FEDERAL COURT OF AUSTRALIA

Von Stieglitz v Comcare [2014] FCAFC 97

THE COURT ORDERS THAT:

1.    Application ACD 3 of 2014 be dismissed.

2.    The applicant pay the second respondent’s costs of the application.

3.    There otherwise be no order as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT ORDERS THAT:

1.    Appeal ACD 24 of 2014 be dismissed.

2.    The applicant pay the second respondent’s costs of the appeal.

3.    There otherwise be no order as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    There are ongoing proceedings in the Administrative Appeals Tribunal (“the Tribunal”) between the applicant, Katherine Jane von Stieglitz, and the first respondent, Comcare. In the course of those proceedings, the applicant caused the Tribunal to issue a summons to the High Court of Australia requiring production of certain documents. The High Court objected to the applicant having leave to inspect some of those documents on the basis that they are communications that are subject to legal professional privilege.

2    On 11 December 2013, a Presidential Member of the Tribunal, Cowdroy J, decided to allow Ms von Stieglitz access to one of the documents, but upheld the High Court’s claims of legal professional privilege in relation to another thirty-seven.

3    The applicant filed a notice of appeal against the decision of Cowdroy J to the Federal Court of Australia pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) and a separate application for writs of certiorari and mandamus pursuant to s 39B of the Judiciary Act 1903 (Cth).

4    Ms von Stieglitz has now abandoned her appeal. The appeal should be dismissed. That leaves the application for certiorari and mandamus to decide.

Background

5    Ms von Stieglitz was employed as a court reporter at the High Court until her employment was terminated in 2008. In 2011, she applied under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”) for compensation in respect of a depressive illness, which she alleges was aggravated by bullying and harassment at the hands of management staff at the High Court.

6    Comcare rejected Ms von Stieglitz’s application and later decided to affirm that determination after conducting an internal review. Ms von Stieglitz then applied to the Tribunal for review of the decision to affirm the initial determination.

7    On 17 December 2012, Ms von Stieglitz caused the Tribunal to issue the summons to produce documents to the High Court. Mr Andrew Phelan, the chief executive and principal registrar of the High Court (“the Registrar”), sent an email on 18 December 2012 to Ms Carmen King of DibbsBarker, the solicitors acting for Comcare in the Tribunal proceedings, saying:

The High Court Registry just received, via process server, the attached summons. At a quick glance, the request appears almost oppressive in scope, imprecise, probably covering some privileged communications and of questionable relevance – especially given the plethora of T documents she must have by now. Do you/Comcare respond to this summons on our behalf or are we separately required to do so? …

8    The Registrar then discussed the summons and the question of privilege with Ms King. This is evidenced by another email that the Registrar sent to staff within the High Court on the same date which reads, relevantly:

I have spoken to Carmen King, who is acting for Comcare. She advises that we bundle up everything and send it to her by about 18 January 2013 so she can go through the files for privileged documents.

…

Pls gather the documents and I would like to review before they are sent.

9    On 10 January 2013, the High Court posted a number of documents and files to Ms King. An accompanying letter said that the documents were being provided in accordance with the summons.

10    On 22 January 2013, Ms King provided the summonsed documents to the Tribunal, together with the High Court’s letter of 10 January 2013 and a schedule claiming legal professional privilege in respect of some of the documents. On the same day, the Tribunal wrote to Ms von Stieglitz informing her that the High Court had produced documents and stating:

The High Court of Australia is seeking to claim Legal Professional Privilege over some documents and these documents are identified in the attached schedule.

The first hearing before the Tribunal

11    Ms von Stieglitz notified the Tribunal that she wished to challenge the claims for privilege. The proceeding was listed before Member Hyman on 20 February 2013 for argument on that issue. At the commencement, Member Hyman asked Ms King whether anyone was present to represent the High Court. Ms King answered:

No, the High Court has chosen not to appear today. I spoke with them last week and advised them that the date had been set and they were content just for me to appear on behalf of Comcare and put forward the arguments in relation to privilege.

12    Later, Ms King said:

Well, first of all I can confirm that I did draw up the claim for privilege. That’s not a (indistinct) or anything like that. We did draw up the claim for privilege. The normal course would be when an Agency is summonsed that if the documents are provided directly to the AAT we would have made an application to have first access to those documents which in the normal course would be granted.

