Interchase Corporation Ltd (in liq) v Grosvenor Hill

[Interchase Corporation Ltd v Grosvenor Hill (Q) P/L & Anor]

The appellant is the plaintiff in the action, and seeks damages against the respondents because of their allegedly negligent valuation of the Myer Centre. The appellant has made disclosure of an expert valuation report prepared by Mr Brian Cox of Richard Ellis (Qld) Holdings Pty Ltd. That disclosure is explained by O.35 r.5(2) of the Rules of the Supreme Court, which provides that "a document consisting of a statement or report of an expert is not privileged from disclosure". This appeal concerns the sufficiency of a claim of legal professional privilege in respect of other documents, by inference related to that valuation.

The privilege from production was claimed in this way:

"Interchase objects to producing the documents set out in the attached schedule on the ground(s) that:-

(i) document numbered A1 consists of a confidential communication between Interchase and its legal advisers for the sole purpose of giving or receiving legal advice;

(ii) documents numbered B1 to B140 were brought into existence solely for use in this litigation since its commencement; and

(iii) documents numbered C1 to C5 were brought into existence solely for use in litigation when it was reasonably anticipated by Interchase.

Correspondence marked A1, in part of a folder entitled in this litigation (volume 1) marked 'A', passing between Interchase's legal advisers and Interchase.

Documents and correspondence marked B1 to B140, inclusive, in parts of folders, entitled in this litigation (being volumes 1 & 2), marked 'B', which have passed between Interchase's legal advisers and Interchase and/or others in relation to the matters in question in this case and with a view to Interchase's prosecution of its claim since the issue of the writ.

Documents and correspondence marked C1 to C5, inclusive in a part of a folder entitled in this litigation (volume 2), marked 'C', which have passed between Interchase's legal advisers and Interchase, and/or others in relation to the matters in question in this case, with a view to Interchase's prosecution of its claim during the period in which this litigation was reasonably contemplated."

A learned judge in chambers held that the privilege had not been claimed properly, in respect of the documents referred to in paras.(ii) and (iii), being those marked with the letters B and C. His Honour pointed first to the absence of an assertion that the documents had been prepared in confidence, said to be essential (cf. Telebooth Pty Ltd v Telstra Corporation Ltd [1994] VicRp 21; [1994] 1 VR 337, 341). The appellant has sought to rectify that deficiency by a subsequent affidavit, and that point was not pursued further before us. The second aspect which persuaded his Honour to order the appellant to provide a further affidavit was his view that the appellant had failed "to sufficiently particularize or identify the documents" marked B and C.

In the course of his reasons for judgment, the judge expressed the view that some of those documents probably concerned the valuation report, and that such documents were "unlikely (to be) privileged", in light of O.35 r.5(2). But he did not determine the application on the basis of that consideration. He determined the application on the basis of deficiencies in the form of the affidavit - the failure to depose to confidentiality, and insufficient particularity in the manner of identification of the documents.

The effect of O.35 r.5(2), and whether the documents referred to in a valuer's report, and documents precedent to it - such as a solicitor's letter of instructions may be privileged, did however arise on an application brought in this action before another chamber judge. That application tested a claim for privilege made by the present appellant in relation to these categories of document:

• correspondence and enclosures between the appellant's solicitors and Richard Ellis regarding the Richard Ellis retrospective valuation;
• drafts of various parts of the Richard Ellis retrospective valuation;
• working papers produced in the course of preparing the Richard Ellis retrospective valuation;
• copies of extracts from other Richard Ellis valuations, selectively collated and copied by the valuer Mr Cox for use in the preparation of the Richard Ellis retrospective valuation; and
• copies of other documents selectively collated and copied by Mr Cox for use in the preparation of the Richard Ellis retrospective valuation.

That chamber judge applied Propend Finance Pty Ltd v Commissioner, Australian Federal Police (1995) 128 ALR 657, concluding that copy documents selectively copied and collated by an expert (and not by a lawyer or at the lawyer's initiative and not to be communicated or provided to a lawyer) attracted a valid claim for privilege by the appellant, notwithstanding that the original documents from which the copies were made were not themselves privileged. While the judge did not feel the matter "free from doubt", he considered that the disclosure of the documents "may tend to disclose a communication which could properly be the subject of a claim for legal professional privilege", and so upheld the claim.

