FEDERAL COURT OF AUSTRALIA

Brown v Forestry Tasmania (No 3) [2006] FCA 469

PRACTICE AND PROCEDURE – privilege – legal professional – documents referred to in evidence – call for production during cross-examination – documents not communication between a lawyer and client but between two witnesses to assist each other in preparation of their witness statements –whether privilege at common law or under the Evidence Act 1995 (Cth) – whether imputed waiver of privilege by reason of intentional disclosure of other like communications

PRIVILEGE – legal professional – documents referred to in evidence – call for production during cross-examination – documents not communication between a lawyer and client but between two witnesses to assist each other in preparation of their witness statements –whether privilege at common law or under the Evidence Act 1995 (Cth) – whether imputed waiver of privilege by reason of intentional disclosure of other like communications

EVIDENCE – privilege – legal professional – documents referred to in evidence – call for production during cross-examination – documents not communication between a lawyer and client but between two witnesses to assist each other in preparation of their witness statements –whether privilege at common law or under the Evidence Act 1995 (Cth) – whether imputed waiver of privilege by reason of intentional disclosure of other like communications

Environmental Protection and Biodiversity Conservation Act 1999 (Cth)

Evidence Act 1995 (Cth) ss 118 and 119

Federal Court of Australia Act 1976 (Cth) s 59

Federal Court Rules 1979 (Cth) O 33 rr 11(5) and 13

The Daniels Corporation International Pty Ltd and Another v Australian Competition and Consumer Commission (2002) 213 CLR 543, referred to

Mann v Carnell (1999) 201 CLR 1, referred to

Collins Debden Pty Ltd v Cumberland Stationery Co Pty Ltd [2005] FCA 1194, followed

Seven Network Ltd and Another v News Ltd and Others [2005] FCAFC 125; (2005) 144 FCR 379, applied

Temwell Pty Ltd v DKGR Holdings Pty Ltd [2003] FCA 985, followed

Ryder v Frohlich [2005] NSWSC 1342, followed

ROBERT BROWN v FORESTRY TASMANIA

TAD 17 OF 2005

MARSHALL J

1 MAY 2006

HOBART

THE COURT ORDERS THAT:

1.                  The respondent’s claim for privilege in respect of the production of the documents called for during Mr Meggs’ evidence, but not produced by the respondent, is dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The Court is currently hearing an application by Senator Robert Brown under the Environmental Protection and Biodiversity Conservation Act 1999 (Cth).  Senator Brown has almost concluded his case.  During the course of Senator Brown’s case the respondent, Forestry Tasmania, interposed a witness who is ordinarily resident in Canada.  That witness was Mr Meggs.

2                     During Mr Meggs’ cross-examination, counsel for Senator Brown called for the production of certain documents which Mr Meggs referred to in his evidence.  Counsel for Forestry Tasmania resisted that call.  They claim that the documents were immune from production because of legal professional privilege and/or client legal privilege.

How the issue arose

3                     The Tasmanian wedge tailed eagle is a threatened species, the viability of which is an issue in this proceeding.  Witnesses called by Senator Brown have given evidence about a Population Viability Analysis carried out in relation to the eagle.

4                     Dr Read is an employee of Forestry Tasmania.  He has prepared an affidavit containing his expert opinion.  That affidavit was filed by Forestry Tasmania as part of the evidence it then intended to rely upon in the proceeding.  The affidavit, to which no objection is taken, will form the evidence in chief of Dr Read when he is called to give evidence.

5                     Counsel for Senator Brown cross-examined Mr Meggs about his email correspondence with Dr Read concerning the PVA.  Counsel made a call for two emails from Dr Read to Mr Meggs and for two files attached to an email of 31 October 2005.

6                     Dr Read’s emails request Mr Meggs to provide “feedback” on a draft affidavit prepared by Dr Read.  The files attached to the 31 October 2005 email include Dr Read’s notes or commentary on the affidavit of a witness called by Senator Brown dealing with the PVA.

Privilege at common law or under the Evidence Act?

7                     Forestry Tasmania resists the call for the production of documents.  It contended that they are privileged from production under the common law and under ss 118 and 119 of the Evidence Act 1995 (Cth).

8                     Forestry Tasmania relied upon the common law concept of legal professional privilege as referred to in The Daniels Corporation International Pty Ltd and Another v Australian Competition and Consumer Commission (2002) 213 CLR 543 at 552 to 553.  It contended that the emails and attachments are “communications” prepared for the purpose of obtaining legal advice or form part of its lawyer’s investigations for the purpose of this proceeding.

