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[1976] HCA 63
High Court of Australia
1976-07-01
Murphy JJ, Rath J
Original judgment source is linked above.
High Court of Australia Barwick C.J. Stephen, Mason, Jacobs and Murphy JJ. Grant v Downs [1976] HCA 63
ORDER Appeal allowed with costs. Order of the Supreme Court of New South Wales (Court of Appeal Division) set aside and in lieu thereof order that the application for leave to appeal to that Court be granted with costs and that the appeal to that Court be allowed with costs, order of Rath J. set aside and in lieu thereof order that the appeal to that Court be allowed with costs and order that the respondent produce within fourteen days for the inspection of the appellant the documents described in the notice of motion filed on 21st November 1973. Respondent to pay appellant's costs of motion heard before the Master of that Court.
The circumstances in which this appeal comes before this Court are to be found in the reasons for judgment of other members of the Court. The decision of the particular question arising in this case involves a consideration of the appropriate terms of a statement of the principle to be applied in Australia in deciding whether a document is excluded from inspection by reason of "professional privilege". There is no such statement of authority binding the courts in Australia. The matter has been discussed in cases decided in England and in articles in legal journals. But no authoritatively accepted statement of principle has emerged. The matter, in my opinion, has not significantly advanced in English decisions beyond the judgments of the Court of Appeal in Birmingham and Midland Motor Omnibus Co. Ltd. v. London and North Western Railway Co. [6] . In that case, the predominant view was that expressed by Buckley L.J., but a substantially different opinion was expressed by Hamilton L.J. I shall say something of these views but the question of principle and its statement for Australia are not to be resolved by merely making a choice between the two views expressed in that case. The matter for our decision is the content of a statement of relevant principle appropriate to the conduct of litigation in this country. That should be approached, in my opinion, upon the premise that it is necessary in the public interest that professional privilege should be recognized and enforced. That there is occasion for excluding from inspection documents which fall within that privilege cannot, in my opinion, be denied. There is no need, in my opinion, presently to explore or express the basis or justification for the existence of the privilege. Its necessity should be accepted. The problem is to determine and state the relevant principle to operate in Australia. In this connexion, such guidance as may be found in the decisions of the English courts should be accepted: and our decisions should be consonant with the development of the common law.
Having considered the decisions, the writings and the various aspects of the public interest which claim attention, I have come to the conclusion that the Court should state the relevant principle as follows: a document which was produced or brought into existence either with the dominant purpose of its author, or of the person or authority under whose direction, whether particular or general, it was produced or brought into existence, of using it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation, at the time of its production in reasonable prospect, should be privileged and excluded from inspection.
In the application of this principle, the fact that the person who produced, or the person or authority who or which directed the production of the document, had in mind other uses of the document will not preclude that document being accorded privilege, if it were produced with the requisite dominant purpose. Further, the circumstance that the document is a "routine document" will not be definitive. The dominant purpose of its production may none the less qualify it for professional privilege. Whether or not a document does so qualify is a question ultimately to be decided, if need be, upon an inspection by the judge of the document itself, and by the application of the stated principle. I say "if need be" because where the judge who hears the application for inspection may possibly be the trial judge, sitting without a jury, it may be better to decide the matter upon the evidence as to the purpose of the production of the document rather than upon an inspection of it, thus avoiding any complication which might arise from the document having been seen by the judge and privilege from inspection accorded to it.
It will be apparent from my statement of the relevant principle that I do not fully accept the language of Buckley L.J. in Birmingham and Midland Motor Omnibus Co. Ltd. v. London and North Western Railway Co. [1] . In so far as his Lordship emphasized that the document must have been produced for the solicitor in relation to proceedings pending, threatened or anticipated, i.e. at the time of its production, I am in agreement with him. Also, in so far as his Lordship would not require the document to be produced solely for the solicitor, I could accept his reasons. But I am unable to accept that the purpose of obtaining advice or of use in litigation should not be a primary purpose. As I have indicated, in my opinion, that should be the dominant purpose of the production of the document.