That ruling upholding the claim of privilege, by reference to the nature of the documents, is the subject of a separate appeal (No 9424 of 1996) brought before this same Court by the present respondents: Interchase Corporation Limited (in liq.) v. Grosvenor Hill (Queensland) Pty. Ltd. (No.1) [1998] 2 Qd.R. 000. In that appeal, I have had the advantage of reading the reasons for judgment of Mr Justice Pincus. I agree with those reasons, and with the orders his Honour there proposes.

It follows that the disposal of this appeal should not result in disturbance to the order for further and better disclosure made by the learned judge in this matter, because the disclosure made to date has been made on the erroneous basis that the documents categorized above were rightly privileged against production. In the current matter, the judge expressed his view that at least some of the documents marked B and C would "touch and concern the content of the (relevant) valuation reports": there was no challenge before us to that observation, and it is plainly right. Consistently with the outcome of the appeal No. 9424 of 1996, this appeal should therefore be dismissed, with the consequence that the orders already made in this matter for further disclosure should stand.

But since the sufficiency of the identification point was fully argued before us, and a further affidavit must be filed, it is important - notwithstanding that the outcome of this appeal is virtually dictated by the result on other grounds in the appeal 9424 of 1996 - that the question of the sufficiency of identification be resolved. I turn to that issue in detail now.

As to the documents marked B, his Honour said that there had been "a failure to categorize (them) or put (them) into separate classes". Of the documents marked C, there was, he said, no intimation of "the nature of the documents or the identity of the 'others' to whom or from whom the documents or correspondence may have passed".

The identification which has been made through the affidavit includes these elements:

a description of the documents including a range of dates applicable to them, the marking of each document with a letter, and the marking of each document with a number.

Is that sufficient? The Rules of Court do not themselves deal with this situation. The provision which might be felt to offer some general guidance is O.35 r.10(1), which requires that where disclosure is effected by the production of documents, the documents must be "identified in a way that enables particular documents to be retrieved readily on later occasions". But that rule is not applicable here, because in this case the privilege against production is being claimed. There is nevertheless a generally recognized requirement that documents in respect of which such privilege is claimed must be identified properly. It is important to acknowledge the purpose of that identification, because the purpose bears upon the extent of identification required.

The learned judge proceeded on the basis that the purpose of the identification was to facilitate an examination by the other party, the recipient of the affidavit of disclosure, of the validity of the claim of privilege. His Honour said:

"To the extent that the 'others than Interchase' may include experts whose reports are not privileged from disclosure and that the correspondence between Interchase's legal advisers and those experts may contain instructions to which regard was had by the experts in preparing reports which are disclosable it is impossible to consider from the content of the affidavit whether or not on its face the claim for privilege has been properly made.

In my view the failure to clarify with more particularity each of the documents or at least each of the categories into which the document presumably may be placed to enable the defendants to consider whether objectively it is arguable that privilege has been wrongly claimed in respect of some of them in my view highlights the deficiency in the affidavit.

... the description used prevents the defendants from giving any consideration to whether privilege has been properly claimed. ...

In my view apart from the omission to depose to the confidentiality of documents referred to in para.2(ii)and 2(iii) of the affidavit both those paragraphs of the affidavit are seriously deficient in failing to sufficiently identify the documents involved to enable the defendants to consider objectively whether it is arguable that the claim for privilege is baseless." (my underlining)

I respectfully disagree with that approach. In my opinion, the more appropriate assumption is that a claim of privilege, if taken in proper form, is duly taken, that is, honestly and accurately taken, so that further scrutiny by the other party should not be necessary. Consistently, O.35 r.6(2) requires that an affidavit claiming privilege be made "by an individual knowing the facts giving rise to the claim". One difficulty about requiring any indication of the nature of the document, beyond the sworn assertion of the general ground of privilege, is that the further identification could involve a degree of disclosure which could detract from the very privilege against production being claimed. To my mind, the identification will be sufficient if it will facilitate the production of a particular document for which the privilege has been claimed, in the event, for example, of a cesser of the privilege (through, for example, publication dehors the proceedings) or should the court order production upon a ruling that the privilege does not in fact attach. The manner of identification adopted here would allow for retrieval in such circumstances.