9                     Counsel for Forestry Tasmania submitted that the Evidence Act does not apply to its objections to produce the documents called for by Senator Brown.  They referred to Mann v Carnell (1999) 201 CLR 1, where the High Court observed that the statutory privilege was confined to the adducing of evidence during the course of a hearing.  They say that at common law, legal professional privilege extends beyond the course of the hearing to pre-trial issues such as discovery disputes.

10                  In any event, counsel for Forestry Tasmania contended that “the common law and the statutory tests yield the same conclusion in relation to the protection of the documents called for from production.”

11                  The Evidence Act applies to this proceeding; see s 4(1).  Order 33 rule 11(5) of the Rules of Court extends the operation of ss 118 and 119 of the Evidence Act to orders for the production of documents in circumstances where the call for production is made in the course of evidence being adduced before the Court; see Collins Debden Pty Ltd v Cumberland Stationery Co Pty Ltd [2005] FCA 1194 at [6], per Lindgren J.

Does s 118 apply?

12                  Section 118(a) of the Evidence Act, when read together with O 33 r 11(5) of the Rules of the Court, prevents the production of documents if the production would result in disclosure of a confidential communication made between the client and a lawyer, for the dominant purpose of the lawyer providing legal advice to the client.

13                  The documents, the subject of the current call for production, have been described by Mr McDonald (the in-house lawyer for Forestry Tasmania) as being prepared for the purpose of communication between Dr Read and Mr Meggs, to have Mr Meggs critically review affidavits of two witnesses called by Senator Brown, as well as Dr Read’s affidavit.

14                  The documents are not communications between a lawyer and a client but between two witnesses for the purpose of assisting each other to prepare their affidavits for use in the proceeding.  Accordingly, s 118 does not apply to give the documents privileged status.

Does s 119 apply?

15                  Section 119, when read with O 33 r 11(5) of the Rules of Court, prevents the production of documents if, on the objection of a client, the Court finds the production would result in the disclosure of a confidential communication between the client and another person, or between a lawyer acting for the client and another person, for the dominant purpose of providing the client with legal services relating to a proceeding.

16                  Section 117(1) contains a definition of “confidential communication”.  That definition refers to:

“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.”

17                  There is no evidence before me to support the view that the relevant documents were sent in circumstances where Mr Meggs and Dr Read were obliged not to disclose their contents.  Further, Mr McDonald had no involvement in the communications other than suggesting they occur.  They were purely between Mr Meggs and Dr Read.  Neither of those gentlemen have told the Court that they considered their communications to be confidential.  On the contrary, Mr Meggs openly discussed the existence of the communications during his cross-examination.

18                  The documents are not immune from production under s 119 of the Act.  At the very least Forestry Tasmania has not discharged its onus of making out its claim for privilege.

19                  Counsel for Forestry Tasmania made a series of submissions in relation to the construction of O 33 r 11(5) and in particular, its effect on the operation of s 118 and 119 of the Evidence Act.  In summary, counsel for Forestry Tasmania contended that:

“(a) O. 33 r. 11 is not a code which governs the basis upon which legal professional privilege may be claimed;

(b) alternatively, the word “means” in O. 33 r. 11(5) is to be read, so as to preserve the validity of the rule, as “includes”; and

(c) if O. 33 r. 11 is a code, and “means” in sub-r.(5) is given its literal meaning, sub-r.(5) is ultra vires the rulemaking power of the Court and void.”

20                  In Collins at [5] and [6], Lindgren J stated that s 119 (and inferentially s 118) of the Evidence Act applies to the stage where evidence is adduced, and not to the earlier pre-trial  stage of access to documents discovered or produced on subpoena.  Order 33 rule 11 applies at the stage where evidence is being adduced in conjunction with ss 118 and 119 by extending their operation.

21                  Whether O 33 r 11, in conjunction with ss 118 and 119, is a code is beside the point.  It applies according to its terms.  It is to ask the wrong question to inquire whether O 33 r 11 preserves the common law because its terms are not directed to that point.

22                  Counsel for Forestry Tasmania referred to the judgment of the Full Court in Seven Network Ltd and Another v News Ltd and Others (2005) 144 FCR 379 in support of the submission that O 33 r 11(5) did not operate in conjunction with the Evidence Act to apply to a call for documents during the course of a trial.