I can accept the view of Hamilton L.J. that the mere fact that the document may prove of use in or in connexion with supervening litigation would not qualify it as a privileged document. But exaggerated illustrations such as the postage book or cashier's ledger are likely to obscure the real possibility that some routine documents might in their particular circumstances qualify as having been produced with the requisite purpose. It seems to me to be preferable to test the status of each document according to the purpose of its production and not to erect categories of documents so as to facilitate some mechanical, almost computerized, resolution of the question of the right to withhold a document from inspection. For my part, I prefer the word "dominant" to describe the relevant purpose. Neither "primary" nor "substantial", in my opinion, satisfies the true basis of the privilege.
So far as concerns the document in the present case, I have no difficulty whatever in concluding that the evidence of Dr. Barclay, which will be found recited in the reasons for judgment of other members of the Court, fell far short of establishing that the dominant purpose of producing the report was to obtain advice or to aid the conduct of litigation then in reasonable contemplation. Indeed, that evidence did little more than prove that the document was at the time of its production conceived as possibly useful if litigation, which in case of fatal accident might not be unlikely, did in fact ensue. Consequently, I would allow this appeal and, having granted leave to appeal from the decision of the primary judge, I would, for the reasons for that course given in the joint judgment of Stephen, Mason and Murphy JJ., set aside his order and order inspection of the document.
The question here is whether an objection to the production of documents on the ground of legal professional privilege by the nominal defendant who has been sued in an action under the Claims Against the Government and Crown Suits Act, 1912 N.S.W., as amended, should be allowed. The relevant facts are these. Neville William John Grant ("the deceased") was admitted as a patient to the North Ryde Psychiatric Centre on 24th August 1969. That night he was left on his own in a single room. He escaped through a window. Next morning his body was found in the hospital grounds. He had died, so it seems, of broncho-pneumonia.
The appellant commenced proceedings under the Compensation to Relatives Act, 1897 N.S.W., as amended, on behalf of herself and her children against the nominal defendant and Melvyn Bennett who was at the relevant time the duty medical officer at the Centre. The appellant sought damages on the footing that the Government of New South Wales had the care, control and management of the Psychiatric Centre, that the deceased had been admitted to it as a mentally ill person and that the Government had so negligently cared for him as to allow him to escape from his room whereby he had died from exposure to the elements. A similar case of negligence was alleged against Dr. Bennett, it being asserted that he was negligent in caring for the deceased and allowing him to escape. These allegations were put in issue by the defendants.
The Prothonotary, on the application of the appellant, made an order against each defendant requiring him to file and serve a list of documents verified by affidavit under Pt 26, r. 3 of the Rules of the Supreme Court. The nominal defendant complied with the order by filing and serving a list of documents which was subsequently replaced by an amended list of documents filed on 23rd October 1973. It was verified in accordance with the rules and the order of the Prothonotary. Paragraph 2 of the amended list is in the following terms: "The documents enumerated in Pt 2 of Schedule 1 are privileged from production on the ground that they are the subject of legal professional privilege."
Part 2 of Schedule 1 lists the following documents:
12a. Copy and original letters being solicitor-client communications marked with the numeral 2.
In his verifying affidavit Wilfred James Maundrell, an officer of the Health Commission of New South Wales, swore that he had been informed and believed "that documents numbered 15, 16, 17 and 18 referred to in the above amended list belong to a class of reports which are required to be prepared about injuries suffered by patients in mental hospitals and have as one of the material purposes for their preparation submission to the legal advisers of the said Health Commission in the event that disciplinary actions involving staff under the Mental Health Act, Public Service Act or any other Act, coronial proceedings or legal proceedings for damages arise from such injuries aforesaid".
The appellant then moved for an order for the production of documents 15 to 18 inclusive. The Master upheld the claim to privilege and refused an order for production. On appeal, Rath J. held that the claim to privilege was misconceived, saying:
The reports appear to me to be routine reports such as subordinates would make to superiors to keep them informed in relation to serious accidents in mental institutions. They are reports that the superiors would require in order to determine what action, if any, they would take. There is nothing in the reports to suggest that legal advice was contemplated. The whole structure and apparent purpose of the reports is administrative. I appreciate that when a death occurs in a mental institution, minds turn to possible legal proceedings, but I do not think that this circumstance can attach privilege to reports that then come into existence because of the administrative procedures of the institution and of the authorities to whom it is responsible. The emphasis, in my view, is on administration, and of course, as a related matter, discipline.
