MACDONALD -v- CSR PTY LTD [2025] WASC 532 | Case summary

Supreme Court of WA|2025-12-11|Before: Palmer J

(These reasons were delivered extemporaneously and have been edited to correct matters of grammar and infelicity of expression)

This is an application made by the plaintiff (Mr MacDonald) to set aside a subpoena issued by the ninth defendant on 18 September 2025, to the Asbestos Diseases Society of Australia (ADSA), insofar as it relates to three letters of advice to Mr MacDonald from his former solicitors Slater & Gordon (the Letters), produced in response to the subpoena.
ADSA produced two of the Letters to the court pursuant to the subpoena, but objected to producing them on the basis that they were subject to legal professional privilege. Given the objection made, orders were made that no one other than Mr MacDonald's lawyer could inspect the Letters.
Mr MacDonald's lawyer (Ms O'Keefe) subsequently inspected those two Letters and it was following that inspection that Mr MacDonald made the present application. Ms O'Keefe has sworn an affidavit in support of the application deposing to Mr MacDonald's claim of privilege and the circumstances in which it arises.
Mr MacDonald has also filed an affidavit of Ms Melita Markey, the chief executive officer of ASDA, upon which he also relies in support of his application.
In addition, Ms Markey attended court this afternoon and gave evidence in the witness box.

Mr MacDonald has applied to set aside the subpoena pursuant to Order 36B rule 8A of the Rules of the Supreme Court 1971 (WA). Order 36B rule 8A(2) provides that on the request of an addressee or a party, the court may set aside a subpoena, or part of it.
That a document is subject to legal professional privilege has been recognised as a legitimate basis to object to the inspection of documents that have been produced under a subpoena: see for example Spotless Group Ltd v Premier Building and Consulting Group Pty Ltd [2006] VSCA 201; (2006) 16 VR 1 (Spotless).
It has been observed that instead of setting aside the whole subpoena on the basis that some documents may be covered by privilege, the court my protect the rights of strangers or parties at the inspection stage after production: Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corp Ltd [1984] 1 NSWLR 710 (Southern Pacific) at 715.

Why Mr MacDonald claims that the Letters are privileged

Ms O'Keefe deposes to reviewing the Letters and to the fact that those Letters record legal advice given to Mr MacDonald in respect of a lung cancer diagnosis that he received in 2012. Further, she deposes that Mr MacDonald told her that he did not know that the Letters had been provided to ADSA, and that he therefore did not waive legal professional privilege over those documents.
Ms Markey deposes that she has been the chief executive officer of ADSA since approximately 2021. She explains that ADSA was founded in 1979 by her parents, and is Australia's leading health and advocacy association assisting persons exposed to asbestos or silica dust. She says that it now has approximately 7,000 members.
Ms Markey deposes that ADSA provides services to support and guide persons exposed to asbestos and silica dust through the medical treatment and legal processes. She says that ADSA's services are provided to victims of asbestos diseases on a confidential basis.
Ms Markey says that in or about February 2025 she met with Mr MacDonald for the purpose of him seeking some confidential advice from her. She recalls that during that meeting, he showed her one of the Letters but that a hard copy was not retained. A copy does appear to have been emailed by ADSA to Mr MacDonald's current solicitors, however.
Ms Markey also gave evidence in court today that before she was employed as the chief executive officer of ADSA, she was its chief operating officer. She gave evidence about the services that ADSA provides to its clients, and about its record keeping. As chief operating officer, her responsibilities extended to managing ADSA's records.
Ms Markey gave evidence that each of ADSA's clients had files which were kept in filing cabinets. Ultimately, as part of her role as chief operating officer, she had the hard copy files digitised and stored electronically. She gave evidence that the files maintained by ADSA included people's medical records.
Ms Markey also gave evidence about the circumstances in which it might be that legal advice might be found in these files. She explained that ADSA's services included it working with solicitors, and on occasion, it would receive correspondence from solicitors in the context of its relationship with those solicitors. She also referred to the completion of authorities by clients either to lawyers or to medical practitioners.
Mr MacDonald submits that the Letters were subject to legal professional privilege as they were created for the dominant purpose of providing him with legal advice. It is on that basis that it is argued that the Letters are privileged, and that the subpoena should be set aside.
Mr MacDonald submits that any privilege over the documents has not been waived and that any disclosure of a privileged document to a non-party to the proceedings is not waiver if the document is disclosed on condition that the recipient treats the document as confidential. He submits that he has not acted in a manner inconsistent with the maintenance of privilege and therefore the Letters remain privileged.

