Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd

REASONS FOR JUDGMENT 1 Earlier in the course of these proceedings I directed that the parties file by a particular date any applications with respect to the order for discovery which had been made. The parties attempted by an exchange of correspondence informally to resolve various differences which had emerged with respect to discovery. A number of differences remained. I dealt with most of these in a judgment which I delivered on 12 August 2010: Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 4) [2010] FCA 863 (the No 4 judgment), with which these reasons for judgment should be read. Others I reserved for consideration if need be at a directions hearing on 19 August 2010. Most of these I was able then to resolve summarily after hearing brief submissions from the parties. 2 A difference which remained and which the exigencies of the day did not allow for resolution on 19 August 2010 arose from the application by Prudentia, Hanley and Mr Reed for an order that the Sunland parties provide a document description (within the meaning of that term in the Discovery Protocol in this proceeding) for each of the documents in schedule B to their notice of motion filed on 26 May 2010. The form of direction for which Prudentia, Hanley and Mr Reed pressed was that, by such date as I may nominate, the Sunland parties provide to them "a document description (within the meaning attributed to that term in the Discovery Protocol in this proceeding) for each of the documents discovered by the Applicants over which the Applicants make a claim for client legal privilege". 3 Prudentia, Hanley and Mr Reed made reference to the following part of the Discovery Protocol: 2.1 All Documents to be exchanged between the parties and delivered to the Court will be described in a List of Documents containing the following information for each Document: (a) Document ID (see Schedule 1 for details) (b) Document Title (c) Document Type (see Schedule 7 for details) (d) Document Date (e) Author (see Schedule 2 for details) (f) Recipient (see Schedule 2 for details) (g) Host Document ID (see Schedule 3 for details) (h) Folder and Filename (refer Schedule 4 for details) It is not necessary to reproduce any of the schedules to the protocol. 4 In the No 4 Judgment (at [130]) in the course of resolving a controversy as between the Sunland parties and Mr Joyce, the fourth respondent, as to the adequacy of his description of documents which were subject to the self incrimination privilege claim which he made, I regarded as sufficient a method of description which referred to documents by a document discovery number and a date but not with any more precise description of the document concerned. In so doing, I expressed the opinion that this method of identification conformed with that regarded by the Queensland Court of Appeal in Interchase Corporation Ltd (in liq) v Grosvenor Hill (Qld) Pty Ltd (No 2) [1999] 1 Qd R 163 (Interchase). 5 Prudentia, Hanley and Mr Reeds' position is that each of the documents over which the Sunland parties maintain a claim for privilege ought to be described with such particularity that the description might allow them to form at least a prima facie view as to how and whether such documents fall within the scope of that privilege claim. In support of this they make reference to some observations which I made in the No 4 Judgment at [16] - [17] in respect of the descriptions in their own list of documents. They further submitted that their position was supported by a passage from the judgment of the Court of Appeal in Interchase [1999] 1 Qd R at 165, lines 43-45: The affidavit was deficient in that the dates of the documents were not identified, the nature of the documents was not identified and neither were the parties to any communications identified by name or description. 6 What I stated at [16] - [17] of the No 4 Judgment was this: 16 The controversy centres on documents described in Annexure B to the discovery complaint letter. In a response of 20 May 2010 (discovery response letter) the solicitors for Prudentia, Hanley and Mr Reed (Freehills) assert that each of the documents in Annexure B "contain email communications sent to or by or copied to David Sinn of Freehills and brought into existence for the purpose of obtaining or acting in furtherance of legal advice". 17 It is not apparent from the description of the documents in Annexure B that any were sent to or by Mr Sinn. I can understand, having regard to the description how an interrogative note was sounded in the minds of those advising the Sunland parties as to how such documents fell within the scope of a client legal privilege claim. 