Unreported National Court Decisions
N1292
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
WS 6 OF 1994
LLOYD GEORGE OWENS - PLAINTIFF
POST & TELECOMMUNICATION CORPORATION - DEFENDANT
Lae
Sevua J
16-17 November 1994
PRACTICE AND PROCEDURE - Discovery - Production of documents for inspection - Privilege - Legal professional privilege - Statements of witnesses of event involving plaintiff and principal of defendant's training college - Statements produced for purpose of disciplinary action - Statements required by defendants Manager, Training and Development - Statements used for purpose of terminating plaintiff.
PRACTICE AND PROCEDURE - Discovery - Production of documents for inspection - Privilege - Legal professional privilege - Statements not required by legal officer for legal advice or for use in legal proceedings - No legal proceedings on foot or anticipated at material time - Defendant claimed privilege - Whether statements of witnesses protected by legal professional privilege - Test to be applied.
Held
(1)      Any document or material which is brought into existence for the sole purpose of submission to a legal adviser for advice or for use in legal proceedings, existing or anticipated is privileged from production or inspection on the ground of legal professional privilege.
(2)      The test to be applied is the sole purpose test.  Grant v Downs (1976) 135 CLR 674 adopted and applied.
(3)      The documents enumerated 28, 29, 30, 32, 33 and 34 as disclosed in the defendant's list of documents dated 3 May 1994 and filed on 4 May 1994 are not protected from production or inspection on the ground of legal professional privilege.
(4)      The application is dismissed with costs to the plaintiff/respondent.
Cases Cited
Waugh v British Railways Board [1979] 3 WLR 150
Credit Corporation Ltd v Gerald Jee [ 1988-89] PNGLR 11
Grant v Downs (1976) 135 CLR 674
Gardner v Irvin (1878) 4 Ex D 49
O’Shea v Wood [1891] p. 286
National Employers Mutual General Insurance Association Ltd v Waind (1979) 153 CLR 52
Baker v Campbell [1983] 153 CLR 52
McCaskell & Anor v Mirror Newspapers Ltd [1984] 1 NSWLR 66
Nickmar Pty Ltd & Anor v Presevatrie Skandia Insurance Ltd (1985) 3 NSWLR 44
Counsel
E Geroro for Applicant/Defendant
L Dacre for Respondent/Plaintiff
17 November 1994
SEVUA J:  This is an interlocutory application by the defendant by way of notice of motion filed on 11 November, 1994 seeking, interalia that, firstly, the ex parte order granted on 20 October 1994 be set aside and/or the defendant be relieved from complying with it on the ground that the documents ordered to be produced for inspection by the plaintiff are protected by legal professional privilege and secondly, compliance with the said order be stayed pending the determination of this application.
The plaintiff was employed on contract by the defendant as a Telecommunication Studies lecturer at the Lae Training College.  He was terminated by letter dated 15 December, 1993 over an incident which occurred at the college on 6 December, 1993, in which, he assaulted the principal of the college who as the plaintiff's superior.  Following that incident, the principal, William Hurley and five other staff members submitted statements pertaining to this incident, to the defendant’s Executive Manager, Training and Development, Corporate Human Resources Division.  Those statements formed the basis of the plaintiff’s termination.  These statements were from William Hurley (Principal) dated 10 December, 1993, Ila Kila dated 6 December, 1993, P Demen dated 9 December, 1993, MD Stewart dated 10 December, 1993, James O’Routte dated 10 December, 1993 and John Hendry undated.  Following his termination, the plaintiff filed a writ of summons on 3 January, 1994, claiming wrongful dismissal amongst other things, which suit is still pending.
On 10 March, 1994, the plaintiff filed a notice of discovery to which the defendant obliged by filing a list of documents which included the statements from the college staff I have alluded to earlier.  Those statements are enumerated 28, 29, 30, 32, 33 and 34 in order of reference I have made to earlier.  Paragraph 2 of Part 1 of Schedule 1 of defendant's list of documents states, with no particulars, “statements of witnesses made and taken for the purpose of those proceedings”.
