FEDERAL COURT OF AUSTRALIA

 Barnes v Commissioner of Taxation [2007] FCA 3

EVIDENCE – legal professional privilege – communications including documents placed by applicants or their servants and agents with their legal advisors for the purpose of receiving legal advice on tax and financial matters – principles applicable to claim – objections to affidavit evidence – liberty to file supplementary affidavits of servants and agents in relation to hearsay the subject of objection – opportunity not taken – no discharge of onus on applicants to establish the privilege

Evidence Act 1995 (Cth) s 135

Income Tax Assessment Act 1936 (Cth) s 263

Allen Allen and Hemsley v Commissioner of Taxation (1989) 20 FCR 576

AWB Limited v Honourable Terrence Rhoderic Hudson Cole (No 5) [2006] FCA 1234

AWB Limited v Honourable Terrence Rhoderic Hudson Cole [2006] FCA 571

Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49

Federal Commissioner of Taxation v Pratt Holdings Pty Ltd (2005) 225 ALR 266

Federal Commissioner of Taxation v Spotless Services Ltd (1996) 186 CLR 404

Grant v Downs (1976) 135 CLR 674

Kennedy v Wallace (2004) 142 FCR 185

Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority (2002) 4 VR 332

Packer v District Commissioner of Taxation (Qld) [1985] 1 Qd R 275

Waugh v British Railways Board [1980] AC 521

JOHN ERIC BARNES and JUDITH ANGELA BARNES v COMMISSIONER OF TAXATION FOR THE COMMONWEALTH OF AUSTRALIA

WAD 26 OF 2006

NICHOLSON J

9 January 2007

PERTH

THE COURT ORDERS THAT:

1.                  The applicants claim of legal professional privilege in respect of the documents in the schedule to the within reasons for judgment be dismissed.

2.                  The applicants pay the respondent’s costs of the application, including any costs arising from the issue of the writ of summons in the Supreme Court of Western Australia.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The applicants seek a declaration that legal professional privilege attaches to certain communications constituted by or disclosed in documents listed in a schedule, to the details of which reference will later be made. 

2                     The issue arose in the following circumstances.  By notice dated 6 June 2005 issued pursuant to s 263 of the Income Tax Assessment Act 1936 (Cth) (the Notice), the respondent sought and was afforded access to all buildings, places, books, documents and other papers related, either directly or indirectly, to inter alia:

(1)               Barnes Development Pty Ltd;

(2)               Barnes Family Trust;

(3)               The first named applicant;

(4)               The second named applicant;

(5)               Multinational Technical Services Inc;

(6)               Pantheon Trust;

(7)               Phillip de Figueiredo;

(8)               Philip Jepson Egglishaw;

(9)               Roker Nominees Limited;

(10)           Roker Trustees (Jersey) Limited;

(11)           Sanderstead Limited;

(12)           Sapphire Superannuation Fund; and

(13)           Strachans SA.

When affording the respondent such access the applicants asserted legal professional privilege attached to certain documents. 

3                     On 6 July 2005, the respondent and the applicants, through their solicitors, entered into an agreement titled ‘Terms of Inspection’ to facilitate access to the documents and to enable the applicants’ claims of legal professional privilege to be asserted and tested.  In accordance with that agreement and by a notice dated 22 July 2005, the applicants by their solicitors claimed legal professional privilege in respect of 79 documents identified in a schedule to the notice and set out in a schedule to the amended statement of claim.  By a further notice dated 29 July 2005, the applicants by their solicitors claimed legal professional privilege in respect of a further three documents identified in a schedule to that notice and again set out in the schedule to the amended statement of claim.

4                     The agreement provided inter alia:

‘…

35.              The Commissioner will inspect the lists referred to in clauses 11 and 24 above.  … [the Schedules] …

36.              If, after doing so, the Commissioner still seeks to access any document or documents in …[the Schedules]… , the Commissioner will give 7 business days written notice to that effect to …[the Applicants] …, specifying such document or documents.

