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Evidence, privilege, legal professional client privilege

Levy v Bablis [2012] NSWCA 157. Beazley JA. 24.5.12.

Whether documents privileged
14 In my opinion, Mr Levy's submission that the documents were not privileged cannot succeed in respect of the documents identified in categories 4 and 10. They were communications between legal advisers or between legal advisers and Sherwood in respect of the subject matter of MacGillivrays' retainer.

15 As to the balance of the documents (other than draft documents), Sherwood submitted that, in accordance with the principle in Commissioner Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501, the documents were copy documents submitted to legal advisers for legal advice and thus were privileged, notwithstanding that the original of the document was not privileged.

16 Propend was concerned with a claim for legal professional privilege relating to documents obtained pursuant to the execution of a search warrant under the Crimes Act 1914 (Cth) s 10. Nonetheless, the Court's reasons, which must be read subject to the now governing "dominant purpose" rule of legal professional privilege, applied to claims for privilege generally. In this regard, Brennan CJ said, at 509:

"Authority and principle thus combine to establish that, prima facie, copies of non-privileged documents are privileged if the copies are brought into existence solely for the purpose of obtaining or giving legal advice or solely for use in litigation that is pending, intended or reasonably apprehended."

17 Mr Levy argued that the doctrine of legal professional privilege in Propend attached to communications and not to documents, so that the principle did not apply in this case.

Whilst as a general statement it is correct to say that the privilege attached to communications, that begs the question as to what constitutes a communication. This was dealt with by Gaudron J and McHugh J in Propend in the following passages.

18 Gaudron J pointed out, at 543:

"... a document which is brought into existence solely for the purpose of obtaining legal advice or solely for use in litigation and which is then provided to a lawyer for that purpose is, itself, a communication with the lawyer and, in accordance with the decision of this Court in Grant v Downs (1976) 135 CLR 674, a privileged communication."

19 McHugh J stated, at 553:

"Part of a protected communication may even be a document that was created for a non-privileged purpose but which has been given to, and is in the custody of, a lawyer for the purpose of obtaining legal advice or for confidential use in litigation.

"As Mason J, with whose judgment Barwick CJ, Stephen, Jacobs and Aickin JJ agreed, pointed out in National Employers' Mutual General Insurance Association Ltd v Waind (1979) 141 CLR 648, '[d]ocuments submitted by the client to his solicitors for advice or for use in anticipated litigation attract the privilege'."

20 On Mr Collett's evidence, they were documents provided to MacGillivrays for the purpose of obtaining legal advice or assistance. I note only that Mr Collett's evidence has not been subject to cross-examination. In my opinion, if the documents in MacGillivrays' possession that fell within the terms of the subpoena were copies, those documents are privileged.

21 Mr Condon did not assert that the documents in MacGillivrays' possession were privileged if they were original documents. This is of importance, as the subpoena sought production of original documents and if the originals were not available, copies of the specified documents.

However, at the time that MacGillivrays produced the documents pursuant to the subpoena, they advised the Registrar by letter that they had not ever had possession of the original documents. Accordingly, on the basis that the documents in MacGillivrays' possession were copy documents, provided to or produced by them in the circumstances to which Mr Collett deposed in his affidavit, I find that those documents are privileged in accordance with the principle in Propend.

22 Neither party directed any submission to the draft documents that were produced. Mr Collett deposed that those documents were created by MacGillivrays for Sherwood on Sherwood's instructions. Those documents, in my opinion, are privileged on the usual principles that govern legal professional privilege.


Strategic Financial and Project Services PL v Bank of China [2012] FCA 327. Robertson J.

[in 11] I was taken to the decision of Edelman J in Carey v Korda (2011) 85 ACSR 331 at paragraphs 64 and following in support of the proposition that a bill of costs in detailed form will ordinarily disclose, directly or indirectly, the instructions given by a client to a solicitor or counsel, thus generally attracting privilege.

