FEDERAL COURT OF AUSTRALIA

Herron v HarperCollins Publishers Australia Pty Ltd [2020] FCA 805

REASONS FOR JUDGMENT

JAGOT J:

Background

1    Two issues have arisen in this proceeding concerning the use which can be made of three documents. The documents are identified as documents 11, 15 and 17. I propose to mark document 11 headed “STATEMENT OF DR. JOHN GILL”, undated, as MFI1, document 15 headed “BACKGROUND NOTES – DR. John GILL AND CHELMSFORD” as MFI2, and document 17, the first page of which is a covering letter from solicitors Foulsham & Geddes, dated 13 April 1989, to the Royal Commission into Former Chelmsford Private Hospital and Mental Health Services as MFI3.

2    The applicants contend that the documents cannot be deployed in any way in this proceeding, because they are privileged pursuant to either s 118 or s 119 of the Evidence Act 1995 (Cth) (the Evidence Act), and are otherwise afforded the protection given by s 17(2) of the Royal Commissions Act 1923 (NSW) (the Royal Commissions Act).

3    I will deal with the privilege question first.

Privilege under the Evidence Act

4    On the evidence which is before me in an affidavit of Jessie McKenzie, solicitor, dated 3 June 2020, MFI1 is described as a document which was produced to the Royal Commission by Blake Waldron on behalf of the Medical Defence Union. The document, according to the affidavit, is related to proceedings brought by Mr Barry Hart against Dr Herron and Fairfield Heights Community Hospital Pty Ltd, being Hart v Herron & Anor, an unreported jury trial before Fisher J, Supreme Court proceeding 12781 of 1979 (the Supreme Court proceedings). The affidavit states that the solicitors would have been under a duty of confidence in relation to any witness statements taken in preparing Dr Herron’s case, and that Ms McKenzie infers that Blake Dawson Waldron, consistent with its ethical duties, would have retained confidentiality in its file representing Dr Herron on behalf of the Medical Defence Union at the time MFI1 was produced to the Royal Commission.

5    Consistently with Ms McKenzie’s affidavit, I infer that MFI1 is a confidential document prepared for the dominant purpose of Dr Herron being provided with professional legal services relating to an Australian proceeding, namely the Supreme Court proceedings. Accordingly, I am satisfied on the evidence that this document is subject to s 119 of the Evidence Act. The fact that the document has been produced under compulsion to the Royal Commission, a consequence of the operation of s 17(1) of the Royal Commissions Act, does not mean that privilege in the document which is MFI1 has been waived. Accordingly, I would conclude that s 119 applies to MFI1.

6    Ms McKenzie’s affidavit also deals with MFI2, noting that it was a document prepared by Dr Gill and said to have been produced by Dr Gill unwillingly to the Royal Commission. Ms McKenzie also refers to the fact that there were proceedings on foot, Herron v McGregor (1986) 6 NSWLR 246, and that Dr Gill was involved in this litigation at about the time MFI2 was likely to be prepared. Ms McKenzie infers that MFI2 is a confidential document prepared by Dr Gill for the dominant purpose of obtaining legal advice.

7    I am unable to draw the same inference from the evidence and the text of MFI2. It is unclear what MFI2 was prepared for. The evidence does not satisfy me that it was prepared for the dominant purpose of the provision of legal advice or for the dominant purpose of a client being provided with professional legal services relating to an Australian or overseas proceeding. Accordingly, I do not accept that MFI2 is subject to s 118 or s 119 of the Evidence Act.

8    In terms of MFI3, Ms McKenzie states that the document is a statement prepared by Dr Gill’s solicitor on instructions from Dr Gill, produced by Dr Gill unwillingly to the Royal Commission. This accords with the covering letter by the solicitors for Dr Gill to the Royal Commission.

9    However, this does not mean that the document constitutes a confidential communication within the meaning of ss 118 and 119 of the Evidence Act. The document is a statement which was prepared for the purposes of tender to the Royal Commission. The fact that Dr Gill was providing the statement apparently unwillingly does not mean that at the time the document was prepared the person who made it, being Dr Gill, or the person to whom it was made, being the solicitors, were under an express or implied obligation not to disclose the contents of the document.

10    I am also not satisfied on the evidence that the document was prepared for the dominant purpose of a lawyer providing legal advice to Dr Gill within the meaning of s 118, nor am I satisfied that the document was prepared for the dominant purpose of Dr Gill being provided with professional legal services relating to an Australian or overseas proceeding. Accordingly, I am not satisfied that MFI3 is a privileged document under either s 118 or s 119 of the Evidence Act.

Protection under the Royal Commissions Act

11    The next issue is the application of s 17 of the Royal Commissions Act.

12    The terms of that section are as follows:

17    Answers and documents

(1)    A witness summoned to attend or appearing before the commission shall not be excused from answering any question or producing any document or other thing on the ground that the answer or production may criminate or tend to criminate the witness, or on the ground of privilege, or on the ground of a duty of secrecy or other restriction on disclosure, or on any other ground.

…

(2)    An answer made, or document or other thing produced by a witness to or before the commission shall not, except as otherwise provided in this section, be admissible in evidence against that person in any civil or criminal proceedings.

