Sugden v Sugden

Court of Appeal (NSW)|2007-07-19|Before: Mason P, Ipp JA, McDougall J, Dougall J

JUDGMENT OF: Mason P at 1; Ipp JA at 2; McDougall J at 3

CATCHWORDS: PROCEDURE - Production of documents on subpoena - Appellant (father of respondent) gives instructions on behalf of respondent to respondent's solicitor -Whether solicitor's file notes of those instructions are "privileged documents" - Where investigator retained by solicitor for respondent takes draft statement from appellant - Where draft statement later settled in conference by counsel for respondent - Whether draft statement is a "privileged document" - Where appellant on own account instructs solicitor in relation to police inquiries - Whether file notes of those instructions are "privileged documents". - EVIDENCE - Client legal privilege - Whether file notes and settled draft statement record confidential communications - Whether in any event file notes and settled draft statement are confidential documents. - EVIDENCE - Loss of client legal privilege - Related communications and documents - "Proper understanding" - Question, whether one document, is "reasonably necessary to enable a proper understanding" of another document, to be answered taking into account circumstances in which and purposes for which that "proper understanding" is required and other information available.

Evidence Act 1995 LEGISLATION CITED: Motor Accidents Compensation Act 1999 Uniform Civil Procedure Rules

Attorney-General for the Northern Territory v Maurice (1986) 161 CLR 475 Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526 Aydin v Australian Iron and Steel Pty Limited [1984] 3 NSWLR 684 Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 Feuerheerd v London General Omnibus Co Ltd [1918] 2 KB 565 Flack v Pacific Press Ltd (1970) 14 DLR (3d) 334 CASES CITED: Grant v Downs (1976) 135 CLR 674 Jamison v The Government Insurance Office of New South Wales (1988) Aust. Torts Reports 80-214 Mann v Carnell (1991) 201 CLR 1 Nickmar Pty Ltd v Preservatrice Skandia Insurance Ltd (1985) 3 NSWLR 44 Raunio v Hills (2001) 116 FCR 518 State of New South Wales v Jackson [2007] NSWCA 729 Telebooth Pty Ltd v Telstra Corporation Ltd [1994] 1 VR 328 Towney v Minister for Land and Water Conservation (NSW) (1997) 76 FCR 401

PARTIES: Timothy Bain Sugden (Appellant) Nicole Emily Sugden (Respondent)

COUNSEL: P R Garling SC / J Morris / E Elbourne (Appellant) M L D Einfeld QC / D Brogan (Respondent)

SOLICITORS: Hunt and Hunt (Appellant) Boyd and Longhurst (Respondent)

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 040732/06 DC 40/2004 (Orange) MASON P IPP JA McDOUGALL J

Thursday 1 November 2007 Timothy Bain SUGDEN v Nicole Emily SUGDEN Judgment 1 MASON P: I agree with McDougall J. 2 IPP JA: I agree with the reasons of McDougall J and the orders proposed by his Honour. 3 McDOUGALL J: The question for decision is whether documents created by Mr Longhurst, the solicitor for the respondent (Ms Sugden), are protected from disclosure by client legal privilege. The documents fall into two classes. The first class comprises three file notes made by Mr Longhurst following discussions with the appellant (Mr Sugden). The second class comprises a draft statement of Mr Sugden, annotated by senior counsel in conference with Messrs Longhurst and Sugden. Two of the file notes, and the draft statement, record Mr Sugden's account of the motor vehicle accident to which I refer in the next paragraph. The third file note records the conversation to which I refer in para [9] below.

4 Ms Sugden is Mr Sugden's daughter. She was involved in a motor vehicle accident on 18 May 2003, in which she sustained devastating injuries. The accident occurred when Mr Sugden's motor vehicle, which was being driven by Ms Sugden, left the road, hit an embankment and rolled over. Ms Sugden held a learners permit at the time. Mr Sugden was supervising her. Ms Sugden has brought proceedings for damages against Mr Sugden. In essence, she alleges that Mr Sugden was negligent in his supervision of her driving.

5 Following the accident, Ms Sugden was taken to Royal North Shore Hospital. She remained there for many weeks. Her mother (who had been in the vehicle at the time of the accident) stayed in Sydney to be near her. Mr Sugden returned to the family home at Orange, but thereafter travelled to and from Sydney to visit his wife and daughter.

6 Mr Longhurst is a solicitor carrying on practice in Orange as a partner in the firm Boyd and Longhurst. Mr Sugden consulted Mr Longhurst on 24 June 2003. The Primary Judge found that Mr Sugden was acting in substance as agent or representative of Ms Sugden when he consulted Mr Longhurst on that date. There was ample justification for that conclusion. Mr P R Garling SC, who appeared with Mr J M Morris and Ms E Elbourne of counsel for Mr Sugden, did not challenge it.

7 The Primary Judge found further that when Mr Sugden so contacted Mr Longhurst, it was for the purpose of Ms Sugden's being provided with professional legal services in relation to anticipated legal proceedings. Again, there was ample evidence to support that finding. Again, Mr Garling did not challenge it.

8 At the conference on 24 June 2004, Mr Sugden gave Mr Longhurst instructions, or less formally information, as to the circumstances in which the accident had occurred. Mr Longhurst opened his file (on behalf of Ms Sugden as prospective plaintiff) that day. He made two file notes of that conversation. Mr Longhurst was unable to explain why he made two file notes, and could not recall whether there were two separate conferences with Mr Sugden on 24 June 2003.

9 On 1 July 2003, Mr Sugden spoke to Mr Longhurst by telephone. The subject of their discussion was the desire of police officers, who were investigating the accident, to speak to Mr Sugden. Mr Longhurst made a file note of that conversation.

10 At a relatively early time and probably soon after the first conference, Mr Longhurst formed the view that Mr Sugden might be a defendant if Ms Sugden were to commence proceedings.

11 Mr Longhurst caused investigations to be undertaken in relation to the accident. He retained Mr D A Mileto of Blue Ribbon Investigations to interview a number of witnesses. It appears from Mr Longhurst's evidence that this may have happened after the telephone call of 1 July 2003.

12 Mr Mileto interviewed a number of witnesses, including Mr Sugden. He prepared a draft statement following his discussions with Mr Sugden and gave that draft statement to Mr Longhurst.

