Bullivant v Attorney-General

Lorp Davey. My Lords, I am of the same opinion.
I do not dissent from what was said by Mr. Haldane, that
it must be assumed for the present purpose that the case

(1) [1900] A. C. 323.

208
EE CES)
1901
—_~
BULLIVANT
OR
ATTORNEY-

GENERAL
OR VICTORIA. |

Earl of Halsbury
L.C.

204

H. L. (BE)
1901

—m~
BULLIVANT
v.
ATTORNEY-
GENERAL
FOR VICTORIA.

Lord Davey.

HOUSE OF LORDS [1901]

stated in the pleadings is true for the purpose of testing the
right to production. But that renders it, of course, of extreme
importance to see what is stated in the pleadings, and what are
the issues upon which the trial is now presumed to be pro-
ceeding. I also agree with what was said by Sir Robert Reid,
that if a man in his pleading, whether he be the Attorney-
General or anybody else, merely sets out a sentence from a
statute which is capable of two meanings without saying which
he means, the one being consistent with the absolute innocence
of the transaction and the other meaning involving a charge
of either fraud or illegality, he must say which he means, and
if he intends to charge illegality, he must state facts for the
purpose of shewing what the illegality is. But, my Lords,
this is not a question of pleadings as between the parties.
What we have to see is whether a witness who is called upon
to produce privileged documents is bound to produce them or
not, and for that purpose only we must look to see what are
the issues which are raised by the pleadings.

Now, my Lords, the information states only certain volun-
tary deeds, and then contains an allegation that these voluntary
deeds were executed for the purpose of evading payment of
certain death duties which are imposed upon property passing
upon the death of the testator. The words in the section
under which it is sought to say that it was an illegal trans-
action are these: '' If any person has made, or shall hereafter
make, any conveyance," and so forth, "' with intent to evade
the payment of duty under this part of the Act." If the duty
never attached, if there is no section of the Act which imposes
a duty upon voluntary inter vivos transactions, I cannot see
how a person who is a party to such a transaction can be said
to do it with intent to evade payment of a duty which the Act
does not impose upon the transaction itself. My Lords, I do
not mean to give any definite opinion upon the construction
of this clause. But I do think that if it be meant that the
executing of these voluntary conveyances which, upon the face
of them, purport to be a parting by the testator with the pro-
perty comprised in them out and out, a parting with the whole
jus disponendi of it so that it would become no longer his

A.C. AND PRIVY COUNCIL.

property, but the property of somebody else, and would be the
property of somebody else at his death—if it be meant to say
that the executing of those conveyances was an illegal trans-
action, some particulars of the illegality should be stated;
and merely to quote the words of the statute to which
I have already referred is not stating such a case of fraud
or illegality, or raising such an issue for trial between the
parties as would enable the plaintiff to call upon a witness
to produce documents which would otherwise be privileged
from production.

My Lords, I think the fallacy of the Court of Appeal, if I
may respectfully say so, is in treating the statute as if it made
the execution of voluntary deeds with or without the intention
to put property in such a position as not to incur lability to
the tax as being an improper or an illegal act. In my opinion,
it is nothing of the kind. It is a perfectly legal act, and there
is nothing upon this information which to my mind clearly
states any such case of illegality as would overrule the privilege
on the part of a witness.

Lorp Brampton. My Lords, I entirely concur.

Lorp Linptey. My Lords, I also concur; but I will add a
few words out of respect to the learned Lords Justices from
whom I differ.

The question arises in this way. In May, 1896, a gentleman
died, and under the Colonial law his estate had to pay certain
duty. Some time before he died he executed some voluntary
conveyances, and it is said that under the law of the Colony
the property comprised in those voluntary conveyances was
subject to duty. In order to obtain evidence about those docu-
ments, a commission was sent over here, and under the statute
to which reference has been made, 22 Vict. c. 20, witnesses
were called before that commission, and we have to consider
the matter from the point of view of an action or information
in this country raising certain definite issues in support. of
which witnesses were called and examined. When the wit-
nesses were called they were asked to produce these documents,

A. ©. 1901. 3 Q

205

H. L. (E.)
1901

—m~
BULLIVANT
Vv.
ATTORNEY-
GENERAL
FoR VICTORIA.

Lord Davey.