…

The reason that we get first access to those documents is to undertake a privilege check. All that happened in this instance was that I undertook the privilege check before having the documents provided to the AAT.

…

So, no, I am not acting on behalf of the High Court. The High Court - the people from the High Court and I had a discussion about the documents that they would be sending. They said that they would send the documents to my office and they knew that I would be then going through the documents and undertaking a privilege check; but that that’s as far as any kind of - there were no instructions from the High Court is the short answer.

13    Member Hyman, who did not see the emails set out earlier, interpreted Ms King’s statements as saying that she had not been instructed by the High Court for any purpose. The Member decided that the High Court had not made any claim for privilege. He considered that Ms King could not be regarded as having acted as the High Court’s agent when she prepared the schedule setting out the documents over which privilege was claimed. The Member also decided that DibbsBarker could not have “legitimately” lodged a claim for privilege on behalf of the High Court, apparently on the basis of his view that Ms King had not been instructed to act for the High Court for any purpose.

14    Member Hyman’s views are not directly relevant to the disposition of this case, but it is appropriate to set them out because Ms von Stieglitz’s submissions effectively adopt them.

15    Member Hyman ordered that each party have leave to inspect the documents produced by the High Court under the summons. The order provided that if Comcare objected to Ms von Stieglitz inspecting any of the documents, her leave to inspect was suspended until the objection was determined by the Tribunal. Member Hyman’s reasons reflected an intention that the High Court could also object to Ms von Stieglitz having leave to inspect the documents.

The Tribunal’s decision under challenge

16    The High Court did object to Ms von Stieglitz having access to thirty-eight of the documents. Her application for leave to inspect the documents was heard by Cowdroy J, who delivered his decision on 11 December 2013. His Honour summarised Ms von Stieglitz’s submissions as follows:

1.    When the High Court produced its documents to the Tribunal without a claim for privilege, it waived any such claim over those documents (‘Submission 1’).

2.    No claim for privilege was made by the High Court when the summons was returnable before Member Hyman, therefore the High Court cannot now maintain a claim for privilege. The claim for privilege made by the High Court on 12 June 2013 represents a change of mind that should not be permitted (‘Submission 2’).

3.    Member Hyman’s decision made it plain that either Comcare or the High Court had the right to claim privilege, but not both. Since a claim for privilege was made first by Comcare, the High Court cannot maintain a separate claim for privilege (‘Submission 3’).

4.    When the High Court disclosed the produced documents to Comcare, privilege was waived by the High Court over any documents (‘Submission 4’).

5.    The deliberate production to Ms von Stieglitz of the Registrar’s memorandum, which referred to legal advice received by the High Court from the Australian Government Solicitor (‘the AGS’), constituted a waiver of privilege by the High Court over all communications between 20 July 2007 and 9 February 2009 (‘Submission 5’).

17    Cowdroy J rejected the first four of these submissions. His Honour upheld the fifth submission in part, holding that the High Court had waived privilege in respect of one document. His Honour’s reasons for rejecting the second and third submissions are not challenged in this proceeding and it is unnecessary to say anything more about them.

18    His Honour’s analysis of Ms von Stieglitz’s submissions commenced with a section entitled “Clarification of Events” in which his Honour made factual findings relevant to the submissions that the High Court had waived privilege. It is relevant to note that his Honour had the Registrar’s emails before him, whereas Member Hyman did not. His Honour concluded:

[33]    It is apparent that upon receiving the summons for production of documents the Registrar believed that Comcare would be acting in the interests of the High Court. For this reason the Registrar sought advice from DibbsBarker upon the issue of the High Court’s documents in respect of which privilege should be claimed. The High Court then provided its documents as requested by DibbsBarker, and DibbsBarker undertook to determine which documents would be the subject of a claim for privilege. I am satisfied that the Registrar understood that on the return of the summons, DibbsBarker would be making a claim for privilege over the produced documents.

