Court of Appeal (Vic)|2011-08-19|Before: Mr P, Robson J, Forrest J, Before Robson J, Warren CJ, Nettle JA, Tate JA

Powercor Australia Ltd v Perry & Anor [2011] VSCA 239 (19 August 2011)

1 On 10 August 2011, the court heard argument in support of the applicant's application for leave to appeal against the order of Robson J, made on 4 July 2011, that the applicant grant the respondents inspection of the following four reports:

Report of Donald Bainbridge entitled 'Asset Failure Investigation Tie Wire Coleraine SWER' dated 10 March 2009 amended 24 June 2009;

Report of Robin Hartrick (Trak Investigations) entitled 'Fire Investigation Report Coleraine Fire 7th February 2009' (incorporating transcript of a report by Dennis Clarke);

Supplementary Report of Dennis Clarke (Consulting & Power Pty Ltd) entitled 'Additional Calculations on Effect of Unbalanced Span Lengths on Tie Behaviour';

Draft Report of Ken Woolhouse (Woolhouse & Associates), entitled 'Failed SWER Line Tie', dated 22 July 2009.

2 The first three reports were commissioned by the applicant's in-house legal officer, Ms Rands (we shall refer to them collectively as the 'Rands Reports'), and the fourth was commissioned by a firm of solicitors retained by the applicant, Messrs Wotton & Kearney (we shall refer to it as the 'W & K Report').

3 At the conclusion of the applicant's oral argument, after we had conferred, we dismissed the application for reasons which, we said then, would later be published. These are those reasons.

4 The Coleraine Bushfire class action was commenced on 13 March 2009.

5 The Coleraine Bushfire class action has been set down for trial on 16 April 2012. The Horsham Bushfire class action has been set down for trial on 5 September 2011. The Pomborneit Bushfire class action has been set down for trial on 6 February 2012.

6 On 14 April 2011, Messrs Maddens, solicitors for the respondents, filed a summons seeking production of the Rands Reports and the W&K Report.

7 On 3 May 2011, Vincent James Power swore an affidavit of documents on behalf of the applicant in the Coleraine Bushfire class action. In that affidavit of documents he asserted legal professional privilege over the Rands Reports .

8 By order of Forrest J made on 13 May 2011, the summons filed 14 April 2011 was dismissed and the applicant was ordered to make, file and serve a further supplementary affidavit of documents.

9 On 10 June 2011, the applicant filed and served a further supplementary affidavit of documents.

10 On 16 June 2011, the respondents filed and served a summons seeking production of the Rands Reports and the W&K Report and costs.

11 In support of its summons filed 16 June 2011, the respondents relied on the affidavits of:

John Francis Madden sworn 11 May 2011, 13 May 2011 and 20 June 2011; and
Justin Serong sworn 22 June 2011.

Kaye Frances Rands sworn 10 February 2011 and 28 April 2011;
Vincent James Power sworn 3 May 2011and 10 June 2011 (Powercor seek leave to produce a copy of the affidavit sworn 10 June 2011 - see reply submissions at para.[6]).

Robin Maurice Shute sworn 6 May 2011, 12 May 2011 and 22 June 2011.

13 The Respondents' summons was heard before Robson J on 24 June 2011.

On the respondents' claim for inspection, the reports referred to in paragraphs 3(c), (d), (e) and (f) of the summons of 14 April 2011 [sic. 16 June 2011] be produced to the respondents for inspection.
The respondents' costs including any reserved costs, be paid by the applicant.

The orders be stayed for fourteen (14) days.[1]

15 Before Robson J, the parties were in agreement as to the applicable legal principles. It was also common ground that the Rands Reports and the W&K Report were commissioned and provided to the applicant at a time when the legal proceedings against the applicant were anticipated by it. The only issue[2] which the judge needed to determine, therefore, was whether or not the Rands Reports and the W&K Report were confidential documents prepared for the dominant purpose of the applicant's lawyers providing legal advice to the applicant or for the applicant being provided with professional legal services relating to an anticipated Australian proceeding.[3]

16 His Honour rejected the applicant's claim. He held that he was not satisfied that the dominant purpose of the applicant in obtaining the reports was a privileged purpose.

