Seigfried Konig v Casino Canberra Ltd [2000] ACTSC 67 (11 August 2000)

Last Updated: 17 October 2000

Seigfried Konig v. Casino Canberra Ltd [2000] ACTSC 67

(11 August 2000)

CATCHWORDS

PRACTICE AND PROCEDURE - Preliminary discovery - Legal professional privilege - Surveillance video of incident giving rise to litigation.

Evidence Act 1995 s 118

Interpretation Act 1967 s.11F (1)

Alphapharm Pty Ltd v Eli Lilly Australia Pty Ltd Federal Court of Australia, unreported, 24 May 1996

Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52

Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67, (1999) 168 ALR 123

Mann v Carnell(1998) 145 FLR 222

O'Reilly v State Bank of Victoria Commisioners [1982] HCA 74; (1983) 153 CLR 1

Teleboothe Pty Ltd v Telstra Corp Ltd [1994] 1 V.R. 337

Wigmore, Evidence ,1961 ed Vol viii p 591

Professor J. Rosen, The Unwanted Gaze: The Destruction of Privacy in America, Random House, 2000

No. SC 377 of 2000

Coram: Master T. Connolly

Supreme Court of the ACT

Date: 11 August 2000

IN THE SUPREME COURT OF THE )

) No. SC 377 of 2000

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: SEIGFRIED KONIG

Plaintiff

AND: CASINO CANBERRA LTD

Defendant

ORDER

Coram: Master T. Connolly

Date: 11 August 2000

Place: Canberra

THE COURT ORDERS THAT:

1. The respondent Casino Canberra Ltd produce to the applicant the video tape identified in paragraph 7 of the affidavit of James Little sworn 6 July 2000 filed in these proceedings.

2. The costs of the application abide any order made in subsequent proceedings on any cause of action alleged to have arisen from the information discovered.

1. This is an opposed application for preliminary discovery pursuant to Order 34A rule 5 of the Supreme Court Rules of a video tape made by Casino Canberra which records events which took place in the public areas of the Casino Canberra on the night of 22 January 2000. The applicant alleges that he was assaulted by Casino staff on the evening, but he acknowledges that he used offensive words to Casino staff before the assault. He alleges that after an altercation his face was rammed with some force into a heavy glass door by Casino staff, and he says that he was confused, and accordingly his recollection of events is less than fully clear. The Casino has acknowledged in affidavits filed by staff that it has a video tape which records the events. The questions before me were thus whether the material was able to be discovered pursuant to O34A, and if so whether the video was protected by legal professional privilege.

2. It was objected at the hearing that this was not a case where preliminary discovery was appropriate, because Mr Konig had knowledge that he had been assaulted on the evening, and that obtaining the video material would thus only allow the prospective plaintiff "to be comforted in taking the decision which it has already has sufficient information to enable it to take" (per Lindgren J, Alphapharm Pty Ltd v Eli Lilly Australia Pty Ltd Federal Court of Australia, unreported, 24 May 1996).

3. I ruled as a preliminary point that I was satisfied that the matter was properly brought on as an application for preliminary discovery. The purpose of the Rule is to allow a prospective plaintiff to obtain information from a person that will allow the prospective plaintiff to "enable a decision to be made whether to institute proceedings to obtain the relief" (O34Ar5). In this case the plaintiff has a recollection of an assault, but he also acknowledges some prior dispute with the security staff which involved, to his recall, some offensive language on his behalf. He says, through his counsel, that by viewing the video he can make an informed decision as to whether he should commence proceedings, because if the film shows him acting in an inappropriate manner towards the security staff he may, on advice, decide that it is not appropriate to bring proceedings. Obtaining material which will enable this decision to be made at an early stage, thus saving massive legal costs to both the prospective plaintiff and prospective defendant, and significant court time, is it seems to me precisely the type of situation envisaged by the rules.

4. Order 34A r 5 applies to preliminary discovery of a "document", but I am satisfied that pursuant to s 11F (1) of the Interpretation Act 1967 the dictionary definition of document in that Act applies to the rules, and so the tape, falling within that definition as:

"anything from which images, sound, messages or writings can be produced or reproduced, whether with or without the aid of anything else"

5. is a discoverable document for the purposes of the rule.

6. The Casino argued that, if the prospective plaintiff was able to invoke preliminary discovery, the video material was nonetheless privileged from production because of legal professional privilege. Two employees of the Casino deposed that the purpose of taking video of incidents is to protect the Casino in the event of future legal action. Objection was taken to these affidavits on the basis that the deponents, identified as the Surveillance Manager and the Security Manager of the Casino, were not appropriately qualified to depose as to the purpose of the tapes, but I ruled that their evidence was admissible.

