Trade Practices Commission v Sterling, Robert [1979] FCA 59

JUDGE MAKING ORDER: LOCKHART J. WHERE MADE: SYDNIWY DATT. OF ORDER: 15 JUNE 1979

THE COURT ORDERS THAT: The application be dismissed.

IN THE FEDERAL COURT OF AUSTRALTA ) NEW SOUTH WALES DISTRICT RECISTRY No. G155 of 1978

Neither party had sought discovery and inspection of documents in this case before the commencement of the Lrial.

During the course of the trial 16 became apparent that there should be mulual discovery and inspeclion, so lL made an order for mutual discovery and itnspeclion of documents subject to certain exceptions which are immaterial to the application before me.

Each party filed an affidavil of discovery. Inspection has taken place.

The respondent seeks to inspecl documents numbered 24 to 52 inclusive in Part II of the schedule to the affidavit of discovery of Geoffrey David Lavington filed on behalf of the applicant.

Paragraph 5. (b) of the affidavit 1s in these terms:-

documents listed in Part II of the Schedule on the grounds of legal professional privilege:-

to the affidavit does not fall wiihin any recognised head of

Section 38 of the Tederal Court of Australia Act 1976

"38, (1) Subject to any provision made by or under this or any other Acl with respect to practice and procedure, the praclice and procedure of the Court shali be in accordance with Rules of Court made under thas Act.

(2) In so far as the provisions for Lhe time being applicable in accordance with sub-section (1)

as in force for the time being, apply, mutatis mutandis so far as they are capable of applicalion and subject to any directions of the Court or a Judge, lo the practice and procedure of lthe Court.

(3) In this seclion, "practice and procedure" includes all matters in relation lo which Rules

"1. In relation to proceedings arising under the Acts set out in the Schedule to this Order, the practice and procedure of the Court shall be in accordance with the Conciliation and Arbitration Regulations as in force for the time being, which shall apply mutatis mulandis, so far as lLhey are capable of application and subject to any directions of the Courl or a Judge."

nolhing to say on the question of discovery or inspection.

Order 32 of the JIl;ngh Court rules relates to discovery

no power to make the orders sought by the respondent. Hence

the malter falls for determination in accordance with Lhe well

established principles relating to discovery and inspection to which I shall now turn. Legal professional privilege extends to various classes of documents including the following:- (a) any communication between a party and his professional legal adviser if it 1s confidential and made to or by the professional adviser in his professional capacily and with a view to obtaining or giving legal adv.icc or assistance}; notwithstanding that the communication is made Uhrough agents of the partyand UtUhe solicitor or the agent of eilher of them. Sce Wheeler v. Le Marchant 17 Ch. Div. 675; Smith v. Daniel L.R. 18 Eq. 649; Bullivantv. A. G. for Victoria 1901 A.C. 1963 Jones v. Great Central Railway Co. 1910 A.C. 4; O'Rourke v. Darbishire 1920 A.C. 581. (b) Any document prepared with a view Lo its being used as a communication of this class, although not in fact so used. See Southwark Water Co. v. Qurck 3 Q.B.D. 315. (c) Communications between the various legal advisers of the client, for example between the solicitor and his partner or his city agent with a view

tro the client obtaining legal advice or assistance.

(d) Notes, memoranda, minutes or other documents made by the client or officers of Che client

or the legal adviser of the client of communications which are themselves privileged, or containing a record of those communications, or relate lo information sought by the client's legal adviser to enable him to advise the client or to conduct litigation on his behalf. See Woolley v. N.L.R. Co. L.R. 4 C.P. 602 especially at p. 604; Greenough v. Gaskell

1 My.& K. at p. 1023; Corporation of Bristol v. Cox 26 Ch. Div. 678 at pp. 681 and 682; Woolley

Transport Commission 1959 1 W.L.R. 509; Grant v. Downes (1976) 135 C.L.R. 674; Bray's Principles _and Practice of Discovery (1885) pp. 388 and 389.

(e) Communications and documents passing between the party's solicitor and a third party if

they are made or prepared when litigation is anticipated or commenced, for the purposes of

the litigation, with a view to obtaining advice as to 1t or evidence Lo be used in it or information which may result in the obtaining

of such evidence. See Wheeler v. Le Marchant (supra); Laurenson v. Wellington City Corporation (1927) N.Z.L.R. 3510; O'Sullivan v. Morton 1910

(f) Communications passing between the party and a third person (who 1s not the agent of the solicitor to receive the communication from the party) if they are made with reference to litigation ezther anticipaled or commenced, and at the request or avggestion of the party's solicitor; or, even without any such request or suggestion, they are made for the purpose of being put before the solicitor with the object of obtaining his advice or enabling him to prosecute or defend an action. See Wheeler v.

