FEDERAL COURT OF AUSTRALIA

Ashby v Commonwealth of Australia [2012] FCA 640

THE COURT ORDERS THAT:

1.    The second respondents have leave to issue subpoenas on Anthony McClelland, Malcolm Brough, Karen Doane and Steve Lewis in the form referred to in the affidavit of Siobhan Michelle Keating affirmed 13 June 2012, to be returnable before Rares J at 9:30 am 27 June 2012.

2.    Any notice to produce served on the applicant be returnable before Rares J at 9.30 am on 27 June, 2012.

3.    With regard to the first respondent’s interlocutory application filed on 13 June 2012 and the second respondent’s interlocutory application filed on 8 June 2012:

(1)    the first respondent and the second respondent file and serve points of claim in support of each of their interlocutory applications on or before 22 June 2012

(2)    the applicant file and serve points of defence on or before 29 June 2012

(3)    the first and second respondents file and serve any further affidavits and any other evidentiary material on which they propose to rely, on or before 2 July 2012

(4)    the applicant file and serve any affidavits and any other evidentiary material on which he seeks to rely on or before 9 July 2012

(5)    the first and second respondents serve and provide a copy to the associate to Rares J an outline of their submissions by 13 July 2012

(6)    the applicant serve and provide a copy to the associate to Rares J an outline of his submissions on or before 19 July 2012

(7)    The first and second respondents serve and provide a copy to the associate to Rares J an outline of their submissions on or before 20 July 2012

4.    The interlocutory applications be fixed for hearing commencing at 9:30 am on 23 July 2012.

5.    The applicant be granted leave to file in court the affidavit of Michael Harmer affirmed on 28 May 2012.

6.    The unredacted version of the affidavit of the applicant affirmed on 13 April 2012 be served on each of the respondents.

THE COURT NOTES THAT:

1.    The applicant has agreed to provide, independently of the court processes the text messages identified in the note initialled by Rares J on 15 June 2012 and placed with the papers, on or before noon on 18 June 2012, subject to reserving his right to inform the respondents by that time of any reservation or withdrawal of that consent and providing detailed reasons for it.

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

REASONS FOR JUDGMENT

1    These proceedings were commenced by the electronic filing in the Court of an Originating Application under the Fair Work Act 2009 Alleging Discrimination, headed in accordance with Form 81. The applicant, James Ashby, sued the Commonwealth and Speaker of the House of Representatives, the second respondent, Peter Slipper. The application alleged, among other matters, that Mr Ashby had been sexually harassed by Mr Slipper, and sought damages for breach of contract.

Procedural background

2    Because Mr Ashby sought not just relief under s 351(1) of the Fair Work Act 2009 (Cth) but also on a common law claim for damages, r 34.05(2) of the Federal Court Rules 2011 (Cth) required that his application include the common law claim. And since there was a claim for relief beyond that available under the Fair Work Act, Practice Note CM 15 provided that the proceedings should have been commenced in the General Division of the Court and not the Fair Work Division. Moreover, the application, as filed, attracted the operation of r 34.02. That required each party to a proceeding to which, relevantly, the Fair Work Act applied, to comply with Div 34.1 of the Rules and any other Rules that were relevant and consistent with Div 34.1. Thus, unlike the position with an application made solely under s 351, Mr Ashby’s originating application had to comply with r 8.05(1)(a) because he claimed damages for breach of contract. Rule 8.05 provides:

“8.05    Application to be accompanied by statement of claim or affidavit

(1)    An originating application must be accompanied by:

(a)    if the applicant seeks relief that includes damages — a statement of claim, in accordance with Form 17; or

(b)    if paragraph (a) does not apply — a statement of claim or an affidavit.

(2)    An affidavit mentioned in paragraph (1) (b) must state the material facts on which the applicant relies that are necessary to give the respondent fair notice of the case to be made against the respondent at trial.”

3    However, Mr Ashby’s originating application was accompanied by no other document. It is common ground that the application made a number of serious allegations against Mr Slipper. On the final page of the application, the following assertion appeared:

“The allegations contained in the Application are supported by sworn/affirmed evidence and, in the case of text messages, by independent forensic Information Technology assessment and report.” (emphasis added)

4    Prior to the first directions hearing on 18 May 2012, Mr Ashby filed a statement of claim, and subsequently, an amended originating application. When the matter first came before me for directions on 18 May 2012, the respondents complained that the “sworn/affirmed evidence” referred to in the above assertion had not been served on them. I ordered that, save for documents subject to a claim for privilege, the documents referred to in the assertion be served on the Commonwealth and Mr Slipper by 28 May 2012, and any claim for privilege be supported by an affidavit served at the same time. In the event, Mr Ashby served an unredacted affidavit and report by Rodney McKemmish and a redacted affidavit of Mr Ashby sworn on 13 April 2012.

The interlocutory application for production of Mr Ashby’s unredacted affidavit

5    The Commonwealth has applied, by an interlocutory application dated 8 June 2012, for an order that by close of business on 15 June 2012, Mr Ashby serve on it and Mr Slipper an unredacted copy of Mr Ashby’s affidavit sworn on 13 April 2012. The redacted parts of that affidavit were the subject of a claim for privilege identified in an affidavit affirmed on 28 May 2012, by Michael Harmer, Mr Ashby’s solicitor. Mr Slipper has made an oral application today for the unredacted affidavit to be provided to him.

6    The redacted version of Mr Ashby’s affidavit is over 40 pages in length. It includes material that can be seen as supporting the allegations in the originating application, as initially filed. It is, however, plainly on its face, not in the form of an affidavit drafted with a view to being deployed in court proceedings as admissible evidence.

7    It is common ground that the forensic information technology assessment was contained in Mr McKemmish’s affidavit and report. That contained a large number of text messages copied from Mr Ashby’s phone, some of which were not directly relevant to the proceedings, but were contained on his phone and, apparently, examined and copied in globo by Mr McKemmish.

8    Mr Harmer had explained the basis for the claim of privilege by describing Mr Ashby’s affidavit as a “draft affidavit”, being a document he had caused to be prepared to record communications between Mr Ashby and a solicitor in Mr Harmer’s employ. He said that the “draft affidavit”:

“was not intended to be served (and was to remain a record of confidential communications) but was sworn in circumstances where allegations could have been made which were serious, and I wished to ensure that any allegations that were made on the basis of my instructions were made on a basis that would be verified by the applicant on oath. Communications were undertaken and the document being the Draft Affidavit was brought into existence, for the dominant purpose of giving or obtaining [sic] legal advice to the applicant.”

Mr Harmer also said that the affidavit constituted material that had been created at his instigation for the dominant purpose of conducting anticipated litigation, and that the unredacted portions of it were: “relied upon by me to support the allegations made in the application dated 20 April 2012”.

9    In the meantime, both the Commonwealth and Mr Slipper have introduced new issues into the proceedings, including interlocutory applications seeking to have the proceedings dismissed or stayed as an abuse of the process of the Court, by reference to their assertions going to Mr Ashby’s motivation for bringing the proceedings.

The parties’ submissions

10    The Commonwealth argued that the assertion in the originating application, that the allegations in it were supported by sworn or affirmed evidence, so far as that related to Mr Ashby’s allegations, should be seen as a waiver of legal professional privilege by him in respect of the whole of his affidavit of 13 April 2012. The Commonwealth argued that it was unfair in the circumstances for Mr Ashby only to reveal to the other parties to the litigation selected portions of what had been anticipated to be contained in an affidavit. It contended that, in the usual course, an affidavit in this Court would have been sworn in support of the allegations in an originating application, as an alternative to a statement of claim. It argued, that Mr Ashby’s assertion that his allegations were supported by an affidavit should be treated as a deployment of whatever was in his affidavit to support the application. The Commonwealth submitted that it was inconsistent for Mr Ashby to insist upon redacting about 20% of the total contents of his affidavit on the basis that it contained privileged communications with his lawyers. It argued that an unfair impression could be left if the claim for privilege were upheld, given the assertion made in the originating application of sworn or affirmed evidence supporting what it alleged.

11    Mr Ashby argued that it was common ground, as I think it was, that his affidavit had been prepared originally for a purpose that was protected by legal professional privilege at common law. He contended that privilege in respect of that affidavit has been waived only to the extent of the unredacted portions that have now been shown to the Commonwealth and Mr Slipper. Mr Ashby argued that there was no relevant waiver and no unfairness in his seeking to maintain privilege over the redacted parts of the affidavit. He submitted that, objectively, portions of the affidavit that were irrelevant to support the allegations in the originating application could not have been seen or treated as having been intended to be waived. He argued that because legal professional privilege is a substantive right of persons under the common law, it ought not be treated as being lightly waived.

12    Mr Ashby invited me to read redacted portions of the affidavit for the purposes of satisfying myself whether the material could be regarded as privileged. He said that there would be no objection to me doing so, and that he would not seek to have me disqualify myself in the event that I read those matters, but then ruled to uphold the claim for privilege. Mr Ashby argued that a waiver could apply to parts, but not the whole of documents, and that a party might disclose through waiver part of his, her or its legal advice or material obtained for the purposes of actual or anticipated litigation without revealing or becoming liable to reveal other material that was properly privileged in the balance of the document. That is so. In response to the Commonwealth’s assertion of unfairness flowing from his claim for privilege, Mr Ashby relied on what Mason and Brennan JJ had said in Attorney-General (NT) v Maurice (1986) 161 CLR 475 at 488, as apposite in the present context, namely:

“In order to ensure that the opposing litigant is not misled by an inaccurate perception of the disclosed communication, fairness will ordinarily 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 [1981] 1 WLR 529.”

