Enosa v Samoa Observer Company Ltd [2005] WSSC 36 (7 December 2005)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

LOLOFIE TAULE’ALE’AUSUMAI DR. ETI ENOSA
of Lotopa, Chief Executive Officer of the Ministry of Health.
Plaintiff

AND

SAMOA OBSERVER COMPANY LIMITED
a duly incorporated company having its registered office at Vaitele.
First Defendant

AND

MULIAGA JEAN MALIFA
of Apia, Publisher.
Second Defendant

AND

AUTAGAVAIA TIPI AUTAGAVAIA
of Vaitele and Moataa, c/- Observer Samoa Co. Ltd, Newspaper Reporter.
Third Defendant

Counsel: R Drake for plaintiff No. 2
TRS Toailoa for defendants

Hearing: 01 December 2005
Judgment: 07 December 2005

JUDGEMENT OF SAPOLU CJ

Proceedings

The present interlocutory proceedings are concerned with a motion by the plaintiff for an order directing the defendants to produce certain documents specified in the defendants list of discovered documents for inspection by the plaintiff.

Brief factual background

It is not necessary for the purpose of these proceedings to give a detailed factual background of this case. A brief factual background will be sufficient.

On 06 October 2004 the plaintiff, the former chief executive officer of the Ministry of Health, commenced proceedings in defamation against the defendants who are a local newspaper, the publisher of the newspaper, and a reporter of the same newspaper. The defamation proceedings relate to articles concerning the plaintiff and the Ministry of Health which were published in the issues of the newspaper of 28 August 2004, 10 September 2004, 11 September 2004, and 18 September 2004. The newspaper issue of 10 September 2004 published an article in which references are made to the Office of the Attorney General and the Public Service Commission. This newspaper article is one of the publications which is the subject of the defamation proceedings. As it appears from the submissions of counsel for the defendants, the plaintiff’s proceedings were served on the newspaper and its publisher, who are respectively the first defendant and the second defendant, on or about 07 October 2004, the day after the plaintiff filed his defamation proceedings.

According to the affidavit filed for the purpose of these proceedings by the editor of the newspaper when the plaintiff’s defamation proceedings were served on the newspaper, he immediately instructed a reporter of the newspaper to conduct an interview with the Attorney General and obtain her views of the proceedings issued by the plaintiff for the purpose of instructing the newspaper’s lawyer and for the preparation of the newspaper’s defence. As he was also mindful of the Attorney General becoming a potential witness in the defamation proceedings, he also instructed the newspaper reporter to have the interview noted down in written form to provide a basis for a written brief for the Attorney General in the event she is to be called as a witness. The editor of the newspaper also says in his affidavit that for the same reasons he instructed another reporter of the newspaper, who is the third defendant in these proceedings and the defamation proceedings, to conduct an interview of one of the members of the Public Service Commission and to have the interview noted down in writing for forwarding to the newspaper’s then solicitors for preparation of the newspaper’s defence and for preparation of a witness brief in the event that that member of the Public Service Commission is to be called as a witness. The statements obtained from these interviews were then referred, apparently in the form of summaries, to the then counsel for the newspaper.

In May 2005, counsel for the plaintiff and present counsel for the defendants both issued discovery of documents proceedings. In the list of discovered documents produced for the defendants, two of the documents specified therein are a summary of the interview between the Attorney General and a reporter of the newspaper and a summary of the interview between a member of the Public Service Commission and another reporter of the newspaper. These are the two documents in respect of which the plaintiff is seeking an order for production and inspection. The defendants oppose production of those documents for inspection by the plaintiff.

The law

The issue for decision in these proceedings involves legal professional privilege which is classified into two categories, legal advice privilege and litigation privilege. In the words of Tompkins J in Carlton Cranes Ltd v Consolidated Hotels Ltd [1988] NZHC 344; [1988] 2 NZLR 555 at page 557:

“[Legal professional privilege] falls into two categories. The first renders privileged communications between client and legal adviser for the purpose of obtaining legal advice. That privilege exists whether or not litigation is pending or contemplated. It can be described as solicitor and client privilege. It can arise in respect of communications, not only between the client and the solicitor, but also between their agents. Both client and solicitor may act through an agent and therefore communications to or through the agent are within the privilege: Jones v Great Central Railway Co [1909] UKLawRpAC 23; [1910] AC 4, 6. The second category is where the document has been prepared for a number of purposes, one of which is submission to legal advisers to enable them to conduct litigation for the client. This can be described as litigation privilege.”