7. The affidavits show that extensive video surveillance is undertaken of the public areas at the Casino. Although it was not stated in the affidavits, it is my understanding, and argument proceeded on this basis, that it is publicly disclosed that video surveillance is undertaken at the Casino, just as it is commonly the case in commercial premises that a sign advises patrons that they may be recorded on video as they undertake transactions in a bank, service station or supermarket. Mr Little, the who is identified as the Surveillance Manager, said that

"Surveillance via a closed circuit television system is maintained around the clock throughout the Casino. There are approximately 10 cameras out of 130 which are not recorded 24 hours."

8. He said that when there is an incident or disturbance at the Casino security officers will radio the surveillance office "to ensure that the best possible coverage is obtained." In the course of this incident Mr Little said that 7 cameras recorded images of the events, and these tapes have been "dubbed" or collated onto one tape. He said:

"Whilst several cameras were used to monitor the incident, it can be seen from the overlap of times on different cameras that nothing has been cut out and that the continuity of cover is demonstrated."

9. I find from this affidavit that the respondent holds a copy of a tape which contains images of the events which occurred in the public area of the casino when Mr Konig alleges that he was assaulted by Casino staff.

10. Mr Little said in his affidavit that:

"Video tapes are used for a number of reasons but primarily to protect the Casino and its staff from potential liability in the event of incidents such as the one in question."

11. Mr Harris, the Security Manager said that:

"Our security staff are instructed to request that specific video footage is obtained of....incidents to protect both the Casino and its patrons in the event that there are further ramifications down the track. The Casino staff are often the subject of incorrect accusations and the video evidence will support the Casino staff's version of events."

12. I was asked to find from this that the video was made for the dominant purpose of providing legal advice or use in litigation, and thus to conclude that, under the common law test laid down by the High Court in Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67, (1999) 168 ALR 123, the tape is covered by the doctrine of legal professional privilege and is exempt from production.

13. It seems to me that, before I have to consider whether the assertion from security staff that video's are maintained `primarily' to protect the Casino from possible tortious claims (and not for the purposes of preventing fraud or theft, or other purposes), I need to be satisfied that the tape itself is the type of material that can be subject to a legal professional privilege claim. The tape can be described as a document for these purposes.

14. Merely because a document is sent to a lawyer, even for the dominant purpose of obtaining legal advice, does not make the document privileged. The document or thing must itself be confidential. The test laid down by the Evidence Act 1995 s 118 is:

s118 Evidence is not to be adduced if, on objection by a client , the court finds that adducing the evidence would result in disclosure of:

a confidential communication made between the client and a lawyer; or

a confidential communication made between 2 or more lawyers acting for the client; or

the contents of a confidential document (whether delivered or not) prepared by the client or a lawyer;

for the dominant purpose of the loyer, or one or more of the lawyers, providing legal advice to the client.

15. At the stage of determining whether a document is subject to discovery the s 118 test does not apply, and we are to look to the common law test, which since Esso Australia Resources Ltd v Federal Commissioner of Taxation, has also looked to the dominant, rather than the sole purpose. But the common law test still requires a confidential communication. The privilege was described by Deane J in Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52 as follows, although His Honour was there referring to the now abandoned sole purpose test:

"This privilege, ordinarily described as legal professional privilege, protects a person from disclosure of oral or written confidential communications, between himself and his solicitor or barrister, made or brought into existence for the sole purpose of seeking or giving advice or for the sole purpose of use in existing or anticipated litigation."

16. His Honour went on in the same passage that:

"The privilege does not extend to protect communications which are themselves part of a criminal or fraudulent proceeding or course of conduct or which constitute the whole or part of an actual dealing or transaction. Nor does it extend to protect things lodged with a legal adviser for the purpose of obtaining immunity from production." (at 112).

17. This latter point was addressed by Mason J in O'Reilly v State Bank of Victoria Commissioners [1982] HCA 74; (1983) 153 CLR 1 at 22-3. His Honour said that:

"If communications in written form are to be privileged they must still be confidential communications between solicitor and client made for the purpose of advice or for the purpose of use in existing or anticipated litigation."

18. His Honour stressed that every document sent to a solicitor for the purposes of legal advice cannot be privileged otherwise, "the client's obligation to produce could always be evaded in very simple fashion by placing the deed with the attorney" (citing Wigmore on Evidence, 1961 ed vol viii p 591).

19. In any ordinary commercial litigation the documents going to the formation of a contract will no doubt be sent to a solicitor if a dispute arises over the contract, and it would no doubt be in the minds of the parties as the contract was being prepared that this would be the case. But the agreement itself, or the documents underlying it, will not for this reason be privileged. If that were so, no pre trial discovery would be effective, as all documents relevant to the dispute would be sent to a solicitor for advice.