37.              At the expiration of those 7 business days …[referred to in clause 36]… the Commissioner will access the documents taken to the premises as described in clause 6 under clauses 6, 10 and 28 but limited to those documents listed in the notice given by the Commissioner under …[clause]… 36 above, and the …[Applicants]… expressly agrees to him doing so and shall be taken to have waived any claim that the documents listed in the notice attract LPP, in whole or part, unless, and save to the extent that, within those 7 business days, the …[Applicants have] … commenced legal proceedings in a competent Court seeking to maintain LPP and serving the originating process on the Commonwealth …’

5                     By a letter dated 2 December 2005 the respondent gave written notice to the applicants that he still sought access to all of the documents listed in the schedules to the applicants’ notice.  By letter dated 22 December 2005 the applicants claimed legal professional privilege in respect of a further 29 documents identified in the letter and set out as items in the schedule to the amended statement of claim.  In January 2006, the respondent agreed to the further 29 documents being included among the documents over which legal professional privilege was claimed in the proceedings, subject to the respondent reserving his right to assert that the privilege in those documents had been waived. 

6                     The precise claim of privilege made by the applicants was in the following terms:

‘10.      All of the communications recorded in, constituted by, or disclosed in, the documents in Schedule 1 are privileged because each of the documents is either:

10.1  a document created by the [applicants] and or their servants, or agents and provided to their solicitors for the sole, and therefore dominant, purpose of seeking and receiving legal advice; or

10.2  a copy document copied and provided by the [applicants] and or their servants or agents to their solicitors for the sole, and therefore dominant, purpose of seeking and receiving legal advice.’

7                     When the matter first came on for hearing there were three issues before the Court:

(a)               whether any of those documents or the communications they evidence are subject to legal professional privilege;

(b)               whether the applicants have waived privilege in relation to the 29 documents or the communications they evidence;

(c)               whether the privilege does not attach to those documents or the communications they evidence because they were made in furtherance of a purpose that is contrary to public interest. 

The respondent no longer presses issues (b) or (c).

8                     The claim of privilege in relation to the access to documents by the Notice under s 263 is to be determined according to the common law, and not Pt 3.10, Div 1 of the Evidence Act 1995 (Cth) since no evidence is, relevantly, sought to be adduced.

Evidentiary issues

9                     The only evidence before the Court was brought by the applicants.  The documents in question are in evidence.  In addition there is an affidavit of the first named applicant made with the authority of the second named applicant. 

10                  There are objections to the following three paragraphs of the affidavit of the first named applicant:

‘9.        All of the documents that came into the possession of Mr Calder and Butcher Paull and Calder were for the purpose of advising my wife and I as to our tax and our legal position respect to tax, and financial matters.

10.             I have seen the list of documents referred to in my Statement of Claim.  The documents listed in the Statement of Claim are documents of the type referred to in paragraph 8.  I claim privilege for those documents. 

11.             I refer to the Amended Statement of Claim and the Further and Better Particulars of Statement of Claim filed in these proceedings and say that the contents are true and correct to the best of my knowledge, information and belief.’

11                  The respondent’s objection to [9] is that it is conclusionary and devoid of any primary facts.  His objection to [10] is the second sentence which he claims is also conclusionary.  The reference which it makes to [8] is a reference to the following paragraph:

‘8.        My wife and I wish to claim legal professional privilege in respect to the documents that we supplied to Mr Calder, his legal notes, and the correspondence passing between Mr Calder, my wife and I, and our other advisers.’

The respondent’s objection to [11] so far as it refers to the amended statement of claim is that it is putting into evidence the conclusion which the claim pleads.  So far as that paragraph refers to further and better particulars, the applicants accept that it contains hearsay.  In this aspect, it is objectionable as it stands.  With reference to its application to the further and better particulars, these identify which of the documents in issue were created by the servants and agents of the applicants and provided to the applicants’ solicitors by their servants or agents.  Given that this hearsay objection was capable of remedy by further evidence and given that the hearing of the proceeding was adjourned until a date later in the year for the hearing of issue (c), I considered that liberty should be granted to the applicants to file evidence remedying the hearsay objections. 

