Theodore v Mistford Pty Ltd[2001] QDC 212

DISTRICT COURT OF QUEENSLAND

1. [1]
   There are two applications before the court. The first is an application by the defendant for copies of certain documents in the plaintiff’s list of documents, some of which are the subject of a claim of legal professional privilege; for copies of part of the plaintiff’s solicitors’ file in relation to the conveyance of the business referred to in the claim; for an order pursuant to r 223 UCPR that the plaintiff provide copies of documents referred to in a document attached to a letter from the plaintiff’s solicitors dated the 30^th August 2000; and for an order the “plaintiff’s solicitors” disclose all legal files opened by them on behalf of the plaintiff in relation tot he documents listed in that document. An application for further and better particulars sought in paragraph 6 of the application filed the 15^th August 2001 was not maintained.

2. [2]
   The second application is by the plaintiff in which she seeks orders that the signing of a request for trial date be dispensed with and the claim be placed on a call over list.

3. [3]
   This is the second time this court has had to deal in an interlocutory manner with applications by the defendant relating to disclosure and the plaintiff seeking to dispense with a request for trial date. In his reasons for judgment delivered the 25^th August 2000, His Honour Judge Dodds set out (paragraphs 5-7) a summary for the nature of the plaintiff’s claim, and at paragraph 25 the issues raised on the pleading, and for the purpose of these reasons I adopt His Honour’s remarks and incorporate them into these reasons.

The proceeding

4. [4]
   The plaintiff’s claim was for a declaration that the first and second defendants hold the duplicate certificate of title contained in title reference 18689094 pertaining to Lot 65 on RP 817375 (the land) as constructive trustees for the benefit of the plaintiff, for an order that the defendants, their servants and agents be restrained from withholding possession of the said duplicate certificate of title from the plaintiff and in the alternative damages flowing from the defendant’s wrongful possession of the duplicate certificate of title.

5. [5]
   According to the plaintiff’s statement of claim issued 1 May 1998:

1) the plaintiff at all material times, was the registered proprietor of the land and was the mother of Glen Joseph Theodore (the first third party);

2) at all material times the defendants were the proprietors of a business called Air Monitoring Services (the business) which in about July 1996 they agreed to sell to the first third party for $66,500;

3) the contract of sale contained a clause requiring the first third party to procure the lodgment with the vendor’s solicitors on or before the date for completion of the unencumbered title deed to the land and a mortgage over the land in favour of the vendor such mortgage to be prepared by the vendor’s solicitors at the cost of the purchaser and to be unregistered while the purchaser complied with the obligations on its part contained in the contract of sale;

4) the first third party requested the plaintiff provide the land as security to secure a loan which he proposed to obtain from the ANZ Bank at Maroochydore. The plaintiff gave the duplicate certificate to the first third party for the purpose of delivering it to the ANZ Bank as security for the proposed loan;

5) without the plaintiff’s authority the first third party delivered it to the solicitors then acting for the vendors. The delivery was not made pursuant to any document executed by the plaintiff and was not made pursuant to or in furtherance of any mortgage or guarantee agreed to be given by the plaintiff;

6) the defendants failed to return the duplicate certificate to the plaintiff.

6. [6]
   The defendant’s entry of appearance defence and counterclaim issued on the 17^th June 1998:

1) admitted the plaintiff is the registered proprietor of land and the mother of the first third party;

2) alleged that at all material times the first third party was the servant or agent of the plaintiff acting within the scope of his actual or apparent authority;

3) alleged that during the course of negotiations pre-contract:

1. (a)
   the second third party proposed that it would pay the purchase price of the business by certain instalments;

2. (b)
   the plaintiff, the first third party and the second third party represented to the defendants that on or before settlement of the contract of sale the second third party would procure the lodgment with the solicitors for the defendants of the unencumbered certificate of title to the land and a mortgage thereover in favour of the defendants such mortgage to remain unregistered while the second third party complied with its contractual obligation;

3. (c)
   the first third party would approach the plaintiff and obtain her signature to a guarantee and mortgage and her consent to the delivery of the duplicate certificate;

4) alleged that prior to the date the plaintiff alleges she gave the duplicate certificate of title to the first third party, the solicitors for the defendants forwarded a deed of guarantee and mortgage in favour of the defendants for execution by the plaintiff to the plaintiff;

