IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA
AT DARWIN
475 of 1990	BETWEEN:
STEPHEN DAVID KENNY
Plaintiff
and
TERRITORY INSURANCE OFFICE
Defendant
MASTER COULEHAN: REASONS FOR DECISION
(Delivered 3 March 1994)

The plaintiff claims damages for injuries  received in an accident on 16 August 1987 when he lost  control of a motor cycle he was riding. He alleges that he lost control because of the negligence  of the driver of an unidentified motor vehicle.

The defendant has filed a list of Documents which lists the following documents for which privilege is claimed:-
115.2	17/ 8/87 statement of Witness-
18/ 9/87 Statement of Witness
23/ 9/87 Report by Loss Assessor
15/10/87 Report by Loss Assessor
2/11/87 Report by Loss Assessor
6/ 6/90 Report by Loss Assessor."

The plaintiff seeks production of documents numbered 5.4, 5.5, 5.6 and 5.7 and a better description of document numbered 5.3.  He relies on the affidavits of Ilse Van Wijngaarden sworn on 4 February 1994 and David Anthony Young sworn on 10 February 1993.

These affidavits disclose that Mr Boland, who was a pillion passenger, made a claim for benefits under the Motor Accidents (Compensation) Act on or about
27 August 1987 and that he says he made a statement to a representative of the defendant after the accident.

The plaintiff argues that it may be inferred from this evidence that one of the purposes of the loss assessors' reports was to provide information as to the claim for benefits and this did not satisfy the "sole purpose" test required by the High Court in National Employers Mutual Genera·1 Insurance Association Ltd v Waind (1979) 141 CLR 684. There was no argument that the defendant had failed to state sufficiently the grounds of the privilege as required by O29.04(d).

The defendant relies on affidavits sworn by Michael Patrick North sworn on 1 December 1993 and John Thomas Stewart sworn on 1 December 1993 and 10
February 1994.

Mr North is a Senior Claims Officer for the defendant. His knowledge of the claim is based on persual of the defendant's file.

Objection	was	taken	to	paragraph	4(b) affidavit which reads as follows:-

of	his

"(b) documents 5.4 and 5.6 were both prepared solely for the purpose of obtaining  legal advice from Ward Keller in connection with anticipated legal proceedings."

The grounds for the objection were that the deponent could not depose as to the reasons for the preparation of the documents.

provides:-
"(1) Except where otherwise provided by  or under this Chapter, an affidavit shall be confined to facts which the deponent is able to state of his own knowledge.
on an interlocutory application an affidavit may contain a statement of fact based on information and belief if the grounds are set out."

In the normal course it would be expected that the person who could give evidence as to the purpose of the preparation of the reports would be the author. However, this is not necessarily the case, as it may be	that	he	was	merely	instructed	to	prepare	the reports.

In such circumstances it may be that the appropriate person to provide the evidence is the person who instructed  the author.   Mr North does not purport to be that person.

It seems that he does not depose as to the preparation of the reports from his own knowledge. However, he may state a fact based on information  and belief if the grounds are set out (043.03(2)).

The statement that he read the file does not provide sufficient information as to the grounds for his belief. If he derived his belief from something he read on the file the basis for such information is not apparent.

Paragraph 4(b) of the affidavit of Mr North is not admissible under 043.03 and it will be struck out.

As to the merits of the application, the question is whether the reports came into existence solely for the purpose of submission to legal advisers for advice or use in legal proceedings (see Grant v Downs 135 CLR 674, 688). It is sufficient if, assessed objectively, such legal proceedings were reasonably anticipated (see Grant v Downs p 682 and Nickmar Pty Ltd v Preservatrice Skandia  Insurance Ltd (1985) 3 NSWLR 44, 55-56).

The affidavits disclose the following:-
the defendants solicitors were first instructed to provide advice as to an anticipated claim for damages by the plaintiff and as to the defendant's liability to Mr Boland and -the plaintiff by letter dated 18 September 1987, received by them on 22 September 1987;
documents 5.3 and 5.4 were received by the defendant's solicitors on 28 September 1987;
document 5.6 was received by the defendant's solicitors on 16 November 1987;
documents 5.3, 5.4 and 5.6 were all considered by the defendant's solicitor for the purpose of providing legal advice to the defendant. Advice was provided by letters dated 23 September 1987, 7 October 1987 and 24 November 1987. It included the question of the liability of the defendant to Mr Boland under the Motor Accidents (Compensation) Act;
document 5.7 was prepared for the purpose of obtaining evidence for use in this proceeding.
I note that there is no mention of document 5.5.

It may be seen from this evidence that although the defendant's solicitors considered documents 5.3, 5.4 and 5.6 for the purpose of providing legal advice, there is no evidence as to the purpose for which the loss assessors reports were prepared.

This is not necessarily conclusive. Such a purpose may be inferred from the nature of the documents or the circumstances in which they were brought into existence (see Grant v Downs p.688).

Having considered these matters I am only able to infer that one of the purposes for which documents
5.4 and 5.6 came into existence may have been the submission to solicitors for legal advice.  This fails to satisfy the onus on the defendant to establish that the documents are the subject  of legal professional privilege (see Grant v Downs p.689).

I conclude that the claim for privilege is only made out in respect of document 5.7

As to the description of document 5.3, it was asserted that the defendant was required to identify the person who provided the statement.

029.04 provides that a list of documents shall
11(a) identify the documents which are or have been in the possession of the party making the list;

(b) enumerate the documents  in  convenient order and describe each document or, in the case of a group of documents of the same nature, describe the group, sufficiently to enable the document or groups to be identified.
(C)	II

There was no argument before me as to the adequacy of the description of document 5.3. Nor was I referred to any authority.

It appears that there may be a division of opinion as to the extent to which documents must be described (see Kadlunga v Electricity Trust (1985)
39 SASR 410 and Lazenby V Zammit (1987) Tas.R.54).

However, it is not necessary for me to analyse these decisions because, whichever view is taken, the document is sufficiently described by its date.

As to paragraph one of the summons dated 22 November 1993, I order that the defendant produce for inspection the documents numbered 5.4, 5.5. and 5.6 on its List of Documents. I make no order as to paragraph two.