Two subsidiary arguments of Mr Ashby

13    Two subsidiary arguments made by Mr Ashby can be dealt with immediately. First, Mr Ashby argued that the Commonwealth’s interlocutory application for production of the entire unredacted affidavit, not just to it but also to Mr Slipper, was misconceived because it had no right to ask that Mr Slipper be given access. He contended that the Commonwealth’s interlocutory application should be dismissed for that reason. I reject that argument. The Commonwealth was entitled to bring its application to enforce the order that I made, by seeking to set aside the claim for privilege. If that were to happen, the existing order required both respondents to be furnished with the unredacted version, because no privilege would then exist. But, in any event, it is not necessary to deal with the matter on that basis. It is accepted now by Mr Ashby that if the claim for privilege is rejected, Mr Slipper will be entitled to receive a copy of the affidavit in its unredacted form.

14    Secondly, Mr Ashby pointed to passages in the redacted portions of the affidavit, which I was invited to read, as being material that had been taken from Mr Ashby for the purposes of Mr Harmer giving advice to, or conducting litigation on behalf of, another person, who was the subject of that portion of the material. That basis of the claim for privilege must also be rejected. First, Mr Harmer did not swear that any part of the redacted portions of the affidavit were prepared for the dominant purpose of giving legal advice to, or obtaining evidence for use in anticipated litigation for, anyone other than Mr Ashby. Secondly, it is not evident on the face of those passages that any privilege of a third party does attach to them. Thirdly, having regard to the order I made on 18 May 2012, Mr Harmer ought to have supported, in his affidavit, a claim for privilege over any portion of the redacted part of Mr Ashby’s affidavit that was made by any other person on whose behalf the privilege could be maintained. That has not happened. There is no evidence to that effect, and Mr Harmer did not lead any.

Consideration

15    In Mann v Carnell (1999) 201 CLR 1 at 13 [28]-[29], Gleeson CJ, Gaudron, Gummow and Callinan JJ discussed the concept of waiver of legal professional privilege at common law. They observed that the concept of waiver was a vague one, and said that:

“Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege (Cross on Evidence, 5th Aust ed (1996), par 25005; Attorney-General (NT) v Maurice (1986) 161 CLR 475 at 497-498). (emphasis added)

Their Honours continued:

“Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. ... This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege. Thus, in Benecke v National Australia Bank ((1993) 35 NSWLR 110) the client was held to have waived privilege by giving evidence, in legal proceedings, concerning her instructions to a barrister in related proceedings, even though she apparently believed she could prevent the barrister from giving the barrister's version of those instructions. She did not subjectively intend to abandon the privilege. She may not even have turned her mind to the question. However, her intentional act was inconsistent with the maintenance of the confidentiality of the communication. What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.” (emphasis added)

16    In my opinion, any ordinary reasonable person reading the assertion at the conclusion of the originating application would understand it to convey allegations of fact, other than text messages made in it, that could only have been supported by Mr Ashby’s evidence. That is because he and Mr Slipper were the only two persons who could have been present on the relevant occasions referred to in allegations. Only Mr Ashby could have given sworn or affirmed evidence of those occasions. The ordinary reasonable reader would also have understood that there was an independent expert who had authenticated the text messages that the application set out in a way that need not be repeated in these reasons.

17    Such a reader would also have understood, that when the term “evidence” was used in a court document of this kind, asserting serious allegations against a person, that the reference was to an affidavit that had been prepared for use in the Court proceedings that would contain the evidence in support of those allegations. That is not a description that one would ordinarily have applied to the form of Mr Ashby’s affidavit of 13 April 2012, as I have indicated. Nonetheless, the overwhelming impression created by the statement at the end of the originating application, which any ordinary reasonable person reading it as a publicly accessible document would understand, is that Mr Ashby had sworn or affirmed an affidavit that would be used in the Court in support of allegations he was making in the document. In my opinion, that would have conveyed to any ordinary reasonable reader that the whole of Mr Ashby’s affidavit sworn or affirmed to support his allegations was available and, subject to any rules of evidence, would be deployed by him in the Court.

Conclusion

18    Mr Ashby elected to commence his proceedings in the way he did, using the irregular assertion at the end of his originating application that his allegations were supported by his sworn or affirmed evidence. That document was not in the form that an ordinary originating application, even under the Fair Work Act, should be. In my opinion, Mr Ashby’s conduct in filing his originating application in the form it was conveyed that there was no relevantly privileged communication between himself and his lawyer existing at the time of filing. By filing it, he caused the originating application to be made public, by operation of the Rules of the Court.

19    For these reasons, I am satisfied that Mr Ashby has waived privilege over his entire affidavit of 13 April 2012. I order that the unredacted version of that affidavit be served on each of the respondents, and I vacate the order I made earlier today under s 50 of the Federal Court of Australia Act 1976 (Cth) in respect of the unredacted affidavit.

Associate:

Dated:    15 June 2012