REASONS FOR JUDGMENT
1 Proceedings NSD 1223 of 2002, known as Seven Network Limited & Anor v News Limited & Ors arise out of bids for television broadcast rights in respect of two codes of football, one administered by the Australian Football League and the other by the National Rugby League. There are numerous parties to the proceedings and needless to say, the litigation is complex.
2 The hearing of the main proceedings commenced before Justice Sackville on Monday 12 September 2005.
3 By a notice of motion filed 7 September 2005 the First, Second, Fourth, Ninth, Thirteenth, Fifteenth, Nineteenth and Twentieth Respondents (collectively referred to as the "News Respondents") seek production by the Applicants of a series of discovered documents for inspection. Those documents have been identified in the notice of motion with the following discovery numbers:-
APL.226.012.0223
APL.203.002.0102
APL.051.001.0071
APL.226.012.0049
APL.037.002.0054
APL.047.005.0001 and
APL.033.002.0274
4 In the Applicants' list of documents each of the documents was described as "Report/Options for Outcome" with the exception of APL.033.002.0274 which was described as "Note/Options for Outcome".
5 In respect of each document the Applicants have made a claim of legal professional privilege.
6 Mark Andrew Jarman, Senior Corporate Counsel of the First Applicant who holds practising certificates in Victoria and New South Wales has sworn that on or shortly after 12 January 2001 he was requested by Mr Steven Wise, the Chief Executive of i7 Limited, a wholly owned subsidiary of Seven Network Limited, and the person to whom Mr Jarman reported, to prepare a paper that would provide legal advice to the Applicants and i7 Limited regarding various options available to them in relation to the securing of rights to broadcast Australian Football League matches for the years 2002 to 2006 in circumstances where on 12 January 2001 they had received from the Australian Football League a "last offer" under a deed commonly referred to as "the First and Last Agreement".
7 The request by Mr Wise for Mr Jarman to prepare such a paper was communicated to Mr Jarman before 4.30 pm on Monday 15 January 2001 when a number of executives of the Seven Network Group met to consider both commercial and legal options that were available. That meeting was attended by, amongst others, Mr Jarman and, so it would seem, Rebecca Davies of Freehills, the solicitors for the Seven Network Group.
8 Mr Wise was responsible for the development of a strategy to be submitted to Mr Kerry Stokes, the Executive Chairman of Seven Network Limited, to deal with the then current situation. At the time in question Mr Stokes was overseas.
9 The undisputed evidence is that on the morning of 16 January 2001 Mr Jarman forwarded by email a first draft of a paper entitled "Options for Outcome" to Mr Wise (APL.226.012.0223). This occurred at 9.43 am on Tuesday 16 January 2001.
10 Shortly thereafter a discussion took place between Mr Jarman and Mr Wise which resulted in Mr Jarman making amendments to the Options for Outcome paper and the production by him of a second draft of the paper (APL.203.002.0102), apparently emailed by him to Mr Wise later that morning.
11 At 12.03 pm on Tuesday 16 January 2001 Mr Wise sent what he described as a "first cut of the Strategy Paper" to Maureen Plavsic, David Aspinall and Mr Jarman under the heading "AFL Strategy" for "discussion". The evidence is that the "Strategy Paper" so forwarded was a copy of Mr Jarman's second draft of his "Options for Outcome" document.
12 Ms Plavsic was apparently in charge of the Applicants' Free to Air television network at the time.
13 At 3.54 pm on 16 January 2001 Ms Plavsic responded to Mr Wise's email of 12.03 pm in the following terms:-
"Steve,
The strategy paper reflects all our discussions. Only comments:
1. Don't think that either you or David should be directly briefing the media. Think that at this stage it should be coming from Simon Francis as background briefing, apart from those key Seven employed commentators that we want communicating on our behalf. Think that we should have a videoconference briefing to key Seven management and others that we want involved in communicating our position jointly hosted by you and me as soon as you're ready. In preparation for this occurring - David could prepare the list of who should be involved.
