Claims of privilege over the whole of a solicitor’s file

A pretty house in Mt Duneed, a suburb of Geelong

There is a dispute playing out in the Supreme Court of Victoria about whether a contract to sell land in Mount Duneed (not the house in my picture) was concluded and enforceable.  The putative vendors say no: there was nought but a proposed sale.  The putative purchasers issued a subpoena for the production of the putative vendors’ solicitors’ file, no doubt to check what the putative vendors were saying to their solicitors at the relevant time, and to see what their solicitors were saying to them, about the putative binding contract.  (I wonder about the relevance of the file, since whether or not there is a binding agreement is to be objectively determined and what the negotiating parties thought about whether there was a contract ought to be irrelevant, but that was not the issue dealt with in the decision discussed below.) 

The solicitors produced their file, noting that the documents within it were privileged.  The putative vendors objected to inspection, asserting that the whole file was privileged.  They made an affidavit in support of the privilege claim.  In Regent 125 Pty Ltd v Brdar [2019] VSC 177, Judicial Registrar Matthews upheld the claim over the whole file.  The putative purchasers failed to convince her that the putative vendors’ affidavit was formulaic and did not descend to the detailed communication by communication justification required by the authorities.

Because the person objecting to inspection (the putative vendors) was not the respondent to the subpoena (the putative vendors’ solicitors), s. 118 of the Evidence Act 2008 did not apply, with the result that the common law applied: [6].

I come across this question as to the privilege of a whole file from time to time. The law has traditionally been that the whole of a solicitor’s file is very likely privileged.  But there are two reasons why this working out of the law is hard to find.  First, it just isn’t very well treated as a subject in books about privilege. Secondly, the law of privilege is not very well explained, conventionally.  What is overlooked in conventional statements of the law of privilege is that there is a vast third limb of privileged communications beyond the traditional advice limb and litigation limb, which is a kind of ancillary privilege which attaches to documents which it is difficult to describe as ‘communications’. This confuses privilege wonks who love to point out that ‘privilege attaches to communications, not to documents’.  The comparatively hidden third limb allows privilege to be claimed over communications which, if disclosed, would tend to reveal a privileged communication.  Matthews JR applied Dalleagles Pty Ltd v Australian Securities Commission (1991) 4 WAR 325;  (1991) 6 ACSR 498 at 506 in this regard, describing it as standing for the following proposition:

‘What is protected, of course, is that which is communicated between solicitor and client. It is the communication that is privileged. But this is not to say that material that is not literally a communication or manifestly the record of a communication is never protected. There are many instances of protection being extended to such material. The examples of the draft letter that never leaves the solicitor’s office, the draft agreement and the draft statement of claim have already been referred to. The reason why such material is protected is often stated to be that disclosure of it will, or will tend to, reveal the privileged communication. Thus a note made by a solicitor of a conference with his client will be privileged in so far as it is a record of the communication from the client (that communication being privileged) but also in so far as it might contain notes of the solicitor’s own thoughts in regard to the matters communicated to him. Protections is afforded in the latter case on the ground that disclosure of that material might tend to reveal what had been communicated to the solicitor. There is much in the cases to support the view that this is the true basis upon which draft agreements, draft letters, draft pleadings and the like have long been accepted as privileged; that it is not so much because they are themselves “advice” or “communication” but because they will, if disclosed, reveal, or tend to reveal, the content of privileged communications. Material created by the solicitor in fulfilment of his engagement ‘is the result of the solicitor’s mind working upon and acting as professional adviser with reference to’ material communicated to him confidentially in his professional capacity and, as such, will by its very nature tend to reveal the content of the communication in response to which it had been prepared.’

Dalleagleswas cited with approval by the Western Australian Court of Appeal in Huntingdale Village Pty Ltd v Corrs Chambers Westgarth [2018] WASCA 90 by Martin CJ at [51] et seq with whom the other judges agreed.

A much-quoted synthesis of the authorities on privilege, the decision of Young J in AWB Ltd v Cole (No 5) [2006] FCA 1234 [44]; (2006) 155 FCR 30, 44-47also includes the following three propositions, to similar effect:

(7) The concept of legal advice is fairly wide. It extends to professional advice as to what a party should prudently or sensibly do in the relevant legal context; but it does not extend to advice that is purely commercial or of a public relations character:  Balabel v Air India[1988] Ch 317 at 323 and 330;  Nederlandse Reassurantie Groep Holding NV v Bacon & Woodrow [1995] 1 All ER 976 at 983Three Rivers District Council v Governor and Company of Bank of England (No 6) [2005] 1 AC 610 at [2006] FCA 1234; 155 FCR 30AWB LTD v COLE (No 5) (Young J) 45 [43]-[44], [59]-[60], [114] and [120]; Dalleagles Pty Ltd v Australian Securities Commission (1991) 4 WAR 325 at 332-333DSE (Holdings) Pty Ltd v InterTAN Inc [2003] FCA 1191; (2003) 135 FCR 151 at [25]- [71]; and AWB v Cole at [100]-[101].

