FEDERAL COURT OF AUSTRALIA Brooks v Medical Defence Association of Western Australia [1999] FCA 814 EVIDENCE - privilege - definition of a barrister's "brief" Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501, applied. Anderson v Bank of British Columbia (1877) 2 Ch D 644, considered. Criminal Justice Commission v Le Grand (Supreme Court of Queensland, unreported, 3 March 1997), applied. Dingle v Commonwealth Development Bank of Australia (1989) 91 ALR 239, considered. J-Corp Ltd v Australian Builders Labourers Federated Union of Workers (No 1) (1992) 38 FCR 452, applied. Lyell v Kennedy (No 3) (1884) 27 Ch D 1, applied. Southwark Water Company v Quick (1878) 3 QBD 315, distinguished. JODI-ANNE BROOKS v MEDICAL DEFENCE ASSOCIATION OF WESTERN AUSTRALIA NG 211 of 1993 MADGWICK J 18 JUNE 1999 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NG 211 OF 1993 BETWEEN: JODI-ANNE BROOKS Applicant AND: MEDICAL DEFENCE ASSOCIATION OF WESTERN AUSTRALIA Respondent JUDGE: MADGWICK DATE: 11 MARCH 1999 PLACE: SYDNEY THE COURT ORDERS THAT: 1 The respondent comply with paragraphs 2 and 4 of the Schedule to the Subpoena for Production addressed to them dated 8 March 1999. 2 The parties pay their own costs for the hearing of 11 March 1999. Otherwise the respondent to the subpoena is to have its costs, of compliance with the subpoena and of debate in this court, paid by the applicant in the principal proceedings. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NG 211 OF 1993 BETWEEN: JODI-ANNE BROOKS Applicant AND: MEDICAL DEFENCE ASSOCIATION OF WESTERN AUSTRALIA Respondent JUDGE: MADGWICK DATE: 18 JUNE 1999 PLACE: SYDNEY REASONS FOR JUDGMENT 1 In this matter the respondent to a subpoena to produce, the Medical Defence Association of Western Australia ("the respondent"), refused to provide access to certain subpoenaed documents to the legal representatives of Jodi-Anne Brooks, the applicant in the primary proceedings before this Court ("the applicant"). It is agreed between the parties that the documents in question are such that they would not in themselves ordinarily attract legal professional privilege. It is further agreed that, pursuant to a decision taken by an executive meeting of the respondent Association, to accumulate data on the drug Dep-Medrol, the documents in question were identified from amongst the respondent's records and collated together into a single file for the purpose of pursuing litigation and obtaining legal advice. The respondent claims that, although these documents were not actually supplied to their solicitor or counsel, the mere fact that they have been bundled together for the purpose of forwarding them to their legal representatives is enough to attract the protection of legal professional privilege. The Applicant disputes this. 2 It is a well-established principle that documents, which can be said to fall within a solicitor's or counsel's brief, do attract professional privilege – see for example Anderson v Bank of British Columbia (1877) 2 Ch D 644 at 656 per James LJ, Dingle v Commonwealth Development Bank of Australia (1989) 91 ALR 239 at 242 per Pincus J, and J-Corp Ltd v Australian Builders Labourers Federated Union of Workers (No 1) (1992) 38 FCR 452 at 456 per French J. Indeed the principle that "the lawyer's brief is sacrosanct" is said to find its justification in the very nature of the common law adversary system – see Ligertwood, Australian Evidence 3rd ed Butterworths, Australia, 1993 at p 257. The general application of this principle was not brought into dispute in this case. Rather, the real question, to be determined in this matter, is whether the notion of a "brief" ought to be understood broadly such that it would include the documents in question. 3 In attempting to assert a broad definition of a "brief" the respondent relied upon Southwark Water Co v Quick (1878) 3 QBD 315 where at 320 Brett LJ quoted a statement by James LJ that: "as you have no right to see your adversary's brief, you have no right to see that which comes into existence merely as the materials for the brief." Brett LJ went on to state that "materials for the brief" ought to include documents which come into existence "merely for the purpose of being laid before the solicitor for his (sic) advice or for his consideration." However, this authority does not, to my mind, assist the respondent. Southwark is concerned with documents that have come into existence for the purpose of receiving legal advice. It is true that in that case the notion of a lawyer's brief was regarded broadly such that it included documents produced in the preparation of that brief. However, this principle does not extend to any document of any kind that has been merely selected from unprivileged material for preparation of the brief, but only to documents that were actually produced for this purpose. 4 To extend the meaning of a "brief" to include any material selected for inclusion in a possible future brief on a subject not yet precisely identified would be too wide a notion. Privilege cannot be stamped on an unprivileged document merely by its selection as possibly relevant to a future brief. Such has never been regarded as the reach of legal professional privilege. To extend the protection principles of legal professional privilege too broadly unduly curtails the Court's capacity to facilitate the process of fact finding. Though made in a different factual context, the following statement of French J in J-Corp at 457 seems appropriate in the circumstances of this case: "To attach legal professional privilege to these materials would be to accord excessive respect to the adversarial aspects of litigation and insufficient weight to the objective of determining in litigation the facts in issue. To allow inspection of these materials, in my opinion, infringes no public interest and no established category of privilege." 5 Though the bundle of documents was prepared for the possible future consideration of counsel, their collection as a bundle is not satisfactorily shown to disclose the "forensic approach" adopted by the respondent to such possible proceedings, to borrow a phrase of Thomas J in see Criminal Justice Commission v Le Grand (Supreme Court of Queensland, Unreported, 3 March 1997); see also Lyell v Kennedy (No 3) (1884) 27 Ch D 1 at 26. 6 A final submission was put by the respondent that even if the documents did not initially attract privilege they now do because this very dispute about their production is revealing of the nature of the cases of the parties to the principal proceedings. It is true that the respondent's resistance to producing the material may possibly highlight the significance of these particular reports, however, this cannot be a ground for granting privilege. If this were the case then parties could initiate disputes in order to evade production. One cannot hoist oneself by one's own bootstraps in that way. Although the bona fides of the respondent was not in issue and the degree of co-operation that it has demonstrated in its dealings with the applicant is noteworthy, nonetheless, I agree with the words of former Chief Justice Brennan that, privilege "is not afforded in order to confer tactical advantages; it is afforded in order to facilitate the administration of justice" – Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 513. 7 I conclude, therefore, that the documents in question are not subject to legal professional privilege and that the respondent must produce the subpoenaed documents accordingly. The parties are to pay their own costs of today, otherwise the respondent to the subpoena is to have its costs of compliance with the subpoena and in debating these matters, paid by the applicant. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick. Associate: Dated: 11 March 1999 Counsel for the Applicant: K Connor Solicitor for the Applicant: Cashman and Partners Counsel for the Respondent: G Flick SC Solicitor for the Respondent: Medical Defence Association Date of Hearing: 11 March 1999 Date of Judgment: 11 March 1999