2. Re the ABA, as discussed, think the first conversation should be treated as an opportunity to investigate through conversation what issues would concern the ABA. This should help us to structure our position to them if we ultimately seek their intervention. For example, re the anti-siphoning issue, the AFL can argue that they have complied - but would it concern the ABA that significant penalities (sic) were imposed on the FTA operators by the sporting rights holder to comply with undertakings to the Minister. The AFL's pricing structure for additional games is I understand identical to the arrangement that exists for the NRL which has resulted in less games on FTA prior to the formation of the NRL.
3. When reading through the pros and cons, action under the First seemed a stronger position for us. This probably indicates a need for the reason for recommending the action under Last needs (sic) to be made clearer/stronger in the opening section of the strategy paper prior to it going to KMS. [presumably a reference to Mr Kerry Stokes]
Maureen"
14 Ms Plavsic's email of 3.54 pm on Tuesday 16 January 2001 was sent not only to Mr Wise but also to Mr Jarman and Mr Aspinall.
15 Mr Jarman proceeded to take Ms Plavsic's comments into account and then prepared a third draft of the "Options for Outcome" paper (APL.051.001.0071). Mr Jarman sent his third draft of the "Options for Outcome" paper by email to Ms Plavsic, Mr Wise, Mr Aspinall, Peter Gammell and Robin Waters at 5.23 pm on Tuesday 16 January 2001.
16 On Wednesday 17 January 2001 at 11.43 am Jeanette Cowley, an assistant to Mr Wise, sent an email to Mr Kerry Stokes with a copy to Mr Wise entitled "AFL" which attached two documents one being, so it would seem, the third draft of the "Options for Outcome" paper as prepared by Mr Jarman. Ms Cowley's email read:-
"The attachments here are 1) The Legal Strategy and 2) the final version of the letter to the AFL after all inputs. Steve is currently working on some issues to do with stopping time which should be resolved soon. Maureen and her team are working on the $ and cents issues. In the meantime, if you have any comments to make on the strategy or the letter please do so to Steve."
17 Mr Jarman's unchallenged evidence was:
"My sole purpose in creating each version of the Options for Outcome was to provide legal advice to Seven pursuant to Mr Wise's request [communicated on or shortly after 12 January 2001 but before 4.30 pm on Monday 15 January 2001]."
18 On 16 March 2005 Freehills claimed that document APL.203.002.0102 (the second draft of the "Options for Outcome" Paper) was the subject of legal professional privilege because it fell into the following category:
"(b) Confidential documents prepared by officers, employees, agents and internal or external legal advisers of the applicants for the dominant purpose of internal or external legal advisers of the applicants providing the applicants with legal advice"
19 On 20 May 2005 Freehills said in respect of the second draft of the "Options for Outcome" paper that it "was created by Mark Jarman, internal legal counsel, for the purpose of giving legal advice to the applicants". They proceeded to indicate that APL.051.001.0071 (the third draft) was "another version of this document, also privileged".
20 On 3 August 2005 Freehills maintained their claim for privilege in respect of the "Options for Outcome" documents. They said :-
"The first version of the document is in fact document APL.226.012.0223. As with the other versions of the paper you have identified, this document is privileged. APL.226.012.0223 is an attachment to APL.226.012.0222, which is an email from Mr Jarman to Mr Wise, which is also privileged. …"
21 On 2 September 2005 Freehills said in respect of the "Options for Outcome" paper:-
"… As indicated in our facsimile [of 3 August 2005] the claims of privilege are made on the basis that Mr Jarman prepared the documents for the dominant purpose of giving legal advice to our clients.
Once again we have reviewed the documents. It is plain on the face of the documents that the subject matter of the paper concerns two legal objectives of our client, not a commercial strategy as you suggest.
Any alterations made to versions of the paper following discussions or email communications between officers of Seven and Mr Jarman were made by Mr Jarman to take into account the instructions he received. The versions of the paper do not, as you suggest, summarise discussions of a commercial nature between officers of our clients. Rather, the final version of the paper incorporates comments given to Mr Jarman to enable him to finalise an action plan to implement the legal objectives discussed in the paper."