However, his Honour conceded that the reports might be of a kind commonly associated with circumstances giving rise to claims for damages and that it was conceivable that it could be shown "by circumstances and not merely bald assertion, that one of the purposes of the preparation of these documents was submission to legal advisers in the event of legal proceedings". His Honour therefore ordered the nominal defendant to make available for inspection the documents in question unless the defendant filed and served a further affidavit of discovery within twenty-eight days from the date of judgment.
The nominal defendant subsequently filed an affidavit by William Arthur Barclay, the Commissioner for Personal Health Services in the Health Commission, who had formerly been Director of State Psychiatric Services under the Mental Health Act, 1958, as amended. He stated that it was a requirement of the Department of Public Health (the predecessor of the Health Commission) before 25th August 1969 and thereafter that Medical Superintendents were to submit reports concerning deaths or injuries suffered by patients and arising in unusual circumstances in mental hospitals to the Director, Division of Establishments, who in turn was required to submit a report on the incident to the Under-Secretary of the Department. This requirement was continued when the Health Commission replaced the Department in April 1973. He further stated that it was a part of this requirement that both reports already referred to be referred to him before submission to the Under-Secretary in view of his position as Director of State Psychiatric Services responsible for mental hospitals and his qualifications as a psychiatrist. This policy was reaffirmed before and after 25th August 1969 as a result of conferences between Dr. Barclay and the Under-Secretary of the Department. Moreover, it was agreed between them at the conferences that the preparation of the reports of both kinds was necessary for a number of purposes.
One purpose for the preparation of the reports was to assist in determining whether there had been any breaches of discipline by staff and, if so, what action should follow.
A further purpose was to detect whether there were any faults in the security and general running of the Institution concerned so as to prevent, so far as possible death or injury of patients.
The remaining purpose was to have a contemporaneous detailed report, including commentary, which could be submitted to the legal representatives of the Department of Public Health for the purpose of enabling them to advise the said Department respecting its legal position and, in the case of death of a patient to represent the said Department at Inquests and in any civil proceedings relating to death or injury of a patient to act on behalf of the said Department. With respect to civil proceedings it was considered at these conferences that patients injured in unusual circumstances, and also relatives of patients who died in unusual circumstances, might commence civil proceedings seeking compensation for the injury or death and that therefore it was important that these reports be prepared so as to be available for the legal representatives of the Department should such proceedings result.
The matter came on for hearing again before Rath J. and his Honour then held that the nominal defendant had established, by means of Dr. Barclay's affidavit, his claim of privilege. His Honour then dismissed the appeal.
From this dismissal the appellant sought leave to appeal from the Court of Appeal but this application was refused. The appeal before us is in form an appeal against the refusal by the Court of Appeal to grant leave to appeal from Rath J.'s final decision.
What then are the relevant principles of law governing the privilege which attaches to communications and materials submitted by a client to his solicitor for the purpose of advice or for the purpose of use in existing or anticipated litigation, in particular when the materials have been called into existence to serve more than one purpose, submission to the solicitor being only one of the purposes? It is a question more easily asked than answered, despite all that is to be found in the decided cases and all that has been said in the learned articles.
The judgment of Havers J. in Seabrook v. British Transport Commission [2] contained a comprehensive review of the decided cases, illustrating as it does by reference to earlier judgments, that the essential elements of this head of privilege (which embraces communications and investigations made by the client as well as communications and work undertaken by the legal adviser, whether for use in litigation or for advice) have been differently expressed from time to time. The difference is not one of expression only because, as his Lordship observed [3] , the course of decision tended to keep the privilege within narrow confines until 1913 when the Court of Appeal decided Birmingham and Midland Motor Omnibus Co. Ltd. v. London and North Western Railway Co. [4] . Thereafter, certainly until more recently, the decisions gave greater emphasis to the claim for privilege.
It has been accepted that documents brought into existence after an accident pursuant to a standing instruction previously given may be privileged (Collins v. London General Omnibus Co. [5] ; The Hopper No. 13 [6] ; Ankin v. London and North Eastern Railway Co. [7] ; Ogden v. London Electric Railway Co. [8] ). Although to sustain the privilege it is not necessary that the document has been brought into existence on the advice of the solicitor, it is essential that the circumstances are such that the court can subsequently conclude, viewing them objectively, that litigation can be reasonably anticipated - see Feuerheerd v. London General Omnibus Co. Ltd. [9] ; Cataldi v. Commissioner for Government Transport [10] - and this at the time when the preparation of the document is undertaken. However, the fact that the document is brought into existence in anticipation of litigation is not sufficient, without more, to attract privilege; the document must be called into being for use in litigation or for advice and it is the extent to which this purpose is intended to be served by the preparation of the document that is in question.
