This is an Amended Notice of Motion filed by the Applicant on 1 October, 2019 seeking an order upholding the Applicant's claim for privilege with respect to some documents produced under the Respondent's Subpoena issued on 5 May 2019 to the third party CBRE Pty Limited (CBRE). CBRE has produced the documents required by the Subpoena. The Applicant was granted first access to the documents and now makes claims for privilege in respect to 160 of the documents produced.
The Respondent compulsorily acquired the Applicant's leasehold interest in land at Martin Place, Sydney. Compensation was determined for the acquisition of that interest including claims for disturbance primarily relating to the Applicant's relocation of its premises. The Applicant has commenced class 3 proceedings in this Court objecting to the seeking a determination of the compensation that it is Land Acquisition (Just Terms Compensation) Act 1991 (Just Terms Act). The matter is listed for a conciliation conference. No further action (apart from the issuing of subpoena and notices to produce) has been taken to date in the proceedings.
[2]
Categories of claims for privilege
The claims for privilege fall into four nominated categories:
1. Category 1: confidential communications with King Wood Mallesons (KWM), or confidential communications prepared within CBRE for the purposes of communicating with King Wood Mallesons, the legal advisers retained by the Applicant in connection with the compulsory acquisition of 39 Martin Place, and/or the Applicant made for the dominant purpose of:
1. use or in relation to pending or anticipated legal proceedings (being these proceedings); or
2. obtaining or giving legal advice,
3. and/or if disclosed would directly reveal or allow its reader to infer the actual content or substance of a privileged communication.
1. Category 2: confidential communications with the Applicant made for the dominant purpose of:
1. use or in relation to pending or anticipated legal proceedings (being these proceedings); or
2. obtaining or giving legal advice,
3. and/or if disclosed would directly reveal or allow its reader to infer the actual content or substance of a privileged communication.
1. Category 3: confidential communications with Mace Group and/or KWM, and/or the Applicant made for the dominant purpose of:
1. use or in relation to pending or anticipated legal proceedings (being these proceedings); or
2. obtaining or giving legal advice,
3. and/or if disclosed would directly reveal or allow its reader to infer the actual content or substance of a privileged communication.
1. Category 4: confidential communications with Lesley Horton Campbell, the Applicant's Associate General Counsel - Global Real Estate & Store Development, and/or Mace Group, and/or KWM, and/or the Applicant made for the dominant purpose of:
1. use or in relation to pending or anticipated legal proceedings (being these proceedings); or
2. obtaining or giving legal advice,
3. and/or if disclosed would directly reveal or allow its reader to infer the actual content or substance of a privileged communication.
There remain 160 documents over which there is a disputed claim for privilege. The documents were provided to me in a searchable form of the Applicant's updated consolidated schedule of privilege claims that is attached as Annexure A to the Amended Notice of Motion (which is a tabular identification of the individual document and the nature of the privilege claimed) (The Schedule). Only the documents that were agreed to be in dispute were listed, and to that extent there may be a variation in the searchable form of the Schedule and the filed Schedule. I attach a copy of the searchable Schedule (with the hyperlinks to the document deleted) and note in the last column by my decision with respect to each of the 160 documents that I have reviewed.
After reserving my decision I was advised by the parties that four documents that had been released to the Respondent (and removed from the now attached schedule) were, in the opinion of the parties, relevant to my determination of the Amended Notice of Motion. I was requested to review those documents to determine if I considered them relevant to my reserved decision. If I did consider them relevant the parties requested the opportunity to further address the Court. I advised the parties that I had reviewed the documents identified as:
CBR.501.001.5358
CBR.501.001.5364
CBR.501.001.5370
CBR.501.001.5375
(copies of which were provided to me).
I do not consider the documents relevant to my determination of the Amended Notice of Motion and I advised the parties of that finding. I will not refer further to those documents in these reasons.
[3]
Foundation for claim and principles to be applied
The Applicant claims privilege pursuant to the provisions of ss 118 and 119 of the Evidence Act 1995 which provides:
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, lawyer or another person;
for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.
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.
The Respondent opposes the orders sought in the Amended Notice of Motion and requires access to remaining documents produced by CBRE. The Respondent is, however, at an inherent disadvantage in so far as, apart from the description of the document and the Applicant's assertion of the basis of the privilege claimed, it has no knowledge of the document itself. Therefore, it is limited only to making general submissions as to the principles to be applied and to require the Court to consider those documents individually applying the relevant principles to each document.