22 The meeting of the Seven Network Group executives held at 4.30 pm on Monday 15 January 2001 appears to have discussed a number of scenarios including:-
" - we pursue broadcast television rights, largely on the terms outlined in the AFL's documentation, but reserving our rights on subscription television.
- we 'walk away' from an involvement with the Australian Football - but reserving our rights on legal action against either the AFL or members of the 'consortium'
- we decline to match the 'consortium' offer on broadcast television, but through negotiation, and possibly legal action, continue to pursue subscription television rights.
- we decline to match the 'consortium' offer on broadcast television, but through negotiation, and possibly legal action, pursue broadcast and subscription television rights - through the submission of a new offer."
(see Australian Football League Communications Strategy Version 03 of 19 January 2001)
23 Prior to the meeting Mr Stokes sent an email to Robin Waters with a copy to Peter Gammell on 12 January 2001 in respect of "Re: US looks at 'foreign' News bid for TV stations - smh.com.au-Business" reading:-
"Robin
before we can make any other discussions (sic), we need to understand the AFL proported (sic) last right that has now been delivered to us. I see there is a meeting in Sydney on Monday , I think its important that you are there to oversee the position , so that we have one approach to resolving the issues . After that meeting I expect Steve will formulate both commercial and legal positions .
We will need to decide what actions are available to us , including overseas potentials , and , whether or not , there is recourse to anyone else, besides the AFL , preferably there will be , or it may be that we can only get to them through the AFL. Our best out come (sic) would be to be able to accept the offer, and take the pay as per our understanding of the agreement .
We should also ask the ABA if this accords with the anti siphoning , given the sub licence arrangements , and the publicity that there are existing agreements in place with two networks , they in fact should be able to play all games free of air . I have mentioned this point to Steve Wise.
kms"
24 On Saturday 13 January 2001 Mr Wise sent an email to Chris North and Maureen Plavsic with copies to Peter Gammell, David Aspinall, Ryan Stokes and Kerry Stokes under the heading "RE: URGENT - AFL Rights" reading:-
"Chris,
We are meeting in Sydney on Monday to agree both commercial and legal actions on the AFL. As discussed previously it would be beneficial if you could join us. The meeting is on at 4.30pm at North Sydney boardroom, to accommodate Peter flying back from US. I will be in Sydney all day and it would be good if we could get together mid morning to swap notes. I have sent under separate email a copy of the AFL's last offer/term sheet. You will need a small wheel barrow to collect all the issues that fall out of this we need to break them down into, observations, clarifications and items potentially leading to discovery. Drop me an e-mail about Monday or call to discuss any issue Hm 03 9598 8787, Mob 0403 007 007.
S"
25 Apart from claims for legal professional privilege being made in respect of Mr Jarman's first, second and third drafts of his "Options for Outcome" paper, claims for privilege have also been made in respect of "Options for Outcome" documents bearing the discovery numbers APL.226.012.0049, APL.037.002.0054, APL.047.005.001 and APL.033.002.0274. No evidence has been provided as to the circumstances in which these documents were brought into existence nor is there any evidence as to whether they are copies of the first draft, the second draft or the third draft or, indeed, some other version.
26 In relation to intra-company disclosures of legal advice, any disclosure of the terms of such advice or the substance thereof from one officer to another will not constitute a "disclosure to another person" and thereby result in a loss by the client of the relevant privilege (see Arrow Pharmaceuticals Limited v Merck & Co Inc (2004) 210 ALR 593 at 597 [11] and [12].) In GEC Marconi Systems Pty Limited v BHP Information Technology Pty Limited & Ors [2000] FCA 593 Lehane J, applying Mann v Carnell [1999] 201 CLR 1, held that disclosures of such advice or the substance thereof by officers of one corporation within a group to officers of other corporations within that group or between different officers of another corporation within the group did not result in a waiver of the relevant client legal privilege (see judgment [6] - [9] and [12] (especially in respect of documents 0113 and 0527)). This is consistent with the general principle of common interest privilege (see the judgment of Giles J in Network Ten Limited v Capital Television Holdings Limited (1995) 36 NSWLR 275 at 279-283; see also Evidence Act s 122(5)(b)).
