Levy v Bablis

Whether documents privileged 14In my opinion, Mr Levy's submission that the documents were not privileged cannot succeed in respect of the documents identified in categories 4 and 10. They were communications between legal advisers or between legal advisers and Sherwood in respect of the subject matter of MacGillivrays' retainer. 15As to the balance of the documents (other than draft documents), Sherwood submitted that, in accordance with the principle in Commissioner Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; 188 CLR 501, the documents were copy documents submitted to legal advisers for legal advice and thus were privileged, notwithstanding that the original of the document was not privileged. 16Propend was concerned with a claim for legal professional privilege relating to documents obtained pursuant to the execution of a search warrant under the Crimes Act 1914 (Cth) s 10. Nonetheless, the Court's reasons, which must be read subject to the now governing "dominant purpose" rule of legal professional privilege, applied to claims for privilege generally. In this regard, Brennan CJ said, at 509: "Authority and principle thus combine to establish that, prima facie, copies of non-privileged documents are privileged if the copies are brought into existence solely for the purpose of obtaining or giving legal advice or solely for use in litigation that is pending, intended or reasonably apprehended." 17Mr Levy argued that the doctrine of legal professional privilege in Propend attached to communications and not to documents, so that the principle did not apply in this case. Whilst as a general statement it is correct to say that the privilege attached to communications, that begs the question as to what constitutes a communication. This was dealt with by Gaudron J and McHugh J in Propend in the following passages. 18Gaudron J pointed out, at 543: "... a document which is brought into existence solely for the purpose of obtaining legal advice or solely for use in litigation and which is then provided to a lawyer for that purpose is, itself, a communication with the lawyer and, in accordance with the decision of this Court in Grant v Downs, a privileged communication." (citation omitted) 19McHugh J stated, at 553: "Part of a protected communication may even be a document that was created for a non-privileged purpose but which has been given to, and is in the custody of, a lawyer for the purpose of obtaining legal advice or for confidential use in litigation. As Mason J, with whose judgment Barwick CJ, Stephen, Jacobs and Aickin JJ agreed, pointed out in National Employers' Mutual General Insurance Association Ltd v Waind, '[d]ocuments submitted by the client to his solicitors for advice or for use in anticipated litigation attract the privilege'." (citation omitted) 20On Mr Collett's evidence, they were documents provided to MacGillivrays for the purpose of obtaining legal advice or assistance. I note only that Mr Collett's evidence has not been subject to cross-examination. In my opinion, if the documents in MacGillivrays' possession that fell within the terms of the subpoena were copies, those documents are privileged. 21Mr Condon did not assert that the documents in MacGillivrays' possession were privileged if they were original documents. This is of importance, as the subpoena sought production of original documents and if the originals were not available, copies of the specified documents. However, at the time that MacGillivrays produced the documents pursuant to the subpoena, they advised the Registrar by letter that they had not ever had possession of the original documents. Accordingly, on the basis that the documents in MacGillivrays' possession were copy documents, provided to or produced by them in the circumstances to which Mr Collett deposed in his affidavit, I find that those documents are privileged in accordance with the principle in Propend. 22Neither party directed any submission to the draft documents that were produced. Mr Collett deposed that those documents were created by MacGillivrays for Sherwood on Sherwood's instructions. Those documents, in my opinion, are privileged on the usual principles that govern legal professional privilege.

Was the privilege waived? 23Mr Levy contended that even if documents are privileged, privilege has been waived. This argument can be disposed of briefly, although it requires an understanding of what occurred in respect of an earlier subpoena to a different firm of solicitors, Hardings Lawyers, for the production of documents in its possession relating to Sherwood. 24During the course of the proceedings before the trial judge, Mr Levy caused a subpoena to issue to Hardings Lawyers, the solicitors who were retained on behalf of Sherwood in 2002-2003. Sherwood claimed privilege in respect of those documents (the Harding documents). In an affidavit filed 28 July 2009, Mr Huston, who was then a director of Sherwood, claimed privilege for the Hardings documents on the basis that they were communications between Hardings Lawyers, Swiss and Polish lawyers, Mr Huston, Mr Bablis, Mr Black, and Mr Collett concerning the recovery of funds by Sherwood in Switzerland. The documents for which privilege was claimed were listed in Schedule A to Mr Huston's affidavit. 25The privilege claim was heard by the trial judge on 27 July 2009. Mr Condon of counsel appeared on the return of the subpoena, having inspected the documents for which privilege was claimed. 26The claim for privilege was again before his Honour on 29 July 2009. On that occasion, Mr Condon informed the court that whilst Mr Bablis was a former director of Sherwood, he had resigned as a director of that company on 15 July 2009. Mr Condon informed the trial judge that he was therefore not in a position to appear on the return of the subpoena and that his client had no interest in the claim for privilege, which was the privilege of Sherwood. 27There was then independent representation for Sherwood and the claim for privilege was maintained in respect of the documents that remained in contention. By that stage, the claim for production of documents had been reduced to two documents, identified as documents 28 and 33 in the Schedule. The trial judge inspected both documents. His Honour described the documents as being communications between solicitors acting on behalf of Sherwood and foreign solicitors giving advice to Sherwood about legal proceedings. 28His Honour observed that the advice was about the legal effect of documents that included public documents or documents likely to be found on the website of a foreign country. Nonetheless, his Honour considered that advice about such documents would still be confidential communications that attracted client privilege. Accordingly, his Honour upheld the claim for privilege of the two documents in question. 29As I have said, the subpoena under consideration on this application was issued to MacGillivrays, who were retained by Sherwood in 2003 to advise it and act on its behalf to recover funds in Switzerland. 30Mr Levy contended that the Hardings documents were the same documents for which privilege was claimed by MacGillivrays and that those documents had been inspected by a third party, namely, Mr Bablis, Mr Bablis not being a director of Sherwood at the time his counsel inspected the documents. 31An inspection of Schedule A listing the Hardings documents reveals that there is no commonality between those documents and the documents referred to in Schedule A to Mr Collett's affidavit. The waiver argument must therefore fail. It is unnecessary to consider, therefore, whether the inspection occurred through mistake and if so, whether privilege was thereby waived: see Mann v Carnell [1999] HCA 66; 201 CLR 1.

Conclusion 32Accordingly, I uphold the claim for privilege in respect of the documents produced pursuant to subpoena dated 2 September 2011 addressed to MacGillivrays and order that the appellant Mr Levy not have access to those documents.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 May 2012