Of the two categories of legal professional privilege, solicitor and client privilege or legal advice privilege as it was described by the House of Lords in Three Rivers District Council v Governor and Company of the Bank of England [2004] UKHL 48 is not in issue in these proceedings. What is in issue is litigation privilege. This category of legal professional privilege was explained in Crisford v Haszard [2002] 2 NZLR 729 where Richardson P in delivering the judgement of the New Zealand Court of Appeal said at page 733 at paragraph 18:

“Litigation privilege applies to communications between a legal professional adviser and a third party and between a client and a third party which are made with a view to obtaining information to be submitted to a legal professional adviser. In Dinsdale v CIR [1997] NZCA 328; (1997) 11 PRNZ 325, 326, Blanchard J delivering the judgement of the Court noted three features of the privilege: first, that it protects the process of gathering evidence for consideration by a lawyer acting for a party in current or threatened litigation; second, that the central feature of litigation privilege is that it represents the fruits of effort on the part of the litigants in preparing for the case; and the third, that the evidence may have been gathered by the lawyer, the client or an agent for either of them, but the work must have been carried out with the dominant purpose of conducting or advising on actual or reasonably anticipated litigation.”

In New Zealand the test to be applied in determining whether a document which is obtained by a lawyer, client or agent attracts litigation privilege so as to preclude inspection by the opposite party or its production in evidence was stated by Cooke J (as he then was) in Guardian Royal Exchange Assurance of New Zealand Ltd v Stuart [1985] 1 NZLR 596 where His Honour said at page 602:

“[When] litigation is in progress or reasonably apprehended, a report or other document obtained by a party or his legal adviser should be privileged from inspection or production in evidence if the dominant purpose of its preparation is to enable the legal adviser to conduct or advise regarding the litigation.”

In Stuart, Richardson J who was one of the members of the Court took the view that in approaching the question of whether a document attracts litigation privilege the Court should start from the basis that cases where litigation privilege may arise should be rigidly confined within narrow limits. At pages 664-665, Richardson J said:

“But there is all the difference in the would between confidential communications between a client and his solicitor designed to encourage a candid flow of information and advice between them and preparation by third parties of material for multiple purposes, one only of which is for consideration by the solicitor for apprehended litigation. It is in that second situation that the observation in the majority judgement in Grant v Downs [1976] HCA 63; (1976) 135 CLR 674, 686 has particular force:......’the privilege.... detracts from the fairness of the trial by denying a party access to relevant documents or at least subjecting him to surprise.’ Along with Lord Edmund Davies in Waugh v British Railways Board [1980] “AC 521, 543, I consider that we should start from the basis that the public interest is best served by rigidly confining within narrow limits the cases where material relevant to litigation may be lawfully withheld.”

In delivering the judgment of the Court in Crisford v Haszard [2002] 2 NZLR 729, 733, Richardson J reiterated the same view he had expressed in Stuart about rigidly confining within narrow limits the cases which attract litigation privilege.

In Australia there has been a division of judicial opinions in the High Court about the test to be applied in determining whether a document obtained by a legal adviser, client or agent while litigation proceedings are in progress or reasonably anticipated attracts litigation privilege. In Grant v Downs [1976] HCA 63; (1976) 135 CLR 674, Stephen, Mason and Murphy JJ in a joint judgment were of the view that the proper test to be applied in determining whether a document attracts litigation privilege is whether the sole purpose for which the document in issue was made or obtained was for submission to legal advisers for advice or for use in legal proceedings. Barwick CJ took the view that the proper test to be applied is one of dominant purpose. At page 677, Barwick CJ 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 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 test stated in the minority view of Barwick CJ was recently adopted in the High Court of Australia in a joint judgment by Gleeson CJ, Gaudron and Gummow JJ in Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49 at 73. Callinan J another member of the Court in that case was also in favour of adopting the dominant purpose test. However, McHugh J and Kirby J, who were the other members of the Court were in favour of retaining the sole purpose test. So there is still a significant division of judicial opinions in the High Court of Australia on whether the proper test should be the sole purpose or dominant purpose test even though the majority view now is in favour of adopting the dominant purpose principle.

