Is the draft witness statement held by the witness privileged?

Justice Finkelstein’s decision in Australian Securities and Investments Commission v Mining Projects Group Limited [2007] FCA 1620 has provided material for the last 2 posts.  Now, a third.  His Honour had to consider a question I have never been too sure about.  Say there is a case on foot, but it’s long before trial.  A solicitor for one of the parties interviews a witness.  The witness says his thing.  The solicitor turns it into a witness statement.  The solicitor sends the witness a copy.  There is no doubt that the original witness statement drafted by and retained by the solicitor is privileged under the litigation limb of legal professional privilege.  But what about the copy held by the witness?

Well, though it’s clearly privileged under the uniform evidence legislation, there’s conflicting authority in relation to the position at common law. The two most recent appellate authorities say the witness statement and the copy witness statement are both privileged. On the other hand, Chief Justice French plumped for the opposite conclusion while on the Federal Court. Even if it is privileged, that cannot mean that the witness cannot say the whole thing over again to anyone else who may care to enquire, because there is ‘no property in a witness’.  And I do not suppose the witness would have any positive obligation to assert the solicitor’s client’s privilege (anyone disagree?).  But depending on the cirucmstances, the witness may owe an obligation of confidentiality to the solicitor’s client which would give rise to equitable rights in the solicitor’s client if the witness gave up the witness statement.  Of course compulsion, such as an obligation of discovery under rules of court, properly administered interrogatories, a regulator exercising a statutory power, and a subpoena trump mere confidentiality.  It may be that in the face of compulsion, only if the solicitor’s client stepped in and asserted his or her privilege over the documents would the compulsion not result in delivery up of the witness statement.  Justice Finkelstein’s learned analysis went like this:

‘The defendants seek an order that ASIC make available for inspection the witness statements and affidavits it has obtained from third parties for use in relation to this action. While the affidavits are in a form that would enable them to be filed, I have been told that ASIC has not yet decided whether they will be used. ASIC contends that the defendants cannot inspect the witness statements and affidavits because they are covered by legal professional privilege. The branch of this privilege that is relied upon is colloquially referred to as “litigation privilege”.

27 Litigation privilege covers communications passing between a legal adviser (or client) and a third party if made for the dominant purpose of use in, or in relation to, litigation then existing, or anticipated or in contemplation: Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority [2002] VSCA 59; [2002] 4 VR 332, 335. A brief description of the privilege is found in Trade Practices Commission v Sterling (1979) 36 FLR 244. In a passage that has been frequently cited, Lockhart J sets out various categories of communications covered by legal professional privilege. Litigation privilege was described in the following way (at 246):

“(e) Communications and documents passing between the party’s solicitor and a third party if they are made or prepared when litigation is anticipated or commenced, for the purposes of the litigation, with a view to obtaining advice as to it or evidence to be used in it or information which may result in the obtaining of such evidence. (f) Communications passing between the party and a third person (who is not the agent of the solicitor to receive the communication from the party) if they are made with reference to litigation either anticipated or commenced, and at the request or suggestion of the party’s solicitor; or, even without any such request or suggestion, they are made for the purpose of being put before the solicitor with the object of obtaining his advice or enabling him to prosecute or defend an action.” [Citations omitted]

28 The rationale for litigation privilege is that the communications to the solicitor are the brief in the litigation and the communications by the solicitor are for the purposes of preparing the brief: Mitsubishi Electric [2002] VSCA 59; [2002] 4 VR 332, 336; Wheeler v Le Marchant (1881) 17 Ch D 675, 684-685; Trade Practices Commission v Ampol Petroleum (Victoria) Pty Ltd (1994) 52 FCR 578, 586-587. The communications protected by litigation privilege include affidavits prepared for litigation (Southern Equities Corporation Ltd v West Australian Government Holdings Ltd (1993) 10 WAR 1), unsigned or signed proofs of evidence (Kennedy v Lyell (1883) 23 Ch D 387, 404; Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526, 562-564) and draft pleadings (Propend Finance Pty Ltd v Commissioner of Australian Federal Police (1995) 58 FCR 224, 236-237).

29 There is an unusual aspect to litigation privilege. It concerns the limited ambit of the requirement for confidentiality. In this case ASIC has not identified the witnesses from whom the statements and affidavits have been obtained. Nor has it explained the relationship, if any, that exists between ASIC and those parties. According to the evidence it is unlikely that the third parties are under any obligation to keep confidential the information they have provided to ASIC. Indeed, each of them has a copy of his affidavit or statement (as the case may be) and has not been asked to restrict its publication.

30 It is clear (or at least it seems to be clear) that an essential aspect of litigation privilege is that the communication in issue must be confidential. The unusual aspect is that the obligation of confidence need not bind the third party. The consensus in the cases is that it is sufficient if the communication be confidential only in the hands of the legal adviser. What does this mean for the third party? One line of cases holds that unless the third party is under some obligation of confidence, he can be compelled to disclose his witness statement. For example, in J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (WA Branch) (No 1) (1992) 38 FCR 452 French J said (at 457): “The confidentiality which attends [the taking of witness statements] is of a limited character. There is nothing to stop a prospective witness who has given a statement to a solicitor from announcing that fact and the content of his statement to the world at large. In the ordinary course, neither the solicitor nor his client could do anything to prevent such disclosure.” To a similar effect are observations of McLelland J in Ritz Hotel Ltd v Charles of the Ritz Ltd (1988) 14 NSWLR 132. The question that arose in that case was whether a witness, a medical practitioner, could be cross-examined about the contents of communications between the witness and a representative of the plaintiff concerning the preparation of the witness’ affidavit. McLelland J said (at 134) that in a situation where the independent witness does not owe a duty of confidentiality to the party, “the question whether a claim for protection from disclosure of the communications on the basis of legal professional privilege should be upheld would … depend on whether the disclosure sought is, on the one hand, from the party or his solicitor or representative, in which case the claim should succeed, or, on the other hand, from the independent witness, in which case the claim should fail.”

31 More recently, however, a different view has been taken by two appellate courts: Interchase Corporation Ltd (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 1) [1999] 1 Qd R 141 and Public Transport Authority of Western Australia v Leighton Contractors Pty Ltd [2007] WASCA 151. In both cases it was held that the witness statement was privileged in the hands of the witness and that this was so whether or not the witness was under an obligation of confidence to the party taking the statement. On the other hand, the cases also decided that the privilege only protects the precise communications between the witness and the legal adviser. The rationale is to keep secret what was said by the legal adviser. The witness is otherwise entitled to disclose to the world the facts that had been disclosed to the legal adviser.

32 In the Federal Court, the point is covered by the Evidence Act 1995 (Cth). Section 119 provides that evidence shall not be adduced if it results in the disclosure of a confidential communication between a client or lawyer and a third party if the communication was made for the dominant purpose of the client being provided with legal services. Section 117 provides that a communication will be confidential if made in circumstances where either the person who made it or the person to whom it was made was under an obligation not to disclose its contents. Leighton Contractors [2007] WASCA 151 decided that the effect of those sections in that “only one of the participants to the communication must be under a duty not to disclose” the communication (at [30]). In almost all cases that duty will fall on the legal adviser.’

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