13 Mr Longhurst gave differing accounts of the purpose underlying the preparation of Mr Sugden's draft statement. In a letter dated 23 June 2005 to Hunt & Hunt (the solicitors retained by Mr Sugden's insurer) Mr Longhurst said that the "annotated draft statement of Mr Sugden [was] prepared [sic] in conference with Senior Counsel for the purpose of advising him with respect to his obligation to furnish a statement to Police." Mr Longhurst erred in saying that the annotated draft statement was "prepared in conference with Senior Counsel". It had been prepared by Mr Mileto, on the instructions of Mr Longhurst. It was that draft statement prepared by Mr Mileto that was "annotated… in conference with Senior Counsel".

14 However, in his evidence in chief before the Primary Judge, Mr Longhurst said that he received instructions from Mr Sugden that the police wished to talk to him about the accident; that he took advice about that; and that "as a result of that" the statement that was given to the police "came into being". He expanded on this in cross-examination. He agreed that he had not been retained by Mr Sugden in relation to the police inquiries, nor had he entered into any fee agreement with Mr Sugden relating to that topic. He did not send Mr Sugden a fee note, nor did he open a separate file. Mr Longhurst said that his instructions to Mr Mileto were "to investigate the claim on behalf of the plaintiff" (T43.8; WB 61). He agreed that "this statement of Mr Sugden was initially generated as part of the plaintiff's claim against Mr Sugden himself… for the purpose of the plaintiff's case" (T43.12-.18; WB 61). It was "generated as part of the investigation of the plaintiff's claim" at a time when Mr Longhurst contemplated that Mr Sugden "was a possible defendant" (T43.48-.59; WB 61). Mr Longhurst gave further evidence confirming that purpose.

15 At some stage, Mr Sugden retained Mr D R Campbell SC on behalf of Ms Sugden. In early August 2003, Messrs Longhurst, Campbell and Sugden conferred for the purpose of settling Mr Sugden's draft statement. Mr Campbell annotated the draft statement in conference. Mr Campbell said (in the course of addressing the Primary Judge) that this occurred on 5 August 2003. Mr Garling and Mr M L D Einfeld QC, who appeared with Mr D J Brogan of counsel for Ms Sugden in this Court, accepted that the Court could act on the basis of this "evidence" as to the date of the conference. The draft statement was settled so that it could be given to the police officers who were investigating the accident.

16 The settled draft statement, converted into its final form, was signed on 8 August 2003 and given to the police shortly thereafter.

17 At some stage, Mr Longhurst prepared a claim form (see s74 of the Motor Accidents Compensation Act 1999). (The claim form is relevant because of the submissions for Ms Sugden based on s126 of the Evidence Act 1995, with which I deal in paras [91] and following below.) Mr Longhurst said that he completed the form on the basis of instructions given to him by Mr Sugden in conference. He conferred with Mr Sugden on 12 August 2003. Mr Sugden read over the form and signed the statutory declaration verifying it.

18 The printed form included the following instruction: The injured person must sign the declaration unless he/she is under 18 years of age or is unable to make the declaration. In this case a parent, guardian, relative or friend of the injured person must sign the declaration.

19 On 12 August 2003, Ms Sugden was under 18 years of age. She was also in Royal North Shore Hospital.

20 The claim form was given to Mr Sugden's insurer shortly after it was signed.

21 The claim form nominated three persons or entities as having possible responsibility for Ms Sugden's injuries. They were:

· Mr Sugden, as the person supervising Ms Sugden at the time; · The local council, because of the state of the road; and · The NSW Ambulance Service, because of the methods used to remove Ms Sugden from the wrecked vehicle.

22 The present proceedings were commenced by ordinary statement of claim issued on 8 September 2004. Mr Sugden is the only defendant. As I have indicated, the case alleged against him relates to his alleged negligence in the supervision of Ms Sugden whilst she was driving.

23 There is no evidence that any of Mr Longhurst's file notes were signed by Mr Sugden. Indeed, there is no evidence that Mr Sugden ever saw them. One would not necessarily expect a solicitor to give copies of his file notes to the person giving him instructions on behalf of the client.

24 Nor is there any evidence that Mr Sugden was given a copy of the draft statement. It might perhaps be thought likely that a copy had been given to him. However, on the evidence, the only version of the draft that exists is the original: the document prepared by Mr Mileto and annotated in conference by Mr Campbell. If that evidence is to be accepted (and there was no submission that it should not be) it would seem to follow that only the original of the draft statement had been prepared, that it was given to Mr Longhurst, and that it was thereafter utilised by Mr Campbell in conference. There is no evidence that Mr Sugden has signed the draft statement. What he has signed is the final version prepared after the conference and, no doubt, reflecting changes made by Mr Campbell in the course of settling it. The Primary Judge's decision

25 The question of privilege arose on an application for access to documents produced by Ms Sugden in answer to a subpoena issued at the request of Mr Sugden. Ms Sugden resisted production of the three file notes and the annotated draft statement on the ground that they were privileged. That was the question argued before the Primary Judge. His Honour found that the file notes of the conference held on 24 June 2003 were created by Mr Longhurst in the course of taking instructions from Ms Sugden through her father. As I have said, Mr Garling did not challenge that conclusion. Thus, the Primary Judge found, the file notes were "protected by solicitor/client privilege". The privilege was that of Ms Sugden.

26 The Primary Judge found further that at the time those file notes were prepared, there had been no particular attention given to the identification of any prospective defendant. No doubt, had Mr Longhurst turned his mind to the question, he would have appreciated from the circumstances in which the accident occurred that Mr Sugden was a prospective defendant. However, the Primary Judge concluded "that the likely direction of the litigation and the identity of the ultimate defendant or defendants… was not a matter to which any particular consideration was given at the time": i.e., 24 June 2003.

27 The Primary Judge did not address separately the file note of the telephone discussion of 1 July 2003.

28 By the time the claim form was prepared, Mr Longhurst (who as I have said had prepared it) had identified Mr Sugden as a potential defendant. I am prepared to assume that Mr Sugden, when he read and signed the claim form, would have understood this. The Primary Judge concluded "that it was the completion of the claim form that marked the point of separation between Mr Sugden and Mr Longhurst". He said that, thereafter, Mr Longhurst did not take instructions from Mr Sugden.

