Mundraby v Commonwealth of Australia [2001] FCA 884

FEDERAL COURT OF AUSTRALIA

Mundraby v Commonwealth of Australia [2001] FCA 884

PRIVILEGE - attachments to a privileged statement – whether the attachments are covered by the privilege which attaches to the statement without examination of the purpose for which each of the attachments is brought into existence independently of the same statement – copy documents – whether privileged

Waterford v The Commonwealth of Australia (1987) 163 CLR 54 considered Nickmar Pty Ltd v Preservatrice Skandia Insurance Ltd (1985) 3 NSWLR 44 considered Dingle v Commonwealth Development Bank of Australia (1989) 23 FCR 63 distinguished Ligertwood, Australian Evidence, 3rd ed at p 271 Byrne and Heydon, Cross On Evidence, 4th Australian ed at pars 25240 and 25245 Brooks v Medical Defence Association of Western Australia [1999] FCA 814 considered Anderson v Bank of British Columbia (1876) 2 Ch D 644 distinguished Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 distinguished Packer v Deputy Commissioner of Taxation [1985] 1 Qd R 275 considered Lake Cumbeline v Effem Foods (1994) 126 ALR 58 referred to ELLIS MUNDRABY v COMMONWEALTH OF AUSTRALIA NG 808 OF 1998 AND DAVID MARK LEWIS v COMMONWEALTH OF AUSTRALIA NG 809 OF 1998 TAMBERLIN J SYDNEY 27 JUNE 2001