5) alleged that on the 18^th July 1996, the second third party procured the lodgment with the solicitors for the defendant of the duplicate certificate of title to the land and those solicitors have retained it in safe custody on behalf of the defendants;

6) alleged the defendants were not aware delivery of the duplicate certificate was made without the authority of the plaintiff, was not made pursuant to any document executed by the plaintiff and was not made pursuant to or in furtherance of any mortgage or guarantee agreed to be given by the plaintiff;

7) alleged that the plaintiff, the first third party and second third party thereby represented that the plaintiff agree to lodge with the defendants’ solicitors the unencumbered certificate of title of the land and thereby mortgage the land in favour of the defendants and would execute a mortgage over the land in favour of the defendants;

8) said that if it was the case the first third party was not authorised by the plaintiff to lodge the duplicate certificate with the defendants’ solicitors, the plaintiff is estopped from denying the mortgage and from seeking the relief claimed in the plaint; alternatively the plaintiff ratified the act of the first third party in depositing the duplicate certificate by providing her solicitors with a copy of the deed of guarantee and indemnity and related mortgage and advising that those documents were being executed by her in support of a loan by way of vendor finance being given to the first third party by the defendants; alternatively the plaintiff acquiesced in the deposit of the duplicate certificate and the mortgage of the land and is precluded by laches from bringing and maintaining the action in the plaint in that despite knowledge of the deposit of the duplicate certificate she took no step to advise the defendants of any want of authority on the part of the first third party until the 25^th November 1997 when her solicitors wrote to the solicitors for the defendants; alternatively lodgment of the duplicate certificate with the defendants by the second third party was conduct that was misleading or deceptive or likely to mislead or deceive within the meaning of s. 52 of the Trade Practices Act 1974 and has resulted in loss or damage caused to the defendants and the plaintiff was directly or indirectly knowingly concerned in or a party to that conduct;

9) alleged that the second third party failed to pay instalments due under the contract of sale and say that judgment has been entered against the second third party in the sum of $51,536.40, no part of which has been satisfied by the second third party.

7. [7]
   Matters in issue in the pleadings are:

1) the plaintiff’s assertion that she provided the duplicate certificate to the first third party for the purpose of delivery to the ANZ Bank as security for a loan;

2) the plaintiff’s assertion that she gave the first third party no authority to deliver the title deed to the vendor’s solicitors;

3) the plaintiff’s assertion that she did not execute or agree to execute any document which required delivery of the title deed to the vendor's solicitors;

4) the defendants’ assertion that at all material times, the first third party was the servant or agent of the plaintiff acting within the scope of his actual or apparent authority;

5) the defendants’ assertion that in or about June 1996 during negotiations for the sale and purchase of the business the plaintiff and the first and second third parties represented to the defendants that on or before settlement of the contract the second third party would procure the lodgment with the defendants’ solicitors of the unencumbered certificate of title and a mortgage over the land which was to remain unregistered while the second third party complied with its contractual obligations;

6) the defendants’ assertion that before the date the plaintiff gave the certificate of title to the first third party, a deed of guarantee and mortgage in favour of the defendants was forwarded to the plaintiff for her execution;

7) the defendants’ assertion that they were not aware that the delivery of the title deed was made without the authority of the plaintiff;

8) the defendant’s assertion that the plaintiff ratified the deposit of the title deed by the first third party with the defendants’ solicitors by providing her solicitors with a copy of the deed of guarantee and indemnity and related mortgage and advising that those documents were being executed by her in support of a loan by way of vendor finance being given to the first third party by the defendants;

9) the defendants’ assertion that the plaintiff acquiesced in the deposit of the certificate of title in that she took no step to advise the defendants of any want of authority on the part of the first third party until the 25^th November 1997 when her solicitors wrote to the solicitors for the defendants.

The defendants’ application

(a)(i) Documents set out in Schedule 1 Part 2 of the Plaintiff’s list of documents dated the 16^th February 2001

8. [8]
   The list of documents forms part of RCM19 referred to in the affidavit of the defendants’ solicitor Mr Murphy sworn the 10^th August 2001. The documents the subject of the applications are 1, 3, 7 and 8 and are described as follows:

9. [9]
   The basis for the claim of privilege is set out in paragraphs 2 and 3 of an affidavit affirmed the plaintiff’s solicitor Mr Taylor on the 16^th February 2001:

“2. I acted for the plaintiff in the current proceedings who provided me with initial instructions on or about the 9 August 1996 concerning a Deed of Guarantee and Mortgage. I provided the plaintiff with preliminary advice with further written and verbal advice provided by Klar & Klar concerning the property which is the subject of these proceedings.