17 Dealing first with the Rands Reports, the judge found that there were many different purposes for which the applicant needed or was likely to need them, only some of which were privileged purposes, and that the applicant had failed to satisfy him on the balance of probabilities that the applicant's dominant purpose in obtaining the documents was a privileged purpose. His Honour said that:[4]

I infer as a fact that the disputed reports were and were intended to be the source of information that Powercor used and intended to use for its normal business purposes including: obtaining legal advice; providing information to the Royal Commission; providing information to the regulator under the Electricity Safety Act 1998; providing information to the Coroner, if need be; providing information to its insurer; providing information for its internal Powercor Asset Failure Reporting & Investigation procedure; and in reviewing its maintenance program and the continued use of the type of equipment that failed at Coleraine. As I have indicated, no evidence was led by Powercor to the contrary.

THE FAILURE TO CALL THE CHIEF EXECUTIVE OFFICER

The failure of the CEO to give evidence was not explained. I assume that the CEO at the time was Mr Shane Breheny who also prepared a witness statement for the Royal Commission. There was no suggestion that he was not available to give evidence by affidavit of otherwise. He instructed Ms Rands to carry out the investigation which was likely to involve her obtaining information from experts. I can only infer what his purposes were in obtaining the report. His failure to give evidence in circumstances where it is central to the establishment of the privilege does give rise to the inference that his evidence would not have assisted Powercor's claim to privilege. As has been discussed, the plaintiffs seek to draw the inferences from the evidence that Powercor needed the information for multiple purposes and that legal advice from Ms Rands was not the dominant purpose. As the CEO failed to give evidence to rebut those inferences, the court is entitled to more readily draw those inferences.[5]

I find that there were multiple purposes for which the information in the reports were to be used. I accept an important one was to give legal advice to Powercor and to use it in the anticipated legal proceedings in giving privileged advice about the Royal Commission. Nevertheless, Powercor bears the onus of establishing that the privileged purpose was the dominant purpose.[6]

I find that Powercor has not done that. Powercor led no evidence on its internal procedures that would have required or made use of the information in the reports. The court can only imply that the requirement for the

information would have been legally necessary and important to the operations of Powercor's business.

Powercor failed to produce evidence of the CEO or explain the requirements Powercor had for the information other than for legal advice. It failed to explain its legal obligations of reporting under the Electricity Safety Act 1998, WorkCover, the Coroners Act 1985 or the duty of its officers under the Corporations Act 2001 or otherwise at common law to have the information in the reports to carry out their duties whether legal or otherwise. Powercor failed to explain the variety of uses to which the information would be put and why it was needed.

Having regard merely to the duties placed on officers under the Corporations Act 2001 and in particular their duty to exercise their powers with care and diligence,[7] the officers of Powercor were probably bound to find out what happened and the role Powercor's assets played in the Coleraine fire so that they could take proper steps to carry out their reporting obligations, make claims on their insurers, attend to maintenance issues, and attend to a myriad of other matters in the interests of Powercor. As I have said, Powercor has led no evidence on these matters to establish the privilege claim.

Accordingly, I am not satisfied that the dominant purpose Powercor had in obtaining the disputed reports was for privileged purposes. I find that the reports are not protected by legal professional privilege.

18 As to the W & K Report, the judge said that:[8]

The fourth report was the subject of little evidence. Ms Rands says that she is advised that in June 2009, Wotton & Kearney instructed Ken Woolhouse to prepare a report with respect to the tie wire the subject of the fire at Coleraine. There was no evidence as to the purpose for which the report was obtained. During argument it was not differentiated from the other three reports and Powercor submissions did not seek to support its claim to privilege of this report using any arguments other than those advanced for the other three reports. (Emphasis added).

19 The applicant contends that the judge erred in treating the purpose of the applicant's CEO as a factor of central relevance. Counsel for the applicant argued that, because the Rands Reports were commissioned by the applicant's in-house lawyer, the relevant purpose was her purpose.