29 The Primary Judge found, in relation to Mr Sugden's statement (his Honour did not indicate whether he was referring to the draft or the signed version), that the principal purpose of its preparation was for provision to the police. The Primary Judge concluded "that the statement was being prepared primarily in [Mr Sugden's interest] and not that of the plaintiff". Thus, he said, "potentially it falls into a prospective category of privilege as between Mr Sugden, who is now instructing the solicitors in his own independent capacity as a subject of investigation by the police and that is, in my view, how it should be treated".

30 The Primary Judge said that he accepted Mr Longhurst's evidence. It is a little difficult to understand why, therefore, he did not accept Mr Longhurst's evidence as to the purpose of Mr Mileto's inquiries, including his interview of Mr Sugden and preparation of the draft statement. In my view, the better conclusion from the whole of Mr Longhurst's evidence is that Mr Mileto's interview of Mr Sugden and preparation of the draft statement were undertaken as part of the investigation of a possible claim to be brought by Ms Sugden. Neither Mr Garling nor Mr Einfeld sought strenuously to oppose this view.

31 As to the draft statement, the Primary Judge concluded, based on his view as to the purpose for which it was prepared, that it was a privileged document. Because he found that it had been settled in effect for Mr Sugden's purposes, the Primary Judge concluded that the privilege in the draft was Mr Sugden's.

32 As the case for Ms Sugden was put in this Court, there were two issues:

(1) Whether the file notes and the draft statement prepared by Mr Mileto and annotated by Mr Campbell, being records of communications between the present defendant and the legal advisers to the present plaintiff, were confidential. (2) Whether any privilege was lost by operation of s126 of the Evidence Act 1995. 33 The application for leave to appeal was heard with detailed submissions, on the basis that if leave were granted the submissions on the application would stand as submissions on the appeal. During the course of the hearing, the Court granted leave to appeal. These reasons deal with the substantive questions thus argued on the appeal.

34 The parties accepted that the availability of client legal privilege was to be decided in accordance with the relevant provisions of the Evidence Act. They were correct to do so. The issue arose when a call was made on a subpoena for production. That invoked UCPR r1.9, and the definitions of "privileged document" and "privileged information" in the Dictionary to those Rules. Rule 1.9 applies in a number of circumstances, including where the court by subpoena orders a person to produce a document. It provides that the person may object to producing a document on the ground that it is "a privileged document". In the Dictionary, "privileged document" is defined to mean a document that contains privileged information. "Privileged information" is defined to include "information of which evidence could not, by virtue of the operation of Division 1 of Part 3.10 of the Evidence Act 1995, be adduced in the proceedings over the objection of any person".

35 Part 3.10 of the Evidence Act deals with the topic of "privileges". The first privilege dealt with, in Division 1, is "client legal privilege". Section 117 sets out definitions of "client", "confidential communication" and "confidential document" So far as those definitions are relevant, they read as follows:

confidential communication means a communication made in such circumstances that, when it was made:

(a) the person who made it, or (b) the person to whom it was made,

was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.

confidential document means a document prepared in such circumstances that, when it was prepared:

(a) the person who prepared it, or (b) the person for whom it was prepared,

was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.

36 Section 118 provides for what is often known as advice privilege (although the section does not use the word "privilege"): [118] Legal advice

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:

(a) a confidential communication made between the client and a lawyer, or (b) a confidential communication made between 2 or more lawyers acting for the client, or (c) the contents of a confidential document (whether delivered or not) prepared by the client or a lawyer,

for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client. 37 Section 119 provides for what is often known as litigation privilege (again, the section does not use the word "privilege"): [119] Litigation Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:

(a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made, or (b) the contents of a confidential document (whether delivered or not) that was prepared, for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.

38 Sections 121 to 125 deal with loss of privilege in certain circumstances. Mr Garling placed reliance on section 122(2) and (4): (2) Subject to subsection (5), this Division does not prevent the adducing of evidence if a client or party has knowingly and voluntarily disclosed to another person the substance of the evidence and the disclosure was not made: (a) in the course of making a confidential communication or preparing a confidential document, or (b) as a result of duress or deception, or (c) under compulsion of law, or (d) if the client or party is a body established by, or a person holding an office under, an Australian law - to the Minister, or the Minister of the Commonwealth, the State or Territory, administering the law, or the part of the law, under which the body is established or the office is held.

(4) Subject to subsection (5), this Division does not prevent the adducing of evidence if the substance of the evidence has been disclosed with the express or implied consent of the client or party to another person other than: (a) a lawyer acting for the client or party, or (b) if the client or party is a body established by, or a person holding an office under, an Australian law - the Minister, or the Minister of the Commonwealth, the State or Territory, administering the law, or the part of the law, under which the body is established or the office is held.

39 Section 126 deals with the situation where privilege in a document has been lost through operation of one or other of ss121 to 125, and where, to gain a proper understanding of the communication or document in respect of which privilege has been thus lost, it is reasonably necessary to consider another communication or document: [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. Note. Example: A lawyer advises his client to understate her income for the previous year to evade taxation because of her potential tax liability "as set out in my previous letter to you dated 11 August 1994". In proceedings against the taxpayer for tax evasion, evidence of the contents of the letter dated 11 August 1994 may be admissible (even if that letter would otherwise be privileged) to enable a proper understanding of the second letter.

40 Mr Einfeld submitted that in each case the question was whether the document (file note or draft statement) was a "confidential document". That question, he submitted, was to be answered by reference to the definition of "confidential document" in s117. He submitted that the definition was disjunctive, in the sense that confidentiality would attach if either the person who prepared the document or the person for whom it was prepared was under an express or implied obligation not to disclose its contents. In the present case, Mr Einfeld submitted, Mr Longhurst was under an implied obligation, flowing from his retainer by Ms Sugden (effected through Mr Sugden), not to disclose the contents of the file notes or the draft statement. (As I have noted, the draft statement was prepared by Mr Mileto on the instructions of Mr Longhurst. Mr Garling did not submit that anything adverse to the submission that I have just recorded flowed from this.)

41 Thus, Mr Einfeld submitted, in circumstances where Mr Sugden did not have copies of any of those documents, it was not necessary to inquire whether Mr Sugden, as a prospective opposing party, might be fixed with any similar obligation of confidentiality.

42 Mr Garling submitted that there was no express or implied obligation of confidentiality because each of the documents recorded communications with an opposite party (or, at the time, a prospective opposite party). This, he submitted, was of itself sufficient to deprive the documents of the necessary quality of confidentiality. He relied on a number of decisions, to which it will be necessary to turn. In essence, Mr Garling's submission was that (to pick up the language of the definition in s117) the circumstance that the documents recorded communications with the opposing party negated any implied obligation of confidentiality that otherwise might arise. Mr Garling did not submit that there was any other basis on which those communications should be regarded as non-confidential.