3. Prior to and since issue of the present proceedings I provided further advice to the Plaintiff.”

10. [10]
    These reasons are expanded upon in affidavit affirmed by Mr Taylor on the 16^th March 2001 and filed on the 9^th April 2001.

“3. I refer to my affidavit sworn 16 February 2001 pursuant to Rule 213 of the Uniform Civil Procedure Rules and state as follows:

1. (a)
   the file note of attendance upon the Plaintiff by myself on 9 August 1996 which is document number 1 under Part 2 of the Plaintiff’s List of Documents dated 10 February 2001 (“the List”) records the legal advice I gave the Plaintiff in relation to the Deed of Guarantee and Mortgage.

2. (b)
   The letter dated 27 September 1996 which is document number 3 on the List is written advice given to the Plaintiff of a legal nature as to her rights and obligations under the contract and my recommendations of what steps should be taken to protect the Plaintiff’s position.

3. (c)
   The file note of attendance upon Glen Theodore concerning the Title Deed was in effect an attendance upon a possible witness, who may give evidence, and on that basis, the claim for legal professional privilege is maintained.”

11. [11]
    In a further affidavit filed by leave on the 17^th September 2001 but affirmed by Mr Taylor on the 11^th September 2001 he says (at paragraph 4):

“4. The basis for the documents sought by the Defendants being claimed as privileged documents have been set out in my affidavits sworn 16 February 2001 and 16 March 2001 and filed 9 April 2001 other than document number 7 which was my letter to the Plaintiff concerning the Deed of Guarantee dated 17 March 1997 which was a letter giving advice tot he Plaintiff of a legal nature.”

The Law

12. [12]
    The “dominant purpose” test is now the proper test to apply in determining a claim of legal professional privilege. In Esso Australia Resources Limited v. The Commissioner of Taxation (1999) HCA 67 (21/12/99), a majority of the High Court (Gleeson CJ, Gaudron and Gummow JJ, Callinan J agreeing, but for different reasons) so held, so that the “sole purpose” test approved by the majority of the same Court in Grant v. Downes (1976) 135 CLR 674, is no longer the appropriate test. In their joint judgment the Chief Justice and Gaudron and Gummow JJ quoted with approval from the judgment of Barwick CJ in Grant v. Downes (in what is sometimes erroneously referred to as a dissenting judgment by the Chief Justice) in which His Honour described the “dominant purpose” test in these terms (at 667):

“A document which was produced or bought into existence either with the dominant purpose of its author, or the person or authority under whose direction, whether particular or general, it was produced or bought 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.”

13. [13]
    Mr Rafty who appeared for the plaintiff provided the court with copies of each of the documents to enable me to properly determine the claim of privilege.

14. [14]
    Applying the dominant purpose test, the documents numbered 1, 3 and 7 would seem to fall within a proper claim for privilege. Document no. 8 however falls into a different category. The documents dominant purpose cannot be said to be for the purposes of obtaining legal advice because it was a file note of an attendance on the plaintiff’s son Glen Theodore who is another party in these proceedings but for whom Mr Taylor was not acting. The question therefore is was it brought into existence “to conduct or aid in the conduct of litigation, at the time of its production in reasonable prospect”? The defendants’ submission is that as the claim was not commenced until the 1^st May 1998, it could hardly be said that litigation was “in reasonable prospect” as at the 20^th November 1997. Mr Rafty did not refer to any other document apart form the affidavits of Mr Taylor to support his submission. Mr Taylor certainly claimed in his affidavit filed the 9^th April 2001 that Mr Theodore was a “possible witness”, but takes it no further .In the earlier affidavit, he made no such claim. There is a letter dated the 25^th November 1997 from Mr Taylor to Klar & Klar in relation to the guarantee and/or equitable mortgage which is Exhibit RCM 4  to the affidavit of Mr Murphy sworn the 15^th August 2001 in support of this application. Relevantly, the defendants’ own application filed on the 15^th August 2001 paragraph 2; in an apparent reference to the date of that letter; identifies that date as “the first identifiable date of transition from a commercial transaction matter to a litigation matter”. I take that as a concession that as at that date when Mr Taylor wrote his letter, litigation was in reasonable prospect. I am therefore satisfied that as at the 20^th November 1997 litigation was then in reasonable prospect, and it follows that the claim of privilege in respect of this document must be upheld. In relation to documents no. 1, 3, 7 and 8 I uphold the claim of privilege and refuse the defendants’ application in relation to these documents.