In England, the leading authority on litigation privilege is Waugh v British Railways Board [1979] UKHL 2; [1980] AC 521. In that case, the House of Lords adopted the dominant purpose test which found favour with Barwick CJ in Grant v Downs [1976] HCA 63; [1976] 135 CLR 674, 677. In Waugh, Lord Wilberforce said at pp. 532-533:

“The whole question came to be considered by the High Court of Australia in 1976: Grant v Downs, [1976] HCA 63; 135 CLR 674. This case involved reports which had ‘as one of the material

purposes for their preparation submission to legal advisers in the event of litigation. It was held that privilege could not be claimed. In the joint judgment of Stephen, Mason and Murphy JJ,..... it was held that ‘legal professional privilege’ must be confined to documents brought into existence for the sole purpose of submission to legal advisers for advice or use in legal proceedings... Barwick CJ stated it in terms of ‘dominant’ purpose. This is closely in line with the opinion of Lord Denning MR in the present case that the privilege extends only to material prepared ‘wholly or mainly for the purpose of preparing the [defendant’s] case... It appears to me that unless the purpose of submission to the legal adviser in view of litigation is at least the dominant purpose for which the relevant document was prepared, the reasons which require privilege to be extended to it cannot apply. On the other hand to hold that the purpose.... must be the sole purpose would, apart from difficulties of proof, in my opinion, be too strict a requirement, and would confine the privilege too narrowly: as to this I agree with Barwick CJ in Grant v Downs, [1976] HCA 63; 135 CLR 674, and in substance with Lord Denning MR.”

In the judgement of Lord Simon of Glaisdale, it appears from page 534 that the view expressed by Lord Denning MR was also the same view expressed in the Sixteen Report (Privilege in Civil Proceedings (1967) (Cmnd. 3472) of the English Law Reform Committee that the test for litigation privilege whether it attaches to a particular document was that the document should be “wholly or mainly” for the purpose of preparing one’s case in litigation then pending or reasonably contemplated.

Counsel for the plaintiff made the important submission that if the Court is in real doubt whether the relevant document attracts litigation privilege then the Court should inspect the document. Support for that submission was derived from Guardian Royal Exchange Assurance of New Zealand Ltd v Stuart [1985] 1 NZLR 596 where Cooke J said at page 599:

“As in previous cases in this Court (see Konia v Morley, Environmental Defence Society Inc v South Pacific Aluminium Ltd. (No. 2) [1981] 1 NZLR 290, and Fletcher Timberland Ltd v Attorney General [1984] NZCA 11; [1984] 1 NZLR 290 inspection of the documents by the Judges has proved illuminating. High Court Judges now appear to be adopting this practice quite commonly in disputed privilege claims. Experience suggests that its advantage in being likely to lead to a more just decision outweighs the disadvantage that only the Judge and not the other side sees the documents if the claim to privilege is upheld. Accordingly, in the field of legal professional privilege at least, I think that in general a Judge who is in any real doubt and is asked by one of the parties to inspect should not hesitate to do so.”

I respectfully agree with that statement of practice by Cooke J.

Law applied to the facts

As mentioned earlier, the editor of the newspaper says in his affidavit that when the plaintiff’s defamation proceedings were served, he was mindful of the Attorney General becoming a potential witness. So he instructed one of the newspaper’s reporters to conduct an interview with the Attorney General and obtain her views of the defamation proceedings. He also instructed the reporter to have the interview noted down to provide a witness brief for the Attorney General in the event that she is to be called as a witness. The editor of the newspaper also says in his affidavit that he instructed another reporter of the newspaper, who is the third defendant in these proceedings and the defamation proceedings, to conduct an interview with a member of the Public Service Commission and to have the interview noted down for forwarding to the newspaper’s then solicitors for preparation of the newspaper’s defence and a witness brief in the event that the member of the Public Service Commission concerned is to be called as a witness. Both statements obtained from the Attorney General and the member of the Public Service Commission were then referred to the then counsel for the newspaper. Apparently the reason for the interviews with the Attorney General and the member of the Public Service Commission and the instructions by the editor to the reporters to have the interviews noted down in writing is that one of the newspaper articles which form the subject of the defamation proceedings contains references to the Office of the Attorney General and the Public Service Commission.