27 There is no evidence to indicate whether the last four mentioned documents were brought into existence as a sharing within the Seven Network Group of Mr Jarman's legal advice or whether they simply fell into the category of documents brought into existence to invite comment on commercial alternatives available to the Seven Network Group.
28 It is common ground between the parties that legal professional privilege may be claimed in respect of confidential communications passing between a legal adviser and a client where those communications were made for the dominant purpose of giving legal advice to the client. A dominant purpose will be that which was the ruling, prevailing or most influential purpose.
29 In Three Rivers District Council & Ors v Governor and Company of the Bank of England (No. 6) [2005] 1 AC 610 at 667 -8 Lord Carswell said [86]:-
"Determining the bounds of privilege involves finding the proper point of balance between two opposing imperatives, making the maximum relevant material available to the court of trial and avoiding unfairness to individuals by revealing confidential communications between their lawyers and themselves. … There is a considerable public interest in each of these. The importance of keeping to a minimum the withholding of relevant material from the court ... is self-evident".
30 In Seven Network Limited & Anor v News Limited & Ors [2005] FCA 142, an earlier interlocutory judgment in these proceedings, Tamberlin J said in respect of legal professional privilege:-
"4. The dominant purpose test has particular importance in relation to the position of in-house counsel because they may be in a closer relationship to the management than outside counsel and therefore more exposed to participation in commercial aspects of an enterprise. The courts recognise that being a lawyer employed by an enterprise does not of itself entail a level of independence. Each employment will depend on the way in which the position is structured and executed. For example, some enterprises may treat the in-house adviser as concerned solely in advising and dealing with legal problems. As a matter of commercial reality, however, both internal and external legal advisers will often be involved in expressing views and acting on commercial issues.
5. The authorities recognise that in order to attract privilege the legal adviser should have an appropriate degree of independence so as to ensure that the protection of legal professional privilege is not conferred too widely. …"
(See also Waterford v The Commonwealth of Australia ("Waterford") (1987) 163 CLR 54 at 62, 70-1 and 81-2)
31 In respect of the application before him His Honour continued:-
"14. The evidence discloses that privilege was originally claimed for some 283 documents in an affidavit sworn on 28 May 2004 by Mr. Philip, Chief General Counsel for News, and certified by the solicitor for News. Mr. Philip is also the nineteenth respondent in the proceedings. He holds a number of other positions and offices in the News Group of companies. These include directorships and alternate directorships of six associated companies. He is also a member of the NRL Partnership Executive Committee. The evidence demonstrates that Mr. Philip has been actively involved in a commercial role in a number of business activities which are set out in an affidavit of 24 November 2004 made by Mr Graeme Johnson on behalf of Seven. These activities include negotiations of numerous important commercial arrangements, including the grant of options, the making available of television channels to other parties and the conduct of negotiations concerning a content sharing agreement and the broadcast of football matches. This evidence as to his extensive involvement in commercial matters is not contradicted or qualified by any evidence on behalf of News or Mr Philip.
…
17. The present Notice of Motion by Seven, which was filed on 24 November 2004, seeks the production by News and Mr Philip of 26 documents the subject of the disputed claim for legal professional privilege. The Motion was set down for hearing before me on 17 December 2004.
…
38. … I am cognisant of the fact that there is no bright line separating the role of an employed legal counsel as a lawyer advising in-house and his participation in commercial decisions. In other words, it is often practically impossible to segregate commercial activities from purely 'legal' functions. The two will often be intertwined and privilege should not be denied simply on the basis of some commercial involvement. In the present case, however, I am persuaded that Mr Philip was actively engaged in the commercial decisions to such an extent that significant weight must be given to this participation. In many circumstances where in-house counsel are employed there will be considerable overlap between commercial participation and legal functions and opinions. As can be seen from the specific rulings below, I am not persuaded that in this proceeding Mr Philip was acting in a legal context or role in relation to a number of the documents in respect of which privilege was claimed. Nor am I persuaded that the privilege claims were based on an independent and impartial legal appraisal."