2. (ii)
   The documents referred to in Item 75 in Schedule 1 Part 1 of the Plaintiff’s List of Documents signed the 16^th February 2001

15. [15]
    Item 75 is a copy of a letter from Mr Taylor to Klar & Klar dated the 30^th August 2000 purporting to enclose:

“1. Copies of the trust account in relation tot he purchase from Theodore and Kew to Theodore.

2. Copies of the general account in relation to the purchase from Theodore and Kew to Theodore.
3. Copies of the security safe register index.”

16. [16]
    There was no copy of the general account ledger. In his affidavit affirmed the 11^th September 2001 and filed by leave on the 17^th September 2001, Mr Taylor says in paragraph 3:

“In relation to the order sought that the Plaintiff provide a copy of the general account ledger, I say there is no general account ledger. Prior to the introduction of the computerised accounting system used by this firm since about May 1996 a separate written record was kept of outlays made on behalf of clients. I have searched for that written record but I have been unable to locate it.”

17. [17]
    The affidavit seems to comply with r 223(2)(a) UCPR and, although it may be surprising that a solicitor would purport to send to another solicitor as fulfilment of his client’s duty to disclose a copy of a document which in fact has never existed, the Court cannot go behind that affirmation. The defendants’ solicitors have sought explanations of the documents (Exhibit RCM 20 and Exhibit RCM 24) and the plaintiff’s solicitors have advised (Exhibit RCM 25) “the description of documents enclosed in our letter of 30 August 2000 and actual (sic) providing these documents is sufficient”. I agree with Mr Redmond that the copy of the document described in Item 75 as “security safe register index” appears to be a typewritten compilation of unidentified and undisclosed source material. Either the source material should be disclosed, or in the alternative the plaintiff (or Mr Taylor on her behalf) should file and serve on the defendant an affidavit in compliance with r 223(2)(a) UCPR.

18. [18]
    I order that the plaintiff disclose the document or documents described in Item 75 as “security safe register index” to the defendants, or alternatively file and serve an affidavit in compliance with r 223(2)(a) UCPR.

2. (b)
   Part of the plaintiff’s solicitors file as it “pertains to the conveyance of the business described in paragraphs 2 and 3 of the Plaint”

19. [19]
    The defendant seeks access to the plaintiff’s solicitors’ file relating to the conveyance of the business prior to the 25^th November 1997 when it says that the commercial transaction became a litigation matter. This part of the defendant’s application misconceives the ‘dominant purpose test’ in Esso and for this reason alone should fail. However in Mar Taylor’s affidavit filed by leave on the 17^th September 2001 he affirms:

“5. My firm did not act in relation to the conveyance of the business described in para 2 and 3 of the Plaint and thus had no file to discover.”

20. [20]
    The defendants do not point to any evidence to suggest that there is such a file, and this part of the application fails.

3. (c)
   The files relating to the documents set out in the “security safe register index” referred to above and copies thereof (para 3, 4, 5 of the defendants’ application

21. [21]
    The copy of this document forwarded under cover of letter dated the 30^th August 2000 and disclosed in item 75 of the plaintiff’s list of documents dated the 16^th February 2001 is in these terms:

22. [22]
    Not surprisingly, the defendants sought copies of some of these documents which appear to be caught by the plaintiff’s duty of disclosure in r 211 UCPR, and in particular the letter of instructions to ANZ and the documents covered by the words “Loan to Theodore”. On the 9^th October 2000 the plaintiff’s solicitors replied to the effect that they have requested the documents from their client. On the 14^th February 2001 (after considerable pressure from the defendants’ solicitors) the plaintiff’s solicitors advised:

“Neither the document headed loan to Theodore nor Letter of Instruction are available, being lost with the matter not being able to take the matter further (sic).

The documents sent to you on 30 August 2000 are all our client has and thus can not be taken further nor is our client required to provide the particulars of those documents as they are not referred to in the pleadings.”