(ge) Knowledge,information or belief of the client derived from privileged communications made to him by his solicitor or his agent. See Kennedy

It 1s not open to doubt that the court has power, in a proper case, to inspect documents where a claim of privilege 1s made to resist an application for inspection of documents by the opposite party. See Grant v. Downes (supra); Westminster Airways Limited v. Kuwait Oi1 Co. Limited 1951 1 K.B. 134. However, 1t is as well to bear in mind what was said by Jenkins L.J. in Westminster Airways Limited v. Kuwait 011 Co. Limited at

"But there 1s nothing 1n the rule, or an the authorities, to constrain the court to hold

1s made and disputed, the party seeking production as entitled to come to the court and (as it were) demand as of raght that the court should go behind the oath of the opposite party and itself inspect the documents. The question whether the court should inspect the documents is one which 1s a matter for the discretion of the courl, and primarily for the judge of first instance. Each case must depend on its own circumstances; but if, looking at the affidavit, the court finds that the claim to privilege is formally correct, and that the documents in respect of which it is made are sufficiently identified and are such that, prima facie, the claim to privilege would appear to be properly made in respect of them, then, 1n my judgment, the court should, generally speaking, accept the affidavit as sufficiently justifying the claim without going further and inspecting the documents."

In Grant v. Downes (supra) Stephen, Mason and Murphy pp. 688 and 689:-

"It 1s well accepted that the court in allowing production and inspection of documents exercises

a judicial discretion, In so doing it needs to scrutinize with care claims of privilege made on the ground now under consideration. It is for the party claiming privilege to show that the documents for which the claim is made are privileged. He may succeed in achieving this objective by pointing to the nature of the dotuments or by evidence describing the circumstances in which they were brought into existence. But 1 should not be thought that the privilege 1s necessarily or conclusively established by resort to any verbal formula or ritual. The court has power to examine the documents for itself, a power which has perhaps been exercised too sparingly in the past, springing possibly from a misplaced reluctance to go behind the formal claim of privilege. It should not be forgotten that 1n many instances the character of the documents the subject of the claim will illuminate the purpose for which they were brought into existence,"

I reached the conclusion that 1 should sznspect the documents numbered 24 to 52 inclusive, nol because each party agreed that 1 could do so if I wished, but because I had some doubt as to whether the description of the documents in paragraph 5. (vb) of the affidavil and in Part TI of the schedule fell within the recognised calegories of exclusion from inspection, I was also mindful of the passage from the judgment of the majority in Grant v. Downes (supra) which T have extracted above and what was said by Barwick C.J. in that case at p. 677 as follows:-

be, upon an inspection by the judge of the document itself, and by the application of the

slated principle. I say "if need be" because where the judge who hears the application for inspection may possibly be the trial judge, sitting without a yury, 1t may be better to decide the matter upon the evidence as to the purpose of the production of the document rather than upon an inspection of il, thus avoiding any complication which might arise from the document having been seen by the judge and privilege from inspection accorded to it." Having inspected the documents, which were not numerous, I am salisfied that they are privileged from anspection by the respondent. As to documents numbered 24, 25, 26, 28, 30, 31, 32 and 33 1n my opinion they fall within the category of privilege which I have lettered (f) above. Documents numbered 27 and 29 satisfy the requirements of category (e). As to documents 34 to 52 they fall within category (da). It was submitted by Mr. Tuchen of counsel for the respondent thal Grant v. Downes (supra) is authority for the

proposition Lhat legal professional privilege is confined to

documents which are brought into existence for the sole purpose

of their being submitted to legal advisers for advice or for use in legal proceedings. He submitted that the other categories of legal professional privilege, some of which I have set out above, although having been part of the law for well over a century have now gone. The submission fails. It 1s clear that the High Court in Grant v. Downes (supra) was considering the relevant principles of law governing privilege attaching to communications and materials submitted by a client to his solacitor for the purpose of advice or for the purpose of use in existing or anticipated litigation and not otherwise. See in particular p. 682 of the judgment of the majority of the court. Grant v. Downes (supra) has nothing to say as Lo the other well established categories of legal professional privilege.

For these reasons the applicaiion fails. I order that the applicalion be dismissed and 1 reserve the costs of

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