The parties were generally agreed on the principles that I am required to apply, and these principles can be summarised as follows:
1. The Applicant bears the onus of establishing each of the claims for privilege, including each factual element necessary to establish the requisite dominant purpose. In that respect, focused and specific evidence is required in respect of each communication, rather than mere generalised assertion let alone opaque and repetitious verbal formulae: Asahi Holdings (Australia) Pty Ltd v Equity Partners Pty Limited (No 4) [2014] FCA 796 at [29].
2. Privilege can attach to a document where it is created for the dominant purpose of using it or its contents to obtain legal advice, even if the document is not in fact later used in an actual communication: Commissioner of Australia Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501.
3. The Court has the power to examine the documents over which privilege is claimed "and should not be reticent in exercising that power": Asahi at [36]; Morton v Bolinda Publishing Pty Limited [2017] FCA 187 at [62].
4. Claims in respect of each of the 4 categories identified require a determination as to whether the "dominant purpose" of the confidential communication was for the giving of legal advice or relating to legal proceedings (pending or in anticipation of).
[4]
Dominant purpose
Critical to a successful claim for privilege pursuant to either s 118 or s 119 of the Evidence Act is that the communication was made for the "dominant purpose" as described in those sections. The question of what comprises a dominant purpose was generally agreed between the parties to require the application of the principles outlined in paragraphs [8]-[11] of the Applicant's submissions which stated:
8. Privilege can attach to a document where it is created for the dominant purpose of using it or its content to obtain legal advice, even if the document is not in fact later used in an actual communication (Commissioner of Australia Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501).
9. The purpose is 'the reason why the document was brought into existence' (Waterford v Commonwealth (1987) 163 CLR 54, 66) and the 'dominant purpose' must be the 'ruling, prevailing or most influence purpose' or 'one that predominates over the other purposes' (AWB v Cole (2006) 152 FCR 382).
10. Ascertaining the purpose of a communication is a question of fact (AWB v Cole (2006) 152 FCR 382).
11. The purpose is to be determined objectively having regard to the circumstances that existed at the time the communication was made or the document was created (Song v Commissioner of Taxation [2018] FCA 840 at [5].) The subjective purpose of the maker or creator is relevant to, but no determinative of, the question of purpose (Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49, 172 (per Callinan J)).
In addition the Applicant submitted that the dominant purpose test also included advice that goes beyond formal advice as to the state of the law. It relied upon the decision in DSE (Holdings) Pty Ltd v InterTAN Inc (2003) 127 FCR 499 where Allsop J applied the dicta of Lord Justice Taylor in Balabel v Air India (1988) 2 WLR 1036 at [45] where he stated:
"I do not read the reasons of Taylor LJ as extending the privilege beyond legal advice. The reasoning of Taylor LJ was clearly directed to the privilege being so limited. 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 circumstances, however, it may be impossible to disentangle the lawyer's views of the legal framework from other reasons that all to make up the 'advice as to what should prudently and sensibly be done in the relevant legal framework' (Taylor LJ in Balabel at 330)"
Whilst this statement of principle was not expressly embraced by the Respondent in its written submissions at [42] the Respondent did not contend that this approach was incorrect.
The fundamental issue with respect to the dominant purpose test in this case is that it is undisputed that Mr Palmer and his firm CBRE had been retained to provide multiple services to the Applicant, principally the two services of: assisting it in finding premises to which it could relocate; and assisting it and its legal advisors in connection with the formulation of any claim under the Just Terms Act. The Respondent says that the relocation was the dominant purpose of Mr Palmer's work and that even if such work has the benefit of assisting the Applicant in the formulation of its claim the dominant purpose remained advising on the relocation options.
It is undisputed on the evidence that Mr Palmer (and CBRE) performed the two functions identified by the Respondent. From a consideration of the 160 disputed documents I find that where his work related to: the finding of options for relocation; the assessment and advising on those options; working with other third parties (such as Mace Group) with respect to the relocation; and any negotiations relating to those options, his communications were not for the dominant purpose of the giving of legal advice or in anticipation of legal proceedings. In these documents his work was for the dominant purpose of finding suitable premises. The fact that such work may have had the additional benefit of informing the Applicant's claim does not diminish the dominance of that purpose and to that extent I have determined that some of the disputed documents should not have the claim for privilege upheld. These documents are numbered in the attached table as documents: 43, 52, 58, 59, 80, 85, 86, 87, 88, 91, 107, 136 and 146.
