BT (Australasia) Pty Ltd v State of New South Wales & Anor [1996] FCA 903

IN THE FEDERAL COURT OF AUSTRALIA) NEW SOUTH WALES DISTRICT REGISTRY) No. NG 572 of 1995 GENERAL DIVISION ) BETWEEN: BT AUSTRALASIA PTY LIMITED Applicant AND: STATE OF NEW SOUTH WALES First Respondent TELSTRA CORPORATION LIMITED Second Respondent BRITISH TELECOMMUNICATIONS plc Second Respondent to First Cross Claim

CORAM: SACKVILLE J. PLACE: SYDNEY DATE: 29 AUGUST, 1996 REASONS FOR JUDGMENT By Notice of Motion the applicant has sought a declaration that "the test for claiming legal professional privilege in lists of documents filed by way of discovery in these proceedings is the sole purpose test referred to in Grant v Downs (1976) 135 CLR 674".

The declaration is now sought, as I understand it, only against the second respondent ("Telstra"). This is because Telstra, unlike the first respondent ("the State"), has claimed privilege in relation to the production of certain documents on the basis of the dominant purpose test set out in ss. 118 and 119 of the Evidence Act 1995 (Cth) (the "Evidence Act"). These sections provide as follows:

"118. 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 or a lawyer; for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client. 119. Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in the 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 applicant's notice of motion also sought orders that the respondents file verified lists of documents, setting out with greater specificity the documents in respect of which any claim for privilege has been made. That part of the motion has been resolved by agreement between the parties. It is therefore not necessary to say anything further about it, except to note that Mr Bathurst QC, on behalf of Telstra, broadly accepted that the description of privileged documents should be sufficient to enable the applicant to assess the validity of the claim for privilege. Mr Margo submitted, on behalf of the applicant, that ss. 118 and 119 of the Evidence Act have changed the common law test of legal professional privilege only where it is sought to adduce documents in evidence in the course of proceedings. He contended that ss. 118 and 119 have not altered the common law "sole purpose" test, formulated in Grant v Downs, in circumstances where a party resists access to discovered documents on the ground of legal professional privilege. According to Mr Margo, access to discovered documents (where privilege is claimed) falls to be determined in accordance with the common law test. This is so notwithstanding that the admissibility of those documents falls to be determined in accordance with the application of the dominant purpose test adopted by the Evidence Act. A similar argument was advanced to Branson J. in Trade Practices Commission v Port Adelaide Wool Co Pty Ltd (1995) 132 ALR 645. Her Honour pointed out that a party is required to give discovery in accordance with Order 15 of the Federal Court Rules. The power of the Court to make an order for the production of documents is regulated by Order 15, rr.11 and 15. These rules provide as follows: "11(1) Where: (a)it appears from a list of documents filed by a party under this Order that any document is in his possession, custody or power; ... the Court may, subject to any question of privilege which may arise, order the party - (d)to produce the document for inspection by any other party at a time and place specified in the order; or (e)to file and serve on any other party a copy of the whole or any part of the document, with or without an affidavit verifying the copy made by a person who has examined the document and the copy. ... 15. The Court shall not make an order under this Order for the filing or service of any list of documents or affidavit or other document or for the production of any document unless satisfied that the order is necessary at the time when the order is made."