FEDERAL COURT OF AUSTRALIA

Aveling v UBS Capital Markets Australia Holdings Ltd (No 3) [2005] FCA 1320

LEGAL PROFESSIONAL PRIVILEGE – whether leave should be given to administer interrogatories which would compel disclosure of general subject matter of conference with solicitors – whether that disclosure would disclose privileged communications.

INTERROGATORIES – whether leave should be given to administer interrogatories which would compel disclosure of general subject matter of conference with solicitors – whether that disclosure would disclose privileged communications.

INTERROGATORIES – whether leave should be given to administer interrogatories which would compel disclosure of names of possible witnesses.

Packer v Deputy Commissioner of Taxation [1985] 1 Qd R 275 distinguished

Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd (1994) 126 ALR 58 distinguished

Gough & Gilmour Holdings Pty Ltd v Caterpillar of Australia Ltd (No 6) (2001) 109 IR 11 distinguished

Knapp v Harvey [1911] 2 KB 725 followed

West v Conway (1923) 23 SR (NSW) 344 followed

ANTHONY AVELING v UBS CAPITAL MARKETS

AUSTRALIA HOLDINGS LIMITED

NSD 858 of 2003

LINDGREN J

14 SEPTEMBER 2005

SYDNEY

REASONS FOR JUDGMENT (No 3)

(Interrogatories)

INTRODUCTION

1                     I published reasons on 5 September 2005 (Aveling v UBS Capital Markets Australia Holdings Ltd (No 2) [2005] FCA 1232 – ‘the Earlier Reasons’) in relation to paragraphs 1 and 2 of the respondent’s notice of motion filed on 12 August 2005.  Those reasons dealt with a question of waiver of legal professional privilege in respect of documents which the respondent was seeking to have the applicant produce for inspection.  They give the background facts to the present dispute which concerns the remaining two paragraphs of the notice of motion.

2                     By paragraph 3 of the notice of motion, the respondent seeks leave to file and serve the interrogatories contained in Schedule A to the notice of motion.  By paragraph 4 it seeks an order that the applicant answer the interrogatories. 

3                     There are 25 interrogatories divided into three parts.  Part A comprises interrogatories A1 to A19, Part B comprises interrogatories B1 and B2, and Part C comprises interrogatories C1 to C4.  When the matter was last before the Court, it was accepted that answers had been provided, not in the form of answers to interrogatories but in the form of affidavit evidence read on the earlier hearing, to interrogatories A3, A4, A5, A6, A14 and A18.  In addition, the applicant undertook to answer interrogatories C1 and C3. 

4                     The applicant submits that my ruling on the privilege issue as it related to the production of documents for inspection covers the remaining interrogatories in Part A and both interrogatories in Part B.  I agree.  However, I should address a particular submission made by the respondent, and must deal with the interrogatories in Part C.

5                     The respondent submits that since legal professional privilege protects communications, it does not protect a statement as to the general subject matter of a conference between solicitor and client, and that the applicant should therefore be required to answer the following interrogatories:

A11 Was part of the subject matter of the 20 May Conference the possible changes to section 106 of the Industrial Relations Act 1966 (NSW)?

A12 Was part of the subject matter of 20 May Conference the possible termination of employment of the applicant?

B2 Was the document marked ‘B’ [a letter from the respondent to the applicant dated 12 March 2002] part of the subject matter of the 20 May Conference?

The applicant had previously made available to the respondent a copy of a Tax Invoice issued to him by his solicitors on 26 June 2002 which was headed ‘Re: UBS Warburg’, and was for a conference on 20 May 2002.  Apart from the heading, the memo stated nothing about the subject matter of the conference.

6                     Counsel for the respondent relied on the following cases: Packer v Deputy Commissioner of Taxation [1985] 1 Qd R 275 (‘Packer’); Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd (1994) 126 ALR 58 (‘Lake Cumbeline’) and Gough & Gilmour Holdings Pty Ltd v Caterpillar of Australia Ltd (No 6) (2001) 109 IR 11 (‘Gough & Gilmour’).

7                     I agree that these and other authorities establish that it is communications that are protected by legal professional privilege, and that when one is considering a document in respect of which that privilege is claimed, the question to be asked is whether the document discloses a privileged communication.  Similarly, in my view, it must be asked whether the answers to the three interrogatories would disclose a privileged communication.

8                     The cases cited by the respondent are distinguishable.  Packer concerned solicitors’ trust account ledgers.  The Full Court of the Supreme Court of Queensland held that such ledgers could not be said to be privileged as a class, because the general nature of solicitors’ trust account ledgers is that they are a record of the movements of money.  The Court examined a sample of two of the ledger cards in involved in the case, and ruled that they did not reveal solicitor-client communications.  Andrews SPJ (at 276) said that the cards did not expose ‘the nature of the matter or matters submitted to the solicitors for advice or the nature thereof’.  McPherson J (at 289) remarked that they did not reveal ‘the nature of any advice given by the solicitors to the applicants’.