On 20 October, 1994 Hinchliffe J ordered the defendant, before or on 8 November, 1994 to produce to the plaintiff for inspection and provide copies of documents enumerated 28, 29, 30, 32, 33 and 34 as disclosed in Part 1 Schedule 1 of the defendant’s list of documents.  The defendant was also granted liberty to apply on or before 8 November, 1994.  On 9 November, 1994, Hinchliffe J granted an extension of time to the defendant to apply on 11 November.  His Honour further ordered that the documents in facsimile form complying with clause 1 of his order of 20 October, 1994 be not read by the plaintiff before the defendant’s application on 11 November.  On 11 November, I granted a further extension of those orders to 16 November, which date, the defendant made this application.
The defendant relies on the affidavits of Lala Avosa, the Executive Manager of Training and Development and Elastus Geroro, Legal Officer of the defendant, both sworn on 9th November, 1994.  It is evident from these affidavits that the purpose of these statements was for disciplinary proceedings as they were sent to Lala Avosa and received by him on 12 December, 1993.  According to him, “these statements and the statement from the plaintiff on the same incident formed the basis of the decision to terminate the plaintiff's employment”.  At that time the plaintiff had not instituted legal proceedings therefore no proceeding were on foot when these statements were provided.  Mr Avosa forwarded these statements together with other documents to his Legal Division after the writ of summons has been filed and served on the defendant.  In paragraph 4 of his affidavit he said, “when the writ of summons in this suit was served on the defendant and referred to our Legal Division, our Legal Officers requested for instructions on the matter and I forwarded to them, on the advice of the Human Resources Division Head, the plaintiff’s personal employment file with PTC, together with the above-mentioned statements of witnesses...”  Mr Geroro said in paragraph 6 of his affidavit that the statements in question were furnished to the relevant officers in the Human Resources Division of the defendant prior to the plaintiff instituting the present proceedings.  When the writ of summons was referred to him and he requested instructions from the relevant officers of the defendant who furnished instructions together with copies of these statements.
It is therefore obvious to me that the statements or documents, the subject of this application, were never requested by the defendant’s legal advisers namely, Robert Mugarenang and Elastus Geroro.  These statements were provided to the Human Resources Division and there is no evidence before me that they were provided on instructions or advice from the said legal advisers.
Mr Geroro for the defendant argued that the basis for the defendant's claim of privilege over these statements is that the statements fall under the category of privileged documents covered by legal professional privilege.  He cited the three categories in Halsbury’s Laws of England, 3rd ed, vol 12 at p. 42.  These are firstly, communications between a party and his legal adviser, either directly or through an agent including communications with counsel.  Secondly,  communications between the party’s solicitor and a non-professional agent of third party and finally, communications between a party and a non-professional agent or third party including reports to an employer by his servant.  He submitted that the statements in question would fall under the third category because the statements were made by employees to their employer.  Mr Geroro further referred to p. 45 of Halsburys in relation to communication with non-professional agent, servant, or third party.  I quote what counsel sought to rely on here - “on the other hand communications between a party and a non-professional agent or servant or third party are only privileged if they are made both (1) in answer to inquiries made by the party as the agent for or at the request or suggestion of his solicitor or counsel or without any such request, but for the purpose of being laid before a solicitor or counsel for the purpose of obtaining his advice or of enabling him to prosecute or defend an action or prepare a brief, and (2), for the purposes of litigation existing or in contemplation at the time.  Both these conditions must be fulfilled in order that the privilege may exist”.  Counsel for the defendant further referred to the English case of Waugh v British Railways Board [1979] 3 WLR 150.
In his summation, Mr Geroro submitted that the defendant should not be required to produce these documents for inspection and he advanced two reasons.  Firstly, because the documents were obtained for the purpose of submission to the Legal Division of the defendant in order to prepare for this case.  Secondly, because the statements relate to a matter which the plaintiff has personal knowledge of and his case will not be prejudiced if these documents were not produced.