12                  That opportunity having been offered, no additional evidence was filed by them.

13                  It is common ground that all of the 111 documents in respect of which legal professional privilege is sought were in the possession of the applicants’ solicitors and specifically of Mr Calder of that firm.  It is in that context that [9] must be read.  In my view [9] does contain reference to a primary fact and that is, that the applicants passed the documents into the possession of their solicitors and specifically of Mr Calder because they wished to seek his advice on their legal position with respect to tax and financial matters.  That is, the paragraph should not be read as expressing a conclusion pre-empting the task of the Court.  Rather, it is stating why it was that the applicants placed the documents in the possession of their solicitors.  I therefore do not allow the objection to [9].

14                  In relation to the second sentence of [10], the applicants accept it adds nothing to the evidence.  It refers to facts covered both by [8] of the affidavit of the first named applicant and the agreed common ground.  On that basis the objection should be allowed.

15                  With reference to [11] and its application to the amended statement of claim, I accept the respondent’s submission and allow the objection. 

16                  Accordingly, I will admit as exhibit A the affidavit of the first named applicant, other than the second sentence of [8] and [11]. 

Applicants’ evidence

17                  The effect of that evidence is that it establishes that the applicants became residents of Australia in July 1996 or thereabouts.  They have been business people for many years, always consulting lawyers and accountants concerning financial and tax planning matters. 

18                  In accordance with that long standing practice, when they came to Australia they consulted lawyers and accountants.  In particular, they consulted Mr Calder (a solicitor) of the applicants’ solicitors and Mr Tayler (an accountant) of Paul M Tayler & Co.  In the course of briefing Mr Calder concerning their financial tax matters they provided him with a number of documents. 

19                  The applicants depose:

‘5.        In the course of briefing Mr Calder about our financial and tax matters, my wife and I provided him with a number of documents such as immigration papers, financial documents and copies of letters of advice from accountants and lawyers whom we had previously briefed.

6.                  My wife and I also sent letters and facsimiles to Mr Calder concerning our tax and financial affairs and he in turn wrote to us providing advice about our tax and financial matters.

7.                  I am aware that Mr Calder usually made notes of his conversations when he saw my wife and I.’

20                  In the affidavit the applicants stated that they were formally the owners of two properties in the United Kingdom, namely, Field House and Rockhead Farm.  In November 1997 they sold the two properties to Sanderstead Limited.  The sale price was ₤415 000 for Rockhead Farm and ₤85 000 for Field House.  They stated that the sale price was in accordance with valuations which they obtained at the time and which are in the possession of the respondent.  At the time of the transfer the two properties were only a small part of their asset portfolio.  They sought advice from Mr Calder regarding the sale, although that was only one element of the matters on which they sought his advice. 

21                  A large number of documents to which the respondent seeks access are not related to the two properties or to the Pantheon Trust.  The two properties have a small holding income but otherwise have always been loss making.  Neither of the applicants have any legal interest in Sanderstead Limited or the Pantheon Trust, not being directors, owners, beneficiaries or trustees.  This is relevant in relation to whether the documents fall within the scope of the Notice.  This point was not effectively argued.

Applicable legal principles

22                  The onus of establishing that legal professional privilege applies to the documents or the communications they evidence is on the applicants:  Grant v Downs (1976) 135 CLR 674 (Grant v Downs 135 CLR) at 689; Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority (2002) 4 VR 332 (Mitsubishi Electric 4 VR).

23                  A document created for the ‘dominant purpose’ of obtaining legal advice attracts privilege:  Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49 (Esso 201 CLR) at 73, at [61].  The ‘dominant purpose’ test is that expressed by Barwick CJ in Grant v Downs 135 CLR at 677:

‘… a document which was produced or brought into existence either with the dominant purpose of its author, or of the person or authority under whose direction, whether particular or general, it was produced or brought into existence, of using it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation, at the time of its production in reasonable prospect, should be privileged and excluded from inspection.’

