to assess whether or not these should be disclosed to the Defendants as a matter of fairness. In other words, the Defendants argued that legal professional privilege claimed by a prosecutor in relation to a prosecution should yield to the requirement that, in the interests of fairness, the defendant be provided with all relevant material held by the prosecutor in relation to the offences with which it is charged.

11 The Defendants argued that this ultimately required me to weigh up the competing interests of the Prosecutor and of the Defendants in relation to the disclosure of the documents. According to the Defendants, the only way in which these competing interests could be weighed was for me to inspect the documents in issue to determine if these were relevant to the Defendants' case and to decide whether they should be disclosed to the Defendants. This approach was said to be supported by the decision of the High Court in Alister v The Queen (1983) 154 CLR 404 and also the wording of Pt 75 r 10A itself which refers to "production to the Court for the purpose of ruling on the objection".

12 Other than Bunting the Defendants relied upon a number of cases, including Conway v Rimmer [1968] AC 910, which were concerned largely with the balancing of claims for public interest immunity with the prosecutor's duty of disclosure. The Defendants argued that the principles contained in these cases were nevertheless analogous to the approach I should take in relation to legal professional privilege as both were a subset of the same doctrine of privilege.

13 In contrast to this, the Prosecutor argued that public interest immunity claims are quite separate from legal professional privilege, which claims, unlike public interest immunity claims, do not involve a balancing of the respective parties' interests to determine whether disclosure should be required. The Prosecutor argued that if the Defendants argue that the Prosecutor has failed to comply with its obligation of disclosure then the pre-trial process is not the appropriate time to deal with that issue. The Prosecutor argued that matters relating to its duty of disclosure were properly matters for determination at the hearing of the matter. Further, the Prosecutor argued that it would not be appropriate for me to inspect the documents as this would put me in the position of determining whether the documents were relevant to the Defendants' case at a point in time where the Defendants have not yet pleaded.

Finding 14 In Filipowski v Island Maritime Limited [2002] NSWLEC 177 Lloyd J considered a similar application to that currently before me in that it concerned the same prosecutor seeking to resist production of certain classes of documents, including draft expert reports, on the grounds that they were subject to legal professional privilege. It does not appear from the judgment that Pt 75 r 10A was raised, which is not surprising given that the heading to the section is incorrect in Ritchie's Supreme Court Practice. Lloyd J nevertheless concluded that the common law, as opposed to the Evidence Act, applies in relation to a claim for legal professional privilege raised by a prosecutor in criminal prosecutions at the pre-trial stage. The defendant in that case argued that the privileged documents should be produced in the interests of fairness. Lloyd J held that the documents in question were privileged and should not be disclosed. Further, Lloyd J held that the fact that final expert's reports were disclosed to the defendant did not constitute any waiver of the drafts of those expert reports. This decision preceded that in Bunting.

15 In Bunting Martin J held that while it was open to a prosecutor, in that case the Director of Public Prosecutions, to claim legal professional privilege, if that legal professional privilege conflicted with the duty of disclosure placed on that prosecutor then the prosecutor is imputed to have waived the right to privilege in favour of disclosing the information. Martin J held at par 73 that such an implied waiver will arise where: … the conduct of the Director as the privilege holder in instituting or maintaining a prosecution is inconsistent with the maintenance of confidentiality in respect of relevant information which would otherwise be disclosed. The relevant conduct is the institution or maintenance of a prosecution. In such circumstances, it can be said that it is unfair for the Director to both institute or maintain a prosecution and to maintain the privilege in breach of the duty of disclosure that accompanies the prosecution

16 This appears to be a novel approach. Indeed, a number of the cases relied on in the judgment would seem to support the Prosecutor's approach rather than the Defendants'. In particular, I note that Martin J cited the following passage from par 133 of the decision of Deane J in Carter v The Managing Partner, Northmore Hale Davy & Leake and Others (1995) 183 CLR 121: Where legal professional privilege attaches, there is no question of balancing the considerations favouring the protection of confidentiality against any considerations favouring disclosure in the circumstances of the particular case. The privilege itself represents the outcome of such a balancing process and reflects the common law's verdict that the considerations favouring the 'perfect security' of communications and documents protected by the privilege must prevail. 17 In Carter a majority of the High Court upheld the prosecutor's right to withhold material on the grounds of legal professional privilege despite the public interest in having disclosure of relevant material to a defendant.

18 The decision of Martin J in Bunting is not binding on me and was relied on by the Defendants as having persuasive value only. I agree with the Prosecutor that the decision appears to have been influenced by the statutory context in which the Director of Public Prosecution operates in South Australia. I was not referred to any case where Bunting has been applied, although I note that it was referred to, but not applied, in Australian Competition & Consumer Commission v McMahon Services Pty Ltd [2004] FCA 353. Given this, I undertook a search of recent New South Wales and South Australian decisions decided since Bunting which referred to the prosecutor's duty to disclose and legal professional privilege. In no case was there any discussion as to the potential conflict between the two.

19 I will refer to two cases by way of illustration. In R v Ulman-Naruniec [2003] SASC 437, a decision of the Full Court of the South Australian Court of Criminal Appeal, Sulan J recognised at [139] that while material collected during the course of an investigation by a prosecutor must be disclosed to the accused and their advisers: If the information is subject to public interest immunity, or legal professional privilege, or is precluded by statute from disclosure, then the public interest in non-disclosure overrides the obligation to disclose. 20 Similarly, in R v Reardon [2004] NSWCCA 197 the New South Wales Court of Criminal Appeal recently held that contemporaneous documents created by the police in the course of investigating an offence should be disclosed unless they are protected by legal professional privilege or public interest considerations (per Hodgson JA at par 59 to 61 and Simpson J at par 95). While in neither of these cases did the issue of conflict between a prosecutor's claim for legal professional privilege and its duty to disclose arise directly, both these decisions indicate that the accepted position remains that a claim for legal professional privilege by a prosecutor is sufficient to resist a claim for production of the privileged material on the grounds the prosecutor had a duty to disclose it.

21 I am of the view that the position in New South Wales remains that once a prosecutor has made a valid claim for legal professional privilege at the pre-trial stage that claim alone is sufficient to bar production and no further enquiry as to whether such production is necessary in the interests of fairness should be made. Accordingly, I do not regard it as appropriate that I follow the reasoning applied by Martin J in Bunting.

22 As the Defendants did not ultimately dispute the Prosecutor's claim for legal professional privilege I will make orders 1 and 2 as sought in the Prosecutor's Notice of Motion. 23 At the hearing the parties agreed that the matter should be listed for mention before the list judge after I delivered my judgment. Accordingly, I list the matter for mention before the list judge at 9:30am on 20 August 2004.

Orders 24 The Court makes the following orders: 1. Paragraphs 1 and 2 of the Notice to Produce issued on behalf of the Defendants and dated 15 July 2004 be set aside. 2. The question of costs be reserved. 3. The matter be listed for mention before the list judge at 9:30 am on 20 August 2004.

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