It is instructive, then, to recall what was said in the Birmingham Case [11] , not only because the judgments influenced the course of later decisions, but also because the Court of Appeal was confronted with, and decided, a question having some similarity to the problem now before this Court. There privilege was claimed for certain documents on the ground that they "came into existence and were made after this litigation was in contemplation and in view of such litigation for the purpose of obtaining for and furnishing to the solicitor of the defendant company evidence and information as to the evidence which could be obtained and otherwise for the use of the said solicitor to enable him to conduct the defence in this action and to advise the defendants" [12] . It was held unanimously that the documents were privileged. Buckley L.J. said [13] :
It is not I think necessary that the affidavit should state that the information was obtained solely or merely or primarily for the solicitor, if it was obtained for the solicitor, in the sense of being procured as materials upon which professional advice should be taken in proceedings pending, or threatened, or anticipated. If it was obtained for the solicitor it is none the less protected because the party who has obtained it intended if he could to settle the matter without resort to a solicitor at all. Hamilton L.J., though agreeing in the result, said [14] : To hold such documents privileged merely because it can be shewn of them, not untruthfully, that the principal, who made them part of the regular course of business and of the duties of his subordinates, foresaw and had in mind their utility in case of litigation, feared, threatened, or commenced, would in my opinion be unsound in principle and disastrous in practice The only authority cited to us for the proposition that the formula need not contain the statement that submission to the solicitor was the primary or the substantial purpose with which the document was brought into existence, and may even negative it, is London and Tilbury Ry. Co. v. Kirk & Randall [15] , a decision which, if correctly reported, I think is wrong. (italics supplied) Vaughan Williams L.J. [17] "rather" preferred "the way in which Buckley L.J." had "put his judgment". 1. [1913] 3 K.B. 850. 2. [1913] 3 K.B., at p. 851. 3. [1913] 3 K.B., at p. 856. 4. [1913] 3 K.B., at pp. 859-860. 5. (1884) 28 Sol. J. 688. 6. [1913] 3 K.B., at p. 855.
Subsequently the Court of Appeal in Ogden v. London Electric Railway Co. [18] upheld a claim of privilege in respect of "Reports by servants of the defendants made for the information of the company's solicitors only and in anticipation of litigation", applying the principles stated by Buckley L.J. in the Birmingham Case. However, neither the Birmingham Case nor the Ogden Case called for the making of a definitive choice between the competing views expressed in the first of these two decisions. Consequently there is no decision of the Court of Appeal, and still less of this Court, which rejects the approach taken by Hamilton L.J. in favour of that taken by Buckley L.J.
The House of Lords has spoken most recently in Alfred Crompton Amusement Machines Ltd. v. Customs and Excise Commissioners [No. 2] [19] , where Lord Cross, with whose speech three other members of the House agreed, cast doubt upon cases in this century which had held that if one purpose of reports was that they might if necessary be submitted to legal advisers in the event of anticipated litigation, that was enough to render them subject to legal professional privilege. His Lordship clearly expressed dissatisfaction with those decisions but found it unnecessary, for the purposes of the case in hand, to decide the matter. Lord Kilbrandon, while agreeing with the speech of Lord Cross, expressly stated that he favoured the views, also preferred by Lord Cross, of Hamilton L.J. in the Birmingham Case [20] .
The same problem had engaged the attention of Diplock J. (as he then was) in Longthorn v. British Transport Commission [21] , where the plaintiff, who had brought an action for damages for personal injury arising out of a railway accident, sought production of a report made by a private court of inquiry set up by the defendant to investigate the cause of the accident. Privilege was claimed on the ground that the documents relating to the report came into existence and were made "for the purpose (inter alia) of obtaining for and furnishing" to the defendant's solicitor "evidence and information as to the evidence which will be obtained". The claim was disallowed and production ordered on the ground that it was not enough to establish a conclusive claim of privilege to say that the documents were made (inter alia) with a view to anticipated litigation and that the court had to look at their nature. Having looked at the report, Diplock J. concluded that "the inquiry was not to any appreciable extent for the purpose of obtaining for or furnishing to the solicitor to the defendants evidence and information as to the evidence which will be obtained" [22] . His Lordship proceeded on the footing that neither the Birmingham Case [20] nor the Ogden Case [23] established that privilege could be made out, no matter how insubstantial the purpose of submission to the solicitor might be, drawing attention specifically to what Hamilton L.J. had said on that score.