There is a considerable body of authority supporting that approach. One may start with Taylor v Batten (1878) 4 QBD 85 where the Court of Appeal upheld the sufficiency of a further affidavit claiming privilege which identified the documents in this way:

"The documents referred to in paragraph 2 of my former affidavit are numbered 50 to 76 inclusive, and are tied up in a bundle marked with the letter A and initialed by me."

"We must remember that the plaintiff is bound to take the affidavit as true, unless it can be shewn that there is some reason on the face of it why it cannot be relied on. The affidavit is sufficient if the documents are sufficiently identified. But it is said that the plaintiffs are entitled to be put in such a position as to test the truth of the affidavit by the description of the documents. That, however, is, in our opinion, erroneous. The only object of the affidavit is to enable the Court to order the documents to be produced, if it think fit to make an order to that effect."

A later Court of Appeal followed Taylor v Batten, in Budden v Wilkinson [1893] 2 QB 432, Lindley LJ saying (436-7):

"The question which arises therefore, is what is it necessary to set out in an affidavit of documents to make it sufficient, and upon that particular point the case of Taylor v Batten is conclusive ... the principle of it is enunciated in two or three lines, ... 'The principle of our decision is that the object of the affidavit is to enable the Court to make an order for the production of the documents mentioned in it if the Court think fit so to do, and that a description of the documents which enables production, if ordered, to be enforced, is sufficient.' Now, here the affidavit states that there are certain documents, which it describes so that they are capable of being identified - they are tied up in a bundle marked A, which is initialled by the deponent Budden, and the documents inclosed in that bundle are numbered 1 to 26 inclusive. You want nothing more to identify those documents, or to enable the Court to order them to be produced, and to enforce the order if it is right so to do."

The Tasmanian Full Court followed Taylor v Batten in Lazenby v Zammit [1987] Tas R 54, Green CJ and Wright J saying (56):

"At the hearing of this appeal it was submitted that the appellants were entitled to such a description as would enable them to form a prima facie view as to the correctness of the respondent's claim of privilege in respect of these documents. In our opinion, this proposition, although supported by the decision of the Full Court of South Australia in Kadlunga v Electricity Trust (1986) 39 SASR 410, goes too far as it seems to be an unauthorised gloss upon the plain language of O.33, r.16(1)."

Williams J of this Court referred to Kadlunga in Braegrove Pty Ltd v Bendeich [1993] 2 Qd R 239. In Kadlunga, White J had said, with the concurrence of other members of the Full Court, that "what is required in properly describing discovered documents will vary from case to case depending on the nature of the document and the particular ground of privilege claimed". That is clear enough, but the judge went on to say that unless "the date of the document is disclosed, there is virtually no way of testing whether it could reasonably come within the relevant limb of legal professional privilege". In Braegrove, Williams J pointed to tension between that observation and what Cotton LJ said in Gardner v Irvin (1878) LR 4 Ex.D 49, 54:

"... the plaintiffs are not entitled to have the dates of the letters and such other particulars of the correspondence as may enable them to discover indirectly the contents of the letters, and thus to cause the defendants to furnish evidence against themselves in this action."

Williams J (242) expressed this conclusion, with which I agree:

"Insofar as the reasoning of White J. goes so far as to say that the opposite party is entitled to such a description that would enable it to form a prima facie view as to the correctness of the claim of privilege then it ought not be followed; in that regard the decision in Taylor v Batten is to be preferred."

In view of that substantial body of authority, with which I respectfully agree, the manner of identification used in this case was perfectly adequate, and should not have led to the order made. However for reasons already explained, the orders made by the learned judge should nevertheless stand. The appeal should be dismissed.

As to costs, while the appellant has succeeded on the major point in this appeal, it has in the end failed because of the outcome of the other, in which it must bear the costs. The reasonable course therefore is for the court to make no order as to costs in this appeal.