[34]    In these circumstances, when the summons was returned before the Tribunal it is puzzling how it could have happened that Ms King advised the Tribunal that she was ‘not instructed by the High Court’, yet simultaneously understood she was to put forward arguments in relation to privilege on its behalf. There was clearly a misunderstanding between Ms King and the Registrar concerning the purpose of Ms King’s attendance before the Tribunal; the Registrar did not understand that the privilege arguments were to be put by Ms King only on behalf of Comcare.

[35]    This is reinforced by the finding of Member Hyman that no claim for privilege had been made by the High Court. Such conclusion is explicable only on the basis that Ms King regarded the High Court as a third party for whom DibbsBarker was not acting.

19    His Honour then turned to the first submission, that the High Court had waived privilege by producing the documents to the Tribunal without making a claim for privilege and concluded:

[40]    Arising out of the correspondence between the Registrar and Ms King, it is reasonable to infer that the Registrar understood that:

(a)    Comcare would claim privilege where necessary on behalf of the High Court over the produced documents; and

(b)    Ms King would represent both Comcare and the High Court at the return of summons before Member Hyman.

[41]    Such conduct of the Registrar is not inconsistent with an intention to maintain confidentiality in respect of certain information in the produced documents…

[42]    If follows that both submissions 1 and 2 of Ms von Stieglitz must fail.

20    As to the fourth submission, that Comcare waived privilege by disclosing the produced documents to Comcare, Cowdroy J noted that the argument raised the issue of common interest privilege. His Honour said:

[51]    Whether common interest privilege exists between parties with an interest in a proceeding will depend upon the facts of each case. It is important to note in the present proceeding, as referred to above, that Comcare is in essence the workplace insurer for the High Court. That an insurer would have a common interest with the insured is not unusual…

[52]    … As referred to above, Comcare has stepped into the shoes of the High Court in respect of Ms von Stieglitz’s claim.

[53]    It follows that the interests of Comcare and the High Court are sufficiently similar to give rise to a common interest privilege. Ms von Stieglitz’s fourth submission must be rejected.

21    As to the fifth submission, his Honour noted that Comcare had provided Ms von Stieglitz with a memorandum from the Registrar to the Chief Justice of the High Court dated 9 February 2009. That memorandum referred to legal advice provided to the High Court by the Australian Government Solicitor (“AGS”) dated 19 June 2008. His Honour held that the High Court had waived privilege in respect of that legal advice. His Honour granted the applicant access to that advice, but to no other document over which the High Court claimed privilege.

The statutory context

22    Section 14 of the SRC Act provides that Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work or impairment.

23    Comcare’s determination to reject Ms von Stieglitz’s application for compensation was internally reviewed pursuant to s 38(4) of the SRC Act. Ms von Stieglitz then made her application to the Tribunal for review of that decision pursuant to s 64(1).

24    Section 40 of the AAT Act provides, relevantly:

(1A)    …[F]or the purposes of the hearing of a proceeding before the Tribunal, the member presiding at the hearing, the Registrar, a District Registrar or a Deputy Registrar may summon a person to appear before the Tribunal at that hearing:

…

(c)    to produce any books, documents or things in the possession, custody or control of the person or persons named in the summons that are mentioned in the summons.

…

(1D)    A presidential member, a senior member or an authorised member may give a party to a proceeding leave to inspect a document produced under a summons.

(1E)    A person named in a summons for production of a book, document or thing may produce the book, document or thing at the Registry where the summons was issued before the date specified in the summons and, unless the Tribunal otherwise directs, is not required to attend the hearing concerned unless the person is also required to give evidence at the hearing concerned.

25    The summons to the High Court to produce documents was issued pursuant to s 40(1A). Section 40(1E) allowed the High Court to produce the documents to the Tribunal’s registry. Cowdroy J’s decision that Ms von Stieglitz have access to some of the documents produced under the summons but not others was made pursuant to s 40(1D).

The submissions

26    Ms von Stieglitz submits that Cowdroy J’s reasons reveal three errors, which are said to be jurisdictional errors.

27    Ms von Stieglitz submits, firstly, that there was no evidence upon which the Tribunal could reasonably form the view expressed in [33]-[35] of its reasons that DibbsBarker had been representing the High Court. She argues that Ms King expressly stated that she appeared for Comcare and that no-one appeared for the High Court. She asserts that there was uncontradicted evidence that Comcare did not act for the High Court.