(8) Legal professional privilege protects the disclosure of documents that record legal work carried out by the lawyer for the benefit of the client, such as research memoranda, collations and summaries of documents, chronologies and the like, whether or not they are actually provided to the client: Daniels at [44] per McHugh J; Commissioner of Australian Federal Police v Propend Finance Pty Ltd(1997) 188 CLR 501 at 550 per McHugh J (Propend); Dalleagles at 333-334 per Anderson J; Trade Practices Commission v Sterling[1979] FCA 33; (1979) 36 FLR 244 at 245-246 per Lockhart J (Sterling); and Kennedy v Lyell (1883) 23 Ch D 387 at 407Lyell v Kennedy (No 3) (1884) 27 Ch D 1 at 31 per Bowen LJ; Propend Finance Pty Ltd v Commissioner of Australian Federal Police (1995) 58 FCR 224 per Lindgren J.

Another useful summary of the ‘classes of documents’, as Lockhart J put it, is to be found in Trade Practices Commission v. Sterling(1979) 36 FLR 244; [1979] FCA 33, and includes the following:

‘Legal professional privilege extends to various classes of documents including the following: (at p245) 

(a) Any communication between a party and his professional legal adviser if it is confidential and made to or by the professional adviser in his professional capacity and with a view to obtaining or giving legal advice or assistance; notwithstanding that the communication is made through agents of the party and the solicitor or the agent of either of them. See Wheeler v. Le Marchant(1881) 17 Ch D 675Smith v. Daniell(1874) LR 18 Eq 649Bullivant v. Attorney-General for Victoria(1901) AC 196Jones v. Great Central Railway Co. (1910) AC 4, and O’Rourke v. Darbishire(1920) AC 581

(b) Any document prepared with a view to its being used as a communication of this class, although not in fact so used. See Southwark Water Co. v. Quick(1878) 3 QBD 315

(c) Communications between the various legal advisers of the client, for example between the solicitor and his partner or his city agent with a view to the client obtaining legal advice or assistance. See Hughes v. Biddulph[1827] EngR 840(1827) 4 Russ 19038 ER 777

(d) Notes, memoranda, minutes or other documents made by the client or officers of the client or the legal adviser of the client of communications which are themselves privileged, or containing a record of those communications, or relate to information sought by the client’s legal adviser to enable him to advise the client or to conduct litigation on his behalf. See Woolley v. North London Railway Co.(1869) LR 4 CP 602, at p 604 ; Greenough v. Gaskell[1833] EngR 333(1833) 1 My & K 98, at p 102; [1833] EngR 33339 ER 618, at p 620 ; Corporation of Bristol v. Cox(1884) 26 Ch D 678, at pp 681-682 ; Woolley v. Pole[1863] EngR 691(1863) 14 CBNS 538143 ER 556Seabrook v. British Transport Commission(1959) 1 WLR 509Grant v. Downs[1976] HCA 63(1976) 135 CLR 674, and Bray, Principles and Practice of Discovery(1885) pp. 388-389.’

Once the third limb is considered, it is much easier to conclude that the whole of a solicitor’s file is privileged, and that is what Matthews JR found (excluding the costs disclosures), eschewing an analysis of whether each piece of writing on the file could be said to be either a request for or the provision of specific advice, applying the following propositions once again taken from Dalleagles at 505-507:

(1) It is the case that whenever a lay client gives instructions to a legal practitioner to perform specialist legal services involving the exercise of professional skill, there is imposed on the solicitor a duty to give any advice reasonably necessary to protect the client’s interests in the transaction whether expressly requested or not. 

(2) It is not a large step from that position to say that whenever a client gives instructions to his solicitor there is assumed to be a request for advice. In my opinion, discourse between solicitor and client with reference to the transactions covered by those instructions, that is, professional discourse in a professional capacity, should be regarded as prima facie for the purpose of giving and receiving and advice. This would apply to any communication that is on its face a communication of a professional nature from the solicitor to the client or his agent touching the subject matter of the solicitor’s engagement and any communication from the client to the solicitor in connection with that engagement. Only if the rule is applied in that way can the policy of it be carried out and its object practically fulfilled. 

(4) [The solicitor and the party’s agent] were communicating one with the other solely for the purpose of [the agent] instructing [the solicitor] and [the solicitor] acting on such instructions so that there would be brought into existence a set of commercial instruments calculated to achieve the plaintiffs’ commercial objectives in a legally enforceable manner. … That being the purpose of the communications, they were, in my view, in the broader sense, communications solely for the purpose of obtaining legal advice or assistance. There is nothing about them to suggest that they were other than confidential communications or that purpose.’

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