20 We reject the contention. As the judge said, where, as here, the purpose in question is the purpose of a corporation, it is necessary to have regard not only to the subjective purpose of the legal officer in question but also to the objectives of the CEO who gave her instructions:[9]

Ordinarily the purpose of preparing the document will be that of the maker of the document. That will not always be the case, as where some other person, such as a solicitor commissioning the provision of a technical report, calls the document into existence. In that case the relevant purpose will not be that of the author but the solicitor.[10] Further, where the document is produced for a corporation it may be necessary to examine the purpose of persons in the corporations hierarchy, other than the author or the person directly commissioning the document, to determine the purpose for which it is brought into existence.

The High Court of Australia has held that it is the purpose of the report and not the motive of the individual who made it that matters.[11] In Esso Australia Resources Ltd v Federal Commissioner of Taxation, Gleeson CJ, Gaudron and Gummow JJ said:

In many cases the reports would result from established corporate or bureaucratic procedures, and the individual who made the report would simply be following instructions. It may be necessary to understand the internal procedures, or the objectives of some person of higher authority, in order to identify the purpose or purposes for which reports were prepared.[12]

The importance of establishing the 'objectives of some person of higher authority,' such as the Chief Executive Officer of Powercor in this case, to identify the purpose or purposes for which the reports were prepared was repeated by Young J in AWB v Cole[13] in a passage that has been cited with approval by our Court of Appeal:[14]

The purpose for which a document is brought into existence is a question of fact that must be determined objectively. Evidence of the intention of the document's maker, or of the person who authorised or procured it, is not necessarily conclusive. It may be necessary to examine the evidence concerning the purpose of other persons involved in the hierarchy of decision-making or consultation that led to the creation of the document and its subsequent communication.[15]

The Court of Appeal in Carter Holt confirmed that a two step approach must be adopted in determining dominant purpose. The first is the ascertainment of the subjective purpose(s) of the person(s) making or commissioning the communication in question. That will depend upon the evidence that is led about that purpose or those purposes. If the Court concludes that there was more than one purpose, at least one of which was a purpose capable of attracting legal professional privilege, the second step is to determine whether the party claiming the privilege has established that the privileged purpose was the dominant purpose. The determination of dominant purpose is a matter for the Court and must be determined objectively.

21 The applicant says in the alternative that, if the CEO's purpose were relevant, the judge was in error in invoking the rule in Jones v Dunkel[16] in relation to the applicant's failure to call the CEO. Counsel for the applicant submitted that the judge ought not to have done so because the respondents did not refer to the rule until the judge made mention of it in the course of oral argument.

22 That point is also without substance. Evidently, the application of Jones v Dunkel was referred to in the course of argument so that it could be dealt with. It cannot be said, therefore, that the applicant was taken by surprise or deprived of the ability to deal with it. Moreover, given that the applicant bore the burden of establishing that the preparation of legal advice was the dominant purpose for which the Rands Reports were commissioned; and that, on the evidence, it was the CEO who directed Ms Rands to commission those reports, the purpose of the CEO was plainly of considerable importance. In those circumstances, the applicant's failure to call the CEO to was bound to be regarded as significant.[17]

23 Counsel for the applicant contended that there was no occasion for the applicant to explain or contradict any issue concerning Ms Rands' evidence, since the respondents did not seek to contradict her testimony that she commissioned the Rands Reports because the CEO asked her to arrange an investigation into the fire in order to give him legal advice on Powercor's overall exposure given the allegations that the source of ignition of the fires had involved Powercor's assets.

24 That argument takes the matter no further. Granted, there was no dispute that Ms Rands' purpose in commissioning the reports was as she stated. But, as has been observed, because the purpose in question was the purpose of a corporation, it was necessary to understand not just Ms Rands' subjective purpose, but also, and in this case more importantly, the objectives of the person at the head of the corporation.[18]

25 Counsel for the applicant submitted that, even if that were so, the only evidence of the purpose of the CEO was the evidence of Ms Rands that the CEO told her to commission the Rands Reports so that she could give him legal advice. Counsel argued that the CEO's direction to Ms Rands was, in effect, a contemporaneous statement of the CEO's state of mind and thus probative of his purpose.