23                  Counsel’s reliance on Seven Network is misplaced.  That case determined that
O 33 r 11 did not apply to pre-trial proceedings but to the conduct of a hearing; see Branson J at [16] to [18] and Allsop J at [33].  The documents in question in the current proceedings were called for during the conduct of the hearing.  Accordingly, O 33 r 11 applies to them and O 33 r 13 may be availed of to compel their production; see Branson J at [17].

24                  Counsel for Forestry Tasmania also referred to the rule making power of this Court under s 59 of the Federal Court of Australia Act 1976 (Cth).  That section empowers Judges of this Court or a majority of them to make rules of Court “making provision for or in relation to the practice and procedure to be followed in the Court”.  Order 33 rule 11 is within the rule making power of this Court set out in s 59 of the Federal Court of Australia Act.  Order 33 rule 11 is a provision concerning practice and procedure.  One only needs to set out the provision in full to make good that point:

“[Order 33 rule] 11    Privilege

            (1)        Where the Court, by subpoena or otherwise, orders any person to produce any document or thing, and any person makes and substantiates sufficient lawful objection to production on grounds of privilege, the Court shall not compel production of that document or thing except production to the Court for the purpose of ruling on the objection.

            (2)        Where a question is put to a person in the course of examination, and any person makes and substantiates sufficient lawful objection on grounds of privilege to the question being answered, the Court shall not compel an answer to the question.

            (3)        Subrule (1) applies where an order is made for production to, and subrule (2) applies where a question is put to a person in the course of examination before the Court or any officer of the Court, or any examiner, or other person authorized to receive evidence, whether on a trial or hearing or on any other occasion.

            (4)        This rule does not affect any rule of law which authorizes or requires the withholding of any document or thing or the refusal to answer any question on the ground that the disclosure of the document or thing or the answering of the question would be injurious to the public interest.

            (5)        In this rule:

ground of privilege means a ground on which a person may rely to make an objection under Part 3.10 of the Evidence Act 1995.”

25                  In any event, the claim for privilege if exercised purely in a common law context would fail.  That is because the relevant communications are not from or to a legal adviser for the dominant purpose of providing legal services to a client in connection with legal proceedings.  They are communications between witnesses designed to assist each other in the preparation of their witness statements.

Waiver

26                  The question of waiver is considered upon the assumption that I am mistaken in my view of the lack of application of ss 118 and 119 of the Act.

27                  In like circumstances in Temwell Pty Ltd v DKGR Holdings Pty Ltd [2003] FCA 985, Ryan J said at [6]:

“…it would be unfair for the claim of privilege to be sustained in respect of documents which record instructions, suggestions or information given or made to an expert witness or successive draft reports from which the development of his or her expert opinion can otherwise be inferred.”

28                  I agree, with respect, with the views of Ryan J set out above.  At the very least I am not convinced that they are plainly wrong.  Accordingly, I will follow it in preference to any contrary approach in State courts.

29                  Further, an imputed waiver arises given that the documents relate to the issue of the impartiality of Dr Read and Mr Meggs.  In these circumstances it would be unfair to Senator Brown not to require the production of the documents.  This is especially so in circumstances where Forestry Tasmania has produced other emails in respect of drafts of Mr Meggs’ affidavit.

30                  Consequently, there has been intentional disclosure of other like communications of a not materially different quality such that if these documents were ever privileged they should no longer retain that status; see Ryder v Frohlich [2005] NSWSC 1342 at [16] per Barrett J.

31                  Forestry Tasmania has produced drafts of Mr Meggs’ affidavit which are now exhibits in the proceeding.  These exhibits raise issues not materially different to the issues raised by the documents sought to be produced, that is, the formation of expert opinion and the independence or otherwise of that opinion.

Premature objection?

32                  Counsel for Forestry Tasmania contended that it would be premature to rule, at this stage, that privilege is waived until Dr Read’s affidavit is read.  I agree with counsel for Senator Brown that there is no point in postponing determination of this issue.  I am prepared to assume that Dr Read’s affidavit will be read.

Order

33                  As no basis has been established to resist the call for production of documents sought by Senator Brown I will order as follows:

1.                  The respondent’s claim for privilege in respect of the production of the documents called for during Mr Meggs’ evidence, but not produced by the respondent, is dismissed.

Associate:

Dated:              2 May 2006