28    Ms von Stieglitz submits, secondly, that the Tribunal erred in characterising Comcare’s role under the scheme as “in essence the workplace insurer for the High Court” and in that finding that “Comcare had stepped into the shoes of the High Court in respect of Ms von Stieglitz’s claim”. She argues that the Tribunal’s mischaracterisation of Comcare’s role reflected a misunderstanding of the statutory scheme. She argues that the only interest that Comcare ought to have had in the Tribunal’s decision was assisting the Tribunal to make the correct or preferable decision and that the High Court had no formal interest in the proceeding or in Comcare’s decision. She argues that Comcare did not share an identity of interest or a sufficient commonality of interest with the High Court to attract common interest privilege.

29    Ms von Stieglitz’s third submission is that the Tribunal was obliged to read the advice from AGS which the High Court had delivered to the Tribunal under the summons and in respect of which the Tribunal found that privilege had been waived. She submits that if the Tribunal had done so, it would have seen that the advice referred to other letters of advice in respect of which privilege had also been claimed. She argues that the Tribunal would then have held that privilege had been waived in respect of those other documents.

30    In the course of the hearing, the Court raised with the parties another possible basis upon which Ms von Stieglitz’s allegation that the High Court had waived privilege by providing the documents to Comcare could be decided. If the no evidence ground were rejected, the Tribunal’s findings at [33]-[35] would remain. The effect of those findings is that the High Court had sought advice from DibbsBarker concerning which communications would attract privilege and sought assistance to claim that privilege. It would follow that communication of the documents to DibbsBarker for those purposes was itself privileged, so that no question of waiver would arise.

31    In response, Ms von Stieglitz submitted that it was not possible for DibbsBarker to act on behalf of both the High Court and Comcare and that DibbsBarker must have been acting only on behalf of Comcare at the relevant times. She submitted that the provision of the documents to Comcare’s solicitors knowing that they were Comcare’s solicitors was in effect the provision of the documents to Comcare. She submitted that the High Court had waived privilege by providing the documents to Comcare.

Consideration

The first submission: no evidence for the finding that DibbsBarker had been representing the High Court

32    Ms von Stieglitz’s first submission was that there was no evidence for the Tribunal’s findings in [33]-[35] of its reasons that DibbsBarker had been representing the High Court.

33    Ms von Stieglitz’s no evidence submission seems to be directed principally to what she asserts was Cowdroy J’s finding that DibbsBarker had represented the High Court in the hearing before Member Hyman on 20 February 2013. In fact, his Honour made no such finding. His Honour found that there was a misunderstanding between Ms King and the Registrar as to the purpose of Ms King’s appearance before Member Hyman. The Registrar had understood that DibbsBarker would appear to make a claim for privilege on behalf of the High Court over the produced documents and did not understand that Ms King would only be appearing on behalf of Comcare; but it is plain that Ms King did not regard DibbsBarker as appearing on behalf of the High Court. His Honour did not make any finding that DibbsBarker was representing the High Court at the hearing before Member Hyman.

34    However, Cowdroy J found that DibbsBarker had advised and represented the High Court in another way. His Honour found that the Registrar had sought advice from DibbsBarker upon the issue of the High Court’s documents in respect of which privilege could be claimed and that DibbsBarker had undertaken to determine which of the High Court’s documents would be subject of a claim for privilege.

35    There was ample evidence for those findings. The Registar’s emails of 18 December 2012 reveal that the High Court was concerned to claim privilege in respect of some of the documents that had been summonsed, and that the Registrar had reached agreement with Ms King of DibbsBarker that she would examine the documents and ascertain in respect of which communications a claim for privilege could be made. DibbsBarker in fact carried out that task and on 22 January 2013, it provided the Tribunal with the summonsed documents accompanied by a schedule listing the communications in respect of which the High Court claimed privilege. The Tribunal’s staff were in no doubt as to what had occurred because the Tribunal wrote to Ms von Stieglitz on the same day informing her that the High Court was seeking to claim legal professional privilege over the documents identified in the schedule.