The dominant purpose may be described as the ruling, prevailing, paramount or most influential purpose:  see Federal Commissioner of Taxation v Spotless Services Ltd (1996) 186 CLR 404 at 416; and Mitsubishi Electric 4 VR at 336-337.  It is not the same as the ‘primary’ or the ‘substantial’ purpose, which do not describe the true basis of the privilege:  Grant v Downs 135 CLR at 678.

24                  Where two purposes are of equal weight, neither is dominant in the relevant sense.  A document is not privileged from production where one purpose for its creation is to obtain legal advice, but there are one or more equally important purposes:  see Waugh v British Railways Board [1980] AC 521 at 543; AWB Limited v Honourable Terrence Rhoderic Hudson Cole (2006) 152 FCR 582 (AWB v Cole 152 FCR) at [106]; Federal Commissioner of Taxation v Pratt Holdings Pty Ltd (2005) 225 ALR 266 at 279-280.

25                  The question of dominant purpose may ultimately be decided, if need be, upon an inspection by the Judge of the document itself:  see Grant v Downs 135 CLR at 677 and 689 and Esso 201 CLR at 70.  It is accepted in this case that the Court will need to inspect the documents for the purpose of ascertaining the dominant purpose for which they were brought into existence and whether they are thus subject to the privilege. 

26                  The most recent judicial examination of the law of legal professional privilege is that carried out by Young J in AWB v Cole 152 FCR and AWB Limited v Honourable Terrence Rhoderic Hudson Cole (No 5) [2006] FCA 1234 (Cole No 5 FCA 1234).  The general principles so far as they were relevant to the disposition of the case before him were summarised in Cole No 5 FCA 1234 at [44], the following paragraphs of which are particularly relevant to this proceeding:

‘(1)      … The onus might be discharged by evidence as to the circumstances and context in which the communications occurred or the documents were brought into existence, or by evidence as to the purposes of the person who made the communication, or authored the document, or procured its creation.  It might also be discharged by reference to the nature of the documents, supported by argument or submissions: see … Grant v Downs at 689; Commissioner of Taxation v Pratt Holdings Pty Ltd (2005) 225 ALR 266 at 278 [30] (‘FCT v Pratt Holdings’); and AWB v Cole at [63].

(2)       The purpose for which a document is brought into existence is a question of fact that must be determined objectively.  Evidence of the intention of the document’s maker, or of the person who authorised or procured it, is not necessarily conclusive.  It may be necessary to examine the evidence concerning the purpose of other persons involved in the hierarchy of decision-making or consultation that led to the creation of the document and its subsequent communication: see AWB v Cole at [110]. 

(3)       … There will be cases in which a claim of privilege will not be sustainable in the absence of evidence identifying the circumstances in which the relevant communication took place and the topics to which the instructions or advice were directed: Kennedy v Wallace (2004) 142 FCR 185 (‘Kennedy v Wallace’) at 189–190 [12]–[17] per Black CJ and Emmett J and at 211–212 [144]–[145] and at 215–216 [166]–[171] per Allsop J; see also Southern Equities Corporation Ltd (in liq) v Arthur Andersen & Co (No 6) [2001] SASC 398. 

(4)       Where communications take place between a client and his or her independent legal advisers, or between a client’s in-house lawyers and those legal advisers, it may be appropriate to assume that legitimate legal advice was being sought, absent any contrary indications: Kennedy v Wallace (2004) 208 ALR 424 at 442 [65] per Gyles J; affirmed on appeal, Kennedy v Wallace at 191-192 [23]-[27] per Black CJ and Emmett J.  In Kennedy v Wallace, Black CJ and Emmett J inclined to the view that in the ordinary case of a client consulting a lawyer about a legal problem in uncontroversial circumstances, proof of those facts alone will provide a sufficient basis for a conclusion that legitimate legal advice is being sought or given.