Contained within some of the disputed documents are communications where the work relating to the relocation was used for the purpose of providing legal advice or for the purpose of formulating the claim. In such circumstances the communication remains privileged even where the foundation document has been released as its preparation was for a different dominant purpose: Asahi at [30].
There are further documents where there are parts that are privileged and parts that are not. Where the advice is not so intermingled with the document produced for a different dominant purpose the document can be redacted to remove reference to privileged communications (without such redaction otherwise allowing a person to deduce the nature of the confidential communication) I do not uphold the claim for privilege on the balance of the document after it has been redacted. The documents subject to this finding are numbered in the Schedule as 38, 40, 41 and 42.
The redaction is noted by my hand on a copy of each of the documents that I provide in a sealed envelope to the Applicant with these reasons and the document should be redacted in accordance with that notation prior to its production.
The balance of the documents I find were for the dominant purpose of obtaining legal advice or for the dominant purpose of being provided with legal services relating to an actual or anticipated proceeding.
[5]
Implied Waiver
As part of its submission to the Valuer General (VG) the Applicant supplied a report by Mr Palmer styled "Relocation Consideration for Tiffany & Co Flagship Luxury retail store and regional offices" which became Exhibit B on this Amended Notice of Motion. I am told by counsel for the Applicant that it is not the Applicant's present intention to call Mr Palmer as an expert in the proceedings.
It was asserted by the Respondent (and accepted by the Applicant) that by the submission of the expert report of Mr Palmer to the VG, the Applicant had waived any privilege that attached to that report. The dispute between the parties relates to the extent that the Applicant has, by the submission of the report, waived any privilege in respect of communications with/by Mr Palmer in connection with the preparation of that report as that conduct is "inconsistent with the maintenance of the confidentiality which the privilege is intended to protect": Mann v Carnell (1999) 201 CLR 1 at 29. The Respondent further contends in determining whether the conduct is inconsistent with the maintenance of the privilege the Court is entitled to have regard to considerations of fairness. In this case it is said that it would be unfair to allow the Applicant to seek some advantage by the submission of the report to the VG without allowing the Respondent to properly understand the underlying instructions and influences that were communicated to Mr Palmer to allow him to prepare his report.
The Applicant disputes that the submission of the Palmer report to the VG is consistent with an implied waiver of the privilege when considered against the principle outlined in Mann v Carnell. Further, it contends that when considering whether privilege has been waived, consideration of matters of fairness are generally limited to circumstances where the report is relied upon as expert evidence in the proceedings. It relies upon the principles relating to such waiver as were outlined in the following terms in ASIC v Southcorp Ltd (2003) ACSR 438 at [46]:
The principles of waiver of legal professional privilege with respect to the disclosure of expert report for the purposes of reliance in litigation are set down by Justice Lindgren in the case of ASIC v Southcorp Ltd (2003) 46 ACSR 438. Relevantly, these include:
1. Ordinarily the confidential briefing or instructing by a prospective litigant's lawyers of an expert to provide a report of his or her opinion to be used in the anticipated litigation attracts client legal privilege: cf Wheeler v Le Marchant (1881) 17 ChD 675; Trade Practices Commission v Sterling (1979) 36 FLR 244 at 246; Interchase Corporation Ltd (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 1) [1999] 1 Qd R 141 ("Interchase") at 151 per Pincus JA, at 160 per Thomas J.
…
4. Ordinarily disclosure of the expert's report for the purpose of reliance on it in the litigation will result in an implied waiver of the privilege in respect of the brief or instructions or documents referred to in (1) and (2) above, at least if the appropriate inference to be drawn is that they were used in a way that could be said to influence the content of the report, because, in these circumstances, it would be unfair for the client to rely on the report without disclosure of the brief, instructions or documents; cf Attorney-General (NT) v Maurice (1986) 161 CLR 475 at 481 per Gibbs CJ, 487 - 488 per Mason and Brennan JJ, 492-493 per Deane J, 497 - 498 per Dawson J; Goldberg v Ng (1995) 185 CLR 83 at 98 per Deane, Dawson and Gaudron JJ, 109 per Toohey J; Instant Colour Pty Ltd v Canon Australia Pty Ltd [1995] FCA 870; Australian Competition and Consumer Commission v Lux Pty Ltd [2003] FCA 89 ("ACCC v Lux") at [46].
The Applicant says that as the Palmer report has not been tendered in the proceedings (nor is it the Applicant's present intention to do so) it is premature to assert a waiver of the privilege.
I have considered the Palmer report (Exhibit B) and the documents over which the privilege has been claimed. I find that the Applicant did not by the submission of the report to the VG act in a manner inconsistent with the maintenance of the confidentiality of the underlying communications.