9                     Lake Cumbeline concerned not the existence of privilege, but the question whether a disclosure of memoranda of fees waived the privilege in respect of underlying documents.  Having read the memoranda, Tamberlin J thought that they did not disclose ‘the nature or content of privileged material’ (emphasis in original) (at 68).  The suggestion may be that it is the nature and content of privileged communications that must not be disclosed.

10                  In Gough & Gilmour, Boland J said (at 16):

‘… if a bill of costs indicates that a legal adviser gave advice on a particular subject matter, that is not privileged information but the contents of that advice would be so privileged.’

11                  I respectfully disagree with the first part of this statement.  I agree, however, with a statement made by his Honour that ‘whether a bill of costs contains privileged information is a matter for judgment in particular cases’ (at 15). 

12                  Whether a memo of fees discloses privileged communications depends on how much the memo of fees reveals and on all relevant surrounding circumstances, including the knowledge already possessed by the other party, in the light of which he or she will understand the information disclosed by the memo of fees.

13                  The present case affords an illustration.  According to the applicant, on 24 April 2002 he sought assurance from Mr Mackay of the respondent, that the respondent did not want him to leave its employ, and Mr Mackay told him that it did not, and that in fact it wanted him to stay and valued him highly.  The applicant’s case is that if Mr Mackay had not reassured him,

·        he would have obtained legal advice;

·        the legal advice would have led him to make an application to the Industrial Commission of New South Wales for relief under s 106 of the Industrial Relations Act 1996 (NSW); and

·        that application would, as a matter of fact, have been made before the introduction of the remuneration cap by s 108A of that Act as from 24 June 2002 (see the Earlier Reasons at [8]). 

14                  In my opinion, if the memo of fees addressed to the present applicant had added, as the subject matter of the conference on 20 May 2002, ‘in relation to the possible changes to section 106 of the Industrial Relations Act 1966 (NSW)’, it would have disclosed a privileged communication, namely, the giving and receiving of legal advice on the likely effect, on the applicant’s position vis-à-vis the respondent in terms of its termination of his employment, of the introduction of the remuneration cap.  It would do so particularly in the light of the respondent’s knowledge of, as the applicant alleges, the conversation of 24 April 2002 and the timing of the conference.

15                  The multiplicity of the interrogatories directed to ascertaining the subject matter of the conference makes the result so much clearer.  Interrogatories A11, A12 and B2 would require the applicant to reveal which of the nominated subjects was or were, and which was or were not, discussed at the conference.  The affirmative or negative answers given would help the respondent to understand more clearly the nature of the communications which took place at the conference.

16                  Whether a disclosure would intrude on legal professional privilege calls for a consideration, not only of the surrounding circumstances as mentioned above, but also on the degree of specificity of the disclosure called for.  Even in disclosing the memo of fees described at [5] above, the applicant revealed that on 20 May 2002 he sought and received from his solicitors legal advice touching his employer, ‘UBS Warburg’.  The respondent will understand even that minimal disclosure in the light of the surrounding circumstances to which I referred.  I can only say that in my opinion, interrogatories A11, A12 and B2, which clearly call for further disclosure, fall on the wrong side of the line.  It does not matter that they would not require the applicant to disclose who said what to whom, although, in view of the surrounding circumstances known to the respondent, it might well be enabled to draw an inference as to the likely nature of the advice given.

17                  The second outstanding issue concerns interrogatories A6, C2 and C4, which are as follows:

            A6:  Who attended the 20 May Conference?

            C2:  If so [if the applicant approached any person in the period 1 January 2002 to 31 August 2003 seeking either employment or any other engagement under which he would provide personal services?]  please name this person or these persons.

            C4:  If so [if any person approached the applicant in the period 1 January 2002 to 31 August 2003 in respect of employing him or otherwise engaging him to perform personal services?]  please name this person or these persons.

18                  The applicant submits that he should not be required to answer these interrogatories because they seek the names of witnesses.  The authorities establish a general principle that an interrogatory seeking identification of a witness is impermissible:  see Knapp v Harvey [1911] 2 KB 725 at 730; West v Conway (1923) 23 SR (NSW) 344 at 347.

19                  The general principle applies to interrogatories A6, C2 and C4.  The applicant should not be required to answer them.  The applicant may wish to call as witnesses the persons to who would be named in answers to in interrogatories C2 and C4 on the issue of mitigation of loss.

20                  These rulings dispose of the remainder of the respondent's motion brought by notice of motion filed on 12 August 2005.  In the absence of counsel, however, I will not make an order dismissing the motion or an order as to the costs of the motion in so far as it relates to para 3 and 4.  Orders will be made finally disposing of the motion when the proceeding is next before me for directions on Wednesday 21 September 2005.

Associate:

Dated:              20 September 2005