The rationale of this head of privilege, according to traditional doctrine, is that it promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisers, the law being a complex and complicated discipline. This it does by keeping secret their communications, thereby inducing the client to retain the solicitor and seek his advice, and encouraging the client to make a full and frank disclosure of the relevant circumstances to the solicitor. The existence of the privilege reflects, to the extent to which it is accorded, the paramountcy of this public interest over a more general public interest, that which requires that in the interests of a fair trial litigation should be conducted on the footing that all relevant documentary evidence is available. As a head of privilege legal professional privilege is so firmly entrenched in the law that it is not to be exorcised by judicial decision. None the less there are powerful considerations which suggest that the privilege should be confined within strict limits.
In the Birmingham Case [24] Hamilton L.J. directed attention to some of these considerations as they relate to claims of privilege made by corporations for their records and correspondence. From his Lordship's observations two points of importance emerge: (1) that the privilege does little, if anything, to promote full and frank disclosure or truthfulness; (2) that the day-to-day records of a corporation which come into existence in the ordinary course of its business may lend themselves to a claim of privilege if the purposive element of a submission to a solicitor is too easily satisfied, thereby excluding effectively the documents from production and inspection or at least subjecting the other party to the disadvantage of surprise when they are used.
To these criticisms others may be added. There is, we should have thought, much to be said for the view that the existence of the privilege makes it more difficult for the opposing party to test the veracity of the party claiming privilege by removing from the area of documents available for inspection documents which may be inconsistent with that case. To this extent the privilege is an impediment, not an inducement, to frank testimony, and it detracts from the fairness of the trial by denying a party access to relevant documents or at least subjecting him to surprise.
These difficulties are magnified in cases when privilege is claimed by a corporation, whether it be a statutory authority or a company, because the corporation conducts its business through servants, brings into existence voluminous records and institutes systematic standing procedures calling for the preparation of reports and other documents which may serve a variety of purposes, included in which is the submission of documents to a solicitor for the purpose of obtaining legal advice, or for use in existing or anticipated litigation.
With the advent of large corporations, documents necessarily proliferate; the knowledge of servants of the corporation is, in legal theory, the knowledge of the corporation itself but will only become so in fact when communicated to that corporation. It is in the course of converting legal theory into fact that corporations require their servants to furnish to management reports of activities known only, in the first instance, to the servants. Hence the proliferation of documents.
An individual seeking legal advice cannot be required to disclose the information he communicated to his legal adviser nor the nature of the advice received; nor may the legal adviser disclose it. However, a litigant is, of course, bound to disclose his own knowledge of relevant facts. It would be curious if, because the litigant happens to be a corporation, the rule was for that reason different. Yet it is said that a corporation, necessarily having recourse to documents in the form of reports for the purpose of informing its management of the knowledge of its agents, may claim privilege if one of the purposes of management was to make available such reports to its legal advisers should litigation ensue, the probability or possibility of litigation being anticipated at the time. The Court of Appeal made this point in Anderson v. Bank of British Columbia [25] . James L.J. contrasted the position of an individual and a company and said of the latter that "a communication between a principal and his agent in the matter of the agency, giving information of the facts and circumstances of the very transaction which is the subject-matter of the litigation" should not be the subject of privilege but should be available on discovery [26] . The principal ought to know what the agent knows since "the matter of the agency is, or ought to be, the knowledge of the principal". Mellish L.J. said [27] :
In point of law, the principal is to be deemed to have known the facts before he has actually got personal information about them. I cannot but think that, as you are entitled to ask the principal what he knows respecting those facts, you must necessarily be entitled to the information which his agent has sent respecting them. Baggallay J.A. pointed out that had the bank been an individual, not a corporation, the fullest particulars of the transaction in question would have had to be supplied and it would have been no answer for the individual to say "I did not attend to this matter personally. I sat upstairs, and the business was managed by my clerks here or by my clerks in Oregon" [28] . As his Lordship said, he would, for the purpose of making discovery, have been obliged to ascertain the details from his clerks or manager. 1. (1876) 2 Ch. D. 644. 2. (1876) 2 Ch. D., at p. 657. 3. (1876) 2 Ch. D., at p. 658. 4. (1876) 2 Ch. D., at p. 662.