32 In relation to the Applicants' claims for privilege, generally similar considerations apply to the role of Mr Jarman as applied to Mr Philip in the case of the News' Respondents, although Mr Jarman says it was not part of his duties to provide commercial advice.
33 In Waterford the Court accepted that in some circumstances legal advice may be accompanied by advice of another kind which can be separated from it. In such circumstances only the legal advice will be privileged. However if the legal advice contains extraneous matter which cannot be separated from it, the legal advice will not lose its privilege for that reason (see per Mason and Wilson JJ at p66 and per Dawson J at p103).
34 Legal professional privilege is not limited to express advice about the law. Too literal a requirement of identifying legal advice as express advice about the law would place undue emphasis on formalism and undermine the privilege (per Allsop J in DSE (Holdings) Pty Limited v InterTan Inc & Anor (2003) 135 FCR 151 at 168 [52] ("DSE (Holdings)").
35 In Nederlandse Reassurantie Groep Holding NV v Bacon & Woodrow [1995] 1 All ER 976 Colman J (as his Lordship then was) said at 983:-
"… a solicitor's professional duty or function is frequently not exclusively related to the giving of advice on matters of law or … on drafting or construction of documents. It not infrequently relates to the commercial wisdom of entering into a given transaction in relation to which legal advice is also sought."
36 In considering this passage Allsop J said in DSE (Holdings) at p165 [45]:-
"… What legal advice is, however, goes beyond formal advice as to the law. This recognition does not see the privilege extend to pure commercial advice. In any given circumstance, however, it may be impossible to disentangle the lawyer's views of the legal framework from other reasons that all go to the make up the 'advice as to what should prudently and sensibly be done in the relevant legal framework'…. That is how I read this last cited paragraph of Colman J: not extending the privilege beyond legal advice to commercial advice, but as recognising the form and nature of advice in a practical day to day context."
37 To enable me to finally resolve the claims for privilege in respect of the documents in question I have been invited by Mr Karkar QC, senior counsel for the Applicants, with the concurrence of Mr Whitford SC, senior counsel for the News' Respondents, to inspect the documents in respect of which privilege has been claimed to determine whether or not the claims that have been made are valid in respect of the whole or some part or parts of the documents in question in light of the abovementioned legal principles and factual context.
38 It must be remembered that it is for a party claiming privilege to show that the documents for which the claim is made are privileged. He may succeed in achieving this objective by pointing to the nature of the documents or by evidence describing the circumstances in which they were brought into existence. But it should not be thought that the privilege is necessarily or conclusively established by resort to any verbal formula or ritual. The Court has power to examine the documents for itself, a power which has been exercised too sparingly in the past, springing possibly from a misplaced reluctance to go behind the formal claim of privilege. It should not be forgotten that in many instances the character of the documents the subject of the claim will illuminate the purpose for which they were brought into existence (per Stephen, Mason and Murphy JJ in Grant v Downs (1976) 135 CLR 674 at 689; see also per Gleeson CJ, Gaudron and Gummow JJ in Esso Australia Resources Limited v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49 at 70 [52]).
39 The documents which have been made available to me for inspection and consideration are a number of documents entitled "OPTIONS FOR OUTCOME" and certain miscellaneous documents.
40 The documents entitled "OPTIONS FOR OUTCOME" and details of them together with my decision on the claims for legal professional privilege that have been made are as follows:-
(a) APL.226.012.0223 - 0228
This six page document is a copy of Mr Jarman's "first draft" and is wholly privileged in accordance with the above principles.
(b) APL.203.002.0102 - 0108
This is a seven page document being a copy of Mr Jarman's "second draft". It contains material not included in Mr Jarman's original document. Much of the material which has been added cannot be described as legal advice. In my opinion that part of the last paragraph under the second heading on page 0102 commencing with "one of our" to the end of that paragraph is not privileged.
