New South Wales Court of Appeal Sydney Airports Corporation Ltd v Singapore Airlines Ltd & Qantas Airways Ltd [2005] NSWCA 47 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 14 February 2005 JUDGMENT DATE: 9 March 2005 JUDGMENT OF: Spigelman CJ at 1; Sheller JA at 57; Campbell AJA at 58 DECISION: 1. Leave to appeal granted; 2. Appeal dismissed with costs. CATCHWORDS: EVIDENCE - Privilege - Litigation Privilege - Where in-house solicitor commissioned expert report into accident soon after accident occurred - Claim for discovery of expert report - Whether report privileged - s119 Evidence Act 1995 - Pt 23 r 1(c) Supreme Court Rules - Whether prepared for dominant purpose of litigation - Time at which dominant purpose to be assessed - Where report had multiple purposes - Relevance of subjective intention of person commissioning report - Whether relevant dominant purpose is that of company or in-house solicitor - Whether dominant purpose different if external solicitor - WORDS & PHRASES - "dominant purpose" LEGISLATION CITED: Evidence Act 1995: s 117, s 119. Attorney-General for the Northern Territory v Kearney (1985) 158 CLR 510 Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49 Federal Commissioner of Taxation v Spotless Services Ltd (1996) 186 CLR 404 Grant v Downs (1976) 135 CLR 674 Hartogen Energy Ltd (in liq) v The Australian Gas Light Co (1992) 36 FCR 557 CASES CITED: Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority (2002) 4 VR 332 Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 207 ALR 217 Ritz Hotel Ltd v Charles of the Ritz Ltd (No 4) (1987) 14 NSWLR 100 Waterford v The Commonwealth (1987) 163 CLR 54 Waugh v British Railways Board [1980] AC 521 Sydney Airports Corporation Ltd (Claimant) Singapore Airlines Ltd (First Opponent) PARTIES: Qantas Airways Ltd (Second Opponent) FILE NUMBER(S): CA 40425/04 D Davies SC, N Nicholls (Applicant) COUNSEL: R J Darke SC, G K Rich (Opponents) Sparke Helmore (Applicant) Riley, Grey-Spencer (First Opponent) SOLICITORS: Ebsworth & Ebsworth (Second Opponent) LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): 50006/03 LOWER COURT JUDICIAL OFFICER: McDougall J - 23 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40425/04 SPIGELMAN CJ SHELLER JA M W CAMPBELL AJA Wednesday 9 March 2005 SYDNEY AIRPORTS CORPORATION LTD v SINGAPORE AIRLINES LTD & QANTAS AIRWAYS LTD FACTS Sydney Airports Corporation Ltd ("SACL") owns and manages Sydney Airport. On 1 February 2001 an aircraft owned by Singapore Airlines Ltd was damaged when an aerobridge, operated by Qantas Airways Ltd, malfunctioned. Singapore Airlines commenced proceedings against SACL, Qantas, and the aerobridge's maker. A report into the incident was commissioned by Ms Jane Wilder, an in-house solicitor of SACL, from Peter Reardon Enterprises Pty Ltd. SACL claimed the report was privileged. Singapore Airlines and Qantas contest that claim. McDougall J, at first instance, found that SACL had not discharged its onus to establish that the report was prepared for the dominant purpose of litigation. His Honour identified four purposes attributable to the preparation of the report, the first of which was use in litigation. The other three purposes were unrelated to legal proceedings. HELD per curiam 1. His Honour did not err in identifying the status of Ms Wilder as an in-house solicitor as possibly being relevant to the factual inquiry in which he was engaged. An in-house solicitor is, by reason of his or her position, more likely to act for purposes unrelated to legal proceedings than an external solicitor who, in the normal course, has no relevant function other than that involving legal proceedings and/or legal advice. [24], [57], [58]. Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49 followed; Waugh v British Railways Board [1980] AC 521; Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority (2002) 4 VR 332; Attorney-General for the Northern Territory v Kearney (1985) 158 CLR 510; Waterford v The Commonwealth (1987) 163 CLR 54; Ritz Hotel Ltd v Charles of the Ritz Ltd (No 4) (1987) 14 NSWLR 100 referred to. 2. His Honour erred in finding that Ms Wilder was not questioned as to the comparative significance of the first and fourth purposes. This error of fact-finding entitled the Court to grant leave to appeal and intervene. [32], [33], [57], [58]. 3. On the evidence, it was open to his Honour, applying an objective test, to refuse to give Ms Wilder's subjective intention determinative weight. Her recognition that there were other purposes present at the time of the commissioning of the report raised the issue of dominance even in terms of her subjective intention. [44], [57], [58]. Grant v Downs (1976) 135 CLR 674; Hartogen Energy Ltd (in liq) v The Australian Gas Light Co (1992) 36 FCR 557; Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority (2002) 4 VR 332; Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 207 ALR 217 referred to. 4. The conclusion of dominance was not affected by the error identified. [53], [57], [58]. ORDERS 1. Leave to appeal allowed. 2. Appeal dismissed with costs. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40425/04 SPIGELMAN CJ SHELLER JA M W CAMPBELL AJA Wednesday 9 March 2005 SYDNEY AIRPORTS CORPORATION LTD v SINGAPORE AIRLINES LTD & QANTAS AIRWAYS LTD Judgment 1 SPIGELMAN CJ: The Claimant, Sydney Airports Corporation Ltd ("SACL"), owns and manages Sydney Airport. On 1 February 2001 a Boeing 747-400 aircraft owned by the First Opponent, Singapore Airlines Ltd, was damaged when an aerobridge malfunctioned. Singapore Airlines has instituted proceedings against SACL and Bovis Lend Lease Pty Ltd, which constructed the aerobridge. Qantas Airways Ltd, the Second Opponent, has been joined by way of cross-claim on the basis that its employees were operating the aerobridge at the relevant time. 2 A report into the incident was commissioned by SACL from Mr Peter Reardon of Peter Reardon Enterprises Pty Ltd (the "Reardon Report"). SACL claims that the report is privileged. Singapore Airlines and Qantas contest that claim. 