It is difficult to see why the principle which lies behind legal professional privilege should justify its extension to material obtained by a corporation from its agents with a double purpose. The second purpose, that of arming central management of the corporation with actual knowledge of what its agents have done, is quite unconnected with legal professional privilege; it is but a manifestation of the need of a corporation to acquire in actuality the knowledge that it is always deemed to possess and which lies initially in the minds of its agents. That cannot itself be privileged; quite the contrary. If the party were a natural person or, more accurately, an individual not acting through servants or agents, it would be precisely that knowledge which would be discoverable and the party cannot be better off by being a corporation. The fact that a second purpose may also be being served, a purpose to which the privilege would extend, does not cover with that privilege information which would otherwise be discoverable.
It is to be observed that in Jones v. Great Central Railway Co. [29] , their Lordships specifically approved of Anderson v. Bank of British Columbia [30] , Lord Loreburn saying [31] :
Both client and solicitor may act through an agent, and therefore communications to or through the agent are within the privilege. But if communications are made to him as a person who has himself to consider and act upon them, then the privilege is gone; and this is because the principle which protects communications only between solicitor and client no longer applies. Here documents are in existence relating to the matter in dispute which were communicated to some one who was not a solicitor, nor the mere alter ego of a solicitor.
Disclosure is constantly required of letters between partners or between a firm and its agents. It is rare in litigation when communications are confined to letters passing between solicitor and client. And every large concern, whether a railway company or a trade union or whatever it be, that must needs conduct its business by correspondence is amenable to the same rule - a rule in itself wholesome, for it favours the placing before a Court of justice of all material circumstances that may lead to a just decision.
All that we have said so far indicates that unless the law confines legal professional privilege to those documents which are brought into existence for the sole purpose of submission to legal advisers for advice or for use in legal proceedings the privilege will travel beyond the underlying rationale to which it is intended to give expression and will confer an advantage and immunity on a corporation which is not enjoyed by the ordinary individual. It is not right that the privilege can attach to documents which, quite apart from the purpose of submission to a solicitor, would have been brought into existence for other purposes in any event, and then without attracting any attendant privilege. It is true that the requirement that documents be brought into existence in anticipation of litigation diminishes to some extent the risk that documents brought into existence for non-privileged purposes will attract the privilege but it certainly does not eliminate that risk. For this and the reasons which we have expressed earlier we consider that the sole purpose test should now be adopted as the criterion of legal professional privilege.
It is well accepted that the court in allowing production and inspection of documents exercises a judicial discretion. In so doing it needs to scrutinize with care claims of privilege made on the ground now under consideration. It is for the party claiming privilege to show that the documents for which the claim is made are privileged. He may succeed in achieving this objective by pointing to the nature of the documents or by evidence describing the circumstances in which they were brought into existence. But it should not be thought that the privilege is necessarily or conclusively established by resort to any verbal formula or ritual. The court has power to examine the documents for itself, a power which has perhaps been exercised too sparingly in the past, springing possibly from a misplaced reluctance to go behind the formal claim of privilege. It should not be forgotten that in many instances the character of the documents the subject of the claim will illuminate the purpose for which they were brought into existence.
In this case it is our opinion that neither the evidence nor the documents themselves sufficiently establish that the purpose of submitting the documents to the respondent's legal advisers was the sole purpose of their being brought into existence. It is conceded by Mr. Maundrell in his affidavit that this was but "one of the material purposes" for which the documents were brought into existence. Dr. Barclay in his affidavit listed the various purposes which the documents were to serve, stating submission to legal advisers as the third purpose. Moreover, the documents have about them a flavour of routine reports such as would be made by any institution or corporation relating to an occurrence of the kind that took place so as to inform itself of the circumstances in which the death of the patient occurred and with a view to disciplinary action and the reform of any procedures that might be found to be defective.
There was no doubt a reasonable anticipation that litigation might arise out of the accident. This, however, does not overcome the deficiency in point of purpose which is revealed by the affidavits and the character of the documents, for, as we have already observed, the privilege requires a combination of dedication to the stipulated purpose and reasonable anticipation that litigation will ensue before it is attracted.