26 The difficulty with that submission, however, is that, although the CEO's statement was admissible as evidence of his state of mind,[19] it was not the only evidence on the point. There was as well a very significant body of evidence, of a multiplicity of purposes to which the Rands Reports were apt to be applied,[20] from which it was open to infer that the CEO's objective in directing Ms Rands to commission the Rands Reports included not just legal advice but also obtaining information for those other purposes. It is true that the CEO did not disclose any such other purpose to Ms Rands. But that was not determinative of the issue. What was determinative was what he had in mind; and, for whatever reason, he was not called to give evidence about it. Well might one suppose, therefore, that whatever he might have been able to say on the subject would not have assisted the applicant's cause.

27 Counsel for the applicant advanced a further argument that, allowing there may have been those other purposes, the most logical and compelling inference was that the reports were commissioned to obtain legal advice as to how to respond or react to those other purposes. More precisely, it was contended that, given the catastrophic environment in which the Rands Reports were commissioned, the array of legal issues which were bound to have confronted the applicant was such that the dominant purpose of commissioning the reports was overwhelmingly likely to be the purpose of getting legal advice on all of those issues. To hold otherwise, it was said, would be to make it all too easy for litigants like the respondents to point to an array of purposes and press that the selection of a dominant purpose is problematical. And to do that, the argument went, would be to diminish legal professional privilege beneath the level of its proper utility and significance.

28 We do not think the argument to be persuasive. At the risk of repetition, the short answer to it is that, where the dominant purpose of the controlling mind of a corporation is in issue, it can ordinarily be established with tolerable clarity by that person giving evidence. If, without good reason, he or she chooses not to do so, rational inferences are open to be drawn.

29 Counsel for the applicant criticised the judge's findings of fact as to the probability that the Rands Reports would be required for purposes other than the provision of legal advice. Focussing first on the judge's finding that one of those purposes was likely to be the provision of information in the form of a Schedule 2 Report pursuant to the Electricity Safety Act 1998, counsel argued that, because the Rands Reports were not available when the Schedule 2 report was filed, it was not open to conclude that one of the purposes of the commissioning the Rands Reports was to provide information in accordance with Schedule 2.

30 We reject the argument. As the judge observed, Ms Rands' evidence was that the CEO gave her instructions to commission the Rands Reports on or about 9 February 2009.[21] At that point, the applicant was under a legal obligation to report on the fire, as soon as possible, by telephone to the Energy Safe Victoria; within two business days thereafter, to provide a Schedule 1 Report; and then within 20 days, to provide a Schedule 2 Report which included details of what action and by whom it had been taken.[22] Consistently with those obligations, the applicant reported by telephone on 8 February 2009 (being the day before the CEO instructed Ms Rands to commission the Rands Reports) and, on 16 February 2009, the applicant submitted its Schedule 2 Report.[23] As of that date, the Rands Reports had not been completed. But, in response to the requirement to state in the Schedule 2 Report the details of action taken and by whom, the applicant stated that 'investigation has commenced'. As the judge said, on the available evidence the only investigation which had then been commenced was the Hartrick Trak Investigations report commissioned by Ms Rands on the CEO's instructions.

31 Counsel for the applicant attacked the judge's finding that it was probable that one of the purposes of the CEO in commissioning the Rands Reports was to provide information which it was known would need to be given to the Bushfires Royal Commission.

32 Perhaps, there is more substance in that criticism. According to the evidence, the Royal Commission was announced on 9 February 2009 (the day the CEO instructed Ms Rands to commission the Rands Reports). Insofar as the existence of the commission was one of the CEO's purposes in directing the commission of the reports, it may be that it was no more than to obtain legal advice as to how to deal with the commission. Further, as counsel argued, the mere fact that the contents of the reports were later used by the applicant as a basis for information to put before the commission is not of itself significant; for the purpose for which a document is brought into existence is to be determined at the time at which it is commissioned and not by reference to purposes to which it may later be applied.[24]

33 That said, however, the judge was aware of the relevant legal principles. His Honour referred to them in his reasons for judgment. The applicant accepts, as it must, that his Honour set them out correctly. Consistently with those principles, it was open to his Honour on the evidence before him to make the finding which he did. It is not necessarily emblematic of error that other conclusions were also open to be drawn.