36    Ms von Stieglitz adopted the view of Member Hyman that DibbsBarker had not been instructed to act for the High Court for any purpose. Member Hyman’s view was based upon Ms King’s confusing statements that she was not acting on behalf of the High Court and had received no instructions from the High Court. There are three difficulties with applying Member Hyman’s conclusion. Firstly, the Member did not have the Registrar’s emails before him. Secondly, Ms King did tell the Member that she had a discussion with “people” from the High Court, that they said they would send the documents to her and that they knew that she would then be going through the documents and undertaking a privilege check. Thirdly, Ms King did what she said she would do and provided a schedule to the Tribunal identifying the documents in respect of which privilege was claimed.

37    While it is clear that Ms King did not appear on behalf of the High Court at the hearing before Member Hyman, it is also clear that she had undertaken to advise the High Court as to which of the communications could attract legal professional privilege and had taken steps on behalf of the High Court to claim that privilege. There was, as we have said, ample evidence for Cowdroy J’s findings.

The second submission: error in finding that there was common interest privilege

38    Ms von Stieglitz’s submission that Comcare was not the workplace insurer for the High Court and that there was no sufficient commonality of interests to found common interest privilege raises large and difficult questions. The answers would require thorough examination of the statutory insurance scheme established under the SRC Act and analysis of the interaction of all the relevant provisions. The relationship between Comcare and Commonwealth government agencies would have to be compared to the relationship between Comcare and private companies insured under same scheme. The role that subrogation may play under the SRC Act would have to be examined. We were informed that there are no authorities concerning the SRC Act which touch upon the issues raised here, but it would also be necessary to examine other statutory insurance schemes and ascertain whether there are relevant cases concerning such schemes. As the parties’ submissions did not descend to substantial detail about any of these matters, it would be undesirable for the Court to decide the issue of common interest privilege unless absolutely necessary.

39    It is not in fact necessary for the Court to decide the question of common interest privilege in order to decide the case. That is because the findings of fact made by the Tribunal inevitably require the conclusion, for another reason, that the High Court did not waive privilege.

40    Cowdroy J found that the Registrar had sought advice from DibbsBarker upon the issue of the High Court’s documents in respect of which privilege should be claimed. His Honour found that the High Court provided its documents to DibbsBarker as requested by that firm, and that DibbsBarker undertook to determine the documents which would be subject of a claim for privilege. His Honour was satisfied that the Registrar understood that on the return of the summons DibbsBarker would be making a claim for privilege over the produced documents.

41    Legal professional privilege operates to protect the confidentiality of certain communications between a lawyer and client. It attaches to confidential communications, oral or in writing, made for the dominant purpose of obtaining or giving legal advice or assistance, or for use in existing or anticipated legal proceedings: Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49 at [2], [61]. A court or tribunal cannot require the production of such communications to another party.

42    However, the person who would otherwise be entitled to the benefit of legal professional privilege (“the client”) may waive the privilege, either expressly or by implication. What brings about waiver is inconsistency, where necessary informed by considerations of fairness, between the conduct of the client and the maintenance of confidentiality: Mann v Carnell (1999) 201 CLR 1 at [29]. Where there is such inconsistency through an intentional act of the client, privilege may be lost even though the client did not subjectively intend that consequence: Mann v Carnell at [29].

43    The High Court provided the documents to DibbsBarker for the purpose of obtaining advice and assistance with respect to complying with the summons issued by the Tribunal. In particular, it sought advice concerning which communications could be the subject of a claim for legal professional privilege and assistance to make the claim for privilege. The communication to DibbsBarker itself attracted legal professional privilege. Therefore, there is no question of the High Court waiving privilege by providing the documents to DibbsBarker. The High Court’s conduct was entirely consistent with the maintenance of privilege.

44    Ms von Stieglitz submitted that it was not possible for DibbsBarker to act on behalf of both the High Court and Comcare and that DibbsBarker must only have been acting on behalf of Comcare at the relevant times. She submitted that the provision of the summonsed documents to Comcare’s solicitors, knowing that they were Comcare’s solicitors, was in effect the provision of the documents to Comcare. She submitted that the High Court had waived privilege by providing the documents to Comcare.

