Case: Hartogen Energy Limited (In Liq) v The Australian Gas Light Company (1992) 36 FCR 557
Outcome: considered
In Hartogen Energy Limited (In Liq) v The Australian Gas Light Company (1992) 36 FCR 557 at 568-569, Gummow J observed that the purpose for which a document is brought into existence is a question of fact, and the legal issue is whether the purpose of supplying the material to the legal adviser accounts for the existence of the material. His Honour accepted that the relevant "purpose" will ordinarily be that of the maker of the documents, but his Honour also observed that privilege is attracted where the person who calls the document into existence does so in the bona fide belief that litigation will probably ensue. By way of example, his Honour referred to situations where solicitors commission the provision of a technical report with the consequence that the relevant intention will not be that of the report's author but the solicitor who requests it. Privilege in a copy document may therefore arise where a person requests that the original document be copied for his or her own purpose of providing legal advice or assistance. 31 The principles summarised by Gummow J in Hartogen 36 FCR at 568-569 were affirmed and applied by Batt JA in the Victorian Court of Appeal in Mitsubishi Electric Australia Pty Ltd v Victorian Workcover Authority (2002) 4 VR 332 at 338, with whom Charles and Callaway JJA agreed. In that case, the reports in question were commissioned by the solicitors. His Honour considered that the relevant purpose included the intention of a person under whose direction the relevant document is brought into existence. 33 Where it is necessary to determine the purpose for which a copy document has come into existence, it is appropriate to identify some person or entity from whom that purpose can be elicited. The authorities refer to "the maker" of the relevant document a description which, in the circumstances of copy documents, could be interpreted literally to mean the person who actually carries out the physical task of copying. To limit the concept of "purpose" to such a person is clearly too restrictive, and would run contrary to the authorities which refer to the purpose of the person who "authorised", "ordered" or "procured" the creation of a copy document, or "called the document into existence". In addition, some authorities regard as relevant the purpose of the person at whose "request" a document comes into existence. An example of such a person is a legal adviser who requests an expert or third party to provide a report for use in litigation: see Hartogen 36 FCR at 568-569. 34 In principle, it is not easy to see why the purpose of a lawyer who acts for a party should not be relevant, or indeed in some cases controlling, where he or she requests another person to provide copy documents for that particular purpose. In such a case the circumstances may indicate, when taken together with the terms of the request, or by clear implication from the request, that the documents are required for the dominant purpose of providing legal advice or assistance. In such a case, an accession to the request (by copying the documents) can properly be treated as being for the purpose of the legal adviser who called the documents into existence. 35 In my opinion, the copy documents produced by the ACCC in response to the requests by ABL come within the privilege which applies in respect of copy documents produced for legal advice or assistance or for use in reasonably anticipated legal proceedings. As in the present circumstances, where the evidence is that documents are requested by a solicitor solely for such a purpose, and the request is complied with by the third party without any qualification, it can be reasonably inferred that the copy documents were made in order to comply with the request and to carry out the purpose (be it either expressed or implied from the circumstances) for which the request was made. There is no evidence in this case to indicate that the ACCC had any other motive or purpose in making the copies available except to comply with the request by ABL. This conclusion applies in respect of all copy documents requested by ABL orally or in writing in relation to the ACCC proceeding, including those produced under any Notice to Produce issued by ABL to the ACCC. 36 In light of the above reasons, it is appropriate that Jarra Creek should pay the costs attributable to the determination of this issue relating to the privilege claim in respect of the copy documents. 37 Jarra Creek seeks an order that, to the extent that the Visy parties succeed in their privilege claims which were the subject of Issue 4 above, leave should be granted to Jarra Creek to subpoena the ACCC. Although the Visy parties do not oppose the granting of such leave, the ACCC submits that leave should not be granted: (a) until the privilege claims which were the subject of Issue 4 are determined; and (b) because it is not appropriate for Jarra Creek to subpoena documents from the ACCC simply because it has been unsuccessful in obtaining those documents from the Visy parties by way of discovery. 38 In my view, it is appropriate to grant leave to issue the subpoenas. The request for leave is not opposed by the Visy parties, and the form of subpoena proposed by Jarra Creek is specific and certain in its terms. Accordingly, leave to issue the subpoena should be granted immediately, and not delayed as the ACCC contends. 39 By order 2 of its Amended Notice of Motion Jarra Creek sought an order that further discovery be granted. This order was intended to compel the Visy parties to discover and produce for inspection documents and categories of documents which were listed in two schedules to the Amended Notice of Motion.