Furthermore, most of the material introduced into the document under the heading "3. ACTION PLAN" is not properly the subject of a claim for privilege. In particular the material in numbered paragraph 1 on page 0102 commencing with the second sentence "We should" to the end of paragraph 6 on page 0103 "ongoing strategy" is not, in my opinion, properly the subject of a claim for legal professional privilege. Subject to what I have indicated below, the remainder of the document is privileged.
(c) APL.051.001.0071 - 0076
This is a six page document being a copy of Mr Jarman's "third draft". This document reproduces on page 0071 the passage appearing on page 0102 of the second draft which, in my opinion, is not properly the subject of a claim for legal professional privilege, that is to say that passage commencing "one of our" and concluding at the end of that paragraph. This part of the last paragraph on page 0071 is not privileged.
This document also includes a revised "action plan" on page 0072 under the heading "3. ACTION PLAN".
In my opinion legal professional privilege cannot properly be claimed for those parts of the action plan commencing in numbered paragraph 1 with the words "We should seek" and ending at the end of paragraph 7 "ongoing strategy". Subject to what I have indicated below, the remainder of the document is privileged.
(d) APL.226.012.0049 - 0055
This is a seven page document being a copy of Mr Jarman's "third draft". It does not appear to be textually different from the document discovered as APL.051.001.0071 - 0076. However a different typeface has been used in printing it, thereby causing the document to extend over seven rather than six pages.
In my opinion the same rulings should apply in relation to privilege as I have indicated in respect of APL.051.001.0071 - 0076.
(e) APL.037.002.0054 - 0059
This is a six page document being a further copy of Mr Jarman's "third draft" in relation to which the same rulings should be made as have been indicated by me as appropriate in respect of APL.051.001.0071 - 0076.
(f) APL.047.005.0001 - 0006
This is a six page document being a copy of Mr Jarman's "second draft".
In my opinion the same ruling should be made in respect of it as I have indicated above in relation to APL.203.002.012 - 0108.
(g) APL.033.002.0274 - 0279
This is a six page document being a further copy of Mr Jarman's "third draft".
In my opinion the same rulings should be made in respect of it as I have indicated above in respect of APL.051.001.0071 - 0076.
There is, however, in relation to this document one additional complication, namely, that the copy document is heavily marked with handwritten notations. In the absence of further evidence as to the identity of the author of the notations and the circumstances in which they were applied to the copy document I am unable to indicate whether the Applicants' claims for privilege should properly extend to the notations or any of them. Some of them would answer the description of "doodling", others are of a mathematical nature and others appear to be observations.
41 In relation to the several copies of the second and third drafts of the "OPTIONS FOR OUTCOME" I am troubled by one paragraph in the section headed "3. ACTION PLAN". It appears as paragraph 7 in the second draft and as paragraph 8 in the third draft. The paragraph in question comprises two sentences. The question is whether what is stated in the second sentence deprives a communication that would otherwise qualify for privilege against production, of any privileged status.
42 Privilege is not available in respect of communications that are made to facilitate the commission of a crime or fraud or the abuse of an exercise of public power or the frustration of the order of a Court (per McHugh in Carter v The Managing Partner, Northmore Hale Davy & Leake & Ors (1995) 183 CLR 121 at 160). The so-called exceptions to legal professional privilege are, in truth, not exceptions at all. Rather they identify circumstances where the doctrine does not apply to communications between legal adviser and client. They exclude from the protection of the privilege communications that are designed to facilitate future wrongdoing. Thus, communications that come within the exceptions never attract the grant of legal professional privilege. (per McHugh in Carter at p163).
43 If proceedings are instituted in a Court with a view to securing access to documents through discovery which may be used as a foundation for or in support of other litigation, such proceedings would, in my opinion, constitute an abuse of process (see generally Harman v Secretary of State for the Home Department [1983] 1 AC 280).
44 In Attorney-General for the Northern Territory of Australia v Kearney (1985) 158 CLR 500 the Court held that communications between officers of the Northern Territory government and the government's legal officers for the purpose of obtaining and giving legal advice relating to the making of two sets of regulations were not privileged on the basis that legal professional privilege did not protect communications made to further a deliberate abuse of statutory power and by that abuse to prevent others from exercising their rights under the law.