3 McDougall J found that SACL had not discharged its onus to establish that the report was prepared for the dominant purpose of litigation. That is the issue for this Court. His Honour rejected the case put before him by the Opponents to the effect that privilege, if any, had been waived. That issue is not before the Court. 4 The Reardon Report was commissioned on behalf of SACL by Ms Jane Wilder, Senior Corporate Solicitor of SACL. 5 The issue before the Court concerns the application of s119 of the Evidence Act 1995 which provides: "119 Litigation Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of: … (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 anticipated … Australian … proceeding, in which the client is or may be, or was or might have been, a party." 6 It was common ground on the appeal that the test of what is a "dominant purpose" was an objective test, but that the subjective intention of the person responsible for the document coming into existence was entitled to weight. The Claimant relied on the observations of Callinan J in Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49, at 107 [172]: "Whether a purpose is a dominant purpose is, in my view, a matter to be objectively determined but the subjective purpose will always be relevant and often decisive." 7 The test of "dominant purpose" has been expressed in terms of "clear paramountcy" (see Waugh v British Railways Board [1980] AC 521, at 543; Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority (2002) 4 VR 332, at 336–337[10]). As the High Court said in a different context: "In its ordinary meaning, dominant indicates the purpose which was the ruling, prevailing, or most influential purpose." Federal Commissioner of Taxation v Spotless Services Ltd (1996) 186 CLR 404, at 416 (Brennan CJ, Dawson, Toohey, Gaudron, Gummow and Kirby JJ). 8 His Honour accepted Ms Wilder's evidence that she formed the view that litigation was likely when she was informed of the incident. That finding is not challenged on appeal. 9 His Honour considered the issue of the time at which the question of privilege had to be determined, i.e. was it at the time that the report was commissioned, or at the time that the report was prepared. He adopted the former. This matter does not arise on the appeal. 10 No issue arose as to any distinction between the time the report was commissioned and, to use the language of s119, when it was "prepared". 11 No issue arose about whether or not legal proceedings were "anticipated" or whether or not the Reardon Report was "confidential". Nor did the Claimant challenge the proposition that it bore the onus of establishing the purpose for which the document was prepared and that that purpose was the "dominant purpose". 12 The only issue before the Court relates to his Honour's finding that the Claimant did not discharge its onus of establishing what the dominant purpose was. The Reasons of McDougall J 13 His Honour's findings of fact were as follows: "[6] Mr Reardon (the corporate veil is, for present purposes, irrelevant) was commissioned by Ms Jane Wilder (then Wallace), a senior corporate solicitor employed by SACL at the time of the incident. Ms Wilder says that she was informed of the incident by Mr Peter Adams, the occupational health and safety manager of SACL, on the morning of 1 February 2001. She then spoke to Mr Peter Lawrence, head of terminal operations, and Mr Greg Russell, director of aviation. She was told that a meeting was scheduled with parties (including Qantas and Singapore Airlines) 'to discuss the incident, how it happened and what further action was required'. [7] Ms Wilder says that when she was informed of the incident, she 'formed the view that litigation was likely'. She thought it was likely that Singapore Airlines would claim against SACL and perhaps other parties involved; and that if such a claim were made, SACL would cross-claim against Qantas and BLL. [8] Ms Wilder therefore says, in paragraph 9 of her affidavit sworn 16 April 2004: 'In contemplation that a claim would be made for damages against SACL by [Singapore Airlines] as a result of this incident, and in order to be in a position to advise SACL in respect to its potential liability to [Singapore Airlines] and any rights it may have against other parties, I decided that an expert report was required and that it should be commissioned immediately. I formed the view that the expert engaged to prepare the report would also be used to give evidence on behalf of SACL in any future proceedings.' [9] Accordingly, Ms Wilder commissioned Mr Reardon. This was done by letter dated 1 February 2001 but sent by facsimile transmission (as a transmission report shows) at 1.05 pm on 2 February 2001. The letter said, relevantly: 'We confirm that you have been retained by Sydney Airports Corporation Limited (SACL) to investigate the circumstances surrounding the incident involving the collapse of an aerobridge at Bay 61 … on 1 February 2001. Preliminary indications are that no one has been injured, although the collapse caused damage to the door of a Singapore Airlines' aircraft. PURPOSE OF REPORT The report is commissioned in contemplation of litigation and anticipated legal liability on SACL's behalf. Its contents are to be kept strictly confidential and its circulation is to be limited. … SCOPE OF REPORT Your report should address the following:- 1. Establish all relevant circumstances (time, date, equipment owners and operators, prevailing conditions etc) leading to the incident. This should include the location and time of the incident, personnel involved and any injuries sustained; 2. Identify items of relevant equipment and their condition prior to the incident; 3. Identify relevant witnesses and where necessary, take statements from each witness; 4. Identify relevant references or established procedures that influence the operation of the relevant aerobridge at Bay 61; 5. Estimate the damage sustained by equipment involved in the incident. Unless your expertise allows you to comment, you are not required to comment on the cost of repairing such damage; 6. Identify any breach of operational regulations or procedures; 7. Identify the cause(s) of the incident and any contributing factors; 8. Make recommendations for eliminating or reducing the instance of similar incidents in the future; and 9. Comment and make recommendations if necessary on the response to the incident and any improvements that could be made in future. … Due dates for report 1. A draft interim report is to be provided to the writer and copied to Peter Lawrence by 1800 hr 10 February 2001. 2. The final report is to be provided to the writer and copied to Peter Lawrence by 1800 hr on 17 February 2001. Please note that if the final report cannot be presented due to outstanding evidence or witness reports, you should contact the writer for further directions. Should any witness be unwilling to provide a statement this fact should be included in the report.' … [11] Ms Wilder said in cross-examination that there was a body known as the Airline Operations Committee ('AOC') at Sydney Airport at the relevant time. The AOC included representatives of airlines. Ms Wilder believed that it had the power to direct that the aerobridge not be used. She 'supposed' that it would be necessary to satisfy the AOC that the aerobridge was safe before the aerobridge could be put back into practice. [12] Ms Wilder said that she thought that litigation was 'highly likely' (as opposed to 'possible'). Her reasons were that the events spoke for themselves in that a malfunctioning aerobridge had sheered the door off an aircraft. She did not know whether this was as a result of mechanical error or operating error. As to the former: the aerobridge had been rebuilt by [Bovis Lend Lease Pty Ltd] (and was still under warranty). She said that 'SACL is the operator of the whole airport and the party that subcontracted the construction of the aerobridges; I viewed that as being a significant potential liability for SACL'. As to the latter: the aerobridge was being operated by Qantas personnel at the time. Ms Wilder said further that she 'operated in a litigious environment'. [13] The following further points emerged from Ms Wilder's evidence: (1) She was seeking Mr Reardon's advice because she did not know what had caused the accident. (2) She had no factual information or expert opinion that might have 'pointed the finger' at SACL. (3) Prior incidents had been investigated by SACL employees, but 'there was something different about this incident'. (4) Mr Lawrence identified the need for a report to satisfy the AOC that the aerobridge (after repairs) was in a fit state to be put back into service. (5) Messrs Reardon and Guselli made a 'presentation' to the members of the AOC: they met them and talked about the incident. (6) Some at least of Mr Reardon's recommendations in the report were communicated to the AOC to allay their concerns. (7) Part of the purpose of engaging Mr Reardon was to make SACL's response to the concerns of the AOC 'of greater weight', or 'imbue the recommendations with a higher level of trust than if they had come from a SACL employee'. (8) Accordingly, there was a disclosure of at least some parts of the Reardon report to members of the AOC, although Ms Wilder could not recall the extent of the overlap between the report overall and what was put to the AOC by Messrs Reardon and Guselli. (9) The Reardon report was copied to Mr Lawrence because he dealt with airlines and the AOC, and because Ms Wilder had asked Mr Lawrence to conduct his own investigation into the causes of the incident, what SACL knew, and what changes were necessary. She said that this investigation was required so that SACL could review the Reardon report. (10) Mr Lawrence was also required to conduct the investigation 'to … look at our experience and our internal expertise and look at the causes and anything that we should be doing in future to prevent something like this happening again'. (11) She agreed that two of the major matters to which she desired Mr Reardon to attend were, first, 'to identify the cause of the incident and any contributing factors' and, second, to 'make any recommendations for eliminating or reducing the instance of similar incidents in the future'. (12) She instructed Mr Guselli to summarise the conclusions of Mr Reardon's investigation, including factual findings: this he did, and the result was a PowerPoint presentation that Mr Guselli made to the AOC. (13) Mr Reardon or Mr Guselli prepared a recommended action plan which was designed to make formal documented recommendations to the AOC. The factual matters set out in that plan were taken from the Reardon report. The recommendations made in the plan were taken from the Reardon report. The plan was given to the AOC. (14) Ms Wilder denied that satisfying the AOC was of equal or greater importance (in the commissioning of the Reardon report) than enabling SACL to be prepared in the event of litigation. [14] I accept Ms Wilder's evidence that when she was informed of the incident, she formed the view that litigation was likely. I do so because I accept her as a witness of truth. Her evidence on this point was unshaken. It was not put to her that her reference, in her letter of instructions to Mr Reardon, to 'litigation and anticipated legal liability', was a merely colourable device to seek to attract privilege where otherwise it might not be available." 