In response, Ms Dacre for the plaintiff forcefully argued that the defendant could not claim legal professional privilege because firstly, the documents were not requested by a lawyer and secondly, they were not for the purpose of the present proceedings.  That’s the gist of the plaintiff's argument which I consider to be meritous.  She has referred to Credit Corporation (PNG) Ltd v Gerald Jee [1988-89] PNGLR 11, in so far as it relates to discovery, Grant v Downs (1976) 135 CLR 674 and the text, Discovery and Interrogatories, Simpson, Baily and Evans, 1984, Butterworths.
In respect of the defendant’s argument, I do not see how it would gain any assistance from the English case it cited.  Infact, Waugh v British Railways Board was a case in which the plaintiff’s husband employed by the defendant died as a result of injuries suffered in a locomotive collision where he was employed as a driver.  A report by the board including statements of witnesses relating to the accident was prepared for dual purposes: firstly, for railway operation and safety purposes and secondly, for the purposes of obtaining legal advice in anticipation of litigation.  The board refused to disclose the report on the basis of legal professional privilege.  The master ordered discovery but an appeal by the board was allowed by Donaldson J.  The Court of Appeal dismissed an appeal by the plaintiff from Donaldson J’s order, however the House of Lords allowed the appeal by the plaintiff and held that the board's claim for privilege failed and the report should be disclosed.
I consider that the defendant’s claim of privilege must fail because it is not supported by evidence.  I reiterate that at the time of production of these statements, there was no legal proceedings on foot.  None were theatened, contemplated or anticipated.  Besides, the statements were produced for the purpose of management for administrative reason and I consider, for disciplinary reasons.  The evidence on this aspect is clear and straight forward.  In my view, the defendant’s reliance on communication with non-professional agent, servant or third party, that is, statements from employees to employer, must fail.  The requirements in Halsbury’s  which the defendant sought to rely upon on p. 45 were not fulfilled.  Reports made by servants to their employers as agents to their principals are not privileged unless they satisfy the conditions referred to earlier, ie they must be reports made for the purpose of being laid before the party’s legal adviser for the purpose of his advice in reference to the anticipated or pending litigation.  Mere reports by employees to employers, as in this case, cannot be protected by legal professional privilege.
I agree with the principle that documents which are privileged on the ground of legal professional privilege fall into two categories - those that are privileged in any event and those that are privileged only if litigation was contemplated or pending when they were produced.  A professional communication between a party and his lawyer of a confidential character for the purpose of obtaining legal advice is privileged and if that communication is contained in a document, that document is privileged form production for inspection.  In Gardner v Irvin (1878) 4 Ex 49 at 53, Cotton LJ said: “It is not sufficient for the affidavits to say that the letters are a correspondence between a client and his solicitor, the letters must be professional communication of a confidential character for the purpose of getting legal advice”.  See also O’Shea v Woods [1891] p. 286 at 289 per Kay LJ.  By the same token, documents or communication with a legal advisor are privileged if they were made when litigation was contemplated or pending.
In Grant v Downs [1976] 135 CLR 674 the High Court of Australia by a majority (Stephen, Mason, Jacobs and Murphy JJ) held that legal professional privilege is confined to documents which are brought into existence for the sole purpose of their being submitted to legal advisers for advice or for use in legal proceedings.  A document which would in any event have been brought into existence for another purpose is not privileged from production after discovery on that ground.  The majority preferred a “sole purpose” test and emphasised that the burden of establishing the privilege is on the party claiming the protection.  Barwick CJ in his dissenting judgment, opted for a “dominant purpose” test.  Grant v Downs was followed and applied in the following cases: National Employers’ Mutual General Insurance Association Ltd v Waind [1979] 141 CLR 648 (High Court), Baker v Campbell [1983] 153 CLR 52 (High Court), McCaskell and Anor v Mirror Newspapers Ltd [1984] 1 NSWLR 66 (NSW Supreme Court ) and Nickmar Pty Ltd and Anor v Preservatrice Skandia Insurance Ltd [1985] 3 NSWLR 44 (NSW Supreme Court).