For these reasons we would allow the appeal, grant leave to appeal from the decision of Rath J. and allow that appeal. This complicated course is rendered necessary by the circumstance that the Court of Appeal refused leave to appeal, with the consequence that we are without the advantage of having its views on the substantial question which has been debated. But as that question has been comprehensively argued there is no point in confining ourselves to the grant of leave to appeal from the decision of Rath J., thereby leaving that appeal to be heard by the Court of Appeal. It is better that we deal with the appeal before us on the footing that it involved, as it did, comprehensive argument on the substantial question at issue.
The courts have long had a tender regard for the importance of developing a set of rules which would be most conducive to the effective determination before them of legal disputes. We are here concerned with two of those rules. The first of these two rules is that communications with one's legal adviser are privileged from disclosure and that the privilege extends not only to communications actually made but to material prepared for the purpose of communication thereof to the legal adviser. The second of the two rules is that disclosure must be made to the other party in litigation of material relevant to the legal dispute even though the material has come into existence in the course of confidential exchanges between the party to the dispute and another person such as employee, co-employee, agent, partner or expert adviser, not being his legal adviser. Both rules have been regarded as very important in the administration of justice.
The rules, and the purposes which underlie them, tend to collide when the confidential exchanges and advices between a party and another or others consist of material prepared for a plurality of purposes one of which is communication, in the contingency of actual or likely litigation, to the legal adviser. When there is only one purpose, that of communication to the legal adviser, or where among a plurality of purposes there is a purpose certainly to communicate the material to the legal adviser in order to obtain his advice or action in litigation which is pending or in fact expected, the first rule applies. The communication is privileged. But when the material is prepared or the confidential exchange of information takes place with a plurality of purposes, one of which is the communication thereof to the legal adviser but only in the contingency of actual or of proposed or threatened litigation, there is difficulty in reconciling the two rules and in refining them so that the purposes which they are both intended to serve are best met.
At such a frontier where there are exposed as critical determinants the interests of justice and of a society which depends on the effective and adequate resolution of legal disputes, it is inevitable that difficulties in resolution of the competing interests will occur. As a consequence the degree of priority or precedence given to the one rule over the other has varied. During most of the nineteenth century a regard for the importance of having available at a trial as much relevant material as possible, even if it was confidential but provided that it did not overturn the rule of confidentiality between client and legal adviser, led to an emphasis on the second rule. Glyn v. Caulfield [32] ; Wheeler v. Le Marchant [33] ; Westinghouse v. Midland Railway Co. [34] ; Baker v. London & South Western Railway Co. [35] ; Woolley v. North London Railway Co. [36] ; Parr v. London, Chatham & Dover Railway Co. [37] ; Fenner v. London & South Eastern Railway Co. [38] ; Skinner v. Great Northern Railway Co. [39] . Then at and after the end of the century, the emphasis changed. Collins v. London General Omnibus Co. [40] ; Birmingham & Midland Motor Omnibus Co. Ltd. v. London & North Western Railway Co. [41] ; Adam S.S. Co. Ltd. v. London Assurance Corporation [42] ; The Hopper No. 13 [43] ; Ogden v. London Electric Railway Co. [44] ; Seabrook v. British Transport Commission [45] ; Patch v. United Bristol Hospitals Board [46] . The change was synchronous with the growth in the number of actions by the individual against the corporation for negligence, and of course the nature of a corporation is such that there is likely to be a greater bulk of confidential communication within the corporate structure than there is in the case of an individual. Whether or not there was a relationship between these two synchronous events need not be pursued. However, recently, there are some indications of a change back to the nineteenth century emphasis. See Longthorn v. British Transport Commission [47] ; Alfred Crompton Amusement Machines Ltd. v. Customs and Excise Commissioners [No. 2] [48] .
I am of the opinion that the interests of a just resolution by the courts of litigation between parties militates in favour of a return to greater emphasis upon the second of the two rules. It is important in the present context, the enunciation of the limits of legal professional privilege, to keep separate the possible impact of another public interest, namely, Crown privilege. We are at the moment considering the limits of legal professional privilege and a consideration of that subject should not be clouded by a consciousness of the fact that there may presently be a public interest in ensuring uninhibited inquiry into deficiencies in the conduct of the public service and of public servants. I advert to this separate subject of Crown privilege without any expression of view on its possible application to the circumstances of the present case in order to ensure that the subject is kept overtly distinct. For the purposes of the present inquiry the mental institution can be regarded no differently from a privately owned institution.