14 His Honour set out par [9] of Ms Wilder's affidavit. It is also relevant to set out, which his Honour did not, the whole of par [14] of the affidavit, noting in particular the use of the word "only" in the last sentence: "[14] To the best of my recollection, SACL did not have any official protocols or incident response plans that were relevant to this incident, other than in compliance with relevant OHS requirements, SACL was not required to commission a report or to engage an expert to investigate the causes of any equipment failure at Sydney Airport. A report of this kind completed by Peter Reardon, and the issues he was required to investigate and report upon was only commissioned because of my view that this matter would be litigated." 15 His Honour summarised the evidence with respect to the purposes for which the report was commissioned in the following way: "[23] … On the evidence of Ms Wilder, it is possible to assign at least four purposes (or intended uses) to the report: (1) For use in the litigation that Ms Wilder thought was 'likely' (including, in this, to qualify Mr Reardon as an expert who could give evidence in such litigation). (2) To enable SACL to understand what caused the incident. (3) To enable SACL to allay the concerns of the AOC, both in relation to the particular aerobridge and in relation to other similar aerobridges, so as to persuade the AOC to allow the aerobridge to be put back into service. (4) For SACL's own operational reasons: to seek to ensure that similar incidents would not occur again. [24] Although I have referred, as a separate purpose, to enabling SACL to understand what caused the incident, it is clear that this purpose could be seen as part of, or ancillary to, the first and the fourth stated purposes. In some cases, the process of investigation, or of gathering evidence, will be distinct and anterior to the point in time at which it may be said that proceedings are 'anticipated'. See Australian Competition & Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526, 545-546. However, there is no necessary distinction between the two processes and, as Batt JA said in Mitsubishi at 342 [23], '[t]here must be many cases where it can be said that litigation is likely before the evidence gathering process has even begun'. In the present case, I do not think that it is possible to draw a clear distinction between first and second purposes, or between the second and fourth purposes. In a sense, the second purpose is a necessary part of each. [25] Thus, if the claim for privilege is to be sustained, SACL must show that the first of these purposes (including, for the reasons just given, the second purpose insofar as it related to the first purpose) was the dominant purpose." 16 His Honour proceeded: "[30] Consideration of dominant purpose requires not only that the purpose, or intended use, be characterised, but attention to the question: whose purpose? In the ordinary case, the purpose would be that of the person who brings the document (in which the relevant communication is embodied) into existence. However, where the document is commissioned … by an external solicitor, then the relevant intention will be that of the solicitor: … [31] In the present case, it was Ms Wilder who commissioned the Reardon report. I think the proper inference to be drawn from her evidence is that it was her decision to do so, notwithstanding that she discussed the matter with her superior, and notwithstanding that Mr Lawrence was involved. As to the former: it was not put to her, and there is no evidence otherwise, that it was her superior who directed the preparation of the Reardon report. As to the latter: it was Ms Wilder's evidence that she and Mr Lawrence were of coordinate authority. Notwithstanding that the report, both in draft and in final form, was to be given to Mr Lawrence as well as to Ms Wilder, I do not think that his decision, rather than hers, is the relevant one. [32] What I have just said does not exclude the possibility that the relevant decision may be that of Ms Wilder and Mr Lawrence (ie, rather than that of one or the other of them). However, that would require evidence that Ms Wilder had discussed with Mr Lawrence the question of instructing Mr Reardon for their joint (or several) purposes. Ms Wilder did not say that this was so, and there is no other basis in the evidence for finding that it is so. Nor does it follow, from my finding that it was Ms Wilder's decision to commission the report, that it is her purpose alone (or the intended use for which she required the report) that is determinative. [33] In the case of a corporation, the relevant purpose is that of the corporation. When an employee such as Ms Wilder, acting within the scope of her authority, commissions a report such as the Reardon report, the purpose of the employee may be imputed to the employer. Nonetheless, the relevant purpose (in the context under discussion) is that of the corporate employer and not that of the employee. The purposes set out in para [23] include a purpose specific to Ms Wilder in her capacity as an in-house solicitor: the first purpose. However, they include purposes that are, more generally, SACL's purposes: the third and fourth. Whether this is because Ms Wilder was not acting only in her capacity as a solicitor, or because she consulted with other employees (including Mr Lawrence) in relation to the commissioning of the Reardon