When legal professional privilege will be established

The general principle is that the party claiming privilege has the onus of establishing the facts on which the privilege is based. Mere assertion of the claim is not enough. What is required is exposure of facts from which an informed decision can be made as to whether the claim for privilege is supportable: Energy Resources Ltd v Cactus Wellhead Australia Pty Ltd [No 3] [2025] WASC 100 [89] (Lundberg J) and CMA Assets Pty Ltd v John Holland Pty Ltd [No 2] [2012] WASC 126, [23] (Allanson J).
Whilst the ultimate legal onus remains on the party claiming privilege, an evidential onus may be cast upon the party seeking inspection if the claim for privilege is 'apparently proper': Carey v Korda [2012] WASCA 228; (2012) 45 WAR 181 (Carey) [70]; CTC Resources NL v Australian Stock Exchange Ltd [2000] WASCA 19; (2000) 22 WAR 48 at [33] - [34].
What is required for the purposes of establishing a privilege claim, will vary depending on the nature of the document and the particular ground on which privilege is claimed: Carey [71].
The present case concerns copies of legal advice in the hands of a third party. In ASIC v Lindberg [2009] VSCA 234; (2009) 25 VR 398 (Lindberg) [51] Mandie JA (with whom the other members of the court agreed) observed:

... once such documents come into the possession of another party, the privilege is lost or cannot be asserted except in the context of a claim in equity to protect confidentiality'.

In the footnote to paragraph [51] in Lindberg, Mandie JA observed that the position might be different if the documents were disclosed on a confidential basis and he referred to Spotless.
That case concerned a subpoena issued to third parties which returned summaries of legal advice that had been provided to a bank that was financing litigation, finance brokers, and a business and communications strategist.
Chernov JA (with whom Warren CJ agreed) at [28] - [29] considered that there was no inconsistency with the maintenance of privilege in the advice being communicated on a confidential basis to secure funds to enable it to pursue the litigation.
Further, Chernov JA (with whom Warren CJ agreed) at [30] considered that the confidential provision of documents to the business and communications strategist did not result in an implied waiver because there was no inconsistency between the provision of the documents for a limited and specific purpose and insisting on their privilege.
I respectfully agree with the reasoning of Mandie JA in Lindberg and Chernov JA in Spotless. Applying that reasoning to the present position, if the Letters were subject to legal professional privilege, their communication to ADSA on a confidential basis for the specific purpose of ADSA providing advice, would not result in any waiver of privilege.
The real question in this case is whether or not there is sufficient evidence to conclude, one way or another, how or why these documents were provided to ADSA.
At least in relation to the most recent letter, Ms Markey is able to provide direct evidence from which it is clear how that letter came into ADSA's possession. It appears likely on the basis of Ms Markey's evidence that a copy of that document would have been provided when she saw Mr MacDonald. I am satisfied on the basis of Ms Markey's evidence that that document at least is subject to legal professional privilege. The position in relation to the earlier letters, however, is less clear. Ms Markey is not able to give direct evidence about the circumstances in which those documents came into ADSA's possession. Instead, it is left to the court to draw inferences. I should say in that regard, I do not in any way mean to criticise Ms Markey by saying that. When a significant amount of time has passed, it is often difficult for people to recall precisely how documents came into the possession of an organisation.
What the court does have before it, however, is the evidence from Ms Markey which goes to the nature of the work done by ADSA. It is evident from that evidence that ADSA provides advice to clients and maintains files for its clients to assist ADSA in performing that function.
There was also evidence from Ms Markey that in some circumstances, ADSA would be provided with legal advice from lawyers who it worked with, and that that advice was provided in the context of ADSA providing services to its clients. Further, there was evidence from Ms Markey that ADSA was mindful of its obligations under the Privacy Act 1988 (Cth), and at all times, kept confidential information which was provided to it, and stored it in its record keeping systems.
It seems to me that it is possible to draw from these matters an inference that the documents were provided to ADSA in the context of ADSA providing advice to Mr MacDonald. Against that, however, must be weighed the absence of completed authorities by Mr MacDonald. As Mr Taylor (counsel for the ninth defendant) rightly submitted, one would have expected such authorities to have been completed if it was the case that Mr MacDonald was one of ADSA's clients.
On an assessment of all of the evidence, however, I am satisfied that it may be inferred from Ms Markey's evidence that the earlier two Letters were provided to ADSA in the context of it providing advice to Mr MacDonald. Further, on the basis of Ms Markey's evidence that ADSA maintained confidentiality of the records that it retained, I am satisfied that those documents were provided for a specific purpose, and that confidentiality has been maintained in relation to those documents.
Given these conclusions, it seems to me that all of the Letters remain subject to legal professional privilege. In my view, the present circumstances are akin to those considered in Spotless.
I do not consider, however that it is necessary to set aside the subpoena, given that ADSA has already complied with it. Rather, I am inclined to think that the appropriate course is that I order that Mr MacDonald be entitled to uplift the copies of the Letters provided to the Supreme Court but if either party has a concern about such orders, I will hear from them.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

MACDONALD -v- CSR PTY LTD [2025] WASC 532 (11 December 2025)

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