43 Mr Garling placed particular reliance on the following decisions: (1) The decision of Hodgson J in Aydin v Australian Iron and Steel Pty Limited [1984] 3 NSWLR 684;

(2) The decision of Carruthers J in Jamison v The Government Insurance Office of New South Wales (1988) Aust. Torts Reports ¶80-214; and

(3) The decision of the Full Court of the Federal Court of Australia in Raunio v Hills (2001) 116 FCR 518.

44 There are however many more cases that deal with the question; and they yield no consistent rationale or principle.

45 It is important to state at the outset the limited relevance of many of the cases. Most of them concern the position at common law. The effect of UCPR r1.9 is that the claim of privilege is to be dealt with by reference to the code set out in Division 1 of Part 3.10 of the Evidence Act. The keys to s119 are the existence of a confidential communication or a confidential document. They are defined terms. Application of the definitions requires a consideration of the circumstances in which the communication was made or the document was prepared. Cases dealing with the position at common law may be relevant, to the extent that they disclose a "circumstance" in which at common law confidentiality would (or would not) arise. But the question for decision in this appeal must be answered by reference to the statutory test.

46 Aydin concerned a statement made by the plaintiff relating to an accident that he suffered in the course of his employment. The statement was obtained in an interview between the plaintiff and an investigator in the employ of the defendant. The investigator filled out the plaintiff's answers to a number of questions on a printed form. He read the statement over to the plaintiff who thereupon signed it as a true and correct record.

47 Hodgson J concluded at 688 that the statement was not protected by legal professional privilege at common law. That was because, on his Honour's finding, the statement had not been brought into existence for the sole purpose of submission to the defendant's solicitors in the event of litigation (the "sole purpose" test then being the prevailing test at common law: Grant v Downs (1976) 135 CLR 674).

48 His Honour then turned to an alternative argument: namely, that the document was a communication between the plaintiff and the defendant and thus not confidential to the defendant as against the plaintiff.

49 Hodgson J considered the authorities, including the decision of the English Court of Appeal in Feuerheerd v London General Omnibus Co Ltd [1918] 2 KB 565. In that case, the Court of Appeal upheld a claim for privilege by a defendant in respect of a statement signed, and given to its investigator, by the plaintiff. Hodgson J concluded (of course, obiter dictum, because he had held that the claim for privilege failed the "sole purpose" test) that the decision of the Court of Appeal was wrong. His Honour considered a number of cases including, in particular, the decision of the Court of Appeal of British Columbia in Flack v Pacific Press Ltd (1970) 14 DLR (3d) 334.

50 Hodgson J said at 690-691: In my view, the document in question having been signed by the plaintiff and then handed to the representative of the defendant, did amount to a communication by the plaintiff to the defendant, and was not a document which was confidential to the defendant as against the plaintiff, and so is not a document which can be the subject of this particular aspect of legal professional privilege.

51 It is clear that his Honour placed considerable reliance on the fact that the document had been given to and signed by the plaintiff. He said at 691 that different considerations might apply to a document prepared by the investigator himself as his own record of the conversation: Had the document been originally prepared simply as a record of a conversation between an investigator and the plaintiff with no intention to have it signed by the plaintiff but with the sole purpose of submitting this record to a solicitor, then it may well be that privilege would have initially attached to such a document. In that event production subsequently to the plaintiff for signature may have been a matter to be analysed in terms of waiver. However, there is not this case. 52 I agree with his Honour that there is an important factual distinction between the situation where the document prepared by the defendant's representative is given to the plaintiff, signed by the plaintiff and returned to the defendant's representative on the one hand, and the situation where it is retained unsigned by the defendant's representative on the other. In the former case the document itself is, or becomes, a communication. In the latter it is not; it is at most a record of a communication.

53 In Jamison, the plaintiff claimed damages for injuries sustained in respect of two accidents, each of which had occurred when he was a pillion passenger on a motorcycle driven by someone described in the evidence as "his girlfriend". The "girlfriend" (Ms Garcia) had been interviewed by the plaintiff's solicitor, who had made notes of her "instructions". The notes (which appear to have comprised two separate parts, prepared as a result of separate interviews) were not signed. It is not clear from the judgment whether the notes were given to Ms Garcia. The evidence, as recorded by Carruthers J at 68, 118, appears to suggest that they were not.

54 Carruthers J pointed at 68,119 that legal professional privilege (at common law) was based on public policy. However, his Honour said: [T]he public interest could never require that a communication between the legal advisor of one party and the person who was opposed to his client be immune from disclosure, for there could never be any element of confidentiality in such a communication.

55 His Honour considered a number of authorities, including Feuerheerd, Flack and Aydin. He said at 68,121 that the public interest required that the defendant be "in a position properly to conduct the defence to the claim which the plaintiff has brought against it… it would make a mockery of that public interest if the plaintiff were enabled to claim privilege in respect of the statement which has been obtained by his legal advisers from Ms Garcia. The law could not countenance a situation where an insurer liable to indemnify its insured could be denied access to a statement made by that insured to the parties seeking to establish legal liability by the insurer".

56 It made no difference, Carruthers J said, that Ms Garcia was not a party to the proceedings (at that time, proceedings were required to be brought against the third party insurer and not against the insured driver). It was sufficient, his Honour said, that she was a party adverse in interest to the plaintiff so far as the subject matter of the proceedings was concerned.

57 Carruthers J appears to have assumed that the unsigned notes in question were more than "simply… a record of a conversation between" the plaintiff's solicitor and Ms Garcia, and thus did not deal with the issue posed by Hodgson J in Aydin at 691. In my view, the reasoning of Carruthers J is open to question. The notes were not themselves communications. They were documents prepared by the solicitor setting his recollection or understanding of what he had been told by Ms Garcia. Carruthers J appears to have decided that the question of confidentiality fell to be determined by reference to the character of the communications made by Ms Garcia to the solicitor, rather than by reference to the characterisation of the solicitor's note of those communications. As Hodgson J demonstrated in Aydin (see paras [50] and [51] above), there is an important distinction between those two factual circumstances.