The nature of the submission to the VG is quite different from expert evidence filed in Court proceedings. In the substantive proceedings in this case the Applicant will be required to adduce admissible evidence to establish the claims for compensation. The Palmer report has not been submitted in the proceedings. Rather that report was submitted as part of the Applicant's claim for compensation (as required by s 39 of the Just Terms Act. That "claim" is to be considered by the VG but is nothing more than an Applicant identifying the extent of what it understands it is entitled to under the Just Terms Act. An Applicant is not bound by the claim made at the pre-acquisition stage of the acquisition, just as an acquiring authority is not bound by the determination of compensation made by the VG in subsequent proceedings. Having regard to the statutory pre-acquisition provisions I do not find that the provision of the report is inconsistent with the maintenance of the privilege now asserted.
Further, in light of the pre-acquisition procedure being one that is not binding on either party in the proceedings now before the Court I do not find that there is any inherent unfairness in the Applicant maintaining the privilege it has asserted. The report is clear enough on its face to inform the Respondent of the nature and basis of the opinions expressed for the purpose intended without necessary recourse to underlying privileged communications.
Therefore, I do not find that the privilege to which the Applicant would otherwise be entitled has been either expressly or impliedly waived.
[6]
Lack of evidence
In support of its claim for privilege the Applicant read the following affidavits:
Debra Townsend sworn 12 July 2019;
Trudy Sheehan sworn 5 July 2019;
Hilary Catherine Brownlow sworn 16 July 2019.
I was also provided with a confidential affidavit of Trudy Sheehan sworn 1 October 2019 that was read by me (without objection) but the content was not disclosed to the Respondent that will remain a confidential exhibit on the file.
The Respondent contended that the evidence filed by the Applicant was insufficient to discharge the onus borne by it to demonstrate privilege. In particular, it was asserted that the affidavit evidence of Ms Townsend contained "bare conclusory assertions of purpose" relating to the general category of documents, rather than, as is required, an assessment of each communication for which privilege is claimed. Nor, it is said, do the affidavits establish that the dominant purpose of the communication was for legal advice or in anticipation of litigation, rather, it makes assertions that such purpose was merely one of the purposes for the communications.
I accept the Respondent's broad criticisms of the evidence. However, I also accept that by the very nature of the privilege claimed it is difficult for detailed evidence to be adduced without putting at risk the retention of the privilege asserted. In large part it has been left to my inspection of each communication to ascertain from the content of the document containing the communications and drawing inferences available to me from that communication as to the purpose of the communication and the extent to which the privilege claimed was the (or a) dominant purpose for its creation.
Considering the evidence as a whole, which included an inspection of the 160 disputed documents, I find that there was sufficient evidence to permit me to make the necessary findings.
[7]
Costs
The Respondent sought the dismissal of the Notice of Motion with costs. In light of my reasons I do not consider that it is appropriate that such order be made and propose that unless any party seeks to relist the matter before me within the next 7 days to vary the terms of my Order 3, the costs of the motion will be costs in the cause.
[8]
Orders and Directions
In accordance with the reasons outlined above I order that:
1. The Applicant's claim for privilege is upheld except in respect of documents numbered 43, 52, 58, 59, 80, 85, 86, 87, 88, 91, 107, 136 and 146 (the non-privilege documents);
2. The Applicant is to produce the documents after they have been redacted as per [15] above;
3. The Respondent is granted access (including photocopy access) to the non-privilege documents referred to in Order 1;
4. The costs of the hearing of this Notice of Motion will be costs in the cause;
5. The Amended Notice of motion is otherwise dismissed;
6. Liberty reserved to the parties to relist the matter within 7 days of this judgment should either party seek to vary Order 3 above.
I direct that:
1. The documents to which privilege is claimed that have been produced are to remain confidential and access is not to be granted to any party other than the Applicant unless otherwise ordered by the Court;
2. The confidential affidavit of Trudy Sheehan sworn 1 October 2019 is to remain confidential and the sealed envelope containing the affidavit is to remain with the privilege documents and access to that affidavit is not to be granted to any party other than the Applicant unless otherwise ordered by the Court;
3. The USB stick containing the hyperlinked privilege documents is to be returned to the Applicant;
4. The exhibits are returned.
[9]
Amendments
14 October 2019 - At [4] second last line 'my' inserted between the words 'by' and 'decision'.
At [27] second last line replace 'contact' with 'content'.
At [32] order (2) added.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 14 October 2019