report, is unnecessary to decide. The privilege (if it exists) is SACL's privilege, not Ms Wilder's. The relevant purpose must, I think, be SACL's purpose, regardless of the particular employee or employees through whom it was articulated. In the ordinary case, SACL's purpose or purposes may be gathered from the individual purposes of particular employees acting within the scope of their authority. [34] Ms Wilder denied that, in her mind, the third purpose (allaying the concerns of the AOC) was of equal or greater importance than the first (use in 'likely' litigation). I accept that, in her mind, this was so. However, that does not dispose of the issue. … [36] In the present case, SACL called no evidence from any employee other than Ms Wilder, notwithstanding that it is clear, on Ms Wilder's evidence, that the relevant purposes included purposes other than for [sic "her"?] particular concern relating to 'likely' litigation. Ms Wilder's denial that the third purpose was of equal or greater importance to her than the first cannot resolve the issue, because it does not follow from this that other officers of SACL would have ranked the importance of the purposes in the same way. [37] Nor, in my judgment, is it possible, looking at the matter objectively, to say that one of the purposes is inherently such that it should be regarded as dominant. In some cases, no doubt, it will be clear even without evidence of subjective intention that one purpose is 'paramount' (to use an expression favoured by Batt JA as a synonym for 'dominant'), or that one is 'ancillary' (to use an expression favoured by Barwick CJ and Branson J as an antonym). In the present case - and accepting that the second purpose may inform, or be ancillary to, the first and fourth purposes -- I do not think that it is possible, by some process of objective assessment, to characterise one of the first, third or fourth purposes as paramount and the others as ancillary. [38] The process of classification is not resolved by Ms Wilder's evidence. There are two reasons for saying this. The first is that, as I have indicated, the relevant purposes (of SACL) clearly go beyond her own specific purpose relating to litigation; and Ms Wilder's denial of equality or primacy was limited to her own perception. The second is that Ms Wilder was not questioned at all (even as to her own perception) as to equality or primacy as between the first and fourth purposes. [39] It may very well be the case that Ms Wilder regarded use in litigation as the most important purpose. It does not follow that other employees of SACL, or SACL generally, would have had the same view. In this context, I regard as significant the failure of SACL to call Mr Lawrence, in circumstances where, clearly, he was closely involved in the investigation of the incident and where he was one of the two people specifically named as intended recipients of the report. Nor (in the absence of evidence) do I think it is possible to arrive at the conclusion, as to dominance, by some process of objective assessment. [40] The relevant purposes (which, in this context, may be confined to the first, third and fourth purposes set out in para [23] on the basis that the second purpose is ancillary rather than independent) are those of SACL. Those purposes go beyond the purpose in the mind of Ms Wilder, namely the first purpose. It must follow that Ms Wilder's evidence, as to the predominance in her mind of her purpose, cannot be conclusive of the question of dominance from the perspective of SACL. [41] I therefore conclude that SACL has not shown that the dominant purpose for which the Reardon report was prepared was for use in 'likely' litigation." Position of an In-House Solicitor 17 Mr D Davies SC, who appeared for the Claimant, submitted that an in-house solicitor is, in all respects, equivalent to an external solicitor for purposes of the application of the doctrine of legal professional privilege and, specifically, for purposes of the application of s119 of the Evidence Act 1995. He submitted that his Honour had treated Ms Wilder in a different manner by reason of her status as an in-house solicitor. 18 The fact that an in-house solicitor is entitled to claim privilege on behalf of his or her employer as a client is now well established (see Attorney-General for the Northern Territory v Kearney (1985) 158 CLR 510, at 530–531; Waterford v The Commonwealth (1987) 163 CLR 54, at 61–62, 79–82, 95; Ritz Hotel Ltd v Charles of the Ritz Ltd (No 4) (1987) 14 NSWLR 100, at 102). This proposition is confirmed in the Evidence Act 1995 by reason of the fact that the word "client", which appears in s119, is defined in s117 to include "an employer (not being a lawyer) of a lawyer". Mr RJ Darke SC, who appeared for the Opponents, did not contest this proposition. 19 In my opinion, McDougall J did not commit any error in this respect. I have set out the steps in his Honour's reasoning above. In my opinion his Honour accepted that, insofar as Ms Wilder was acting in a professional capacity in anticipation of litigation, her conduct was entitled to the full benefit of legal professional privilege. 20 In par [21] of his judgment, his Honour made reference to the position where a report is "commissioned by an external solicitor", but that was in the context of determining the time at which purpose was to be assessed, an issue that has not been agitated in this appeal. 21 Furthermore, at [33] his Honour also made a reference to Ms Wilder acting "in her capacity as an in-house solicitor" but that reference was, in my opinion, merely descriptive. 