20. The tape in question in this case, the document for these purposes, records in video format the events that occurred in the public area of Canberra Casino on the night in question. What it records would have been observable to anyone standing nearby. I do not see how this can be a confidential communication. The images from several cameras have been compiled on one tape, but it remains, according to the affidavit of Mr Little, clear where each camera piece begins and ends. This tape, it seems to me, is not in the nature of an expert's report. It is an image of what occurred in a public area in circumstances where it was known to patrons, that video surveillance was being undertaken. In that sense, I do not see how the document can be said to be a confidential communication.

21. In circumstances where covert but lawful surveillance is undertaken, as in the context of private investigators following a claimant in an insurance claim, there may well be a strong argument that any resulting image is confidential, but I am not persuaded in the present case that the tape, which contains various images of events which occurred in the public area of the casino in circumstances where patrons, including Mr Konig, knew that video surveillance was being undertaken, satisfies the common law description of a confidential communication.

22. It seems to me that it is closer, if analogies are to be sought, to real evidence in a matter. Where a commercial driver collides with another and is the subject of a personal injuries claim, the claim in negligence may well be particularised to allege that the driver was driving in an unsafe manner by driving for too long and thus being fatigued and unable to pay full attention to his duties. In such a case, the drivers log book, which should record the drivers hours on the road, would no doubt be subject to discovery, and I could not see how that document, although no doubt useful to the defendants lawyers, and in a sense maintained to protect a driver against a claim of excessive hours, just as Mr Little describes the video material, could be said to be a confidential communication brought into existence for the purposes of the legal proceedings.

23. In Teleboothe Pty Ltd v Telstra Corp Ltd [1994] 1 V.R. 337 Hedigan J had to consider a claim for privilege in respect of an audio tape of a conversation between the plaintiff and the defendant. The plaintiff had made the tape in the expectation that the subject of the conversation would lead to litigation. His Honour nevertheless held that the tape was not subject to legal professional privilege, because it was not a confidential communication, but rather the verbatim record of what plaintiff and defendant had to say to each other on that day. He said (at 347):

"In the present case, the tape was used to record the conversation and that is what it did. The conversation that took place is admittedly non confidential. In the circumstances here prevailing, it seems to me that it would be anomalous, contrary to principle which drives legal professional privilege and an encouragement to inappropriate use of the client solicitor relationship, to conclude that the tape recording of the non confidential conversation is privileged."

24. His Honour noted that there could be argument if what was sought was a note of the conversation made after the event, and continued at 348:

"But the tape is not a note of the conversation, an impression of it or a description of it. It contains the actual conversation in electronic form. ....The policy basis of legal professional privilege- confidentiality in the public interest- is wholly lacking when what is solely sought to be protected is an actual reproduction of the voices of the parties speaking in a non confidential mutual communication. The tape itself is not a communication to anybody. It is simply a record. It did not come into existence as a communication from the client to the solicitor."

25. It seems to me that His Honour's analysis of the audio tape recording in that case is equally applicable here. The tape, from what I understand to be the position from Mr Little's evidence, contains the actual images of Mr Konig and several Casino Canberra staff in the altercation. Even though it has been "dubbed" or compiled in a single tape, Mr Little has said that that tape contains the actual images from the various cameras. The observable conduct of Mr Konig and the staff members in the public area of the Casino on that night cannot in my view amount to a confidential communication.

26. In all of the circumstances I am not satisfied that the document is a confidential communication, and so I am not satisfied that it can be the subject of a claim for legal professional privilege. I thus order that the respondent Casino Canberra produce to the applicant the video tape referred to in Mr Little's affidavit, which I directed in the course of proceedings be kept by the respondent and not destroyed pending the delivery of my decision.

27. It seems appropriate to observe that this case highlights the lack of legislative regulation throughout Australia and indeed elsewhere, of privacy aspects concerning video surveillance (see generally Professor J. Rosen, The Unwanted Gaze: The Destruction of Privacy in America, Random House, 2000). While video surveillance is now widespread an individual's right to access that material depends on argument from basic legal principle, and there is little legislative guidance.

28. It seems to me that the appropriate costs order in the circumstances is that the costs of the application abide any order made in subsequent proceedings on any cause of action alleged to have arisen out of the information discovered (see Mann v Carnell(1998) 145 FLR 222 at 228).

I certify that the preceding twenty seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of Master T. Connolly.

Associate:

Date: 11 August 2000

Counsel for the plaintiff: Mr Walker

Instructing solicitors: Gary Robb & Associates

Counsel for the defendant: Ms Peterswald

Instructing solicitors: Quinlan Miller & Trestan by their Agents Sparke Helmore

Date of hearing: 4 August 2000

Date of judgment: 11 August 2000