23. [23]
    The justification advanced in the second paragraph, apart from its apparent inconsistency with the first, misconceived the duty of disclosure in r 211(1)(b) UCPR and was not advanced at the hearing of the application.

24. [24]
    Again, not surprisingly the defendants’ solicitors continued to press the plaintiff’s solicitor. In their letter dated the 22^nd February 2001 (RCM20) they suggested that if the documents were lost, an appropriate affidavit (obviously a reference to r 223(2) UCPR) should be filed and served. The defendants’ solicitors also sought a copy of the Enduring Power of Attorney referred to in the document described as “security safe register index”. On the 27^th April 2001 the plaintiff’s solicitors replied (RCM 25) in relation to the first category of document:

“4. The documents described by you are no longer in existence. If the setting down of the action of our client depends upon you being satisfied of this, we will prepare an affidavit if our client that these documents collected in1996 are no longer in her possession.”

25. [25]
    As a result of a specific request from the defendants’ solicitors, the plaintiff provided an affidavit affirmed on the 4^th July 2001 in which she purports to satisfy the requirements of r 223(2)(b) UCPR. The plaintiff affirms:

“2. The following documents were held by my solicitors Alan Taylor but released to me on 7 January 1997 as indicated by the envelope in which those documents were held a true copy of which is annexed to this affidavit and marked with the letter “A”:

1. (a)
   Enduring Power of Attorney

2. (b)
   Letter of instruction to ANZ

3. (c)
   Stamped Mortgage (unregistered)

4. (d)
   Deed of Loan

5. (e)
   Form on Instrument Revoking Power of Attorney and Enduring Power of Attorney

3. I have searched my residence but cannot locate the documents referred in the previous paragraph but suspect they were disposed by me as not being of importance once collected from my Solicitor.”

26. [26]
    In an earlier letter dated the 27^th April 2001 (part of RCM25) the plaintiff’s solicitors referred to the request for a copy of the Enduring Power of Attorney:

“5. The titles (if any) concerning the Enduring Power of Attorney, a copy of which is enclosed, are of no relevance as Marie Kew is the attorney not Glen Theodore as your client had expected”.

Indeed with that letter was enclosed a copy of an Enduring Power of Attorney given by the plaintiff to Marie Therese Kew in the presence of Mr Taylor on the 28^th July 1997. As Mr Redmond submits, this document cannot be the Enduring Power of Attorney released to the Plaintiff by Mr Taylor, as she affirms, on the 7^th January 1997 as the document in favour of Ms Kew did not then exist. It follows that the Enduring Power of Attorney referred to in the plaintiff’s affidavit is a different document, and the plaintiff’s solicitors’ assertion in their letter of the 27^th April 2001 is, at best, careless.

27. [27]
    The plaintiff’s assertion that the documents are lost and cannot be located will no doubt be tested at trial, however it seems to me for the purpose of this application the Court cannot go behind the plaintiff’s affidavit. As a matter of common sense, and relevant to my earlier decision regarding the “security safe register index”, it is surprising that the solicitors apparently handed to the plaintiff the envelope containing the documents, on which she has signed acknowledging receipt of the documents, without the solicitors retaining a signed receipt; but, for the reasons stated the Court cannot (without more) conclude that no adequate explanation has been given.

28. [28]
    Mr Redmond’s submissions about the coincidence of dates of certain occurrences alleged to have occurred on the 18^th July 1996 should be left for the trial. Having regard to the disclosure provisions in Part 1 Division 7 it would be drawing a long bow, to assume therefore because of those apparent coincidences, there must be another relevant document, namely a form of authority from the plaintiff to her son to collect the title deed the subject of the claim.

29. [29]
    In so far as files relating to these other documents are concerned, it does not follow (without more) that because a solicitor holds (or has held) a document on behalf of a client, that solicitor has a corresponding file. In purported compliance with r 223(2)(a), and in an apparent recognition of the potential merit. In the defendants’ alternative position set out in paragraphs 4 and 5 of the application, Mr Taylor’s latest affidavit affirmed the 11^th September 2001 but filed by leave on the 17^th September 2001 states:

“6. I have searched the computer records and I say that since May 1996 there were no files opened or there is no record of files being opened in relation to the following documents:

• Enduring Power of Attorney
• Letter of instruction to ANZ Bank
• Stamped mortgage in duplicate (unregistered)
• Deed of Loan
• Form of Instrument Revoking Power of Attorney
• Enduring Power of Attorney

7. It may be that files were opened prior to May 1996 for matters referred to in paragraph 5 but I have searched for these and can find no record of same. In accordance with the policy of the Queensland Law Society files are only kept for a period of 7 years from the date of closing thereof.

