1 HIS HONOUR: I am dealing with an application by the plaintiffs in proceedings No.3357 of 1999 and No.3358 of 1999 to administer certain interrogatories numbered 6, 7, 8 and 9 in a document which has been provided to me. The circumstances of the proceedings are outlined in a judgment which I gave on 4 August 1999 concerning an application for an interlocutory injunction. The four interrogatories concern aspects of the state of mind of two of the defendants, Mr McLernon and Mr Rainford, at or immediately before the time when they became aware of the contents of two documents that are the subject of the plaintiffs' claims for legal professional privilege in the two proceedings.
2 Mr Williams for the defendants has submitted that the interrogatories should not be allowed, essentially for four reasons.
3 The first reason is that they go to matters that are at best of peripheral relevance in the case. The principal issues in the case are, firstly, whether the plaintiffs in the two proceedings were clients of Minter Ellison in relation to the communications and, secondly, whether that privilege is excluded or displaced by reason of evidence of improper purpose in the communications. Mr Williams submitted that the state of mind of two of the defendants at or immediately before the time when they became aware of the content of subject documents has no relevance to those issues, and at best might have very marginal relevance to the Court's exercise of discretion in relation to whether relief is granted and if so in what form.
4 Secondly, Mr Williams submitted that in any event both the defendants have put on affidavits in the case, in which they have dealt quite extensively with the circumstances in which they became aware of the content of the documents and their state of mind at that time. Although the defendants were not in a position to give an undertaking that the affidavits of both these persons would be read, this was the defendants' present intention and, having regard to the circumstances of the case, it was highly probable the interrogatories sought would in those circumstances be no more than a rehearsal for cross-examination of the witnesses.
5 Thirdly, the questions were unsatisfactory and oppressive in that they sought answers as to beliefs in terms in which it was highly unlikely the matter would have been explicitly considered by those defendants at that time, and in terms that required elaboration of all knowledge relevant to the beliefs in question, which would be very difficult to separate out and detail; and, as regards questions 8 and 9, they sought answers not merely as to beliefs but also as to suspicions.
6 Fourthly, Mr Williams submitted that this was oppressive particularly in circumstances where the plaintiffs themselves had put on no evidence whatsoever. It was unsatisfactory that the plaintiffs, who presumably had direct knowledge of their own purposes, should put on no evidence about this, yet seek to interrogate these two defendants as to the defendants' belief about the plaintiffs' purposes.
7 In all these circumstances, the interrogatories were not "necessary" in terms of Pt.24 r.5(2), and the Court in its discretion should not permit them.
8 Mr Muddle submitted that, at least in proceedings No.3357 of 1999, it was alleged and denied that these defendants at the time when they became aware of the contents of a privileged document were aware that the document was subject to client legal privilege in favour of the plaintiffs in those proceedings, and that it was unlawful for them to obtain access to it without the consent of the plaintiffs. In those circumstances, interrogatories numbered 6 and 8 went directly to that issue.
9 Mr Muddle submitted that the conduct of the defendants in relation to obtaining access to this information was material both in relation to the degree of proof of improper purpose that the Court would require, and also in relation to the formulation of relief.
10 He submitted that there was a question of ostensible authority in relation to a claim of waiver of privilege raised by the defendants, which involved the state of mind of the defendants, who were dealing with an alleged agent of the plaintiffs. However I would say at once that I do not think any of these interrogatories have any relevance to the question of authority.
11 Finally, he submitted that "necessary" in the rule did not mean absolutely necessary, but involved an assessment of reasonableness. These were matters in relation to which the plaintiffs had no other way of proving the state of mind of the relevant defendants.
12 In my opinion, the most significant relevance that these interrogatories may have concerns the question of the degree of proof which the Court may require of the defendants' allegation of improper purpose.
13 As I understand it, it is now established that the common law applies to questions of legal professional privilege, otherwise than in relation to the admissibility of evidence at a court hearing or in relation to interlocutory processes where the rules of court apply the Evidence Act to such processes. It seems to me therefore that the issue in this case will be determined according to general law or common law principles, not according to the Evidence Act.