…

(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] 1 Ch 317 (‘Balabel’) at 323 and 330; Nederlandse Reassurantie Groep Holding NV v Bacon and Woodrow [1995] 1 All ER 976 (‘Nederlandse’) at 983; Three Rivers District Council v Governor and Company of the Bank of England (No 6) [2005] 1 AC 610 (‘Three Rivers’) at 652-653 [43]-[44], 657-658 [59]-[60], 681 [114] and 683 [120]; Dalleagles Pty Ltd v Australian Securities Commission (1991) 4 WAR 325 (‘Dalleagles’) at 332-333; DSE (Holdings) Pty Ltd v Intertan Inc (2003) 135 FCR 151 (‘DSE’) at 161-173 [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 563 [44] per McHugh J; Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 (‘Propend’) at 550 per McHugh J; Dalleagles at 333–334 per Anderson J; Trade Practices Commission v Sterling (1979) 36 FLR 244 (‘Stirling’) at 245–246 per Lockhart J; and Kennedy v Lyell (1883) 23 Ch D 387 at 407; Lyell v Kennedy (1884) 27 Ch D 1 at 31 per Bowen LJ; Propend Finance Pty Ltd v Commissioner of Australian Federal Police (1995) 58 FCR 224 at 266 per Lindgren J.

…

(11)     Legal professional privilege protects communications rather than documents, as the test for privilege is anchored to the purpose for which the document was brought into existence.  Consequently, legal professional privilege can attach to copies of non-privileged documents if the purpose of bringing the copy into existence satisfies the dominant purpose test: Propend at 507 per Brennan CJ, 544 per Gaudron J, 553-554 per McHugh J, 571-572 per Gummow J, and 587 per Kirby J.  In Propend at 512, Brennan CJ added a qualification to this principle: if an original unprivileged document is not in existence or its location is not disclosed or is not accessible to the persons seeking to execute the warrant, and if no unprivileged copy or other admissible evidence is made available to prove the contents of the original, the otherwise privileged copy loses its protection.’

27                  In order to apply these principles to the applicants’ claim it is necessary to address each of the documents in question. 

consideration of documentS

28                  It is important to observe that the evidence of Mr Barnes does not state precisely how each of the documents was created.  This is also the case with regard to copies.  His statement in [5] that he provided copies of letters of advice to Mr Calder does not make apparent whether the copy came into existence for the purpose of advice, whether a pre-existing copy was sent to Mr Calder or whether the copy before the Court was made by Mr Calder’s office.  The absence of such evidence permeates the resolution of his claim for privilege.

29                  For example, there is no evidence enabling an understanding to be reached concerning the possibility that any particular faxed copy was created by the applicants for the dominant purpose of seeking the legal advice of Mr Calder.  There is no evidence of what the fax number of the applicants was on each particular occasion (other than their names as a notation at the top of the document) or what the phone number of the recipient was and whether it was the number of Mr Calder.  The Court is therefore unable to determine whether the faxed endorsements are referrable to some occasion prior to the applicants sending documents to Mr Calder for legal advice. 

30                  Additionally, it cannot be inferred from the fact that the documents were found in the possession of Mr Calder that they were created as originals or copies for the requisite dominant purpose in each case.

31                  Likewise there is no evidence to explain why some of the documents bear the fax name of the applicants’ accountant or whether the accountant created the copy.

32                  There are some documents which on their face appear to be facsimile transmissions from the applicants to their solicitors.  However, the copy in question appears to be a further copy of the facsimile transmission because it displays a photocopy of a punchmark, unlikely to be on the original.  In the absence of specific evidence pertaining to each such document it cannot be said that the applicants have discharged the onus resting upon them.

33                  Even where documents appear to be file copies of correspondence from the applicants’ solicitors to the applicants, they also appear with a punch-hole suggesting they are further copies, the creation of which is unexplained by any evidence from the applicants’ solicitors.