45 In his reasons for judgment Gibbs CJ, with which Mason and Brennan JJ concurred, said at p515:-
"In my opinion the present case comes within the principle which forms the basis of the rule that denies privilege to communications made to further an illegal purpose. It would be contrary to the public interest which the privilege is designed to secure - the better administration of justice - to allow it to be used to protect communications made to further a deliberate abuse of statutory power and by that abuse to prevent others from exercising their rights under the law. It would shake public confidence in the law if there was reasonable ground for believing that a regulation had been enacted for an unauthorised purpose and with the intent of frustrating legitimate claims, and yet the law protected from disclosure the communications made to seek and give advice in carrying out that purpose."
46 Legal professional privilege will be denied to a communication which is made for the purpose of frustrating the processes of the law itself, even though no crime or fraud is contemplated (per Gibbs CJ in The Attorney-General for the Northern Territory of Australia v Kearney at p515; The Queen v Bell; Ex parte Lees (1980) 146 CLR 141).
47 In my opinion it would constitute an abuse of process for the course of action proposed in paragraph 7 of the second draft (paragraph 8 of the third draft) of the "OPTIONS FOR OUTCOME" document under the heading "3. ACTION PLAN" to be pursued. In such circumstances the substantive rule of law in respect of legal professional privilege does not have any application which could protect the paragraph in question from production. Notwithstanding the conclusion which I have reached in respect of this paragraph, the words in parenthesis therein are, in my opinion, properly the subject of a claim for legal professional privilege.
48 In addition to the "OPTIONS FOR OUTCOME" documents I have been provided with copies of other documents for which the Applicants have apparently claimed legal professional privilege. My opinion in relation to these claims is as follows:-
(a) APL.051.001.0082
This is a document which reproduces three emails, one bearing date Tuesday 16 January 2001 at 7.23 pm, another bearing date Tuesday 16 January 2001 at 7.48 pm and a third bearing date 16 January 2001 at 5.54 pm (sic). My sense is that the computer which produced the last mentioned record of time may have been set to Western Australian time rather than Eastern Standard Time. In my opinion, the first two emails are privileged and the third email said to have been sent at 5.54 pm is not privileged.
(b) APL.226.012.0222
This is an email apparently sent on Tuesday 16 January 2001 at 9.43 am. On the assumption that is was used to convey Mr Jarman's first draft being APL.226.012.0223 - 0228, then in my opinion it is privileged.
(c) APL.051.001.0070
This is an email apparently sent on Tuesday 16 January 2001 at 5.23 pm. On the assumption that it was the covering email under which Mr Jarman's third draft was circulated namely APL.051.001.0071 - 0076, then in my opinion it is privileged.
(d) APL.037.002.0060 - 0064
This is a five page draft letter intended for transmission by the First Applicant. In my opinion it is properly the subject of a claim for legal professional privilege.
49 I am of the opinion that the Applicant should produce for inspection by the News' Respondents an edited version of APL.203.002.012 - 0108 disclosing those parts of the document which are not properly the subject of a claim for legal professional privilege, an edited version of APL.051.001.0071 - 0076 similarly prepared, an edited version of APL.226.012.0049 - 0055 similarly prepared, an edited version of APL.037.002.0054 - 0059 similarly prepared, an edited version of APL.047.005.0001 - 0006 similarly prepared and an edited version of APL.033.002.0274 - 0279 similarly prepared, but in this case masked to exclude from view the handwritten parts thereof until further order.
50 In addition an edited version of APL.051.001.0082 should be made available for inspection, masking from view the emails sent on 16 January 2001 at 7.23 pm and 7.48 pm.
51 Whilst counsel for the Respondents submitted that the costs of the notice of motion should follow the event, counsel for the Applicants urged me to reserve the question of costs to allow the parties to provide written submissions after they have had the opportunity to consider my rulings on the claims for privilege which have been made. In the light of my rulings I will reserve the question of costs for later decision following the receipt of brief written submissions thereon from the parties.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.