58 Raunio was a case where the respondent claimed damages for injuries suffered as a result of a motorcycle accident. The applicant owned the motorcycle. The respondent's case was that its mechanical condition was defective.

59 The respondent's solicitor had spoken to the applicant by telephone on some four occasions. File notes were made of each conversation. The question for the Full Court was whether those file notes were privileged. There was no suggestion that the file notes had been given to or signed by the applicant (indeed, the whereabouts of the applicant were unknown).

60 The Full Court referred with approval to, and quoted from, the decision of Carruthers J in Jamison. Their Honours noted at 522 [13] that the interests of the applicant and the respondent were "plainly adverse in any forensic sense." They said that in those circumstances the file notes could not be confidential: The telephone file notes of the solicitor, prepared in his capacity as legal representative for the plaintiff Hills, cannot be the subject of the protection afforded by legal professional privilege, since the notes record communications between the defendant Raunio with the solicitor in his capacity as solicitor for the plaintiff Hills, and as such are inherently non-confidential.

61 Their Honours did not refer to the decision of Hodgson J in Aydin. Nor did they refer to any of the other authorities cited by his Honour. Their Honours did not consider the issue posed by Hodgson J in Aydin at 691. Their Honours' analysis, like that of Carruthers J in Jamison, appears to assume that the question falls to be determined by reference to the character of the communication, not by reference to the character of the document in which the solicitor recorded his recollection or understanding of the communication. As I have indicated in para [57] above, that approach may overlook a significant factual distinction.

62 Neither Carruthers J in Jamison nor the Full Court in Raunio appears to have been referred to the decision of Wood J in Nickmar Pty Ltd v Preservatrice Skandia Insurance Ltd (1985) 3 NSWLR 44. That decision concerned, among other documents, statements taken by loss adjusters retained by the solicitors for one party from officers of the opposing party. It is not apparent from the decision whether the statements were signed, or whether copies were given to their makers. Wood J at 62 accepted the defendant's submission (the defendant being the party asserting privilege) that "the weight of authority compelled the upholding of the claim for privilege" in relation to those documents. It is plain from what his Honour said at 63 that he took that approach notwithstanding reservations as to the correctness of the decision in Feuerheerd.

63 The authorities were reviewed, again at length, by Hedigan J in Telebooth Pty Ltd v Telstra Corporation Ltd [1994] 1 VR 328 at 340 and following. In that case, a representative of one party spoke to a representative of the other, made a tape recording of the conversation and transcribed that tape recording. These acts were done with a view to the transcript's being delivered to the legal advisers of the parties of the party making it, to obtain legal advice and for use in anticipated proceedings. Hedigan J held that the recording was not privileged because it, or more accurately the conversation that it recorded, was not confidential.

64 I do not propose to discuss Feuerheerd. That is because I do not regard the answer to the first issue in this case as turning on the reasoning in the cases to which I have referred. Those cases are important insofar as they illustrate the state of the relevant principles under the common law. They are thus the background against which the legislative intention embodied in ss117 and 119 must be analysed and understood. In that sense, they are indicative of "circumstances" in which, under the common law test, privilege might (or might not) attach. To that extent, I think, the better view is that at common law communications between parties to litigation, or their representatives (including legal representatives) are not to be treated, without more, as confidential for the purposes of the common law relating to legal professional privilege. (Of course, I except from this communications of a "without prejudice" character, undertaken in an attempt to resolve the dispute. The confidentiality of those communications rests on a different, and for present purposes irrelevant, basis). But it does not follow that the solicitor's document recording a communication with an opposing party or the opposing party's legal representative is not privileged. Whether it is or not depends on the question of whether the document is, even though the communication that it records was not, confidential within the statutory definition.

65 In Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526, Goldberg J reasoned to similar effect. His Honour noted at 563 that a document could be privileged from production even if it were a copy of a non-privileged document: Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501. Thus, his Honour observed, "[a] document recording or containing a witness statement can be regarded as a document privileged from production if it is brought into existence for the dominant purpose of use in anticipated legal proceedings, even though it may be said that the communication of the information recorded in the document by the witness to the maker of the document…is not confidential because, for example, it is a communication between two parties with adverse interests". His Honour restated the proposition in slightly different language a little later on the same page. He said "that the recording of a non-confidential conversation in a document can similarly be protected from production if the document was brought into existence for the dominant purpose of apprehended proceedings". This was because "the context in which a document comes into existence and its proposed use makes it a confidential document". 66 I agree with his Honour's reasoning, and accept that the purpose for which a document is created may cast light on the issue of its confidentiality. That is because the question is whether the person who prepared the document, or the person for whom it was prepared, was under an express or implied obligation not to disclose its contents. The reference to "implied obligation" directs attention to all relevant circumstances, including the context in which and the purposes for which the document was prepared. It does not fall to be answered solely by reference to the character of the contents.

"Confidential communication … confidential document" 67 The decision of Goldberg J serves to focus attention on the critical question: are the documents in respect of which privilege is asserted confidential communications or confidential documents? It is clear that none of them is of itself a communication. It is equally clear, accepting his Honour's analysis, that each of them may be a confidential document even if that which it records is not a confidential communication.

68 Section 119 of the Evidence Act applies to protect "a confidential communication" of a particular kind, or "a confidential document", prepared for the relevant dominant purpose. Those concepts are made applicable by UCPR r1.9 and the definitions, in the Dictionary to those Rules, of "privileged document" and "privileged information". The effect of s119 is that evidence is not to be adduced over objection if adducing the evidence would result in disclosure of a confidential communication or of the contents of a confidential document (it is unnecessary to keep repeating the requirement for dominant purpose). Adapting s119 to the scheme of the Rules, the "privileged information" is the "confidential information" or "contents of a confidential document" of which (in this case) s119 speaks. The "privileged document" is the record of that confidential communication or the confidential document in question. 69 It follows that a document that records a confidential communication may attract privilege, and thus the operation of s119 and r1.9, even though the document itself is not a "communication" (or, at least, a "communication" to anyone but the person who brings it into existence). A solicitor's file note prepared to record instructions given to the solicitor by or on behalf of a client is not, in any realistic sense, a "communication". But the instructions that it records may, and normally will, be communications. Section 119 or r1.9 will apply to the document, not because it is a communication but because it records a confidential communication, and is therefore itself confidential. Section 119 or r1.9 will apply also where the document is a confidential document for any other reason that brings into play the definition in s117. Equally, s119 or r1.9 will apply to a document even if it records a communication that is not confidential, where having regard to the character of the document and the circumstances in which and purpose for which it was prepared, the document itself can be said to be a confidential document.

