IDOPORT P/L & ANOR v NAB LTD & ORS [1999] NSWSC 803

New South Wales Supreme Court CITATION : IDOPORT P/L & ANOR v NAB LTD & ORS [1999] NSWSC 803 CURRENT JURISDICTION : COMMERCIAL DIVISION FILE NUMBER(S) : 50113/98 HEARING DATE(S) : 2/08/99 JUDGMENT DATE : 2 August 1999

PARTIES : IDOPORT PTY LTD & ANOR v NATIONAL AUSTRALIA BANK LIMITED & ORS JUDGMENT OF : Bryson J at 1

COUNSEL : Garnsey QC, Hancock and Titterton for Plaintiffs Hughes QC and H. Insall for Defendants SOLICITORS : Withnell Hetherington for Plaintiffs Freehill Hollingdale & Page for Defendants CATCHWORDS : EVIDENCE - client legal privilege - inspection of documents produced on call - claim of client legal privilege was decided by applying Evidence Act 1995 (NSW) s.118 on the authority of Akins v Abigroup - production on call during the trial was ancillary to adduction of evidence, not adduction of evidence - Akins was followed as binding authority - decision of CCA in R v Young was not binding - the binding effect of decisions is produced by the power to hear appeals. Akins & Ors v Abigroup Pty Ltd 43 NSWLR 539 at 545 CASES CITED : Viro v The Queen (1978) 141 CLR 88 R. v. Young [1999] NSW CCA 166 DECISION : See paras 15 and 17

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BRYSON J.

MONDAY 2 AUGUST 1999

50113/98 IDOPORT PTY LTD & ANOR v NATIONAL AUSTRALIA BANKI LIMITED & ORS

JUDGMENT 1 HIS HONOUR: The hearing of these proceedings has continued over several days before Einstein J. On 28 July 1999 defendants' counsel made a call for production of some documents. This call was delivered orally from the Bar table in the course of the hearing. The plaintiff produced documents in answer on 29 July and of those documents Einstein J set aside documents in two envelopes marked "Privileged" as they were subject to claims of client legal privilege on which his Honour did not rule. 2 Einstein J requested me to hear and determine the claim of client legal privilege. For some reason which I do not know, and have no occasion to know, his Honour did not regard it as appropriate that he should decide the matter. 3 In respect of documents in one envelope marked "Counsel's Advice", the defendants' counsel has today not pressed me to come to a conclusion so that the privilege claim remains undetermined and the documents will remain in the envelope marked as now marked unless and until there is some further ruling. 4 The second envelope is marked "Litigation Reports" and contains four documents. The first is a letter from Idoport Pty Ltd to Mr Port, chief executive of OAMP, dated 1 December 1998. I have been told today that in respect of that document there is now no privilege claimed. Accordingly, it may be inspected. 5 The second document is a letter from Idoport Pty Ltd to Mr Lamont, Chairman of OAMPS, in respect of which I have been told today that the privilege claimed relates to some passages in the document. I have been shown a copy with some passages blanked out, so the blanking identifies the passages said to be privileged. 6 I propose to proceed to rule on the claim for privilege for the parts blanked out on the basis of the material before me, i.e. only the contents of the documents themselves. 7 The third document is a letter from Idoport Pty Ltd to Mr Lamont dated 5 May 1999 for which there is no privilege claim and it may now be inspected. 8 The fourth is a report on the NAB claim dated 11 June 1999. For this document there is a privilege claim, again for some parts which are blanked out, on which I am to rule. 9 On reading document number 2 and the corresponding document with passages blanked out, it is in my opinion clear from the terms of the passages blanked out and their content that, in the words of s 118 of the Evidence Act 1995, adducing evidence of them, or - I should interpose - producing them for inspection by another party in answer to a call, would result in disclosure of a confidential communication made between the client and a lawyer. Mr Maconachie communicated to Mr Lamont the terms of legal advice or other advice from lawyers representing him and his companies, and the terms of the material themselves indicate that they were confidential in nature and that they related to the conduct of the proceedings. Document 2 is not a communication between lawyer and client but is protected having regard to the provisions of subs 122(2), because the communication passing between Mr Maconachie and Mr Lamont was itself a confidential communication. That it was a confidential communication appears from its general nature, and also by express reference to confidentiality in the report annexed to the letter. 10 In my opinion the privilege claimed for the blanked-out passages in the copy document 2 should be allowed and inspection of document 2 should be restricted. 11 Document 3 is in the same position as document 1, i.e. there is now no claim of privilege. 12 Document 4 is in the same position as document 2 and, for similar reasons as for document 2, it appears on consideration of the contents of the document and the passages blanked out that client legal privilege extends to protect the document against inspection by another party. 13 Section 118 relates to the adduction of evidence. The events which have given rise to the question before me arise on a proceeding ancillary to the adduction of evidence; the claim was made in the course of proceedings for the production of documents on call. I have applied the view expressed in the judgment of Mason P in Akins & Ors v Abigroup Pty Ltd 43 NSWLR 539 at 545 and following, and I have made these rulings on the footing that the provisions of the Evidence Act 1995 ought to apply by analogy to privilege claimed on such a call. The procedure followed could not be referred to as pre-trial gathering of evidence. Mason P uses that expression in his judgment to extend to processes ancillary to trials: see 545D. As I understand his Honour, his Honour's ruling is no less applicable to a process for the production and inspection of documents where the process happens whilst the trial is actually proceeding. 14 In revising these reasons I add that I have followed the holding in Akins because it is a binding authority, notwithstanding that the opposite view is strongly supported by other decisions, most notably by the decision of the Court of Criminal Appeal in R. v. Young [1999] NSW CCA 166. The binding effect of decisions is produced by the power to hear appeals: see Viro v The Queen (1978) 141 CLR 88 at 93 (Barwick CJ) 120 (Gibbs J) 129 (Stephen J) 173-174 (Aickin J). The Court of Criminal Appeal does not have power to hear an appeal from my decision in this application. 15 I make the following directions: