FEDERAL COURT OF AUSTRALIA
EVIDENCE - client legal privilege - application for inspection of subpoenaed documents relating to the preparation of expert anthropological reports filed in native title proceedings - whether privilege lost - whether the test stated in the Evidence Act 1995 (Cth) applies or whether the common law principles concerning implied waiver apply - whether inspection of documents reasonably necessary to enable a proper understanding of the expert reports, within s 126 of the Evidence Act 1995 (Cth).
WORDS AND PHRASES - Evidence Act 1995 (Cth), s 126 - “reasonably necessary” - “proper understanding”.
Evidence Act 1995 (Cth), ss 117(1), 118, 119, 122, 126.
Australian Law Reform Commission, Evidence (Report No 26 (Interim), August 1985).
Australian Law Reform Commission, Evidence (Report No 38 (Final), June 1985).
Attorney-General for the Northern Territory v Maurice (1986) 161 CLR 475, considered.
Goldberg v Ng (1995) 185 CLR 83, cited.
Grant v Downs (1976) 135 CLR 674, cited.
General Accident Corp v Tanter [1984] 1 WLR 100, cited.
Telstra Corporation Ltd v Australis Media Holdings Pty Ltd, Supreme Court of New South Wales, Equity Division, McLelland CJ in Eq, 20 February 1997, unreported, followed.
Telstra Corporation Ltd v Australis Media Holdings Pty Ltd, Supreme Court of New South Wales, Equity Division, McLelland CJ in Eq, 26 February 1997, unreported, cited.
Trade Practices Commission v Port Adelaide Wool Co Pty Ltd (1995) 60 FCR 366, followed.
Buttes Gas and Oil Co v Hammer (No 3) [1981] 1 QB 223, cited.
Infields Ltd v P Rosen & Son [1938] 3 All ER 591, cited.
TOWNEY v MINISTER FOR LAND AND WATER CONSERVATION FOR THE STATE OF NEW SOUTH WALES & ORS
NG 6001 of 1995
SACKVILLE J
SYDNEY
23 JULY 1997
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IN THE FEDERAL COURT OF AUSTRALIA |
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GENERAL DIVISION |
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DAVID TOWNEY Applicant
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MINISTER FOR LAND AND WATER CONSERVATION FOR THE STATE OF NEW SOUTH WALES as State Minister under the NATIVE TITLE ACT 1993 (Cth) First Respondent
ALKANE EXPLORATION NL AND ASSOCIATED GOLD FIELDS NL (as joint venturers in the Peak Hill Gold Project (NSW)) Second Respondent
PARKES SHIRE COUNCIL Third Respondent
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JUDGE(S): |
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PLACE: |
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DATED: |
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THE COURT ORDERS THAT:
1. The first respondent be permitted to inspect the following documents produced to the Court in response to subpoenas issued by the first respondent:
a) The report by Dr Sutton dated 18 January 1996 entitled “Native Title Anthropological Concepts: Systems of Aboriginal Law and Customs” (referred to in the proceedings as “Sutton 1996a”).
b) The bundle of documents entitled “Peak Hill Anthropological Report Assessment Prepared for [Dr] Macdonald Under Instructions from the Native Title Unit of the New South Wales Aboriginal Land Council” (referred to in the proceedings as “Sutton 1996b”).
c) All correspondence, reports and records of communication passing between Dr Sutton and Dr Macdonald, containing comments, assessments or recommendations by Dr Sutton in respect of the drafts of the two reports prepared by Dr Macdonald and filed by the applicant in proceedings, namely:
a) the report filed by the applicant on 19 January 1996 entitled“Interim Anthropological Materials”, and
b) the report filed by the applicant on 16 April 1996 entitled “Bogan River Wiradjuri Anthropological Report”,
or containing any responses by Dr Macdonald to the comments, assessment or recommendations of Dr Sutton.
Note: Settlement and entry of orders is dealt with in Order36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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GENERAL DIVISION |
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REASONS FOR JUDGMENT
This is, or has been treated as, an application to inspect certain documents produced to the Court in response to subpoenas issued in proceedings for a determination of native title. There is no dispute between the parties to this application that the documents, at the time they were brought into existence, were the subject of legal professional privilege. The issue is whether legal professional privilege, or “client legal privilege” as it is described in the Evidence Act 1995 (Cth) (“Evidence Act”), has been lost, either by reason of the operation of the Evidence Act or common law principles of waiver of privilege laid down by the High Court in Attorney-General for the Northern Territory v Maurice (1986) 161 CLR 475 and applied in Goldberg v Ng (1995) 185 CLR 83.
The principal proceedings were commenced by an application filed in the National Native Title Tribunal (“Tribunal”) in May 1994, for a determination that native title exists over an area at Peak Hill in New South Wales. The applicant is a member of the Bogan River Wiradjuri people and claims, through his ancestors, an unbroken history of connection with the claimed area. The applicant brings the claim on behalf of the Wiradjuri people of the country now known as Peak Hill, the application nominating seventeen families as representing the Wiradjuri people. On 25 January 1995, a Deputy President of the Tribunal directed the Registrar of the Tribunal, pursuant to s 74 of the Native Title Act 1993 (Cth) (“NT Act”), to lodge the application with this Court for determination.
There are three respondents to the native title claim, as follows:
· the Minister for Land and Water Conservation for the State of New South Wales, as State Minister under the NT Act (the “Minister”);
· Alkine Exploration NL and Associated Gold Fields NL, as joint venturers in the Peak Hill Gold Project; and
· Parkes Shire Council.
In August 1996 and February 1997, the Minister served a total of six subpoenas on four persons, viz, Dr Gaynor Macdonald (two subpoenas); Dr Peter Sutton (two subpoenas); Mr Simon Correy and Dr Pauline Newell. Each of these persons is an anthropologist who has been engaged by or on behalf of the applicant to prepare, or assist in the preparation of expert anthropological reports to be filed in the proceedings. The recipients of the subpoenas have produced a number of documents to the Court. Questions of inspection relating to most of the documents have been resolved. However, there remains a contest as to the inspection of six documents or classes of documents (including one audio cassette). I shall identify these documents or classes of documents after dealing with the procedural history.
PROCEDURAL HISTORY
On 28 September 1995 a Judge of the Court ordered, with the consent of the parties, that the applicant lodge with the Registry, in accordance with a specified timetable:
“(e) a report from the expert or experts whose evidence will be relied upon by the claimants in support of the claim, dealing comprehensively with the culture of the claimant’s society from 1788 to the present including:
(i) kinship (including descent and marriage principles) and social organisation;
(ii) spirituality and ceremonial life;
(iii) sites;
(iv) responsibilities and rights in relation to land including the composition of the kin networks associated with particular areas of land;
(v) customs or laws relating to succession, amalgamation or incorporation within or between kin networks;
(vi) variation in the rights, functions and responsibilities of different members of kin networks;
and containing a statement of the qualifications and experience of, and an account of the field work and other sources relied upon by, each author in the preparation of the report”.
Pursuant to that direction, the applicant filed a report on 19 January 1996 entitled “Interim Anthropological Materials” (“Interim Anthropological Report”) prepared by Dr Macdonald, who holds positions in Anthropology at two Australian universities. On 16 April 1996, the applicant filed a second report prepared by Dr Macdonald, entitled “Bogan River Wiradjuri Anthropological Report” (“Final Anthropological Report”). The Final Anthropological Report states (at vi) that, owing to limitations on Dr Macdonald’s availability to work on the project, the report was compiled with the extensive assistance of a number of staff. Among the contributions acknowledged was that of Mr Correy as a “field assistant”. Mr Correy’s qualifications and contributions were described as follows:
“Qualifications: BA (Hons.) (Syd) 1994
Currently MA candidate, Anthropology, Charles Sturt University
Contributions: Mr Correy has conducted extensive field work in Peak Hill and neighbouring areas, including oral history interviews, genealogical work, compilation of materials for the Site Register, and local history and archival work.”
The report identifies a number of people who have “made a particularly valuable contribution”, including
“Dr Peter Sutton, Consultant Anthropologist,...engaged by the New South Wales Aboriginal Land Council’s Native Title Unit to review drafts of this Report. He provided extensive and invaluable comments.”
Subpoenas directed to Dr Macdonald, Dr Sutton, Dr Newell and Mr Correy were issued on the application of the Minister on 13 August 1996 and subsequently served. Documents were produced to the Court in response to these subpoenas. However, Dr Macdonald, Dr Sutton and Mr Correy objected to the Minister inspecting certain documents, on the ground that they recorded or contained privileged material. It was claimed that the privilege was that of the applicant. A Registrar of the Court directed that affidavits be filed in relation to the objections to inspection and that the matter be referred to a Judge of the Court for determination. Further subpoenas directed to Dr Macdonald and Dr Sutton were issued on 28 February 1997. Objections to inspection of some of the documents covered by these subpoenas were put forward on similar grounds. On this occasion, a Registrar again directed that affidavits be filed in relation to the objections and that the matter be referred to a Judge.
I have said that the present application, brought by the Minister, has been treated as one for inspection of the six documents or classes of documents said by the applicant in the proceedings to be the subject of privilege which has not been lost or waived. The authorities suggest that questions of privilege should be resolved at the first of the three stages in the procedure governing the production of documents by a third party and the subsequent use of those documents: National Employers’ Mutual General Association Ltd v Waind [1978] 1 NSWLR 372, at 382-383, per Moffitt P; on appeal (1979) 141 CLR 648. That is, the question should be considered at the stage when production is sought of the documents, rather than at the second stage when the court is considering whether inspection should be granted. (The third stage is the admission of the document in evidence or its use in cross-examination: Waind, at 381.) However, nothing appears to turn on this distinction for the purposes of the present case.
THE DOCUMENTS SOUGHT ON SUBPOENA
The documents (including one tape cassette) which the Minister seeks to inspect were produced to the Court by Dr Macdonald, Dr Sutton and Mr Correy. The Minister identified them under eight headings. Dr Renwick, who appeared on the Minister’s behalf, did not press the application to inspect in respect of two of the eight categories of documents. I set out below the six documents or categories of documents sought to be inspected by the Minister. I use the numbering system adopted by the parties in their submissions, eliminating the two categories not pressed. I refer to the six documents, or categories of documents, collectively, as the “claimed documents”.
#1 Sutton 1996a
The first document sought is a report by Dr Sutton, dated 18 January 1996, entitled “Native Title Anthropological Concepts: Systems of Aboriginal Law and Custom” (“Sutton 1996a”). Dr Sutton prepared this report in consequence of his engagement by the Native Title Unit of the NSW Aboriginal Land Council (“NSWALC”), on behalf of the present applicant, to provide expert anthropological advice in relation to the applicant’s claim. Sutton 1996a is included in the list of references recorded at the end of the Final Anthropological Report.
#2 Sutton 1996b
Dr Sutton was also retained by the NSWALC, on behalf of the applicant, to assist Dr Macdonald in preparing her reports. Dr Sutton discharged this task by reading Dr Macdonald’s draft reports, discussing the drafts with her and making suggestions in relation to those drafts. A bundle of documents was prepared, comprising the drafts as well as copies of facsimile transmissions between Dr Sutton and Dr Macdonald. These communications contain, for the most part, suggestions by Dr Sutton in relation to the reports being prepared by Dr Macdonald, and her responses to those suggestions. The bundle is entitled “Peak Hill Anthropological Report Assessment Prepared for [Dr] Macdonald Under Instruction from the Native Title Unit of [the NSWALC]” (“Sutton 1996b”). Sutton 1996b constitutes the second category of the documents which the Minister seeks to inspect. Sutton 1996b is also included in the list of references recorded at the end of the Final Anthropological Report.
#4 Other Communications Between Dr Sutton and Dr Macdonald
Under this heading, the Minister seeks to inspect all correspondence, reports or records of communication passing between Dr Sutton and Dr Macdonald, containing comments, assessments or recommendations in respect of the drafts of the two reports prepared by Dr Macdonald, namely, the Interim Anthropological Report and the Final Anthropological Report.
#5, #6 Records of Negotiating Team Meetings
On 24 January 1996, a meeting took place in Peak Hill between Dr Macdonald and the members of a negotiating team appointed by what was described as “the claimant group”. According to the affidavit evidence, Dr Macdonald’s purpose in calling the meeting was “to advise the negotiating team of the progress of the [Anthropological Reports], the preparation of the case generally, and to obtain information from them in relation to particular matters”. The discussion included reference to the following general topics:
· the relationship between the native title case and a mine being developed on Peak Hill;
· the reason for the presence of Ray Keed [a member of the claimant group] at the meeting;
· the significance to the claimants of the native title claim;
· general political and historical views of the NT Act, the judgment of the High Court in Mabo v Queensland No 2 (1992) 175 CLR 1and the doctrine of terra nullius;
· recognition of the Wiradjuri nation; and
· the importance of continuing political action in improving the social and economic position of Aboriginal peoples.
The item identified as #5 is a part of an audio cassette, recording a portion of the conversations that took place on 24 January 1996. The document identified as #6 is an excerpt from one page of a field book maintained by Mr Correy. The extract includes references by Mr Correy to the conversations which took place on 24 January 1996.
#8 Notes Concerning Meeting of 1 March 1996
On 1 March 1996, a meeting took place in Glebe between Dr Macdonald, Mr Winter (a field assistant employed by her) and Mr Correy. The purpose of the meeting, according to uncontradicted evidence, was to discuss preparation of the incomplete reports, including discussion of anthropological theories to be relied on and the evidence to hand. The documents identified under this heading comprise several pages of Mr Correy’s field book, containing notes of the meeting.
Client Legal Privilege
It was common ground between the parties that all of the documents the Minister seeks to inspect are the subject of legal professional privilege or client legal privilege, unless that privilege has been lost. Neither Dr Renwick, nor Mr Williams, who appeared for the applicant, specified whether the privilege arose by virtue of common law principles or by reason of the provisions of s 119 of the Evidence Act (which, in terms, is confined to identifying evidence that “is not to be adduced”). However, the parties seemed to accept that, whether the appropriate test is the common law “sole purpose” test (Grant v Downs (1976) 135 CLR 674, at 682-688, per Stephen, Mason and Murphy JJ), or the “dominant purpose” test incorporated in s 119 of the Evidence Act, each of the documents in issue, and each of the communications recorded or contained therein, satisfies the test.
Inspection of the Documents
Mr Williams accepted that the Court has power to inspect the claimed documents if inspection is likely to assist in resolving the issues to be decided: Grant v Downs, at 677, per Barwick CJ; at 689, per Stephen, Mason and Murphy JJ. He expressed a preference that I should decide the issues “as a matter of principle”, without reference to the claimed documents. However, Mr Williams acknowledged that inspection was a course open to me. Without objection, all of the claimed documents were placed before me.
In the event, I have inspected Sutton 1996a and some sections of Sutton 1996b in order to form a view whether it could be said that some portions of these documents are clearly irrelevant to Dr Macdonald’s analysis in the Final Anthropological Report. I have not inspected any of the other claimed documents, although I glanced briefly at Mr Correy’s notebook during the hearing.
THE LEGISLATION
The Evidence Act
The Evidence Act, Part 3.10, Division 1 deals with “client legal privilege”. Section 118 provides that evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure, inter alia, of a confidential communication made between the client and a lawyer “for the dominant purpose of the lawyer...providing legal advice to the client”. Section 119 addresses the question of privilege in relation to litigation:
“119. 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) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made; or
(b) the contents of a confidential document (whether delivered or not) that was prepared;
for the dominant purpose of the client being provided with professional legal services relating to an Australian...proceeding (including the proceeding before the court), or an anticipated or pending Australian ...proceeding, in which the client is or may be, or was or might have been, a party.”
“Confidential communication” is defined in s 117(1) to mean:
“a communication made in such circumstances that, when it was made:
(a) the person who made it; or
(b) the person to whom it was made;
was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law”.
The expression “client” includes an agent of a client, while “lawyer” includes an agent of the lawyer: s 117(1).
Section 122 deals with some of the circumstances in which client legal privilege may be lost. It provides as follows:
“122(1) This Division does not prevent the adducing of evidence given with the consent of the client or party concerned.
(2) Subject to subsection (5), this Division does not prevent the adducing of evidence if a client or party has knowingly and voluntarily disclosed to another person the substance of the evidence and the disclosure was not made:
(a) in the course of making a confidential communication or preparing a confidential document; or
(b) ...
(c) under compulsion of law; or
(d) ...
...
(4) Subject to subsection (5), this Division does not prevent the adducing of evidence if the substance of the evidence has been disclosed with the express or implied consent of the client or party to another person other than:
(a) a lawyer acting for the client or party; or
(b) ...
(5) Subsections (2) and (4) do not apply to:
(a) a disclosure by a client to another person if the disclosure concerns a matter in relation to which the same lawyer is providing, or is to provide, professional legal services to both the client and the other person; or
(b) ...”.
Section 126 deals with the loss of client legal privilege concerning related communications. It provides as follows:
“126. If, because of the application of section [122], this Division does not prevent the adducing of evidence of a communication or the contents of a document, [the section does] not prevent the adducing of evidence of another communication or document if it is reasonably necessary to enable a proper understanding of the communication or document.”
Legislative History
It is convenient to set out briefly the history of ss 122 and 126 of the Evidence Act, both of which stem from the reference to the Australian Law Reform Commission (“ALRC”) on the laws of evidence: Report No 26 (Interim), Evidence, vols 1 and 2 (August 1985) (“ALRC Interim Report”); Report No 38, Evidence (June 1987) (“ALRC Final Report”).
The ALRC Interim Report proposed that the legislation should incorporate the dominant purpose test in place of the sole purpose test accepted by the High Court in Grant v Downs: vol 1, para 881. The ALRC Interim Report addressed the issue of loss of the privilege by disclosure (at para 885), as follows:
“Disclosure. Reference has been made to uncertainty about the effect of voluntary disclosure by the client and the circumstances in which secondary evidence of privileged communications may be given. As to the first issue, an option considered was that the loss of privilege should be limited to the occasion of the disclosure. However, consistently with the need to ensure that the privilege does not extend beyond what is necessary and having regard to its rationale, voluntary publication by the client should bring the privilege to an end. If the person entitled to claim the privilege, or his servant or agent, voluntarily discloses or consents to the disclosure of the substance of any communication or material protected by the privilege to another person, the protection should be lost as to the part disclosed and connected communications [cf General Accident Corp v Tanter [1984] 1 WLR 100.] unless the communication or material was disclosed to a co-client or to a person for the purpose of obtaining or continuing legal assistance or the person was tricked into disclosing the material or it was compelled in error. [The client may be able to rely upon other privileges for protection.] As to the second issue, the protection should not be lost if evidence of the communication or material was obtained accidentally or illegally.” [The footnotes to this passage are recorded within the square brackets.]
It is to be noted that the phrase “connected communications” is not explained, except by the rather oblique reference to General Accident Corp v Tanter. One issue in Tanter was whether adducing evidence of an otherwise privileged note of a conversation amounts to a waiver of privilege, not merely of the transaction covered by the note (that is, the conversation), but of all communications relating to the subject matter of the conversation. Hobhouse J held (at 114-115) that the waiver is limited to the transaction covered by the note.
The ALRC Interim Report includes a draft Evidence Bill (vol 2, Appendix A). Clause 106 of the Evidence Bill contains provisions either identical to or similar to those ultimately incorporated in s 122(1), (2), (3) and (4) of the Evidence Act: see: Evidence Bill, cl 106(1), (6), (8), (12), ALRC Interim Report, vol 2, at 53-54. Clause 106(13) is in terms very similar to those ultimately enacted by s 126 of the Evidence Act. However, the ALRC Interim Report does not explain why the particular language used in cl 106(13) was chosen.
The ALRC Final Report sheds no further light on the proposals and draft legislation relating to the loss of client privilege: ALRC Final Report, Ch 16. The ALRC Final Report states that it reflects the law as at 1 August 1986, a date prior to the High Court’s decision in AG (NT) v Maurice, which was handed down on 16 December 1986. Clause 107 of the draft Evidence Bill, included in the ALRC Final Report, containsprovisions to the same effect as those in cl 106 of the earlier draft Evidence Bill included in the ALRC Interim Report: ALRC Final Report, Appendix A, at 182-184. Clause 107(14) of the later draft is, in substance, identical to cl 106(13) of the earlier draft. The notes to the Evidence Bill included in the ALRC Final Report do not explain the particular language employed in cl 107(14), which was ultimately enacted by s 126 of the Evidence Act.
It should be noted that Appendix C to the ALRC Final Report, outlining “Developments in the Law of Evidence”, refers briefly to the decision of the High Court in AG (NT) v Maurice: Appendix C, para 34. However, Appendix C does not address the drafting of cl 107 of the Evidence Bill included in the ALRC Final Report.
SUBMISSIONS
Dr Renwick contended that the test to be applied in determining whether the applicant has lost privilege in the claimed documents, is that formulated by the High Court in AG (NT) v Maurice for cases of implied waiver. In that case, it was said that “implied waiver occurs when, by reason of some conduct on the privilege holder’s part, it becomes unfair to maintain the privilege”: AG (NT) v Maurice, at 487, per Mason and Brennan JJ. Dr Renwick submitted that, in the circumstances of the present case, it would be unfair to permit the applicant to retain privilege in the claimed documents. The Minister is entitled to assess the accuracy and weight of the Interim and Final Anthropological Reports and this cannot be done unless it is known in what sources the Reports were based. Furthermore, at least in the case of Sutton 1996a and Sutton 1996b, the Final Anthropological Report directly quoted from, or expressly relied, on Dr Sutton’s work. In any event, it was clear that Dr Macdonald had relied on Dr Sutton’s work and that was enough to require the whole of that work to be produced.
In the alternative. Dr Renwick submitted that, if the provisions of the Evidence Act govern the application to inspect the claimed documents, any client legal privilege in the Final Anthropological Report has been lost because the Report had been “knowingly and voluntarily disclosed” within the meaning of s 122(2) of the Evidence Act. It followed that s 126 of the Evidence Act does not prevent the adducing of evidence of source documents if they are “reasonably necessary to enable a proper understanding“ of the Final Anthropological Report. Each of the documents sought satisfies the test in s 126, either because they are referred to in the Final Anthropological Report or constitute source material necessary to assess and test the reasoning and conclusions in that Report.
Mr Williams, on behalf of the applicant in the proceedings, submitted that client legal privilege in general, and loss of the privilege in particular, are now governed by the Evidence Act and not by the common law principles. He accepted that any privilege otherwise attaching to the Final Anthropological Report has been lost by virtue of the applicant knowingly and voluntarily disclosing its contents by filing and serving the document. However, Mr Williams disputed that any of the claimed documents are reasonably necessary to enable a proper understanding of the Final Anthropological Report. If, contrary to his submissions, the test in AG (NT) v Maurice is to be applied, he submitted that it is not unfair for the applicant to continue to maintain privilege in the claimed documents.
REASONING
Which Rules Apply?
Part 3.10, Division 1, of the Evidence Act specifies circumstances in which “evidence is not to be adduced” (for example, ss 118, 119) and those in which the Act “does not prevent the adducing of evidence” (for example, ss 122, 126). Under the common law, legal professional privilege applies from the time confidential communications are made. The existence of the privilege is not dependent upon litigation being in progress or even contemplated; nor is the privilege confined to judicial and quasi-judicial proceedings: Baker v Campbell (1983) 153 CLR 52. The Evidence Act, reflecting the terms of the draft legislation proposed by the ALRC, does not extend to processes ancillary to litigation. As McLelland CJ in Eq observed in Telstra Corporation Ltd v Australis Media Holdings Pty Ltd, S Ct NSW, Eq Div, 20 February 1997, unreported, at 3,
“the expression ‘adducing of evidence’ in the corresponding clauses...of the draft bill was not intended to include ancillary processes, because the Law Reform Commission considered that its terms of reference limited it ‘to considering the application of the privilege in the Court room where evidence is sought to be given’”.
While the wording of Division 1 of Part 3.10 of the Evidence Act does not extend to ancillary processes, the authorities strongly suggest that the significance of provisions such as ss 122 and 126 of the Act is not confined to the situation where it is sought to adduce evidence of documents and to be subject to client legal privilege. In Trade Practices Commission v Port Adelaide Wool Co Pty Ltd (1995) 60 FCR 366, Branson J dealt with an application for the production of discovered documents. The application was governed by Federal Court Rules (“FCR”), O 15, r 15, which provides that the Court shall not make an order for the production of any document unless satisfied that the order is “necessary”. Her Honour said, at 370, that the fact that evidence could not be adduced, over objection, if it would result in disclosure of the contents of a confidential document, would “ordinarily be telling” as to whether production of the document could be said to be “necessary” within FCR, O 15, r 15. Her Honour continued (at 370):
“It would be a curious result, in my view, if a party to proceedings in this Court could be required to produce for inspection by the other party or parties during pre-trial procedures, or indeed in court, a confidential document prepared, for example, for the dominant, but not the sole, purpose of a lawyer providing legal advice to that party, notwithstanding that at trial that party could successful object on the ground of client legal privilege to any evidence being adduced which would result in disclosure of the contents of the document. That is, logic at least would seem to suggest that the ambit of client legal privilege should be constant throughout the litigation process. That logic is reflected in the fact that historically legal professional privilege with respect to the contents of documents has had the same ambit whether invoked as a privilege against production of documents outside of the courtroom as part of the discovery process, or as a privilege against disclosing the contents of such documents within the courtroom either by their physical production or by disclosure of their contents in response to questions asked in cross-examination.”
See also BT Australasia Pty Ltd v State of New South Wales (1996) 140 ALR 268 (FCA/Sackville J).
In Telstra v Australis Media, McLelland CJ in Eq considered whether claims for privilege in respect of documents the subject of subpoenas fall to be determined in accordance with the principles expressed in Part 3.10, Division 1, of the Evidence Act 1995 (NSW), the common law rules, or a combination of both. His Honour accepted (at 2-3) that the provisions of Part 3.10, Division 1 of the Evidence Act 1995 (NSW), which is relevantly in the same terms as its Commonwealth counterpart, cannot apply directly to ancillary processes. Nonetheless, he held (at 3) that
“the enactment of the Evidence Act principles in respect of the adducing of evidence at a hearing has resulted, as an indirect or flow-on effect, in the application of equivalent principles to all ancillary processes.”
After citing the passage from Branson J’s judgment in TPC v Port Adelaide Wool, to which I have already referred, McLelland CJ in Eq continued as follows (at 4-5):
“If principles of client legal privilege (as I think it should now be called) applicable to the adducing of evidence were to differ from those applicable to ancillary processes, the consequences would be anomalous, conducive to confusion and disorder in the preparations for and conduct of proceedings, and verging on the absurd. The adducing of evidence at a hearing and ancillary processes are functionally linked. Moreover, both may occur at the same time and place. For example, production of a document during a hearing under a subpoena or notice to produce may be resisted on the ground of client legal privilege - it would be anomalous if different principles of client legal privilege governed the production of the document on the one hand, and the adducing of the document in evidence on the other....If different principles of client legal privilege were applied to the question of the production of the document on the one hand, and the adducing of evidence in the application on the other, in situations of this kind, quite impractical consequences could ensue.
For the above reasons, the Evidence Act principles should be treated as applying, not directly but derivatively, to the claims of privilege presently under consideration.”
The decision of McLelland CJ in Eq is not binding on this Court. However, it is a considered decision on an identical point, concerning legislation that has been enacted both by the Commonwealth Parliament and by the Parliament of New South Wales. Both enactments derive from a common source, namely, the ALRC Final Report. Moreover, the reasoning of McLelland CJ in Eq is consistent with the dicta of Branson J in TPC v Port Adelaide Wool. I think that the appropriate course is to follow the decision when determining whether documents said to be the subject of privilege should be produced to the court or be made available for inspection, unless I consider that the decision is clearly wrong. Dr Renwick did not put forward any reason to suggest that the decision is clearly wrong and I do not think it is. On the contrary, with respect, I think that the reasoning of McLelland CJ in Eq is convincing. Accordingly, I approach the present case on the basis that the question of loss of privilege in relation to the claimed documents is to be determined according to the principles expressed in the relevant provisions of the Evidence Act.
Construction of Evidence Act, s 126
As I have noted, the applicant does not dispute that he has lost any client legal privilege that might have otherwise existed in respect of the Final Anthropological Report. The question, then, is whether inspection of the claimed documents, or any of them, “is necessary to enable a proper understanding” of the Final Anthropological Report, within the meaning of s 126 of the Evidence Act. I do not think it either necessary or desirable to attempt to specify exhaustively the meaning that should be attributed to the language in s 126. However, I think that certain general comments can be made.
Section 126 does not specify whose understanding is to be considered, when determining whether or not a source document is reasonably necessary “to enable a proper understanding” of a document in respect of which client legal privilege has been lost by reason of a voluntary disclosure. In my view, the legislation contemplates the application of an objective standard, rather than an assessment of the likely understanding of a particular individual, such as an expert witness who is to be called in the proceedings, or a party to the litigation. That an objective standard is contemplated is indicated by the phrase “reasonably necessary”, and by the fact that the latter part of s 126 is drafted in the passive tense. A court considering whether client legal privilege has been lost under s 126 must determine for itself whether the statutory standard has been satisfied in the particular circumstances of the case. In doing so, the court will take into account the forensic purpose for which it is proposed to use the document voluntarily disclosed.
Dr Renwick argued that the statutory standard, in substance, merely restates the test formulated in AG (NT) v Maurice and that it should be interpreted in accordance with the principles laid down in that case. In AG (NT) v Maurice, Mason and Brennan JJ stated the common law test of implied waiver this way (at 487-488):
“An implied waiver occurs when, by reason of some conduct on the privilege holder’s part, it becomes unfair to maintain the privilege.
The holder of the privilege should not be able to abuse it by using it to create an inaccurate perception of the protected communication. Professor Wigmore explains:
“[W]hen his conduct touches a certain point of disclosure, fairness requires that his privilege shall cease whether he intended that result or not. He cannot be allowed, after disclosing as much as he pleases, to withhold the remainder.” (Wigmore, Evidence in Trials at Common Law (1961), vol.8, par 2327, p 636.)
In order to ensure that the opposing litigant is not misled by an inaccurate perception of the disclosed communication, fairness will usually require that waiver as to one part of a protected communication should result in waiver as to the rest of the communication on that subject-matter: see Great Atlantic Insurance Co v Home Insurance Co [1951] 1 WLR 529”.
See also at 481, per Gibbs CJ; at 492-493, per Deane J; at 497-498, per Dawson J; Goldberg v Ng, at 95-97.
I do not think that s 126 can be read as simply incorporating, unchanged, the common law test of implied waiver. It is clear that Part 3.10, Division 1, of the Evidence Act departs from the common law in important respects. The changes include the formulation of a new test for determining whether client legal privilege exists: see K Smark “Privilege under the Evidence Acts” (1995) 18 UNSWLJ 95, at 97-100. Indeed, s 122, which deals with loss of the privilege in the case of disclosure, departs from the common law test for determining whether a party has impliedly waived privilege: see Telstra Corporation Ltd v Australis Media Holdings Pty Ltd [No.2], S Ct NSW, Eq Div, McLelland CJ in Eq, 26 February 1997, unreported, which examines the apparent inconsistencies between the language of s 122(2) and that of s 122(4) of the Evidence Act. Therefore, it cannot be safely assumed that s 126 is intended to embody the common law test of waiver of legal client privilege.
The fact is that the criterion specified in s 126 for determining whether client legal privilege is lost is not the same as that laid down by the High Court in AG (NT) v Maurice for determining whether legal professional privilege has been impliedly waived. The task of the Court is to apply the statutory language used by Parliament, and not to substitute a different test merely because it reflects the pre-existing law. I should add that the legislative history, to which I have referred earlier, does not lend support to any different view. Neither the ALRC Interim Report nor the ALRC Final Report explains why the language ultimately adopted in s 126 was chosen in the draft Evidence Bills. But there is nothing in the ALRC Reports to suggest that the drafting was intended to be an oblique means of incorporating the unfairness test adopted in AG (NT) v Maurice. Had the drafter wished to adopt that test, it would have been very easy to do so.
This is not to deny that there is likely to be considerable overlap between the considerations relevant to the common law test governing waiver of legal professional privilege and those relevant to the test for loss of client legal privilege, specified in s 126. For example, as AG (NT) v Maurice makes clear, an important factor in determining whether the privilege has been impliedly waived under the common law is whether it would be misleading for a party to refer to or use certain privileged material, yet insist that the remainder of the privileged material should remain protected. Similarly, if one party discloses a privileged document or communication, in circumstances that make the disclosure misleading unless associated privileged material is also disclosed, it would be difficult to dispute that disclosure of the associated material is “reasonably necessary to enable a proper understanding of” the document already disclosed.
In applying the standard specified by s 126 of the Evidence Act, it is to be borne in mind that the expression “proper understanding” is by no means narrow. The dictionary definition of “proper” includes “complete or thorough”; the definition of “understand” includes “to apprehend clearly the character or nature of” and “to grasp the significance, implications or importance of” (Macquarie Dictionary). It may or may not be correct to say that the test stated in s 126 of the Evidence Act is, or appears to be, narrower than the principles governing implied waiver under the general law: cf Cross on Evidence (Aust ed), par 25300. Any precise assessment of the scope of s 126 must await further decisions. However, I think it fair to say that, if a privileged document is voluntarily disclosed for forensic purposes, and a thorough apprehension or appreciation of the character, significance or implications of that document requires disclosure of source documents, otherwise protected by client legal privilege, ordinarily the test laid down by s 126 of the Evidence Act will be satisfied.
I should add this. Dr Renwick submitted that if a source document is referred to in a report, inspection of the source document must be reasonably necessary for a proper understanding of the report. I do not think that a proposition of that breadth should be accepted. It may be perfectly clear, for example, that the source document has been referred to for a very limited purpose, and that no further reference to the source document could assist in a proper understanding of the report. Again, a source document may be very clearly divided into discrete parts, and only one part might conceivably be relevant to gaining a proper understanding of the report. It could not be said in these circumstances that inspection of the other portions of the source document is reasonably necessary to enable a proper understanding of the report. In short, a mere reference to a privileged source document, of itself, does not necessarily result in loss of the privilege attaching to the whole or even part of that source document. The circumstances of the case must be examined. In this connection, it is perhaps worth noting that, under the common law, a mere reference to a privileged document in a pleading or affidavit does not constitute an implied waiver of privilege in that document: Buttes Gas and Oil Co v Hammer (No.3) [1981] 1 QB 223, at 252, per Donaldson LJ; at 268, per Brightman LJ; Infields Ltd v P Rosen & Son [1938] 3 All ER 591, at 597, per Greene MR; AG (NT) v Maurice, at 481, per Gibbs CJ.
THE CLAIMED DOCUMENTS
#1 Sutton 1996a
I referred earlier to the circumstances in which Sutton 1996a came to be prepared. The Final Anthropological Report, besides recording Sutton 1996a in the list of references, considers Dr Sutton’s views, as recorded in his report, at some length. The Final Anthropological Report (at 114) cites Sutton 1996a as having developed the notion of “absolute continuities”, in order to refer to the “continuous and unchanging maintenance of characteristics of classical traditions”. This reference is followed by a quotation from Sutton 1996a discussing further the concept of “absolute continuities”.
Under the heading “Transformations as underlying continuities”, the Final Anthropological Report (at 114) adopts Dr Sutton’s use of the notion of “underlying continuities” as a means of referring to
“situations in which it can be discerned that there are underlying continuities in the deep surface structure, despite the fact that change is evident at the manifest level or surface”.
This adoption of Dr Sutton’s concept is followed by a lengthy quotation from Sutton 1996a and a suggestion that an example used by Dr Sutton in his analysis applies to the Wiradjuri people.
I have not had the benefit of having been taken through the Final Anthropological Report and Sutton 1996a in depth. However, it is clear that concepts formulated by Dr Sutton, in an otherwise privileged document, have been adapted and applied by Dr Macdonald (at 113) in order (in her words)
“to show in some detail how the laws and customs of the Bogan River Wiradjuri constitute a continuity of tradition which has responded in various and creative ways to the historical contingencies of colonial policies and practices”.
Dr Macdonald herself describes the notions developed by Dr Sutton as “key concepts”.
It seems to me that inspection of Sutton 1996a is reasonably necessary to enable a proper understanding of the Final Anthropological Report. The Final Anthropological Report is intended to be used in evidence in support of the applicant’s claim. In this respect it is different from the Claim Book at issue in AG (NT) v Maurice , which was not intended to constitute evidence in the proceedings. Unless Sutton 1996a is made available, it is likely to be difficult for any observer - including a hypothetical judge - to understand fully Dr Macdonald’s analysis contained in the Final Anthropological Report. At the least, inspection of Sutton 1996a is needed in order to determine whether Dr Macdonald’s analysis is wholly consistent with Dr Sutton’s approach. Such a determination seems to me to be reasonably necessary for a thorough apprehension or appreciation of the character, significance or implications of the Final Anthropological Report.
Sutton 1996a is a relatively brief document, comprising seven pages of text, plus an appendix extracting part of another report prepared by Dr Sutton. As I have already said, I have inspected Sutton 1996a. Several pages of the text of the document clearly relate to the concepts of underlying or absolute continuity adopted in the Final Anthropological Report. Although Mr Williams made no concession that the remainder of Sutton 1996a was relevant to these concepts, he did not submit that I should attempt to work out which portions of Sutton 1996a are, or might be, relevant to the analysis undertaken in the Final Anthropological Report. I do not think I am in a position to attempt that task. In any event, the impression gained from my brief inspection of Sutton 1996a is that the document needs to be read as a whole in order to shed light on the analysis undertaken in the Final Anthropological Report, insofar as that analysis is based on the concepts developed in Dr Sutton’s document.
I therefore conclude that the applicant has lost client legal privilege in respect of Sutton 1996a.
#2 Sutton 1996b
For similar reasons, there are at least some portions of Sutton 1996b in respect of which the applicant has lost client legal privilege. The Final Anthropological Report includes a table, which is said to be derived from Sutton 1996b. The Final Anthropological Report states (at 3) that Dr Sutton has developed
“an efficient model for both unravelling a constant confusion in the early literature between...residential/land-using categories and land-affiliated categories, and for illustrating the relationship between past structures of social-spatial relations and contemporary ones”.
The table itself is headed “Structures of social-spatial relations”.
Even without any inspection of Sutton 1996b, it seems to me that inspection of Dr Sutton’s analysis is essential to an understanding of the table and of the subsequent reasoning that relies upon the concepts incorporated in the table. I find it hard to see how a reader of Dr Macdonald’s report could understand the concepts in the table without reference to the source from which the concepts are derived. Accordingly, in my opinion, the applicant has lost client legal privilege in at least those portions of Sutton 1996b that constitute the source for the table and for the analysis flowing from the concepts incorporated in the table.
It may well be that there are portions of Sutton 1996b that bear no relationship to the table, or to any of the concepts recorded therein. However, there is no evidence to this effect and, again, Mr Williams did not suggest that I should attempt to identify those portions of Sutton 1996b that are irrelevant to the concepts recorded in the table. In these circumstances, I think it is appropriate to conclude that the applicant has lost privilege in the entirety of Sutton 1996b.
In any event, in my view, the client legal privilege otherwise attaching to Sutton 1996b has been lost. The circumstances of this case are unusual. As the Final Anthropological Report makes clear, Dr Sutton was specifically engaged on behalf of the applicant to review drafts of the Report. In that capacity he made “extensive and invaluable comments”. The Final Anthropological Report also acknowledges Dr Macdonald’s limited availability to work full-time on the project. In these circumstances, it seems to me that a proper understanding of the Report, in the sense of a thorough appreciation of its significance and implications, requires an objective observer to understand how much of the analysis is Dr Macdonald’s and how much is Dr Sutton’s. The circumstances of the present case, as revealed in the evidence before me, are consistent with Dr Sutton having made a major contribution to the theoretical and practical analysis contained in the Final Anthropological Report. That inference may or may not be borne out when the evidence is complete. However, I think that inspection of Dr Sutton’s “extensive and invaluable comments” is reasonably necessary to enable a proper understanding of the Final Anthropological Report.
This conclusion does not mean that client legal privilege will be lost in all cases where somebody, whether expert or not, comments on a draft of a report prepared by an expert. Each case must depend upon its own circumstances. As I have already said, the evidence suggests that in this case Dr Sutton played an extensive role in the preparation of the Final Anthropological Report.
#4 Other Communications between Dr Sutton and Dr Macdonald
It will be recalled that this category is limited to correspondence, reports or records of communication containing comments, assessments, or recommendations in respect of drafts of the two reports ultimately prepared by Dr Macdonald, namely, the Interim Anthropological Report and the Final Anthropological Report. It follows from what I have said that the applicant has lost privilege in relation to this category of documents, at least insofar as it contains documents recording comments, assessments or recommendations made by Dr Sutton in relation to the draft reports or any responses by Dr Macdonald in response to those comments, assessments or recommendations.
#5, #6 Records of Negotiating Team Meetings
These documents, including a tape recording, can be dealt with briefly. The uncontradicted evidence shows that Dr Macdonald was the principal speaker at the meeting, and that the records of the relevant portion of the meeting were not relied on or referred to by Dr Macdonald when preparing her two reports. While the views expressed by Dr Macdonald at the meeting might have reflected her general approach to the preparation of the Interim and Final Anthropological Reports, what was saidat the meeting did not constitute a source for anything recorded or presented in those Reports. Accordingly, the test in s 126 of the Evidence Act is not satisfied, and the applicant’s privilege in respect of these documents has not been lost.
#8 Notes Concerning Meeting of 1 March 1996
Once again, the uncontradicted evidence is that no reliance was placed on this document in the preparation of the Final Anthropological Report. It follows that the applicant’s privilege has not been lost by virtue of s 126 of the Evidence Act.
CONCLUSION
I direct that the Minister be permitted to inspect the following documents: Sutton 1996a; Sutton 1996b; and all correspondence, reports or records of communication passing between Dr Sutton and Dr Macdonald, containing comments, assessments or recommendations by Dr Sutton in respect of drafts of the two reports ultimately prepared by Dr Macdonald, namely, the Interim Anthropological Report and the Final Anthropological Report, or any responses by Dr Macdonald to those comments, assessments or recommendations.
My present view is that there should be no order as to costs in respect of the application for access to the documents produced on subpoena. I shall make no order as to costs unless, within seven days from today’s date, one of the parties files written submissions seeking a different order. If that occurs, I shall give the other party a further seven days in which to make submissions on costs. If no submissions are filed, there will be no order as to costs.
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I certify that this and the preceding sixteen (16) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville |
Associate:
Dated: 23 July, 1997
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Counsel for the Applicant: |
Mr N. Williams |
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Solicitor for the Applicant: |
Andrew Chalk Associates |
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Counsel for the First Respondent: |
Dr J. Renwick |
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Solicitor for the First Respondent: |
Crown Solicitor for the State of New South Wales |
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Date of Hearing: |
9 July, 1997 |
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Date of Judgment: |
23 July, 1997 |