34 Counsel for the applicant further criticised the judge's finding that it was probable that one of the purposes was to provide information for reporting to individuals within the applicant in accordance with the applicant's asset failure reporting and investigation procedure, and so to facilitate appropriate action in response to the incident which caused the fire. Counsel argued that there was nothing in the evidence to show that the reporting and investigation procedure was in any way connected with the CEO's directive to commission the Rands Reports; and, in those circumstances, that it was an exercise in speculation for the judge to reason that one of the CEO's purposes was to generate information to satisfy the system's requirements.

35 We do not consider that his Honour's reasoning on the point was speculative. The evidence was clear that the system existed. In the scheme of things, it is to be presumed that it was complied with.[25] The only evidence of any reports which could have been used to satisfy its requirements was the evidence of the Rands Reports. That being the state of the evidence, it was open to the judge to infer that it was more likely than not that the CEO had as one of his purposes the satisfaction of those requirements.

36 Counsel for the applicant criticised the judge's finding that it was probable that one of the purposes for commissioning the Rands Reports was to provide information to the applicant's insurers.

37 We see no error in that finding either. Self evidently, the applicant would need to know the facts in order to make a claim. As has been observed, the only evidence of any reports sufficient to inform the applicant of the facts was the evidence of the Rands Reports. In those circumstances, and the absence of the CEO from the witness box, it was open to the judge to draw the inference which he did.

38 Last, with respect to findings of fact, counsel for the applicant criticised the judge's finding that the purposes for which the Rands Reports were commissioned included a purpose of providing information to the Coroner. Counsel argued that it was not until well after the reports were commissioned that it was realised that someone may have died as a result of the fire and, accordingly, at the point when they were commissioned, there was no reason to suppose that there would be a coronial inquiry.

39 That may be correct. If there were no concerns about the possibility of deaths when the reports were commissioned, it is difficult to see how one of the purposes in view in commissioning the reports was providing information to the Coroner. But the point is of little consequence. The findings of fact as to the existence of the other purposes to which the judge referred were open to be made and were sufficient in themselves to conclude that the applicant failed to show, on the balance of probabilities, that its dominant purpose was obtaining legal advice.

40 Finally, counsel for the applicant argued that, whatever may be said about the judge's findings of fact concerning the Rands Reports, it is clear that his Honour erred in treating the W & K Report in the same fashion as the Rands Reports. In counsel's submission, it was clear that Wotton & Kearney were the external solicitors for the applicant; the undisputed evidence was that it was they who commissioned the W & K Report in June 2009; and it was evident from the description of the W & K Report in Schedule 2, Part 1 of the applicant's supplementary affidavit of documents that the purpose of Wotton & Kearney in so commissioning the report was to provide legal advice to the applicant.

41 We reject the argument. As counsel for the applicant frankly conceded, Schedule 2, Part 1 was not in evidence before the judge, and the applicant did not seek to make the point before the judge that the description of the report in Schedule 2, Part 1 demonstrated that the purpose of commissioning the report was as is contended. In the circumstances, it is too late now for the applicant to seek to make the point for the first time on appeal.[26]

42 We should say for completeness that we have spoken several times throughout these reasons in terms of inferences which it was open to the judge to draw. It has been convenient to speak in those terms because it serves to focus attention on the evidence that was available. It is important to keep in mind, however, that the judge determined the application on the basis that it was incumbent on the applicant to persuade him to draw the inference that the applicant's dominant purpose in commissioning the reports was a privileged purpose, and that the applicant failed to do so. His Honour was correct to approach the matter in that fashion. It is also important to keep in mind the background circumstances against which the reports were commissioned.