70 In State of New South Wales v Jackson [2007] NSWCA 729, Giles JA (with whom Mason P and Beazley JA agreed) considered at [41] to [47] the authorities dealing with the situation in which an implied obligation of confidentiality will attach to communications. It is unnecessary to repeat his Honour's analysis of those authorities, save to say that they support the proposition that Mr Longhurst would be bound by an implied obligation of confidence in relation to the communications of 24 June 2003 unless, as I have noted, the circumstance that those communications were made by a person who is now the opposing party has displaced that obligation or prevented it from arising. Analysis: the file notes of 24 June 2003

71 As to these notes, the starting point for Mr Garling's submissions was that Mr Sugden should be regarded as an opposite party when he spoke to Mr Longhurst on 24 June 2003. I do not accept that submission. There are two difficulties. The first is that the submission is not supported by what I think is the better view of the evidence. The second, and more fundamental, problem is that the submission overlooks the proposition that a document may be confidential even though it records a communication that itself was not confidential. 72 The better view of the evidence is that Mr Sugden is to be regarded as having been on that occasion the representative, or in an informal sense agent, of Ms Sugden, for the purpose of instructing Mr Longhurst to act on her behalf. The findings of the primary judge to which I have referred in pars [25] and [26] above make it clear that the communications recorded in the two file notes of 24 June 2003 were communications by Mr Sugden, on behalf of his daughter Ms Sugden, to Mr Longhurst, in his capacity as a solicitor. They were communications made for the purpose of instructing Mr Longhurst to act on behalf of Ms Sugden in relation to a possible claim arising out of the accident.

73 Once that is understood, the application of s119 is clear. Mr Longhurst was (and is) under an implied obligation to his client Ms Sugden to keep confidential the matters communicated, and his records (the file note) of those matters. It is as if those matters had been communicated to him directly by Ms Sugden for use in relation to anticipated legal proceedings. 74 Further, as I have said more than once, a document may be confidential even though it records a communication that was not. In the present case, the circumstances in which the file notes were created and the purpose for which they were created lead inescapably to the conclusion that Mr Longhurst owed an implied obligation to Ms Sugden to keep them confidential. Thus, regardless of the characterisation of the communications which (I assume) those documents record, they are themselves confidential and, therefore, privileged from production.

75 I conclude that the file notes relating to the conference of 24 June 2003 are relevantly confidential, and therefore attract client legal privilege pursuant to s119 of the Evidence Act.

76 Mr Longhurst's evidence as to this file note is not entirely easy to follow. He said in cross examination (T35.4-.9; WB 53) that as at the time that he completed the claim form (early in August 2003) he had had only the one conference - that of 24 June; and that there had been no intervening conference "other than to talk about police action". However, in his evidence in chief, he had said (T22.23-.44; WB 40) that from 24 June 2003 until the submission of the claim form on 13 August 2003 he had had contact with Mr Sugden, discussing the circumstances of the accident and Ms Sugden's "well being generally". He agreed that this was "principally because [Mr Sugden] was the family person present in Orange throughout that period, his wife and Nicole being at the hospital in Sydney". Mr Longhurst said further (T22.46-.57; WB 40) that he also received instructions from Mr Sugden concerning the desire of the police to talk to him, and about the generation of the statement that was ultimately provided to the police. I have referred to that evidence in para [14] above.

77 Based on that evidence, I think that the better view of the communication is that it was one made by Mr Sugden for his own purposes and not on behalf of Ms Sugden; that it was made for the purpose of seeking professional legal services in relation to the police investigation. This does not attract privilege under s119, but it does attract privilege under s118. As the case was argued, nothing turns on this distinction. On this analysis, the communication was confidential as between Mr Longhurst and Mr Sugden. The circumstance that Mr Sugden is now an opposing party in relation to other legal proceedings is irrelevant. The document recording the communication (the file note of 1 July 2003) is a confidential document, with Mr Sugden being the person entitled to the confidence.

78 Alternatively, it may be an available inference from Mr Longhurst's evidence that the file note dealt with the circumstances of the accident and Ms Sugden's wellbeing. If that be correct, Ms Sugden is the person entitled to maintain the confidence. On that analysis, the communication was with Mr Sugden as Ms Sugden's agent, not in his own capacity either as a client (in the police matter) or as a defendant (in Mr Sugden's matter). On neither basis can the file note be regarded as a record of a communication with an opposite party. On either basis Mr Longhurst was and remains under an implied obligation to keep confidential the matters communicated to him and his record of those matters in his file note. On either basis, the document recording the communication is a confidential document. In one case, it is confidential to Mr Sugden. In the other, it is confidential to Ms Sugden.

79 Mr Garling's only attack on the confidentiality (or lack of confidentiality) of this file note was based on its being a record of a communication with an opposing party. For the reasons that I have given, I do not accept that it is to be so characterised. Nor, for the reasons that I have given, do I accept that the question of confidentiality is to be answered by reference to the characterisation of the communication that is recorded in the file note. Even if the communication in question were not privileged for some reason, the file note is be confidential. The circumstances in which it was made do not displace - indeed, they reinforce - that view.

80 At least by the time the claim form was signed on 12 August 2003, Mr Longhurst perceived that Mr Sugden was a possible defendant.

81 By that time, however, Mr Longhurst had commissioned the investigation of the accident that was undertaken by Mr Mileto. Mr Longhurst knew that the police wished to speak to Mr Sugden (this had been the topic of the telephone call of 1 July 2003).

82 As I have said, I think that the better view of the evidence overall is that Mr Sugden was interviewed as part of Mr Mileto's investigations into the accident. But it does not follow that the conference with Mr Sugden, during which Mr Campbell settled Mr Sugden's draft statement, was undertaken for the purpose of gaining evidence for use in any proceedings that might be commenced by Ms Sugden. Mr Longhurst's evidence in chief on this topic was a little elliptical. He said (T22.45-.52; WB 40) that:

· He received instructions from Mr Sugden that the police wanted to talk to him about the accident; · He took advice about what to do in relation to that request; and · As a result, the statement that was provided to the police "came into being".