22 His Honour also referred at [30] to the proposition that where the document was commissioned by "an external solicitor then the relevant intention will be that of the solicitor". His Honour referred in that respect to the judgment of the Court of Appeal of the Supreme Court of Victoria in Mitsubishi Electric Australia supra, especially at [14]. It was submitted in the Complainant's written submissions that his Honour erred in failing to conclude that the position of an in-house corporate solicitor should be the same, so that the relevant intention is that of the solicitor, i.e. Ms Wilder. 23 As noted above his Honour identified three relevant purposes (the one originally denoted as the second purpose becoming irrelevant), including a "first purpose", which was plainly within the scope of the privilege, and "third and fourth" purposes, which were not covered by the privilege. In determining whether or not the first purpose was the dominant purpose it was pertinent for his Honour to state that there were other purposes which the report was intended to serve. As set out in [33], quoted above, his Honour did not find it necessary to conclude whether these other purposes were added because Ms Wilder was not only acting in her capacity as a solicitor or because of the consultation she had had with other employees, including Mr Lawrence. 24 In my opinion, his Honour did not err in identifying the status of Ms Wilder as an in-house solicitor as possibly being relevant to the factual inquiry in which he was engaged. An in-house solicitor is, by reason of his or her position, more likely to act for purposes unrelated to legal proceedings than an external solicitor who, in the normal course, has no relevant function other than that involving legal proceedings and/or legal advice. An in-house solicitor may very well have other functions. Accordingly, in determining whether or not a document was bought into existence for a purpose which was both privileged and dominant, the status of the legal practitioner is not irrelevant. I do not see that his Honour erred in any respect in the references he made to the status of Ms Wilder as an in-house corporate solicitor. A Gap in the Evidence? 25 Mr D Davies SC drew the Court's attention to his Honour's treatment of Ms Wilder's evidence which distinguished between the "third and fourth purposes", as set out in [23] of his Honour's judgment. These purposes, which were formulated by his Honour, were, respectively, between SACL's wish to persuade the Airlines Operations Committee ("AOC") to permit the aerobridge being put back into service (the third purpose) and SACL's own operational objective to ensure that similar incidents would not occur again (the fourth purpose). 26 In par [38] of his Honour's reasons his Honour outlined two bases on which he concluded that the determination of the dominant purpose was not resolved by Ms Wilder's evidence. The second reason given by his Honour, as quoted above, was that Ms Wilder was not cross examined, even as to her own perception, as to the comparative significance of the first and third purposes. This was pertinent because his Honour had earlier characterised that relevant part of Ms Wilder's cross examination as being relevant only to the third purpose and not to the fourth purpose (see [13] (14), [34] and [36] as quoted above). 27 Mr D Davies SC submitted that his Honour erred in characterising Ms Wilder's evidence as going only to the purpose he identified as the third purpose. Mr Davies emphasised that at no point prior to his Honour's judgment was there any distinction drawn between the purposes which his Honour classified as the third and fourth purposes. 28 The relevant passages in the cross examination by the First Opponent in this regard were: "CURTIN: Q. And it was part of the purpose of retaining an independent investigator to, if you like, imbue the recommendations with a higher level of trust than if they had come from a SACL employee? A. Yes." (T9.25–30) … "CURTIN: Q. Two of the major matters you desired Mr Reardon to attend to was to identify the cause of the incident and any contributing factors? A. Yes. Q. And make any recommendations for eliminating or reducing the instance of similar incidents in the future? A. Yes." (T10.45–53) … "CURTIN: Q. Would you agree that SACL, in distributing this document and in disclosing various matters to the AOC committee [sic] and by retaining an independent expert, wanted significant confidence in the utility and independence of the investigation? A. Yes. Q. And to maximise that confidence, SACL wanted to produce recommendations and record factual matters in a formal way, that is, in a document as opposed to just being the result of conversations? A. Yes, if that's what the committee required." (T13.26–38) 29 Cross examination by the Second Opponent of Ms Wilder picked up the references to "retaining an independent expert" in the cross examination set out in the previous paragraph: "DARKE: Q. In the course of Mr Curtin's cross-examination I think you accepted that one purpose of retaining an independent investigator for that, being Mr Reardon, was to review recommendations for preventing future aerobridge incidents with a high level of trust, than those recommendations would have if they came from SACL employees; do you recall giving that answer? A. Yes. Q. Can I suggest this too, that that purpose was of equal or greater importance to you in commissioning the Reardon report than was providing SACL with legal services in relation to anticipated litigation? A. No." (T15.43–56) 30 These questions were interspersed, and themselves referred (the reference "distributing this document") to meetings of the AOC after the preparation of the Reardon report. Nevertheless, the references to "retaining an independent expert" do relate to the purpose or purposes present in the mind of Ms Wilder who asserted, and his Honour found, was the operative mind of SACL, in the course of the decision to commission the report for which privilege is claimed. 