The question is whether the bill of costs shows the nature of the instructions or advice or its content. Basic matters in a summary of costs which would not usually be communications the subject of a claim for legal professional privilege would include the date on which the work was done, the rates charged for the work done, who did the work, the time spent on the work and the amount charged with respect to each item of work. I note that in the present case, no claim for privilege is made in respect of those matters.

12. I accept also that a broad approach is necessary in the sense that a client would not ordinarily be expected to give particular or specific instructions about each step in the course of litigation. I have assumed that what the solicitors have done in the present case is in that broad sense carry out the instructions of the client.

 

Altaranesi v NSW Self Insurance Corporation No 2 [2011] NSWADT 28. 11.02.11. Molony JM.

39 The relationships between these bodies becomes important when considering claims for legal professional privilege, as a central element of any analysis of a claim for that privilege is identifying who the client is for the purposes of s 118 of the Evidence Act 1995. The privilege is that of the client.

40 When considering Mr Altaranesi' workers compensation claim, I am of the opinion that SSWAHS, SICorp and Employers Mutual Limited each satisfy the definition of client in s 117 of the Evidence Act 1995.

The SSWAHS as the employer and body against whom Mr Altaranesi's workers compensation claims was made (and proceedings commenced against in the Workers Compensation Commission) subrogated its rights to its workers compensation insurer, SICorp, who acted for it with respect to the claim, and, in turn, contracted with Employers Mutual Limited to manage the claim as its agent. Employers Mutual Limited then engaged solicitors (DLA Phillips Fox) who acted for SSWAHS in the proceedings in the interest of SICorp.

Those circumstances point to both SSWAHS and SICorp being clients of DLA Phillips Fox under part (a) of the definition of client in s 117.

By their agent Employers Mutual Limited they engaged the solicitors to provide legal services with respect to Mr Altaranesi's workers compensation claims.

Because EML was acting as agent for both the SSWAHS and the SICorp, in respect of SSWAHS' interest in Mr Altaranesi's claim, it is also a client within the meaning part (b) of the definition of client in s 117.

41 The common law decisions relating to legal professional privilege provide a useful background to the operation of the relevant provisions of the Evidence Act 1995 . I see little benefit in quoting from the plethora of decided cases, which discuss the principles of legal professional privilege in detail.

In considering the issue in the present case I have had regard to the decisions in General Manager, WorkCover Authority of NSW v Law Society of NSW (2006) 65 NSWLR 502, [2006] NSWCA 84AWB v Cole No 5 [2006] FCA 1234Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122 , (2004) 136 FCR 357; Grant v Downs [1976] HCA 63 , (1976) 135 CLR 674; and Trade Practices Commission v Sterling (1979) 36 FLR 244 among others.

42 I have examined all of the documents in Schedule A which are the subject of a claim for exemption on the ground legal professional privilege. They fall with ten categories, rather than the nine suggested by SICorp.

Those 11 categories are:

Category 1 - Emails between DLA Phillips Fox and Employers Mutual Limited seeking and receiving advice and information in relation to Mr Altaranesi's workers compensation claims and advising on the course of a number of proceedings commenced by him: documents 1, 9, 18, 24, 30, 38, 39, 40, 42, 45, 46, 49, 52, 55, 58 and 60 and part of documents 3 and 8.

Category 2 - Employers Mutual Limited file notes of telephone conversation between Employers Mutual Limited and DLA Phillips Fox relating to workers compensation claims and proceeding brought by Mr Altaranesi against SSWAS: documents 4, 6, 7, 11, 20, 21, 25, 31, 34 and 37.

Category 3 - Original and copy correspondence from Employers Mutual Limited to DLA Phillips Fox forwarding reports relevant to Mr Altaranesi's claim: documents 10, 61 and 66.

Category 4 - Email exchanges between Employers Mutual Limited and SWAHSS (with some copied to DLA Phillips Fox) seeking and providing information and advice relevant to defence of Mr Altaranesi's claims by DLA Phillips Fox: documents 2, 5, 32, 50, 53, 54, and 54A.