206

H. L. (E.)
1901

——~
BULLIVANT
Vv
ATTORNEY-
GENERAL
FOR VICTORIA.

Lord Lindley.

HOUSE OF LORDS {1901}

and above all the instructions given to the solicitor who pre-
pared them. The answer was at once set up by the witnesses,
"Those are privileged documents," the privilege being founded
upon the ordinary professional confidence which has been held
in this country to be a good ground for the non-production of
documents.

Now, my Lords, starting there, I will observe that the
grounds, whatever they are, are legal as well as equitable.
There is no equitable doctrine, as distinguished from a legal
doctrine, involved in the matter. Prima facie, if a witness
swears, aS one of these witnesses did, to circumstances which
give rise to the privilege, the privilege must prevail, unless
there is a good answer. What we have to consider, therefore,
is the answer to the privilege so raised.

Now, there are two answers: the first is a very short one, if
it is good for anything. It is said that, the testator being dead,
the privilege is gone. My Lords, I am satisfied that that
answer is insufficient. I never heard it before; but it does
appear that in the case of Russell v. Jackson (1) it was con-
sidered, and in the judgment of Turner V.-C. there are some
passages which have been invoked in favour of that being a
good answer; but they are easily explainable when one comes
to look at them. The mere fact that a testator is dead does
not destroy the privilege. The privilege is founded upon the
views which are taken in this country of public policy, and that
privilege has to be weighed, and unless the people concerned in
the case of an ordinary controversy like this waive it, the privi-
lege is not gone—it remains. In the case before Turner V.-C.,
for the reasons which were given by Mr. Haldane, and which
are apparent in the judgment, the privilege could not be set

'up. One person was trying to set it up against the other, .

both claiming under the testator, and the Vice-Chancellor held
that it could not be set up. So much for that answer.

The next answer given to this claim of privilege is that there
was illegality or fraud or trickery, and that this solicitor, or
those concerned, cannot set up the privilege because there is
no privilege involved in consulting a solicitor as to how you

| (1) 9 Hare, 387.

A. C. AND PRIVY COUNCIL.

are to do an illegal act. That raises the question whether
there "was any illegality involved in the preparation of these
deeds. As to that, the case stands in this way. The whole
claim for this duty is based upon a Colonial Act of Parlia-
ment which renders the duty payable upon any conveyance
(I am reading it short) with intent to evade the payment of
duty. The word "evade" is ambiguous. There are various
ways of evading a statute. The discussion and the decision
which took place in the Privy Council in the case of Simms v.
Registrar of Probates (1) shew the ambiguity of the expression.
Now the pleadings follow the Act of Parliament. I do not see
that the witness can quarrel with that in any way, and the
affidavit made in support of the application for an order for the
production of these documents follows the Act of Parliament—
they both use the ambiguous expression "evade." As I have
said, there are two ways of construing the word "' evade'': one
is, that a person may go to a solicitor and ask him how to keep
out of an Act of Parliament—how to do something which does
not bring him within the scope of it. That is evading in one
sense, but there is nothing illegal in it. The other is, when he
goes to his solicitor and says, '' Tell me how to escape from the
consequences of the Act of Parliament, although I am brought
within it." That is an act of quite a different character. Now
when we look at the answer given to the witnesses who set
up this privilege, we find that the answer says: 'You are
evading the Act of Parliament.'' What does that mean? Do
you mean to say that I, as a solicitor, have been conspiring to
do that which is illegal? That is not said—there is no pretence
for it. If you mean that, you have not said so; if you mean
evade in the other sense, your answer does not destroy the
privilege. That, my Lords, is the short answer.

My Lords, it appears to me that the Court of Appeal have
overlooked the fact that the word ''evade" has the double
meaning to which I have referred. They seem to have assumed
that what was done here must have been a conspiracy to do
something forbidden by the Act and to avoid the consequences
of illegal conduct. Under these circumstances I think the

(1) [1900] A. C. 323.

jess)

Q 2

207

H. L. (E.)
1901

ee
Os
ATTORNEY-
GENERAL
FOR VICTORIA.

Lord Lindley.

208 HOUSE OF LORDS [1901]

H.L.(E.) appeal ought to succeed, and that the order appealed from

1901 should be reversed.
Bouavane Order appealed from reversed. (1)
ee Lords' Journals, May 2, 1901.

FOR VICTORIA.