83 In his letter claiming privilege (to Hunt & Hunt, dated 23 June 2005) Mr Longhurst referred to this as "an annotated draft statement of Mr Sugden prepared in conference with Senior Counsel for the purpose of advising him with respect to his obligation to furnish a statement to Police." That letter formed part of the annexures to the affidavit of Mr A J T Bolton of Hunt & Hunt read in support of the notice of motion for access to the documents in question. (The letter was tendered on the hearing of the application for access, to demonstrate that there was an objection to the production of the draft statement, on the ground of privilege. Having been so tendered, and admitted without restriction, it is evidence for all purposes in that application, without any limitation imposed by the hearsay rule. See s60 of the Evidence Act.) The cross-examination of Mr Longhurst suggested that this explanation was accepted (T33.46-.56; WB 51). It was put to Mr Longhurst that he received the call from Mr Sugden to which I have referred, to which he agreed. He was then asked "Now the draft statement when was that first generated for that purpose?". He replied that this was done through Mr Mileto, but that he could not remember the date. It was not put to Mr Longhurst that the explanation given in his letter was fabricated.

84 Further, although Mr Longhurst was cross-examined as to the information on which he relied when he prepared the claim form for signature by Mr Sugden, it was not put to him that he relied on the draft or final version of Mr Sugden's statement.

85 It is necessary to focus attention on the particular document in respect of which the claim for privilege is asserted. That is the draft statement of Mr Sugden, taken by Mr Mileto, that was the subject of the conference with Mr Campbell to settle it in the course of which Mr Campbell annotated it. According to Mr Longhurst's letter of 23 June 2005, the purpose of that conference and of those annotations was to get the draft statement into a form that could be signed by Mr Sugden and submitted by him or on his behalf to the police. In those circumstances, I think, the instructions given by Mr Sugden in the course of that conference, and the views of Mr Campbell as recorded in his notes, should not be regarded as instructions given or views expressed for the purpose of prosecuting the claim that was about to be initiated on behalf of Ms Sugden. They should be regarded as instructions given and views expressed for the purpose of finalising a statement of Mr Sugden to be given to the police in answer to their request.

86 Thus, I do not think that it is appropriate to regard Mr Sugden as the "opposite party", so as to attract whatever consequences follow from that designation. The purpose of the conference, in the course of which the particular document was brought into existence, was to settle Mr Sugden's statement for submission to the police. The instructions given by Mr Sugden, and the views expressed by Mr Campbell, relate to that topic. Those circumstances in my view are sufficient to impose on Mr Longhurst (and for that matter on Mr Campbell) an obligation of confidence owed to Mr Sugden in relation to the instructions given and advice received. 87 Again, however, I do not think that the characterisation of the communication is vital. The draft statement - a document commissioned by a solicitor in the course of investigating and preparing for hearing his client's claim for damages - would ordinarily be regarded as confidential to the solicitor's client: at least, in circumstances where it was not disclosed to or signed by the person from whom it was taken (compare Hodgson J in Aydin at 691 - see para [51] above). As with the file notes, the circumstances in which and purpose for which the draft statement was taken lead escapably to the conclusion that it is a confidential document. I do not regard the authorities as requiring any different conclusion, even if it be assumed (as I think it is correct to do) that by the time the file note was taken, Mr Sugden was perceived as, and should be regarded as having been, an "opposite party". The document was confidential when it was created, and its subsequent use and annotation in conference can hardly have served to displace that confidentiality.

88 Undoubtedly, the signed statement of Mr Sugden furnished to the police would be available for use in the litigation. Mr Longhurst and Mr Campbell may well have had this in mind. But neither the availability of the signed statement nor any view formed by Mr Longhurst or Mr Campbell on that topic displaces the obligation of confidence that in my view arose when the draft statement was settled, and that attaches to the annotated draft produced during that process.

89 It follows that the draft statement annotated in conference by Mr Campbell should be regarded as privileged. (Again, this is because of s118, not s119: but as I have said, nothing turns on this.) That conclusion applies to the particular document, because the circumstances in which it was brought into existence during the conference between Messrs Campbell, Longhurst and Sugden make it plain that it is a confidential document.

90 In the course of submissions, Mr Garling appeared to place reliance on the fact that Mr Campbell and Mr Longhurst had been retained by Ms Sugden. To the extent that they undertook the task of settling the draft statement on Mr Sugden's behalf, so that it could be submitted to the police, they may have placed themselves in a position of some conflict. But it does not follow from this that either the annotated draft statement or the views expressed in conference are thereby rendered non-confidential. If it is correct to think that the work was undertaken at the behest of Mr Sugden, he is entitled to insist that it be treated as confidential. If obedience to that insistence places Mr Longhurst and Mr Campbell in a position of conflict with Ms Sugden, that is their problem, not Mr Sugden's. It does not destroy whatever confidentially otherwise attaches to the document and the communications flowing from the circumstances in which they were created and expressed.

91 There is a threshold question before s126 can operate. That is whether, in substance (and again departing from the language of the section) client legal privilege has been lost in a document or communication because of the application of one or more of ss121 to 125. I am prepared to assume, in what follows, that the threshold test has been met in respect of the documents in question: the claim form and Mr Sugden's signed statement.

92 At common law, disclosure of part of a privileged communication has been held to amount to waiver of the privilege in the whole of that communication. See Attorney-General for the Northern Territory v Maurice (1986) 161 CLR 475 at 487-488 (Mason and Brennan JJ); 492-493 (Deane J); 497-498 (Dawson J). Although their Honours based this conclusion on considerations of unfairness, it is clear from the judgment of the majority (Gleeson CJ, Gaudron, Gummow and Callinan JJ) in Mann v Carnell (1991) 201 CLR 1 at 13 [28] that at common law it is "inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege." Their Honours accepted at 13[29] that the question of inconsistency may "where necessary [be] informed by considerations of fairness". However, it is inconsistency and "not some overriding principle of fairness operating at large" that determines the position at common law.

93 Section 126 of the Evidence Act is not cast in terms of either unfairness or inconsistency (or, for that matter, inconsistency informed by notions of unfairness). Thus, the operation of s126 is to be assessed according to its terms, and not on the basis that in some way it incorporates the pre-existing common law. See Sackville J in Towney v Minister for Land and Water Conservation (NSW) (1997) 76 FCR 401 at 412, 413-414.

94 Sackville J said in Towney that the test set out in s126 is an objective one. I agree. As his Honour says, that follows from the requirement that consideration of the related communication or document "is reasonably necessary" for the stated purpose.