Category 5 - Email exchanges between DLA Phillips Fox and SSWAHS seeking and providing information and advice relevant to defence of Mr Altaranesi's claims: documents 12, 13 and 17.

Category 6 - Employers Mutual Limited file notes regarding the receipt of legal advice or the receipt and sending of documents relevant to the defence of Mr Altaranesi's claims: documents 15, 16, 22, 23, 33, 36, 41, 43, 44, 48, and 51 and part of document 8.

Category 7 - Letters from DLA Phillips Fox to Employers Mutual Limited providing advice regarding the claims and proceedings brought by Mr Altaranesi, some copied to SSWAHS: documents 26, 27, 28, 56, 57, 59, 62, 63, 64, and 65.

Category 8 - Invoice from DLA Phillips Fox - partial exemption claimed: document 29.

Category 9 - Employers Mutual Limited internal checklist for the processing and management - including seeking legal advice - of an application for dispute resolution Mr Altaranesi had made to the Worker's Commission: document 47.

Category 10 - Letters from the Workers Compensation Commission to Employers Mutual Limited advising of the outcome of proceeding before the Commission and in one case attaching a decision of a Medical Appeal Panel; documents 15 and 62.

43 Having reviewed all of these documents it is my view that those in categories 1 to 9 inclusive have been prepared for the dominant purpose of DLA Phillips Fox providing legal advice to Employers Mutual Limited as agent for SSWAHS and SICorp. That advice was in connection with workers compensation claims and disputes brought by Mr Altaranesi against the SSWAHS, in which SICorp had an interest as administrator of the TMF Self Insurance Scheme.

The documents in category 4 are confidential communications between Employers Mutual Limited and the SSWAHS, either as mutual clients of DLA Phillips Fox or by Employers Mutual Limited as agent for SSWAHS, concerning the defence of Mr Altaranesi's claims by DLA Phillips Fox. The documents in categories 1 to 9 are subject to legal advice privilege.

44 The documents in category 10 consist of advice provided to Employers Mutual Limited by the Workers Compensation Commission of the outcome of proceeding brought by Mr Altaranesi in the Commission and before a Medical Appeal Panel. They were not made for the dominant purpose of obtaining legal advice. They advise of the outcome of proceedings. They are not subject to legal advice privilege, and are not exempt under clause 10 of schedule 1 of the Freedom of Information Act 1989'

45 In his submissions Mr Altaranesi argued that SICorp had waived legal professional privilege in respect of the documents in Schedule A.

46 Section 122 of the Evidence Act 1995 relevantly provides:

(1) ...

(2) Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120.

(3) Without limiting subsection (2), a client or party is taken to have so acted if:

(a) the client or party knowingly and voluntarily disclosed the substance of the evidence to another person, or

(b) the substance of the evidence has been disclosed with the express or implied consent of the client or party.

(4) The reference in subsection (3) (a) to a knowing and voluntary disclosure does not include a reference to a disclosure by a person who was, at the time of the disclosure, an employee or agent of the client or party, or of a lawyer of the client or party, unless the employee or agent was authorised by the client, party or lawyer to make the disclosure....'

47 This provision is said to represent a legislative attempt to more closely align s 122 with the common law of waiver of legal professional privilege as expounded in Mann v Carnell (1999) 201 CLR 1; HCA 66: see Explanatory Note to Sch. 1 item [57] of the Evidence Amendment Bill 2007.

In that case Gleeson CJ, Gaudron, Gummow and Callinan JJ said at [28 and 29]:

"Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and the maintenance of the confidentiality which affects a waiver of the privilege.

Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is 'imputed by operation of law'. This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege. Thus, in Benecke v National Australia Bank, the client was held to have waived privilege by giving evidence, in legal proceedings, concerning her instructions to a barrister in related proceedings, even though she apparently believed she could prevent the barrister from giving the barrister's version of those instructions. She did not subjectively intend to abandon the privilege. She may not even have turned her mind to the question. However, her intentional act was inconsistent with the maintenance of the confidentiality of the communication. What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large."

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