(3)    Nothing in this section shall be deemed to render inadmissible:

(a)    any answer, document or other thing in proceedings for an offence against this Act,

(b)    any answer, document or other thing in any civil or criminal proceedings if the witness was willing to give the answer or produce the document or other thing irrespective of the provisions of subsection (1),

(c)     any book, document, or writing in civil proceedings for or in respect of any right or liability conferred or imposed by the document or other thing.

(4)     This section shall not have effect unless in the letters patent by which the commission is issued, or in other letters patent under the Public Seal, the Governor declares that the section shall apply to and with respect to the inquiry.

13    The applicant submitted, and I accept, that s 17 performs two functions.

14    Subsection (1) abrogates fundamental and long-established common law privileges, including legal professional privilege and the privilege against self-incrimination.

15    Subsection (2) compensates for the removal of these common law protections by providing statutory protection against the use of the witness’s testimony or documents against him or her in subsequent civil or criminal proceedings.

16    As the applicant has submitted, and I accept, the grant of the statutory protection in s 17(2) is the correlative of the removal of the common law privilege in s 17(1): Sorby v The Commonwealth [1983] HCA 10; (1983) 152 CLR 281 at 310 – 311 (Sorby); Hartmann v Commissioner of Police (1997) 91 A Crim R 141 at 146 – 147.

17    The applicant particularly relied on a decision of the New South Wales Court of Appeal, Hatfield v TCN Channel Nine Proprietary Limited [2010] NSWCA 69; (2010) 77 NSWLR 506 (Hatfield), to support the applicant’s submission that the documents could not be relied upon for any purpose by operation of s 17(2) of the Royal Commissions Act. In Hatfield, at [154], Young J said:

In my view there is no room for any waiver of the statutory protection given by the [Royal Commissions] Act. The statute plainly says that the evidence is not to be admissible against the witness. During argument, appellant’s counsel put that ‘against that person’ meant in any way against that person’s interest. Although this was said in reply, it was based on R v Bayeh [1999] NSWCCA 82 [(Bayeh)] and must be correct.

18    However, I accept the analysis of the respondents that the observation of Young JA at [154] in Hatfield is obiter dicta and does not form part of the ratio of the decision. For their part, the respondents relied on the decision of Campbell J in Feldman v Nationwide News Pty Limited & Ors [2018] NSWSC 715; (2018) NSWSC 715 (Feldman). In Feldman, Campbell J started with an analysis of the decision in Hood v R (1997) 91 A Crim R 526 (Hood). In particular, Campbell J noted the observation of Smart J at 536 in Hood, to the effect that:

Royal Commissions are usually only appointed where there are matters of considerable public importance including apprehended public ills to be investigated or a particular possible injustice or possible acts of malefaction touching upon the administration of affairs of state and the ordinary powers of inquiry and investigation are regarded as insufficient. Thus privileges are abrogated and the compensatory protection conferred by statute is limited to answers which incriminate or tend to do so.

19    Campbell J, who was considering the provisions of s 6DD of the Royal Commissions Act 1902 (Cth) (Commonwealth Act), and not s 17 of the New South Wales Act, nevertheless expressed the principle of construction which would apply consistently with the observations in Sorby. At [16] of Feldman, Campbell J referred to the observations of Young JA in Hatfield and noted at [17] that this approach was said to be based upon the decision of the Court of Criminal Appeal in Bayeh. Campbell J said that he had reviewed the decision in Bayeh and did not derive from it the meaning which Young JA attributed to it. For my own part, I also do not see that the decision in Bayeh stands for the proposition as advanced by Young JA in Hatfield. Campbell J said this at [19] in Feldman:

It seems to me that, looked at in its own context, s 6DD of the Commonwealth Act is concerned, by use of the expression ‘against a natural person in any civil or criminal proceedings’, with the use of the compelled evidence to establish a civil liability or criminal responsibility in the person whose privilege was abrogated by s 6A. It does not seem to me it has any wider meaning, although I accept that questions of liability and responsibility may arise in a variety of different contexts, which need not be discussed here.

20    As a result of this, Campbell J expressed the view in [22] as follows:

It seems to me that there is a difference in admitting the evidence ‘against’ Rabbi Feldman on the one hand, so as to establish against him some civil liability or criminal responsibility, and admitting it in proceedings instituted by him so that a defendant can legitimately make out a defence available to it.

21    For my part, I see no relevant distinction between s 17 of the New South Wales Act and s 6DD of the Commonwealth Act.

22    The cases to which the applicants have referred to support their position seem to me to be distinguishable from the present case. In particular, those cases all seem to involve matters where the scope of the immunity sought to be asserted bore a relationship to the abrogation of the privilege. This seems to me to have been the case in Australian Securities and Investment Commission v Rich & Anor [2006] NSWSC 643; (2006) 201 FLR 207, and Smith and Anor v The Queen [2007] WASCA 163; (2007) 213 FLR 12.

23    In the present case, however, the facts are analogous to those considered by Campbell J in Feldman. I consider the reasoning of Campbell J in Feldman is compelling, that is, that the natural and ordinary meaning of a provision such as s 17(2) is to provide a protection against the use of compelled evidence to establish a civil liability or criminal responsibility in the person whose privileges were abrogated by s 17(1).

24    The present case does not involve the establishing of any civil liability or criminal responsibility on the part of the applicants. Rather, the documents are sought to be deployed by the respondents to defend proceedings brought against them by the applicants. In my view, for these reasons, s 17(2) does not operate to prevent the use of documents of the Royal Commission in this proceeding.

Associate:

Dated:    9 June 2020