7 The Sunland parties acknowledge that para 2.1 of the Discovery Protocol provides for the usual position in respect of the description of a document on a list of documents such that, usually, a document must be described in a way that, amongst other things, identifies the author and the recipient. They also draw attention though, within the Discovery Protocol, to para 12.4. It is there stated that where the whole or part of a document is subject to a claim for privilege, a document will be described by a document ID number, and a description "that does not disclose the information that is the subject of the claim of privilege or confidentiality". That is why, they submit, the description in their list takes the form which it does. 8 The Sunland parties also submit, correctly, that the passage from Interchase relied upon by Prudentia, Hanley and Mr Reed is not in fact a passage from any of the judgments delivered in that case; rather, it is a passage from the submissions of counsel for the respondents in that case. The authorised report of that case contains an extensive summary of the submissions made by counsel for the appellant and the respondents. Further, as the Sunland parties also submit and as regard to what de Jersey J (as his Honour then was), with whom Pincus JA and Thomas J (as his Honour then was) agreed (at 172) confirms, the proposition encapsulated in the passage from the summary of the respondents' submissions was expressly rejected by his Honour. 9 In Interchase, de Jersey J conducted a detailed survey of authorities concerning the adequacy of descriptions of documents. These authorities were not wholly reconcilable, even allowing for the context in which particular statements had come to be made. His Honour's survey commenced with Taylor v Batten (1878) 4 QBD 85 and culminated in the following passage ([1999] 1 Qd R 163 at 171-172): The Tasmanian Full Court followed Taylor v Batten in Lazenby v Zammit [1987] Tas R 54, Green CJ and Wright J saying (56): "At the hearing of this appeal it was submitted that the appellants were entitled to such a description as would enable them to form a prima facie view as to the correctness of the respondent's claim of privilege in respect of these documents. In our opinion, this proposition, although supported by the decision of the Full Court of South Australia in Kadlunga v Electricity Trust (1986) 39 SASR 410, goes too far as it seems to be an unauthorised gloss upon the plain language of O.33, r.16(1)." Williams J of this Court referred to Kadlunga in Braegrove Pty Ltd v Bendeich [1993] 2 Qd R 239. In Kadlunga, White J had said, with the concurrence of other members of the Full Court, that "what is required in properly describing discovered documents will vary from case to case depending on the nature of the document and the particular ground of privilege claimed". That is clear enough, but the judge went on to say that unless "the date of the document is disclosed, there is virtually no way of testing whether it could reasonably come within the relevant limb of legal professional privilege". In Braegrove, Williams J pointed to tension between that observation and what Cotton LJ said in Gardner v Irvin (1878) LR 4 Ex.D 49, 54: "... the plaintiffs are not entitled to have the dates of the letters and such other particulars of the correspondence as may enable them to discover indirectly the contents of the letters, and thus to cause the defendants to furnish evidence against themselves in this action." Williams J (242) expressed this conclusion, with which I agree: "Insofar as the reasoning of White J. goes so far as to say that the opposite party is entitled to such a description that would enable it to form a prima facie view as to the correctness of the claim of privilege then it ought not be followed; in that regard the decision in Taylor v Batten is to be preferred." As can be seen, the agreement expressed by de Jersey J, with the concurrence of Pincus JA and Thomas J, was with the conclusion of Williams J in Braegrove Pty Ltd v Bendeich [1993] 2 Qd R 239 at 242 that an opposing party was not entitled to a description which would enable it to form a prima facie view as to the correctness of the claim for privilege. That is the foundation for the position adopted by the Sunland parties. 10 The Sunland parties further submit, again correctly, that the provenance of the Discovery Protocol in this proceeding is to be found in this Court's Practice Note CM6 - Default Document Management Protocol (Practice Note). Paragraph 8.1 of that Practice Note provides for the adoption of this protocol in those cases where the number of discoverable documents is reasonably anticipated to be between 200 and 5,000 and in the absence of an alternative protocol propounded by the parties and accepted by the Court. 11 The observations which I made in Judgment No 4 (at [16] - [17]) were responsive to a particular (and different) application made by the Sunland parties arising from whether the verified list of documents should be regarded as conclusive in relation to particular documents in respect of which a claim for privilege which was made. As it happened, the Sunland parties did not adopt the method of description in their list as that employed by Prudentia, Hanley and Mr Reed. They were not obliged so to do. Paragraph 12.4 of the Discovery Protocol means what it says. I have already quoted from part of it but it is convenient to set it out in full: 12.4 If the whole or part of a Document is subject to a claim of privilege or confidentiality it will be: (a) allocated a Document ID; (b) given a Document Description that does not disclose the information that is the subject of the claim of privilege or confidentiality; and (c) if the claim of privilege or confidentiality relates to the whole Document -represented by a single Placeholder Page with the words 'Document subject to claim of privilege/confidentiality' inserted under the Document ID. 12 The submissions of Prudentia, Hanley and Mr Reed are based on a false premise. That premise is an observation made in relation to a materially different challenge, a challenge to whether there was revealed a basis for going behind the claim for privilege in their list, in which they had employed a different but permissible method of document description from that which the Sunland parties chose to adopt. In that challenge, the description which they employed was a given and it was not necessary to consider either whether it conformed with the Discovery Protocol or the rules. Prudentia, Hanley and Mr Reed also proceed upon a misreading of Interchase. 