It would appear from the affidavit of the editor of the newspaper that the only purpose for the preparation of written records of the two interviews that were conducted was to prepare witness briefs for potential witnesses in the defamation proceedings and any possible defence the then counsel for the newspaper considered appropriate. No other purpose is mentioned in the editor’s affidavit. So the sole purpose for the preparation of the documents that counsel for the plaintiff now seeks to be produced for inspection was to submit them to the then counsel for the newspaper to enable counsel to prepare the case for the newspaper for the pending litigation. There is no dispute that at the relevant time defamation proceedings against the newspaper had already been filed.

As the sole purpose for bringing the relevant documents into existence was to enable counsel for the newspaper to prepare the case for the newspaper, the dominant purpose test does not apply. This test implies that there were a number or series of purposes for bringing a document into existence. For the purpose of the dominant purpose test, the Court would then consider and decide which of that number or series of purposes was the dominant purpose, or whether there was a dominant purpose at all, for bringing the document into existence. In these proceedings there was only one purpose for preparing written summaries of the interviews which were conducted.

In the cases in which the dominant purpose test has been established, the documents that were sought to be produced for inspection were prepared for a number or series of purposes and the Court had to determine what was the dominant purpose: see, for example, the facts of Grant v Downs [1976] HCA 63; (1976) 135 CLR 674; Waugh v British Railway Board [1979] UKHL 2; [1980] AC 521; and Guardian Royal Exchange Assurance of New Zealand Ltd v Stuart [1985] 1 NZLR 596. In the present proceedings the relevant documents came into existence for one purpose only. It is therefore be inapt to apply the dominant purpose test.

On principle, I am of the view that if a document which has come into existence has as its dominant purpose the rendering of assistance to a legal adviser to enable him to conduct or advise regarding a litigation that is current or in reasonable anticipation attracts litigation privilege, then a document which has come into existence solely for the same purpose should also attract litigation privilege. It would be illogical and contrary to common case if the position were otherwise. The test should therefore be, if a document which has been prepared or come into existence has as its sole or dominant purpose the rendering of assistance to a legal adviser to enable him to conduct or advise regarding litigation that is current or in reasonable anticipation, it will attract litigation privilege. I am in respectful agreement here with what was said by Lord Carswell in Three Rivers District Council v Governor and Company of the Bank of England [2004] UKHL 48 at paragraph 102:

“The conclusion to be drawn from the trilogy of 19th century cases to which I have referred and the qualifications expressed in the modern case-law is that communications between parties or their solicitors and third parties for the purpose of obtaining information or advice in connection with existing or contemplated litigation are privileged, but only when the following conditions are satisfied:

(a) litigation must be in progress or in contemplation;

(b) the communications must have been made for the sole or dominant purpose of conducting that litigation;

(c) the litigation must be adversarial, not investigative or inquisitorial.”

(emphasis mine)

The sole or dominant purpose approach is also very closely in line with the “wholly or mainly” for the purpose of preparing the defendant’s case approach applied by Lord Denning MR in the Court of Appeal in Waugh v British Railways Board [1979] UKHL 2; [1980] AC 521, 533, At page 534 of that case it is there mentioned that the same approach was adopted by the English Law Reform Committee in its Sixteenth Report (Privilege in Civil Proceedings) (1967) (Cmnd. 3472)

Applying the sole or dominant purpose approach to the present proceedings, I am of the view that the documents which are being sought to be produced for inspection attract litigation privilege on the basis that they were prepared and came into existence for the sole purpose of enabling the newspaper’s counsel to prepare the newspaper’s case with regard to the defamation proceedings that had been served on it.

I have also considered the suggestion by counsel for the plaintiff that I should inspect the relevant documents. However, there is nothing to raise a real doubt about the credibility or reliability of what the editor of the newspaper says in his affidavit.

Conclusions

For all the foregoing reasons, the motion for an order directing the defendants to produce the relevant documents for inspection by the plaintiff and his legal advisers is denied.

Costs reserved.

CHIEF JUSTICE