I think that the question which the court should pose to itself is this - does the purpose of supplying the material to the legal adviser account for the existence of the material? I use the word purpose here in the sense of intention - the intended use. The question is one of fact. In some cases a mere general description of documents in an affidavit of discovery may indicate an affirmative answer without any need further to examine the documents or the circumstances in which they came into existence: Westminster Airways Ltd. v. Kuwait Oil Co. Ltd. [49] . In other cases both an examination of the documents and of the surrounding circumstances may be necessary. In my view it is necessary in the present case. The documents were described by Wilfred James Maundrell, an officer of the New South Wales Health Commission, in his affidavit of 22nd October 1973 as belonging "to a class of reports which are required to be prepared about injuries suffered by patients in mental hospitals" and as having "as one of the material purposes for their preparation submission to the legal advisors [sic] of the said Health Commission in the event that disciplinary actions involving staff under the Mental Health Act, Public Service Act or any other Act, coronial proceedings or legal proceedings for damages arise from such injuries aforesaid". Rath J. inspected the documents and described them as "plainly routine reports for administrative purposes". I have inspected the documents and I agree with his description. I also agree with his further description of them.
The reports appear to me to be routine reports such as subordinates would make to superiors to keep them informed in relation to serious accidents in mental institutions. They are reports that the superiors would require in order to determine what action, if any, they would take. There is nothing in the reports to suggest that legal advice was contemplated. The whole structure and apparent purpose of the reports is administrative. I appreciate that when a death occurs in a mental institution, minds turn to possible legal proceedings, but I do not think that this circumstance can attach privilege to reports that then come into existence because of the administrative procedures of the institution and of the authorities to whom it is responsible. The emphasis, in my view, is on administration, and of course, as a related matter, discipline.
He ordered that inspection be given unless the respondent filed and served another affidavit of discovery within twenty-eight days.
Such an affidavit was served and the matter came again before Rath J. The deponent was Dr. Barclay, Commissioner for Personal Health Services in the New South Wales Health Commission. He deposed that the departmental requirement that medical superintendents submit reports concerning deaths or injuries suffered by patients and arising in unusual circumstances in mental institutions was instituted prior to the death of the appellant's husband on 25th August 1969 and was reaffirmed thereafter as a result of conferences between him and the Under Secretary of the Department. At those conferences the purposes of the reports were explored and are stated by Dr. Barclay in pars. 11, 12, and 13 of his affidavit as follows:
Upon this further evidence, Rath J. sustained the claim of legal professional privilege. He said of the documents: Nothing in their contents is indicative of the purpose set out in par. 13. The evidence before me suggests that the reports might have come into existence in their present form without there being any purpose as set out in par. 13. But this does not conclude the matter. There is nothing in the reports inconsistent with the existence of such a purpose as is set out in par. 13. A little later he stated: It may be that the purpose set out in pars. 11 and 12, or even one of them, would be sufficient to account for the existence of the report. But that consideration does not necessarily lead to the conclusion that the matters stated in par. 13 do not constitute a "purpose" in the relevant sense. It would be sufficient, as I understand the case law, if the purpose stated in par. 13 was sufficient in itself, or coupled with another purpose, for the existence of the report. It is important also to observe that as the purposes are stated by Dr. Barclay they as a whole constitute the cause of the existence of the reports, and it is idle to speculate whether the same reports might come into existence under a different policy. Though there is much in various of the authorities to support the approach of Rath J., the authorities are themselves varied in their approaches, as I have earlier indicated. In my opinion, where the purpose, in the sense of intended use of the documents, is that of submission to legal advisers, but only in the contingency of actual or of proposed or threatened litigation, that purpose or intention must account for the bringing of the documents into existence. This test is clearly not satisfied by the evidence of Dr. Barclay. There is no indication that these documents would not have come into existence in the ordinary course of administration even if no thought had been given to their possible usefulness if litigation should eventuate.
I would therefore allow the appeal, set aside the order of Rath J. and order production of the documents.
Grant
Downs