43 We emphasise the point because, even if it were not open positively to infer that the applicant had a number of purposes in mind, of which the provision of legal advice was not dominant, it would by no means necessarily follow that the judge was in error in concluding that the applicant had failed to discharge the burden of establishing on the balance of probabilities that its dominant purpose was privileged.

44 Either way, we are not satisfied that his Honour's judgment is attended by sufficient doubt, or productive of sufficient injustice, to warrant the grant of leave to appeal.[27]

[1] Later, the stay was extended by agreement to enable this application to be heard before production of the documents.

[2] There was a further question of whether, if the reports were privileged, the privilege had been waived. But, in the event, that became unnecessary to decide.

[3] Evidence Act 2008, ss 118 and 119; [2011] VSC 308 ('Reasons'), [48].

[6] Carter Holt Harvey Wood Products Australia Pty Ltd v Auspine Ltd [2008] VSCA 59, [2].

[10] Sydney Airports Corporation Ltd v Singapore Airlines Ltd & Qantas Airways Ltd [2005] NSWCA 47, [6]-[9] (Spigelman CJ); Mitsubishi Electric Pty Ltd v Victorian Workcover Authority [2002] VSCA 59; (2002) 4 VR 332, 338 [14]. See also Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122, [15]-[16], Finn J citing Barwick CJ in Grant v Downs [1976] HCA 63; (1976) 135 CLR 674, 677; Liquorland (Australia) Pty Ltd v Anghie (No 2) [2003] VSC 160; Commissioner of Taxation v Pratt Holdings [2005] FCA 1247; AWB v Cole [2006] FCA 1234; (2006) 155 FCR 30.

[11] Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49 (Gleeson CJ, Gaudron and Gummow JJ).

[12] [1999] HCA 67; (1999) 201 CLR 49, 66 [39]. Hence, in Waugh v British Railways Board [1979] UKHL 2; [1980] AC 521, 543, the Court directed its attention not so much to the intentions of the British Railway Board officers who prepared the report, but to the Board itself in directing them to prepare it and under whose auspices it was prepared.

[13] AWB Ltd v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30, 45.

[14] Carter Holt Harvey Wood Products Australia Pty Ltd v Auspine Ltd [2008] VSCA 59 (Maxwell P and Redlich JA) (Carter Holt).

[17] Payne v Parker [1976] 1 NSWLR 191, 201-2; Davies v Pyke [2004] VSCA 124; (2004) 10 VR 339, 344 [16].

[18] Carter Holt Harvey Wood Products Australia Pty Ltd v Auspine Ltd [2008] VSCA 59, [3].

[20] Reasons [24]-[40], [57]-[62] and [71]-[74].

[24] Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501, 508 (Brennan CJ).

[25] Omnia praesumuntur rite solemniter esse acta; Morris v Kanssen [1946] AC 459, 475 (Lord Simonds).

[26] Suttor v Gundowda Pty Ltd [1950] HCA 35; (1950) 81 CLR 418, 438; Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1, 7; Geelong Building Society (in liq) v Encel [1996] VicRp 44; [1996] 1 VR 594, 604-8 (Tadgell J); Whisprun v Dixon [2003] HCA 48; (2003) 200 ALR 447, 461 [51]-[52].

[27] As to the tests for leave to appeal from an interlocutory order in a matter of practice and procedure, see, for example: Niemann v Electronic Industries Ltd [1978] VicRp 44; [1978] VR 431, 442; BHP Petroleum Pty Ltd v Oil Basins [1985] VicRp 72; [1985] VR 756, 758; Australian Dairy Corporation v Murray Goulburn Cooperative Co Ltd [1990] VicRp 33; [1990] VR 355, 364-365 and 380; Bailey v Farrow Mortgage Services Pty Ltd (in liq) (Unreported, VSC App Div (Ormiston J), 23 August 1994).

Powercor Australia Ltd v Perry & Anor [2011] VSCA 239

At a glance

Court

Decision date

Before

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Judgment (78 paragraphs)

Powercor Australia Ltd v Perry & Anor [2011] VSCA 239 (19 August 2011)

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Legislation Cited (1)

Cases Cited (10)