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 808 OF 1998

BETWEEN: ELLIS MUNDRABY

APPLICANT

AND: COMMONWEALTH OF AUSTRALIA

RESPONDENT

NG 809 of 1998 BETWEEN: DAVID MARK LEWIS

APPLICANT

AND: COMMONWEALTH OF AUSTRALIA

RESPONDENT

JUDGE: TAMBERLIN J

DATE: 27 JUNE 2001

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 During the hearing, a question arose as to whether a statement by an industrial chemist, Mr Edmond McKenzie, given to the Australian Government Solicitor and signed on 14 April 1988, was privileged. 2 After evidence was filed to the effect that the statement was on the legal file of the Australian Government Solicitor and related to the "accident on board HMAS Stalwart on 22 October 1985", in respect of which "proceedings were commenced on or about May 1986", the parties agreed that the twenty paragraph statement itself was privileged. However, the statement annexed a number of documents. 3 The issue raised for decision is whether the documents attached to the statement are within the privilege afforded to the statement itself as being part of "the statement itself", regardless of whether any of the documents came into existence for the dominant legal purpose of use or advice in relation to litigation or as a privileged communication to a solicitor. 4 I was referred to a number of authorities: Waterford v The Commonwealth of Australia (1987) 163 CLR 54, Nickmar Pty Ltd v Preservatrice Skandia Insurance Ltd (1985) 3 NSWLR 44; Dingle v Commonwealth Development Bank of Australia (1989) 23 FCR 63, Ligertwood, Australian Evidence, 3rd ed at p 271; Byrne and Heydon, Cross On Evidence, 4th Australian ed at pars 25240 and 25245. 5 Waterford was decided at a time when the "sole purpose" test was the touchstone. In that case, Mason and Wilson JJ, at 66, made it clear that the test of admissibility looks to "the reason why the document was brought into existence". Their Honours said that, providing the document was brought into existence for a privileged purpose, "the fact that it contains extraneous matter will not deny to it the protection of the privilege": ibid. 6 In the present case, Mr Branson QC, for the respondent, submitted that the annexures are part of the statement in the sense that "they are one document". Mr Branson contended that Mr McKenzie adopted "the attachments as part of his statement, [as] his proof of evidence". The respondent submitted that the privilege applying to the statement therefore extends to include the seven documents contained in its annexures, they being part of the statement itself. 7 Ligertwood, at p 271, points out that communications and documents which have an existence independent of the litigation process cannot be made the subject of privilege merely by being placed in the lawyer's adversary brief. Similarly, it can be said that a document which comes into existence independently of the litigation process cannot be brought under the cover of legal professional privilege simply by being affixed to a privileged statement. Ligertwood goes on to say that, just as the communications privilege does not extend to pre-existing unprivileged material, by analogy, neither does the litigation privilege. 8 There is a suggestion in the texts and in the authorities that where unprivileged material collected for litigation has been annotated or collated in such a way that disclosure of the documents would reveal a lawyer's work carried out for the purpose of advice or trial, the documents may be protected in their annotated or collated state. The contents of bills of costs may be privileged in circumstances where they disclose or summarise privileged communications between solicitor and client: see Packer v Deputy Commissioner of Taxation [1985] 1 Qd R 275, applied in Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd (1994) 126 ALR 58 at 68-69 per Tamberlin J. It was the disclosure of confidential communications in those cases which attracted the privilege and not the purpose for which the documents came into existence. 9 In Brooks v Medical Defence Association of Western Australia [1999] FCA 814, the respondent claimed that privilege attached to documents that, while not actually supplied to their solicitor or counsel, had been identified from amongst the respondent's records and collated together in a single file for the purpose of being forwarded to their legal representative. In ruling against the respondent's privilege claim, Madgwick J, at 2-3, said: "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 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 ..." 10 In Dingle, Pincus J expressed, as a generalisation, that "[m]aterial gathered by the solicitor or client in preparation for litigation is privileged as if it were a confidential communication between solicitor and client, even if it is not such a communication": at 66. His Honour, at 66, quotes James LJ in Anderson v Bank of British Columbia (1876) 2 Ch D 644, at 656: "… 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." 11 In the present case, however, it cannot be said that the documents annexed to the statement came into existence merely as the materials for the brief, or even that they came into existence for the dominant purpose of inclusion in the brief or a statement. The mere selection of documents to be attached to a statement, in circumstances where such documents are not in their nature privileged does not, in my opinion, amount to a legal communication or a bringing into existence of the document for the dominant purpose of litigation. The documents attached to the statement of Mr McKenzie were prepared by the Australian Government Solicitors only in the sense that they were collected and attached to the statement. There is no suggestion of annotation. Nor does it appear that the documents have been collated in a way that would relevantly disclose the nature of any legal advice given, communication made, or legal work done in relation to the content of the privileged statement itself. Each of the documents annexed to the statement appears, on its face, to have an origin independent of the statement which refers to it. There is no indication that any attached document was created dominantly for a privileged purpose. It is the origin and purpose of each document that are the determining considerations in any privilege claim. 12 The respondent relied on the judgment of Wood J, in Nickmar, in support of the proposition that the making of copies of unprivileged documents for submission to a legal adviser may result in the documents attracting legal professional privilege. His Honour, at 61-62, said: "In my view, it is incorrect to state, as a general proposition, that a copy of an unprivileged document becomes privileged so long as it is obtained by a party, or its solicitor, for the sole purposes of advice or use in litigation. I think that the result in any such case depends on the manner in which the copy or extract is made or obtained. If it involves selective copying or results from research, or the exercise of skill and knowledge on the part of a solicitor, then I consider privilege should apply … Otherwise, I see no reason, in principle, why disclosure should be refused of copies of documents which can be obtained elsewhere, and in respect of which no relationship of confidence, or legal professional privilege exists." There is no evidence in the present case of research or the application of skill by legal advisers in relation to the selection or editing of the attachments themselves. 13 The decision in Nickmar, in relation to its observations on copies of documents, was disapproved by the High Court in Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501. In that case, a majority of the High Court held that legal professional privilege attaches to a copy document provided to a lawyer if it was made solely for the purpose of obtaining legal advice or solely for use in legal proceedings, even where the original document is not privileged. Brennan CJ, at 508, said: "The test is anchored to the purpose for which the document was brought into existence; the use to which a document is put after it is brought into existence is immaterial. So, on a strictly logical application of the test, if a copy is made solely for the purpose of providing it to a legal adviser in order to obtain legal advice or for use in connection with apprehended litigation, the copy would be privileged." (Emphasis added) 14 Although recognising that "the test raises problems", his Honour found that "it must be applied unless there is some countervailing principle": ibid. 15 In the present case, no evidence has been provided as to why or how the documents attached to Mr McKenzie's statement came into existence. No evidence has been tendered, for example, as to whether or not the documents have been copied for the purpose of obtaining legal advice or for use in legal proceedings. Indeed, there is no evidence that the actual attachments were ever copied for any privileged purpose. In the absence of evidence as to the provenance of any of the attachments, it can be inferred that the attached documents came into existence many years ago. Consistently with the decision in Propend Finance, each attached document needs to be examined individually to ascertain whether its creation was for a privileged purpose. To paraphrase and apply the language of Brennan CJ in Propend Finance,at 508, it is my opinion that this is a case where privilege is claimed over documents on the basis of a use to which they were put after they had come into existence. 16 Accordingly, I am not satisfied that the privilege which applies to the body of the statement itself can be said to extend to the attachments by reason simply of the attachment. It is necessary to look at each of the documents individually to determine whether they were brought into existence for the dominant purpose of legal advice or use in litigation. I am not satisfied that there was any copying of the attachments for the purpose of attaching them to the statement produced. They were probably pre-existing records. I therefore conclude that the claim for privilege has not been made out in respect of the attachments to the statement. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.