14 In relation to the displacement of legal professional privilege by evidence of improper purpose, six of the seven judges in Commissioner of Australian Police v Propend Finance Pty Limited (1997) 188 CLR 501 expressed the view that what was required was a prima facie case of improper purpose which was sufficient to make it right to disallow professional privilege. The remaining judge, Gummow J, expressed the view that, where one of the issues actually being tried on the hearing of an action is the existence of the privilege, then the improper purpose had to be established on the balance of probabilities.
15 Mr Williams has submitted that in this case it will be sufficient for the defendants to show a prime face case of improper purpose in order to displace legal professional privilege, and that it will not be necessary for his client to prove improper purpose on the balance of probabilities. As I understand it, the pleadings contain allegations and denials of improper purpose; but, as I also understand it, Mr Muddle for the plaintiffs accepts that this does not exclude a submission for the defendants that improper purpose will be sufficiently established by a sufficient prima facie case.
16 In my opinion, consistently with the approach of six of the seven judges in the Propend Finance case, the degree of proof which may be required of improper purpose may vary according to the circumstances. If a person challenging privilege is plainly not in a position to lead very much evidence concerning purpose, a Court may be satisfied with very little evidence. On the other hand if the person alleging improper purpose is in a position to lead extensive evidence concerning purpose, the Court may well require quite extensive evidence to be led before being satisfied that a sufficient prima facie case is made out.
17 In this case, as submitted by Mr Muddle, the defendants in preparing their case in support of improper purpose have had the advantage, which persons challenging legal professional privilege very often do not have, of being aware of the content of the main communications in relation to which privilege is claimed; and it seems to me that that must give them a significant advantage in deciding what evidence they present to the Court in support of the allegation of improper purpose. As put by Viscount Finlay in O'Rourke v Darbishire (1920) AC 581 at 604, the Court has a discretion; and in my opinion, that discretion also relates to the degree of proof which will be required. In exercising this discretion, the Court may have regard to the conduct of the party challenging privilege, in particular if that party has improperly obtained an advantage in the presentation of the case by improperly getting access to the content of the communications. In my opinion, that is a factor the Court may take into account in requiring a more substantial prima facie case of improper purpose.
18 It is on that basis in my opinion that the interrogatories have most relevance to this case. The question is whether that is sufficient to justify ordering the interrogatories, in the light of the other points made by Mr Williams.
19 There is force in his submission that the absence of any evidence at all from the plaintiffs themselves, as to their purpose in having the communications with their solicitors, prima facie makes it incongruous to permit the plaintiffs to interrogate defendants as to their understanding of the plaintiffs' purpose. However, the plaintiffs claim that their privilege is to some extent devalued if they are required to put on evidence in circumstances where they would otherwise choose not to, in order to sustain that privilege.
20 There is, of course, force also in Mr Williams' submission that the interrogatories seek material from these defendants in terms likely to be different from those which the defendants expressly had in consideration at the time in question, and do so in circumstances where these defendants have already given extensive affidavit evidence as to their state of mind at the time and as to the circumstances in which they obtained access to the communications.
21 I accept Mr Muddle's submission that "necessary" in the rule does not mean absolutely necessary but rather conveys a requirement along the lines of reasonably necessary in the circumstances; but, having regard to all the considerations which I have outlined, I am, at the end of the day, not satisfied that these interrogatories are reasonably necessary and I will not order that they be administered and answered.
22 In each of the proceedings I make orders in accordance with the short minutes of order which I initial and date.
23 In matter No.3358 of 1999, I direct that Margaret Calvert answer the interrogatories numbered 15, 16, 17 and 18 in the document headed "Outstanding Contested Interrogatories" which I initial and date on or before 11 February 2000.
24 I decline to order the interrogatories numbered, 6, 7, 8 and 9 in that document.
25 I order that the costs of today be costs in the proceedings.