13 In relation to the application which the Sunland parties made with respect to the claim for client legal privilege by Prudentia, Hanley and Mr Reed the question was whether, in light of the description they employed and the prima facie conclusiveness of a verified list, a basis for questioning it had been established. Here, the question is different. It is, in effect, an anterior one, whether the description adopted by the Sunland parties conforms with the description requirement specified in para 12.4(b) of the Discovery Protocol? 14 In relation to the self incrimination privilege claim made by Mr Joyce, I took the view in Judgment No 4, having regard to the importance of that privilege and the circumstances of this case that to require Mr Joyce to give anything other than a description of the kind regarded as sufficient in respect of the privilege claimed in Interchase (client legal privilege) might be to subvert Mr Joyce's claim for privilege. The insufficiency which I discerned in relation to Mr Joyce's privilege claim was not in his description of documents but rather in his detailing of the grounds upon which his claim for privilege was based. That is a subject to which O 15 r 6(4) of the Federal Court Rules, not para 12.4(b) of the Discovery Protocol or the latter's foundation in the Rules, O 15 r 6(3), is directed. That paragraph of the Discovery Protocol and that sub-paragraph of O 15 r 6 are materially directed to the different subject of the description of a document in a list of documents. 15 Evident from the passage which I have quoted from Interchase is that views expressed by Cotton LJ in Gardner v Irvin (1878) LR 4 Ex D 49 at 53 [the reference to 54 is with respect, incorrect] on the subject of the sufficiency of affidavits of documents in that case have proved enduringly authoritative. Immediately before the quote which appears in the passage from Interchase which I have set out, Cotton LJ also stated (ibid): How can it be said that this affidavit is sufficient; in the body of the affidavit the defendants simply say 'that the same are privileged,' and in the schedule they set out the documents, some of which clearly are not privileged. They ought to say not only that the documents are privileged, which is a statement of law, but they ought to set out the facts from which we can see that the defendants' view of the law is right. Cash books and ledgers [I interpolate that these formed part of the description of the documents in the schedule] prima facie are not privileged. 16 In their written submission of 16 June 2010 (at [58]), Prudentia, Hanley and Mr Reed have given examples of the descriptions and associated basis for the privilege claim made by the Sunland parties in their list. Of these, it is sufficient to set out four: Ÿ Document 34: Report 15 August 2007 - LPP-litigation Ÿ Document 40: Letter 8 May 2006 - LPP-litigation Ÿ Document 53: Untitled -LPP-litigation Ÿ Document 54: cheque 26 September 2007 - LPP-litigation 17 The expression "LPP-litigation" is, as is elsewhere stated in the Sunland parties' list, but a shorthand way of setting out a statement of fact that the particular document concerned was brought into existence for the purpose of litigation. In contrast, in Gardner v Irvin, the defendants had merely stated, in effect, "[c]ash books and ledgers - privileged". It was not at all apparent in that case from the description of the document how it could give rise to any privilege claim and the associated bare statement "privileged" was wholly uninformative in terms of giving a factual explanation of the basis for the privilege claim. That is not this case. It is a mistake to read the document description in isolation from the associated shorthand statement of facts. 18 Once the description of the document is read as a whole the Sunland parties have both adequately described the document and set out the associated facts upon which the claim for privilege is based. They are therefore no less entitled to the assumption set out by de Jersey J in Interchase than was the party in that case ([1999] 1 Qd R at 170): [T]he more appropriate assumption is that a claim of privilege, if taken in proper form, is duly taken, that is, honestly and accurately taken, so that further scrutiny by the other party should not be necessary. That is, of course, but an assumption but the affidavit verifying the list is, prima facie, conclusive. 19 Whether there is a basis for going behind that conclusiveness was not the point raised by Prudentia, Hanley and Mr Reed. On the point which they have raised they must, for the reasons given, fail. They already have an adequately described list of documents from the Sunland parties. 20 Further costs have been incurred by the pressing of this point by Prudentia, Hanley and Mr Reed. Insofar as it relates to the same they should therefore pay the Sunland parties costs. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.