31 The "purpose" which Ms Wilder denied was "of equal or greater importance" than the privileged purpose was a purpose which combined the two elements which his Honour later divided into the "third" and "fourth" purposes. The relevant question referred expressly to a single reason ("one purpose") for "retaining an independent investigator". The reference to "a high level of trust", refers back to the words in a previous question. The issue of trust clearly relates to what his Honour classified as the "third purpose". However, the other reference in the "one purpose" identified in the question, namely "recommendations for preventing future aerobridge incidents", which refers back to another question about "eliminating or reducing the "instance of similar incidents", is a reference to what his Honour classified as the "fourth purpose". 32 It does appear that his Honour erred in characterising the answer about "equal or greater purpose" as relevant only to the third purpose. Accordingly, one of the reasons his Honour gave for concluding that Ms Wilder's evidence did not resolve the issue of dominance cannot be supported. 33 In my opinion the Claimant has identified a relevant error in fact-finding which would entitle this Court to grant leave and intervene. Was Ms Wilder's Subjective Intention Determinative? 34 Mr D Davies SC submitted that his Honour erred in failing to conclude that the subjective intention of Ms Wilder was determinative in the present case. He relied on a number of authorities which suggest that where, as here, a document is prepared at the direction of a solicitor, the purpose for which the document was brought into existence will be the intention of the commissioning solicitor. (Reference was made to Grant v Downs (1976) 135 CLR 674, at 677; Hartogen Energy Ltd (in liq) v The Australian Gas Light Co (1992) 36 FCR 557, at 568; Mitsubishi, supra, at 338 [14]; Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 207 ALR 217, at 225–226 [35]). 35 The relevant steps in his Honour's reasoning were: (i) Ms Wilder alone commissioned the report ([31]–[32]); (ii) Ms Wilder's subjective purpose may be, but was not necessarily, the purpose of SACL ([33]); (iii) The third and fourth purposes his Honour identified may have been adopted because Ms Wilder was acting in a capacity other than as a solicitor or because of her consultation with other employees such as Mr Lawrence ([33]); (iv) Ms Wilder's denial that the third and fourth purposes were equal or greater than the privileged purpose does not necessarily reflect the purposes of other employees, notably Mr Lawrence, who was not called ([34], [36], [39], [40]); (v) On an objective basis it is not possible to determine that any one of the three purposes was dominant and Ms Wilder's evidence did not address the fourth purpose ([37], [38]); (vi) Accordingly, the Claimant did not discharge its onus of proof that the dominant purpose was a privileged purpose ([40], [41]). 36 As I have indicated above, in my opinion step (v) above involved an error. This Court must determine whether that error is such, in the context of the findings of primary fact which this Court should accept, that the Court should grant leave and allow the appeal. 37 His Honour does not, as I have said, refer to Ms Wilder's sole purpose evidence. Nor does he, in terms, reject it. Nevertheless, the holding I have identified as step (iii) constituted an implicit rejection. The cross examination which identified other purposes to be served by "retaining an independent expert" constituted a challenge to this evidence. His Honour was entitled to reject it. His Honour clearly proceeded on the basis, justified by the evidence, that Ms Wilder recognised at the outset that retaining Mr Reardon would serve a non-legal purpose or purposes. 38 His Honour identified, in passages set out above, particularly [33], [36], [38], [39] and [40], that the purposes of retaining Mr Reardon included purposes other than that which Ms Wilder had identified as the "only" purpose. Her acknowledgment that there were such other purposes, as set out above, squarely raised the issue of whether the privileged purpose was dominant. 39 Mr D Davies SC referred to his Honour's reasons in [31]–[32] as holding that Mr Lawrence did not ask Ms Wilder to commission the report to satisfy any of his particular purposes or needs (T6.30). However, in those paragraphs his Honour was concerned only with the issue of who commissioned the report, not the purpose or purposes which actuated that course. Mr Davies SC also submitted that Mr Lawrence was not involved "in any way in the commission of the report" (T8.7). That is so only in the sense that he did not commission the report. However, his Honour expressly referred in [33] to the possibility that Ms Wilder had been influenced in commissioning the report by her prior consultation with Mr Lawrence. 40 It is clear that other interested persons were made aware of the SACL's intention to retain Mr Reardon on the day of the incident, i.e. 1 February. · As early as 11.40am a senior officer of Qantas who the Court was informed was a member of AOC, perhaps its chairman, referred to "an independent team being assembled to investigate". (Woolacott affidavit Annexure "A2".) · At a meeting held at 2pm, chaired by Mr Peter Lawrence of SACL, the participants, including representatives of the Opponents, were told by Mr Lawrence that Mr Reardon will "lead an independent investigation". (Woolacott affidavit Annexure "A1".) · Ms Wilder, who was unable to attend the 2pm meeting, had discussed matters with Mr Lawrence before it occurred and amongst "various things" they had discussed – a matter not elaborated on – she said he could reveal the commissioning of the report but that the report would be privileged. (Wilder affidavit at [6] and [12].) No such reference was made at the meeting. [See Woolacott affidavit, Annexures "A1" and "A3".] 