95 The stated purpose is to obtain "a proper understanding of the communication or document" in respect of which one or other of ss121 to 125 has operated so as, in substance, to override or abrogate client legal privilege. That requires a consideration of the document or communication of which the "proper understanding" is sought, and of the circumstances in which, and purposes for which, it is required.

96 In Towney, Sackville J referred at 414 to dictionary meanings of "proper" and "understand". He cited the Macquarie Dictionary definitions of "complete or thorough" and "to apprehend clearly the character or nature of" respectively. In my view, that is the approach to be taken to the process of analysis that underpins s126.

97 In the present case, Mr Garling submitted that reference to the file notes and annotated draft statement was reasonably necessary to enable a proper understanding of, firstly, the claim form and, secondly, Mr Sugden's signed statement.

98 Before I turn to those documents, I should note that the Court was invited to go to the file notes and the annotated draft statement and to consider for itself whether it would be reasonably necessary to have regard to them to obtain a proper understanding of the claim form and the signed statement. On the view to which I have come, it is not necessary for the Court to do that.

99 I start with the claim form. Mr Garling submitted that the description of the accident (section 16 of the form) and the attribution of fault (section 17) were unclear. The former, which is to be read in conjunction with the sketch immediately preceding it, reads as follows: Driving north from "the Oaks" to "Silverdale" when about half way between these localities the vehicle went off the edge of the road which was rough and uneven. The driver attempted to correct the vehicle. The vehicle veered off the road and collided head on and rolled one and a half times coming to rest off the road and on the embankment.

100 The latter reads: Wollondilly Shire Council / drivers driving instructor Tim Sugden - state of road, speed of vehicle, inadequate instruction of driver, also NSW Ambulance Service respecting retrieval process resulting in more severe injury to claimant.

101 As to the description of the accident, Mr Garling submitted that it was not clear with whom (or what) the "head on" collision occurred; nor was it readily apparent how the circumstances described in the first sentence were related to the consequences described in the second.

102 I do not think that it is appropriate to analyse the claim form as though it were a particularly opaque piece of legislation. It is clear from the whole of the document that no other vehicle was involved in the accident. It is relatively clear from the description of the accident, read in conjunction with the sketch, that the "head on" collision was with the embankment (which was on the opposite side of the road to that on which the vehicle had been travelling before Ms Sugden lost control).

103 Nor do I think that there is too much mystery about the relationship between the matters described in the first sentence and the consequences described in the second. It is clear, overall, that the vehicle left the bitumen and that in Ms Sugden's attempts to get it back on, she lost control. One may readily understand how travelling on (or partly on) a "rough and uneven" roadside might have contributed to that unfortunate circumstance.

104 The attribution of fault is a little more troublesome. It is clear enough that the council is suggested to have been at fault because of the state of the road. It is clear enough (notwithstanding the way in which this passage has been completed) that Mr Sugden is suggested to have been at fault because the vehicle was travelling at an excessive speed and he was not giving adequate instruction to Ms Sugden.

105 However, the reference to the NSW Ambulance Service is not clear. The method of retrieval is not specified, nor is it stated why that method of retrieval resulted in Ms Sugden's suffering "more severe injury".

106 Thus, if matters went no further, it might be possible to argue that the revelation of other material was necessary to obtain a proper understanding of this aspect of the claim form. However, matters have gone further. In particular, Mr Sugden has produced and signed a statement that has been given to the police. That statement has been made available to Ms Sugden's legal advisers. In that statement, Mr Sugden gives a detailed account of the accident. It supplements and explains, among other things, the circumstances in which the accident occurred, the reasons why his supervision of Ms Sugden has been called into question and the reasons why it was suggested that the method of extracting Ms Sugden from the wrecked vehicle might have exacerbated her injuries.

107 The assessment of reasonable necessity is not something to be undertaken in a vacuum. It is to be undertaken having regard to, among other things, other information available. In the present case, a person seeking a reasonable understanding of the claim form who had access to Mr Sugden's signed statement would be able to supplement and understand the claim form, by reference to the signed statement, with no real difficulty.

108 Of course, that reasoning assumes that the signed statement itself is clear and detailed, and that further information is not reasonably needed to obtain a proper understanding of it.

109 Mr Garling's submissions did not focus on inadequacies in the information conveyed by the signed statement. Nor could they. It is clear and comprehensive. His submissions drew attention to certain features of the signed statement, including that Mr Sugden's attention had been distracted, immediately before Ms Sugden lost control of the vehicle, while he was fiddling with the radio. Mr Garling drew attention to the fact that neither the radio nor Mr Sugden's "interaction" with it had been referred to in the claim form. He submitted (T35.38 - .48) ….so that the sequence of events is the material from the conference of 24 June 2003 doesn't give rise to a document that mentions the radio. One then has a draft statement, annotations and a final statement which contains in it an allegation about the radio and we would submit that we're entitled to see the draft and the annotations to see what, if anything, has sparked the issue of the playing of the radio… which is one of the clear particulars of negligence against Mr Sugden.

110 I do not accept that submission. What is necessary is a clear understanding of (in this case) the signed statement. Whether the signed statement is in such a form as, either by itself or in conjunction with other available material, to be capable of complete or thorough understanding does not depend on suggested discrepancies between the statement and underlying or antecedent documents. It is a question to be answered by reference to the statement itself, considered in the context of other information available to the person who makes the objective analysis comprehended by the phrase "reasonably necessary". The same reasoning applies, with appropriate modifications to suit the changed subject matter, to the claim form.

111 Mr Garling submitted that there was a discrepancy between the claim form and the statement - there were "two different versions". Thus, he submitted: So it's reasonably necessary, we submit, to understand how this statement and these facts came about to understand the previous material.

112 In truth, I think, the reasonable necessity asserted was not directed to understanding the signed statement (or for that matter the claim form) but, rather, to facilitating the cross-examination of Mr Sugden on possible discrepancies in his accounts of the accident. I do not think that this is within the concept of reasonable necessity contained in s126.

113 For these reasons, I conclude that s126 has no application in the present case.

114 In my view, each of the documents should be regarded as privileged in terms of UCPR r1.9. That privilege has not been lost. It follows that the Primary Judge was correct to dismiss the application for access to those documents.

115 I propose that the appeal be dismissed with costs.

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