34                  There are some documents apparently being copies of handwritten letters from the first named applicant to his solicitors.  One is notated with writing indicating the date of its receipt by the solicitors.  That suggests the original (or the copy original) has been recopied, possibly by the solicitors.  However, there is no evidence to explain the creation of the copy.

35                  The Court doubtless would have been greatly assisted by affidavit evidence from each applicant on each document and affidavits from Mr Calder and the applicants’ accountants.  However, when the opportunity was offered to the applicants to file such evidence, no additional evidence was tendered.

36                  It is also the case that there is no evidence concerning the role and position of the various persons identified in the schedule and most importantly any agency that may have existed with them to the applicants, namely Phillip Egglishaw (documents 41, 47, 83, 84, 104 and 109), Phil de Figueiredo (documents 39, 43 and 108), Strachans (documents 38, 93, 96, 99, 102, 103, 105, 106, 107, 111), Sanderstead (documents 86, 87 and 100) and Pantheon Trust (documents 89 and 97).

37                  Documents 54, 78 and 80 are accounts for legal fees; document 85 is a bank statement; and there are receipt and payment schedules; schedules of fees; and fee notes in relation to Strachans, Pantheon Trust and Sanderstead Limited (documents 85-89, 96, 99, 101, 103, 105 and 106).  It is only where a solicitor’s fee note discloses instructions, or advice sought or given that it would attract privilege:  see Packer v District Commissioner of Taxation (Qld) [1985] 1 Qd R 275 at 276-277, 281-282 and 287; Allen Allen and Hemsley v Commissioner of Taxation (1989) 20 FCR 576 affirming 81 ALR 617; a fortiori, where the account or fee is not that of a solicitor. 

38                  Further, it is apparent from the description of many of the documents that they are not of a kind that would normally attract privilege.  See for example:  (a) document 2 – contact details; (b) document 3 – declaration of trust provisions; (c) document 4 – declaration regarding visa application; (d) document 21 – letter enclosing new wills; (e) documents 24 and 45 – transaction material; (f) document 55 – portfolio valuation; and (g) document 75 – outline of proposed development of holiday accommodation at Rock Head Farm, Glaisdale.

39                  Consequently it is apparent that the applicants have failed to discharge the onus upon them to establish privilege.  It is not sufficient that the documents are at the premises of the applicants’ solicitors or that there is an assertion by the claimant applicants that they were copies in the possession of their solicitor for the purpose of him giving them advice.  The effect of the evidence here is similar to that described by Black CJ and Emmett J in Kennedy v Wallace (2004) 142 FCR 185 at 189, at [13]:

‘[13]   The appellant’s decision to base his claim for privilege in this way was attended with considerable risk since, as Lockhart J observed in National Crime Authority v S (1991) 29 FCR 203 at 211, it is not sufficient for a party merely to assert a claim for privilege nor will an affidavit asserting the purpose for which a document was brought into existence followed by a statement about the category of legal professional privilege to which the document is said to belong necessarily be sufficient. Moreover, in the leading case of Grant v Downes (1976) 135 CLR 674, Stephen, Mason and Murphy JJ warned against the erroneous view that the privilege is “necessarily or conclusively established by resort to any verbal formula or ritual” (at 689). In the same case, their Honours also observed that whatever the facts may be, it is always for the party claiming privilege to show that the documents for which the claim is made are in fact privileged.

…

[15]    … Mr Kennedy agreed that he had little recollection of the actual circumstances under which the notes were prepared. While Mr Kennedy’s uncertainty about matters such as the precise time of the preparation of the documents is not decisive, when coupled with the failure to explain his thought processes, it could legitimately have been seen by the trial judge as relevant and significant.’

40                  Although there is an entire absence of document by document evidence I have examined each document and rule on it in accordance with the notations added to the schedule.

A/Associate:

Dated:         9 January 2007