[1999] HCA 66
Towney v Minister for Land and Water Conservation (NSW) [1997] FCA 656
Source
Original judgment source is linked above.
Catchwords
[1999] HCA 66
Towney v Minister for Land and Water Conservation (NSW) [1997] FCA 656
Judgment (2 paragraphs)
[1]
REVISED EX TEMPORE Judgment
The plaintiff seeks access to a number of photographs and videos in the possession of the defendants. The issue arises in the context of a subpoena served on the defendants on behalf of the plaintiff, Mr Monteleone, seeking production of certain documents. It is not necessary to say anything further about the background to the subpoena other than to say that the defendants produced to the Court photographs and videos in their possession but claim client legal privilege in respect of the photographs and videos.
When the matter was first agitated before me on Day 4 of the hearing, I directed that the solicitors for the defendants provide a list identifying all of the documents on which privilege is claimed.
During the further hearing of argument, I received an affidavit of Amanda Bond dated 20 November 2020 which sets out and describes all of the photographs and videos over which privilege is claimed. The defendants maintain that they are entitled to maintain the claim of privilege, having regard to s 119 of the Evidence Act 1995 (NSW), in the sense that production of the photographs and videos would result in disclosure of the contents of confidential documents prepared for the dominant purpose of the defendants being provided with professional legal services relating to these proceedings.
According to Ms Bond, the photographs and videos over which privilege is claimed were prepared on 23 February 2018 but at two different times.
On 23 February 2018, Ms Bond attended at a "view" of the premises and a truck and trailer of a similar type said to have been involved in this accident. Present at the view were Mr Darryn Kelly of counsel and representatives of the plaintiffs, as well as the plaintiff, Mr Andrew Kelly, and the first defendant, Mr Thorn.
Ms Bond says that during that day she took a series of photographs and videos. Firstly, she says that prior to the view, she met with her counsel and the defendant in conference, during which time she took 26 photographs and 8 videos on her mobile phone. She then says that whilst the inspection of the trailer and scene was taking place, she took a further 52 photographs and 5 videos.
Privilege is claimed in respect of both the photographs and videos taken during the conference with counsel and the defendant (that conference did not take place at the scene of the accident and did not take place whilst representatives of the plaintiffs were present). Privilege is also claimed in respect of the photographs and videos taken at the scene of the accident whilst the representatives of the plaintiff and the plaintiffs were present.
Mr Adam of counsel on behalf of the plaintiff, Mr Monteleone, submits that:
1. the photographs and videos are not privileged;
2. there has been a waiver of privilege, having regard to s 122 of the Evidence Act; and
3. section 126 of the Evidence Act applies, in that the documents to which access is sought are related communications and documents that should be produced as this is reasonably necessary to enable a proper understanding of the communication or documents which have been produced.
In this regard, it is important to observe that this application is made on Day 4 of the hearing after the plaintiff has been cross-examined with reference to a number of photographs taken by Ms Bond on 23 February 2018 and with reference to one video taken by Ms Bond on 23 February 2018.
The plaintiffs submit that the defendants should be required to produce for inspection by the plaintiff all of the videos and photographs because:
1. the defendants have "selectively" sought to rely only on some; and
2. at least the photographs taken by Ms Bond in the presence of the representatives of the plaintiff were taken in the presence of persons such as the plaintiffs and their legal representatives and therefore they could not be classed as privileged documents.
Part 3.10 Division 1 of the Evidence Act contains the provisions relating to client legal privilege and loss of privilege. Each of the relevant provisions refer to a "document" or "documents". "Document" is defined in the Dictionary to mean "any record of information" and includes, relevantly, "anything from which sounds, images or writings can be reproduced with or without the aid of anything else, or a map, plan, drawing or photograph".
In my view, each of the photographs is a separate document for the purposes of the relevant privilege provisions. Further, each of the videos is a separate document for the purposes of the relevant provisions.
I will deal firstly with the photographs and videos referred to in para 5 of Ms Bond's affidavit, being the photographs and videos taken during her conference with counsel and the first defendant, Mr Thorn.
Plainly, those photographs and videos were prepared by the solicitor for the defendants for the purposes of these proceedings. In my view the defendant is entitled to maintain his claim of privilege in respect to those documents.
So far as the second category of photographs and videos are concerned, the plaintiff submits that as the photographs and videos were taken as part of an agreed view and inspection of the scene, and as they were taken whilst all persons were present, then no privilege could attach to those photographs and videos.
It is significant that there was no agreement between the parties that one person would take video or photographs on behalf of all parties. Ms Bond was not asked by the representatives of the plaintiffs to take videos and photographs of that which was occurring so that there was some record for the benefit of all parties. She took film and photographs for the purposes of this litigation.
The fact that other persons might have been within earshot or sight while she was doing so does not mean that the film and videos are not privileged. By analogy, if Ms Bond had made notes of things that were happening and being said at the view, it could hardly be suggested that those notes and documents would not be privileged.
Therefore, I accept that the documents, being the photographs and videos taken by Ms Bond during the view on 23 February 2018, are privileged documents.
The next question is whether there has been a waiver of privilege or whether the plaintiffs might be granted access having regard to s 126 of the Evidence Act. Mr Adam directs my attention to those well-known cases dealing with fairness and inconsistency in terms of reliance on certain documents and not others such as Mann v Carnell. [1]
In particular, Mr Adam directs my attention to what was said by Sackville J in Towney v Minister for Land and Water Conservation (NSW). [2]
The difficulty for the plaintiff in seeking to challenge the claim for privilege is that each of the photographs constitutes a separate document. In my view, the use of one document, either a photograph or film, does not have the effect of waiving privilege on all the other separate films and videos. The fact that these documents have been prepared through modern technology, such as an iPhone and stored on an iPhone, does not alter the proposition that they are separate documents prepared for the purposes of this litigation and privileged.
In my view, there has not been a waiver of privilege over all of the photographs and videos merely because the defendant has sought to rely on only one, two, three or more.
That only leaves the submission made by Mr Adam with reference to s 126 of the Evidence Act. Section 126 provides:
126 Loss of client legal privilege: related communications and documents
If, because of the application of section 121, 122, 123, 124 or 125, this Division does not prevent the adducing of evidence of a communication or the contents of a document, those sections do not prevent the adducing of evidence of another communication or document if it is reasonably necessary to enable a proper understanding of the communication or document.
I understand that the substance of Mr Adam's submission is that I should accept that in order to properly understand the limited photographs and video on which the defendants have relied, the other videos and photographs should be made available for inspection.
It is apparent that the defendant has in its possession a large number of photographs and videos taken on the day of the view. It is a matter for them whether they wish to rely on them or waive privilege on them. No doubt I will hear submissions about all of that during closing argument but the plaintiffs have not established that they must be able to see the other photographs and videos to enable a proper understanding of the photographs and video in evidence.
Whilst Mr McCulloch has often remarked that no-one has prepared a diagram in this case, and whilst I observe that the photographic evidence relied upon is extremely limited, that is the choice of the parties. In my view, each of the photographs and video relied upon by the defendants is quite capable of being understood according to what they depict. Certainly, they do not depict a lot of things about which there might have been evidence but that is not the test under s 126. They depict what they show and, in those circumstances, I am not satisfied that production of the other videos and documents is reasonably necessary to enable the proper understanding of the photographs and video relied upon by the defendant.
In the circumstances, I am satisfied that the documents remain privileged.
[2]
Endnotes
(1999) 201 CLR 1; [1999] HCA 66 at [29].
[1997] FCA 656; 147 ALR 402.
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Decision last updated: 19 February 2021