8. I have searched the records of my firm which show the files opened on behalf of the Plaintiff since May 1996 being the extent of records kept by me. They were as follows:

1. (a)
   The present action opened 9 August 1996

2. (b)
   Purchase from Robbie opened 8 January 1998

3. (c)
   Jingellic Drive, Buderim Meadows opened 21 May 1999”

30. [30]
    Again, without more, the Court cannot go behind this positive affirmation at this stage of the proceedings.

31. [31]
    The defendant has partially succeeded, but in other respects failed in its application. It seems to me from the material filed in support of the defendants’ application, and the responses of the plaintiff’s solicitors including Mr Taylor’s most recent affidavit, the pursuit of these documents by the defendants’ solicitors, given their potential relevance to a critical issues in the litigation, was reasonable and necessary. To describe the plaintiff’s solicitors’ responses as unhelpful would be kind. For these reasons, and despite the fact that the defendant has substantially failed in its application, I exercise my discretion by ordering that the defendants’ costs of the application be their costs in the cause.

The plaintiff’s application

32. [32]
    In light of my conclusions in relation to the defendants’ application, it does appear that subject to the defendants’ compliance with the orders I have made, the claim is ready for trial, and the plaintiff’s application should succeed. The only issue remaining is the plaintiff’s costs of its application. I completely disagree with the primary submission made by Mr Rafty to the effect that the defendants have unreasonably delayed the proceedings. It seems to me that a careful reading of the substantial correspondence exhibited to Mr Murphy’s affidavit in support of the defendants’ application filed the 15^th August 2001, suggests the contrary. Given the importance of the issue relating to the plaintiff’s knowledge of her son’s dealings with the title deed, it was not only reasonable, but necessary for the defendants’ solicitors to pursue disclosure of other possible documents particularly arising out of the plaintiff’s solicitors’ letter of the 30^th August 2000 and the repetition of this disclosure in Item 75 in the list of documents dated the 16^th February 2001. I have already commented on the attitude of the plaintiff’s solicitors in this regard. Of less relevance, is that the r 444 UCPR letter (Exhibit B to Mr Rafty’s affidavit affirmed the 6^th August 2001, filed the 7^th August 2001) is dated the 6^th August 2001 and provides a nominated time for response of 5.00pm on the 17^th August 2001. Although I accept that the application was not served until after this time, nevertheless the filing of the application prior to the expiration of time, coupled with the paucity of material filed in support of the application which, on its own, does not give the Court an accurate picture of the relevant dealings between the parties, is a relevant factor to the exercise of the costs discretion. In all the circumstances, I make no order as to costs on the plaintiff’s application.

Orders

33. [33]
    The orders will be as follows:

1) On the defendant’s application filed the 15^th August 2001, I order that the plaintiff disclose the source documents used to compile the document described in Item 75 Schedule 1 Part 1 of the plaintiff’s List of Documents dated the 16^th February 2001 as “security safe register index” by providing copies thereof to the defendant within 14 days of today’s date or alternatively, if such documents do not exist or have never existed, the plaintiff or her solicitor on her behalf comply with r 223(2)(a) UCPR.

2) Otherwise, the defendants’ application filed the 15^th August 2001 is dismissed.

3) I order that the defendants’ costs of the application be its costs in the cause.

4) I order that upon delivering copies of the documents referred to in para 2 to the defendants’ solicitors, or service upon them of the affidavit required pursuant to r 223(2)(a) UCPR, whichever is the later, the claim be placed on the call over list without the need for the parties to sign a request for trial date.

5) I make no order for costs on the plaintiff’s application.

6) Liberty to apply on the giving of seven days notice in writing.

7) I direct that the five-page document handed to the Court on the 17^th September 2001 by the solicitor for the plaintiff described as “Documents claimed as privileged under Part 2” be sealed in an envelope and marked not to be opened unless ordered by the Court, and placed with the file.