45    It is, however, entirely possible for a solicitor to act for more than one client in relation to a particular matter. Rule 7.2 of the Legal Profession (Solicitors) Rules 2007 (ACT) expressly recognises that a solicitor may act for more than one party to the same proceedings if each client gives its informed consent. It is not uncommon for a solicitor who is already acting for a party to proceedings to advise a third party which has been served with a subpoena to produce documents. There may, of course, be circumstances in which that should not occur.

46    Ms von Stieglitz has not identified the basis upon which she submits that DibbsBarker was not entitled to act for both Comcare and the High Court, and no such basis can be discerned from the material before the Tribunal. In any event, there could be no waiver of privilege merely because a client provides documents to a solicitor for the purpose of obtaining legal advice when the solicitor cannot or should not act for that client. If a client has a genuine belief that a lawyer is entitled to give advice, communications between the client and the lawyer will attract legal professional privilege even though the lawyer is not in fact entitled to give that advice: Grofam Pty Ltd v Australia and New Zealand Banking Group Ltd (1993) 45 FCR 445 at 456; Health Insurance Commission v Freeman (1998) 88 FCR 544 at 566-567; Global Funds Management (NSW) v Rooney (1994) 36 NSWLR 122 at 130; Brookfield Multiplex Ltd v International Funding Partners Pte Ltd (No 2) (2009) 180 FCR 1 at [20]; Glengallen Investments Pty Ltd v Arthur Anderson [2002] 1 Qd R 233 at [18]-[20]. Cowdroy J’s findings are consistent with a genuine belief by the Registrar that DibbsBarker was entitled to give advice to and assist the High Court. Further, the actions of DibbsBarker in preparing a schedule listing the documents in respect of which the High Court claimed privilege and providing that schedule to the Tribunal are consistent with that firm having received and accepted instructions from the High Court to do so.

47    Ms von Stieglitz’s submission that the provision of the High Court’s documents to DibbsBarker was effectively the provision of the documents to Comcare cannot be accepted. The relationship between a solicitor and client imposes an obligation on the solicitor to keep inviolate the client’s confidences: Baker v Campbell (1983) 153 CLR 52 at 65, per Gibbs CJ. That duty may be an implied term of the retainer, an incident of the fiduciary relationship and a requirement of the rules governing the legal profession. It is enough to refer to r 2.1 of the Legal Profession (Solicitors) Rules 2007 (ACT) which makes it plain that a legal practitioner owes a duty of confidentiality towards a client of the practitioner unless, relevantly, the client authorises disclosure. The expression “client” is defined in the Legal Profession Act 2006 (ACT) to include a person to whom or for whom legal services are provided, so that no formal retainer is necessarily required for the duty to arise. DibbsBarker owed the High Court an obligation not to disclose the documents to Comcare without the authorisation of the High Court.

48    The party asserting that privilege has been waived carries the onus of proving the waiver: New South Wales v Betfair (2009) 180 FCR 543 at [53]. There is no evidence that the High Court authorised DibbsBarker to disclose the documents to Comcare. Accordingly, Ms von Stieglitz has not proved that the High Court waived privilege by providing the documents to DibbsBarker.

49    In summary, it is unnecessary to consider whether the applicant has demonstrated that Cowdroy J fell into jurisdictional error in deciding that common interest privilege was attracted. Even if it is assumed that the applicant is correct about common interest privilege, the grant of relief under s 39B of the Judiciary Act 1903 (Cth) is discretionary, and relief should be refused in the exercise of that discretion because it is clear that the Tribunal’s order was correct for another reason. That is because an inevitable consequence of his Honour’s findings of fact is that the High Court’s communication to DibbsBarker itself attracted legal professional privilege.

The third submission: that the Tribunal was obliged to read the AGS advice

50    Ms von Stieglitz’s third submission starts with the proposition that the Tribunal correctly decided that the High Court had waived privilege in respect of the advice provided by AGS dated 19 June 2008 by disclosing a memorandum which referred to that advice. She submits that the Tribunal was obliged to read the AGS advice in the course of considering whether the High Court had waived privilege in respect of any of the other documents for which privilege was claimed. She submits that if the Tribunal had undertaken that task, it would have noted a reference to an email advice from AGS dated 10 January 2008 and another advice dated 14 February 2008 in respect of which privilege was claimed and would have held that privilege had been waived in respect of those communications. She argues that the Tribunal’s failure to read the AGS advice and consider whether privilege had been waived in the documents that it referred to was a failure to take into account a relevant consideration or a failure to perform its statutory function. Ms von Stieglitz’s argument is that s 40 of the AAT Act and the circumstances of the case obliged Cowdroy J to examine the AGS advice for himself.

