Walker v Khan [2005] FJHC 395; HBC0167R.1997S (27 October 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0167R OF 1997S

BETWEEN:

LYDIA KEIL WALKER,
Accountant of
92 Princess Road, Tamavua, Suva.
PLAINTIFF

AND:

DR SAMSUD DIN SAHU KHAN,
Solicitor, of Ba, BOB KUMAR of Rewa Street, Suva,
Civil Servant and DAVEN NARAYAN of
Nausori, Manager Finance being the
President, Secretary and Treasurer respectively and
Trustees of the FIJI FOOTBALL ASSOCIATION
an unincorporated body having its registered office
at 73 Knolly St., Suva.
1ST DEFENDANT

ASHOK BALGOVIND & ASSOCIATES
a firm of Architects whose registered office is at 1-3
Berry Road, Suva.
2ND DEFENDANT

SUVA CITY COUNCIL
a municipal authority for the City of Suva, a body corporate under
the Local Government Act.
3RD DEFENDANT

ASHOK BALGOVIND & ASSOCIATES
3RD PARTY

Counsel for the Plaintiff: I.D. Roache: Howards
Counsel for the 1st Defendant: Dr Sahu Khan: Sahu Khan & Sahu Khan
Counsel for the 2nd Defendant: V. Maharaj: Maharaj, Chandra & Ass.
Counsel for the 3rd Defendant: V. Kapadia: Sherani & Co.

Date of Ruling: 27.10.2005
Time of Ruling: 9.30 a.m.

RULING

This is the Plaintiff’s summons to compel further discovery of documents that are in the Defendants’ possession and/ or custody. The application is made against all the Defendants, but I will deal only with that of the 3^rd Defendant in this instance. While the application is made for discovery of all documents or correspondence between the 3^rd and 1^st and second Defendants, the Plaintiff has particularised a report prepared by an Ad Hoc Sub-Committee of the 3^rd Defendant, for inspection. The Ad Hoc Sub-Committee had prepared a report on the allegations of irregularities surrounding the issue of the completion certificate to the Fiji Football Association (FFA) building situated at Gladstone Road, Suva. The 3^rd Defendant is claiming legal professional privilege to the report, and the Court has ordered the production of the document before it to determine whether the claim is made out.

The governing principle in a claim for legal professional privilege is as stated by Barwick CJ in Grant v. Downs [1976] HCA 63; [1976] 135 CLR 674. At p. 677, he said:

“ ... 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 advise 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.

In the application of this principle, the fact that the person who produced, or the person or authority who or which directed the production of the document, had in mind other uses of the document will not preclude the document being accorded privilege, if it were produced with the requisite dominant purpose.”

The Court in Grant’s case disagreed with Buckley L J in Birmingham & Midland Motor Omnibus Co. Ltd. v. London & North Western Railway Co. [1913] UKLawRpKQB 128; [1913] 3 KB 850, who had stated that the information obtained need not have been obtained for the sole purpose for use in litigation. The dominant purpose, according to the Court in Grant’s case, of bringing the document into existence, was to obtain advise or assist in litigation reasonably been contemplated. Anything less that this requirement would not qualify the document under legal professional privilege.

In this instance, the 3^rd Defendant submits that the dominant purpose of bringing the report into existence was to assist it in obtaining legal advice after it had been named as a Defendant in a writ of summons brought by the Plaintiff. The proceedings was initiated on 1 May 1997 and served on the 3^rd Defendants on 5 May 1997. Statement of defence was filed on 20 June, 1997 with general denial of the 3^rd Defendant’s liability. In the meantime, according to Counsel for the 3^rd Defendant, the 3^rd Defendant had set-up an Ad-Hoc Sub-Committee of the Council to investigate the alleged irregularities in the dealings between the Council and the 1^st and 2^nd Defendants as contained in the Writ of 1^st May 1997.

In claiming legal professional privilege to the Sub-Committee’s report, the 3^rd Defendant submitted that the dominant purpose of the report was to obtain and assist in legal advise and services from its solicitors in the proceedings which had begun. The sequence of events, including the convening of the ad hoc Sub-Committee and the report, all confirm the important fact that the existence of the report came after the claim had been made by the Plaintiff and the proceedings initiated. There can be no other conclusion, the 3^rd Defendant argued, than the fact that the report was prepared and came into existence with the dominant purpose of obtaining legal advise from its solicitors.

The Plaintiff’s submission is that the claim of legal professional privilege has no basis. There is no evidence to support the claim. The 3^rd Defendant stated in it affidavit that the Ad Hoc Sub-Committee’s report was an “alleged irregularities in regards to Council’s dealing with the Fiji Football Association and other buildings.” The Report was in respect of more than the FFA building and the 3^rd Defendant cannot claim that the dominant purpose of the coming into existence of the report was the irregularities surrounding its dealings with the FFA. Without specific details, irregularities covered by the report could mean anything including other matters not referred to this proceedings.

The Plaintiff also alluded to the fact that there is no mention in the report of any anticipated litigation, nor is it addressed to the 3^rd Defendant’s solicitors, if indeed the document was intended to assist in obtaining legal advise or services from its solicitors. And in any case, the deponent of the affidavit, Eroni Ratukalou, who is claiming the privilege on behalf of the 3^rd Defendant, did not say that he had compiled the report, which would at least lend some credence to his claim.

I have examined the report of the Ad-Hoc Sub-Committee for which legal professional privilege is claimed by the 3^rd Defendant. The mandate of the Sub-Committee has unfortunately been loosely described in Eroni Ratukalou’s affidavit. The Sub-Committee was in fact set up pursuant to a resolution of the Full Council meeting of 29^th May 1997 for one specific purpose. It was to carry out an investigation on allegations of irregularities surrounding the issuance of the Completion Certificate to the FFA building at Lot 2, Gladstone Road, Contrary to Ratukalou’s affidavit there were no other buildings implicated in the investigation.

So far as the 3^rd Defendant’s claim of privilege, I am satisfied having inspected the Report and all the evidence submitted, that the claim is justified. The Ad Hoc Sub-Committee of the 3^rd Defendant, was specifically set up to investigate certain allegations against some of its officials surrounding the issuance of Certificate of Completion of the FFA building. While the Report does not specifically refer to the source(s) of the allegations, it is easily conceivable that given the Plaintiff’s Writ containing these same allegations had been issued on 1 May 1997 and served on the 3^rd Defendant and acknowledged by its legal officer on 5 May 1997, that the Council would have been fully aware and conversant with the pending litigation when the Ad Hoc Sub-Committee was convened. The other possible source of these allegations, came only after the publication of the report leaked to the media on 30 August, 1997.

I am very much aware of the Plaintiff’s submission that there is nothing in the Report to suggest that it had been prepared as a result of the proceedings already initiated by the Plaintiff. In my view, this of itself is not conclusive. What is essential is that the Court must be satisfied that the circumstances are such that it can reasonably conclude that not only was litigation reasonably anticipated, but that the document was brought into existence as a result of the litigation already begun. This, the Court concludes, is what had happened in this case. Further, it is equally reasonable to assume that the report had been compiled and prepared to assist the 3^rd Defendant’s solicitors in assessing the Plaintiff’s claim.

The claim by the 3^rd Defendant of legal professional privilege preventing the 1997 report of its Ad Hoc Sub-Committee from discovery is upheld.

The Plaintiff’s application is dismissed.

F. Jitoko
JUDGE

At Suva
27 October 2005