The concept of client’s legal privilege is ancient and has existed for over 400 years in English Law.  It is well established in the United States and in many other countries such as Belgium, Denmark, Germany, France, Greece, Italy, Luxembourg and Holland.  In the United States, the privilege has been based on Constitutional grounds - the fourth amendment, the fifth amendment and the sixth amendment.  A string of cases pertaining to this principle in these countries can be found in the case of Baker v Campbell [1983] 153 CLR 52 at 84, 85.
In England, the House of Lords in Waugh v British Railways Board (supra) expressly rejected the “sole purpose” test applied by majority of the High Court of Australia in Grant v Downs (supra).  Instead the House of Lords, adopted the “dominant purpose” test of Barwick CJ in that Australian case.  Grant v Downs (supra) seems to have defined the scope of the privilege more narrowly than anywhere else.  In the United kingdom, it is enough if the dominant purpose for coming into existence of the material is legal advice or litigation (Waugh v British Railways Board).
I have been unable to find any authority in our jurisdiction and both counsels have not cited any.  The only case from this jurisdiction which counsel for the respondent / plaintiff cited, refers to discovery generally and did not discuss the test to be applied.  I note that the English case, Waugh v British Railways Board (Supra) was decided after 1975 so it could not be said that, that decision formed part of the common law principle immediately before Papua New Guinea’s independence.  Whilst Australian cases are not binding in our jurisdiction, I am of the view that the sole purpose test established by the High Court in Grant v Downs (supra) is a sound test and I would apply it in the present case until the Supreme Court can correct me.  I consider that a party claiming legal professional privilege over certain documents should not hide behind the cloak of dual or plurality of purposes, that is, purpose for which the documents were brought into existence in the first instance.  There should not be a claim of privilege unless the document or material came into existence for the purpose of seeking legal advice or for use in existing or anticipated legal proceedings.  I would prefer the sole purpose test to the dominant purpose test.
I consider that my view is fortfieted by the class of privileged documents described in Halsbury's Laws of England 4th ed., vol 13, par 71 at 56 as including: “...communications made to and from a legal advisor for the purpose of obtaining legal advice and assistance are protected from disclosure in the course of legal proceedings...but in the case of communications to or from a non-professional agent or third party, such as a person who witnessed some event, the privilege only arises if litigation is threatened or contemplated”.
I have adverted to earlier that in the present case, evidence runs contrary to the arguments advanced by the applicant/defendant.  It is obvious from excerpt of evidence I have quoted earlier on that, the documents or statements in question were not submitted to the defendant for the purpose of seeking legal advice nor were they submitted for use in any legal proceedings since at the material time, no proceedings were in existence and none were anticipated then.  I reiterate that the statements were submitted to the Human Resources Division of the defendant for administrative purposes, ie disciplinary measures.  In law, the defendant cannot therefore claim legal processional privilege over those statements.
I would therefore formulate the relevant principle of law in this jurisdiction governing the privilege which attaches to communications and materials submitted by a client to his lawyer to be this: any document or material which is brought into existence for the sole purpose of submission to a legal advisor for advice or use in legal proceedings existing or anticipated is privileged from production or inspection on the ground of legal professional privilege.  In my view, it is not right that the privilege can attach to documents which quite apart from the purpose of submission to a lawyer, would have been brought into existence for other purpose in any event and then without attracting any attendant privilege.
The defendant’s application therefore must fail.  I order that this application  be dismissed with costs to the plaintiff/respondent.
Lawyer for Plaintiff:  Warner Shand
Lawyer for Defendant:  Muzarewa Robert Mugarenang