51    Cowdroy J was required to decide, pursuant to s 40(1D), whether to allow Ms von Stieglitz to inspect the documents over the High Court’s claims of privilege. It was in that context that the question of waiver arose. When a court or tribunal considers an application for inspection of documents, it is engaged in an exercise of discretion: Grant v Downs (1976) 135 CLR 674 at 688. The exercise of the court’s or tribunal’s power to inspect documents in the course of deciding whether to allow a party to inspect documents is itself discretionary: Westminister Airways Ltd v Kuwait Oil Co Ltd [1951] 1 KB 134 at 146 per Jenkins LJ. That the power is discretionary is confirmed by s 33(1)(a) of the AAT Act which provides that the procedure of the Tribunal is within the discretion of the Tribunal. There is nothing in the terms of s 40(1D) to suggest that there is any obligation on the part of the Tribunal to inspect the documents in question in order to decide whether to allow inspection by a party or to decide any question of waiver. It was a matter for the discretion of Cowdroy J whether to read the AGS advice. His Honour was not obliged to do so.

52    Further, the context of the application before Cowdroy J did not create any obligation on him to inspect the documents. It was not necessary for Cowdroy J to inspect the documents in order to respond to the submissions raised by Ms von Stieglitz: cf Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) ALJR 1088 at [24]. The first four submissions put to his Honour concerning waiver were cast at some level of generality and certainly did not require the reading of the documents. The fifth submission was that production of the memorandum which referred to the AGS advice constituted a waiver of privilege over all communications between 20 July 2007 and 9 February 2009. His Honour read that memorandum, noted that it referred to the advice from AGS and considered that privilege had been waived in respect of that advice. Ms von Stieglitz did not submit that his Honour must, or even should, read the letter of advice from AGS in order to determine whether it might refer to other privileged documents which might found some further argument for waiver. His Honour decided the case on the basis of the submissions put to him. His Honour made no error by not reading the AGS advice.

53    Even if Ms von Stieglitz were able to demonstrate that Cowdroy J’s failure to read the AGS advice amounted to some form of jurisdictional error, relief would be refused in the exercise of the Court’s discretion.

54    Ms von Stieglitz apparently read the AGS advice after she was given leave to inspect it and discovered that it referred to two other AGS advices. She has had the ability since then to apply to the Tribunal for leave to inspect those documents, as no issue estoppel arises: cf Midland Metals Overseas Ltd v Comptroller-General of Customs (1991) 30 FCR 87 at 96-97. She has not taken the opportunity to make any such application to the Tribunal, instead preferring to make the present application to this Court. The availability of relief before the Tribunal would suffice to warrant the refusal of the Court to exercise its discretion in favour of granting relief: Saitta Pty Ltd v Commonwealth of Australia (2000) 106 FCR 554 at [104]; McGowan v Migration Agents Registration Authority (2003) 129 FCR 118 at [77].

55    In addition, in Geographical Indications Committee v O’Connor (2000) 64 ALD 325, the Full Court referred at [26]-[28] to the undesirability of fragmenting proceedings in the Tribunal by the making of applications to the Federal Court seeking to challenge intermediate directions or determinations of the Tribunal. The Full Court referred to the particular undesirability of the making of such applications concerning a point of practice or procedure. The Court would also refuse to exercise its discretion to grant relief in this case because the issue is one that involves a matter of practice and procedure rather than the determination of substantive rights.

56    The application should be dismissed, as should the appeal. The applicant should pay the second respondent’s costs of the application and the appeal. The Court was informed that the applicant and the first respondent have agreed that as between them there should be no order as to the costs of the appeal. Given that the first respondent filed a submitting appearance in the application, there should be no order as to the costs of the application as between the applicant and the first respondent.

Associate:

Dated:    21 August 2014