41 The significance of the prior consultations with Mr Lawrence is emphasised by the fact that he is expressly mentioned at three different places in Ms Wilder's letter commissioning Mr Reardon as a person to whom a copy of the report must be forwarded. Ms Wilder said: "WILDER: Q. In your letter of retainer, indeed you asked Mr Reardon to copy his report to Mr Lawrence? A. Yes. Q. Because Mr Lawrence was the one who had to deal with customer airlines and the AOC committee? A. Yes, but also because I had asked Mr Lawrence to conduct his own investigation. HIS HONOUR: Q. You said you asked him to conduct his own investigation? A. Yes. Q. Into what? A. Into what SACL knew surrounding the aerobridge incident. So to, you know, look at our experience and our internal expertise and look at the cause and anything that we should be doing in the future to prevent something like this happening again." (T10.25–43) 42 Mr Davies SC emphasised that Mr Lawrence was conducting his own investigation, but that does not detract from the existence of non-privileged purposes, i.e. his dealing with other airlines and the AOC. No doubt, as Ms Wilder also said, Mr Lawrence would be part of SACL consideration of the Reardon report. She said: "I advised Peter Lawrence to conduct his own investigation so that we, so that SACL were able to scrutinise the recommendations made by Peter Reardon. I never saw a written document that Peter Lawrence produced." (T11.48–51) 43 Again nothing restricts the use to a privileged purpose. 44 In the circumstances, it was open to his Honour applying, as he was invited to do, an objective test, to refuse to give what the Claimant characterises as Ms Wilder's subjective intention, determinative weight. Her recognition that there were other purposes present at the time of the commissioning of the report raised the issue of dominance even in terms of her subjective intention. 45 I would not grant leave on this basis. Conclusion on Dominance 46 The error identified above culminates in his Honour's reference to the absence of evidence about the fourth purpose in [38] as one of two reasons for saying that Ms Wilder's evidence did not "resolve" the issue of dominant purpose. The other reason given involved two elements: first, that the relevant purposes went beyond the privileged purpose and secondly, that it was only Ms Wilder's "perception" that the other purpose or purposes were not equal or greater. 47 It was, in my opinion, open to his Honour to conclude that the Claimant had not discharged its onus because of the possibility that the other purpose or purposes, which Ms Wilder acknowledged to be present, may have deprived the privileged purpose of the requisite degree of dominance. 48 Indeed she gave evidence of a sole purpose, which evidence was undermined in cross-examination. She did not in fact assert that that purpose was dominant, although his Honour proceeds on the basis that she did so, presumably by way of implicit qualification of her assertion of an "only" purpose. 49 As Mr Darke SC submitted, Ms Wilder's evidence that another purpose was not equal to or greater than the privileged purpose did not necessarily lead to the conclusion that the privileged purpose was dominant. A purpose can be "greater" without being "dominant" in the relevant sense. To say that an intended use was the most important use does not mean that it was dominant. However, his Honour does not rely on any such proposition in his reasons. 50 His Honour emphasised that Ms Wilder's evidence on equality or primacy was not necessarily that of other employees. (See at [38]. [39] and [40].) This suggested that his Honour accepted that Ms Wilder's purpose was the privileged purpose. 51 This approach is not easy to reconcile with [33] in which, referring to SACL having the third and fourth purposes, his Honour said: "Whether this is because Ms Wilder was not acting only in her capacity as a solicitor; or because she consulted with other employees (including Mr Lawrence) in relation to the commissioning of the Reardon report, is unnecessary to decide." 52 This passage suggests that any additional purpose had to pass through the mind of Ms Wilder who, his Honour found, was SACL for the purposes of retaining Mr Reardon. 53 It appears that his Honour was focusing on the "first" privileged purpose as Ms Wilder's objective when acting in her capacity as a solicitor, whilst leaving open the question of whether she was only acting in that capacity. 54 Such a conclusion was open to his Honour. In my opinion, the conclusion was not affected by the error I have identified. 55 The evidence that the report was always to be deployed for non-privileged purposes, which purposes were of significance to the Claimant – particularly to have the aerobridge back in service – was such that although the privileged purpose may have been the most important single factor, it was not shown to be dominant. Accordingly, his Honour was correct to conclude that the Claimant failed to discharge its onus. 56 Because an error has been identified I would grant leave to appeal, but the appeal should be dismissed with costs. 57 SHELLER JA: I agree with Spigelman CJ. 58 M W CAMPBELL AJA: I agree with Spigelman CJ. ********** 23/03/2005 - line break between quote and case name. - Paragraph(s) 7 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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