Federal Court of Australia

BDF15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 489

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

NICHOLAS J:

INTRODUCTION

1    Before me is an appeal from a judgment of the Federal Circuit Court (“the FCC”) dismissing an application for judicial review of a decision of the second respondent (“the Tribunal”). The Tribunal affirmed the decision of a Delegate of the first respondent (“the Minister”) refusing to grant the appellant a Protection (Class XA) visa (“the visa”).

2    The grounds of appeal relied upon by the appellant are:

(1)    The primary judge erred in his application of the principles of legal professional privilege when deciding whether the appellant should be given access to documents the subject of a certificate under s 438 of the Migration Act 1958 (Cth) (“the Act”).

(2)    The primary judge erred by applying the principle of materiality to the documents that he held to be privileged and by erroneously placing the onus on the appellant to establish materiality in circumstances where the documents required to make the case of materiality were withheld from the appellant.

(3)    The primary judge erred by purporting to rely on Mann v Carnell (1999) 201 CLR 1.

3    The first and third grounds of appeal, as developed in the appellant’s written and oral submissions, concern the question of whether legal professional privilege attached to various documents (“the s 438 documents”) that were produced by the Secretary of the Department of Immigration, Citizenship, Migration Services and Multicultural Affairs (“the Department”) to the Tribunal pursuant to s 418(3) of the Act and, if so, whether the privilege was waived as a result of such production. The second ground of appeal raises the question of whether the error (which the Minister concedes the Tribunal made in relation to the s 438 documents) was material to the Tribunal’s decision so as to constitute a jurisdictional error. The relevant (and conceded) error made by the Tribunal was a denial of procedural fairness to the appellant by failing to disclose to him the existence of a certificate purportedly issued under s 438 of the Act (“the s 438 certificate”).

4    In the course of his oral submissions counsel for the appellant invited me to review the s 438 documents for the purpose of considering whether the primary judge erred in finding that those documents were privileged. The Minister did not oppose my reviewing the documents for that purpose and they have since been made available to me. I indicated to counsel that if I concluded that the primary judge had erred in finding that the s 438 documents were (and remained) privileged then I would take steps to see that they were produced to the appellant’s legal representatives so that they could decide whether to tender the documents and make any further submissions regarding the materiality of the Tribunal’s error. Both the appellant and the Minister indicated at the hearing that they were content for me to proceed in this way were I to hold that the primary judge erred in upholding the Minister’s privilege claim.

background

5    The appellant is a Sinhalese from Sri Lanka. He left Sri Lanka by boat on or around 27 July 2012 and arrived on Christmas Island on 12 August 2012. He applied for a protection visa on 12 December 2012. A Delegate of the Minister refused his application for a protection visa on 11 September 2013. The appellant then applied to the Refugee Review Tribunal (“RRT”) for review of the Delegate’s decision. The RRT upheld the Delegate’s decision on 3 June 2015.

6    The appellant then sought judicial review of the RRT’s decision. On 9 November 2015 Judge Street of the FCC found that the decision was affected by jurisdictional error and remitted the matter to the Tribunal for determination according to law. Judge Street found that the RRT failed to give the appellant a hearing as required by s 425 of the Act. The Tribunal (differently constituted) upheld the Delegate’s decision on 20 December 2016, and the appellant subsequently sought judicial review of the Tribunal’s decision before the primary judge. The judgment of the primary judge dismissing that application is the subject of this appeal.

7    The primary judge set out in considerable detail the appellant’s claims for protection as articulated at his entry interview, in his subsequent statutory declaration, at an interview conducted by the Delegate, and at the hearing before the Tribunal. Given the grounds of appeal, it is unnecessary to refer to those claims in detail. Essentially they relate to the appellant’s involvement with the Sri Lankan Army (“SLA”) and Navy, the Liberation Tigers of Tamil Eelam and various government officials.

8    One claim (and its consideration by the RRT and the FCC) that is relevant to this appeal and which should be outlined in further detail is the appellant’s account regarding an incident in 2006 in which he claimed to be fishing from a vessel about 15 miles offshore when he and those with him were fired upon by a Sri Lankan Navy vessel. The appellant claimed that many people were killed during this incident and that he was one of only two survivors.

9    During the course of the hearing before the RRT the appellant and his representative were advised that the RRT accepted that in 2006 the Sri Lankan Navy fired on the appellant and other fisherman and that the appellant and one other fisherman were the only survivors and did not need to hear further details regarding the claim. The RRT’s published decision however departed from the representation it had made. It was on this basis that Judge Street set aside the RRT’s decision and remitted the matter to the Tribunal for consideration according to law. It is advice relating to Judge Street’s decision that is the subject of the legal professional privilege claim.

10    The primary judge’s judgment discussed the necessary background to the RRT’s decision, including its consideration of the 2006 incident and the decision of Judge Street as follows at [16]-[17]:

[16]    Potentially relevant to the questions I am required to consider is the RRT’s consideration of the 2006 incident. As I have already noted, the RRT accepted that the 2006 incident as recounted by the applicant in his Statement occurred. After referring to the applicant’s statutory declaration of 8 May 2015, and submissions the applicant’s agent made in relation to it after the hearing, the RRT said:

    That said, it is perplexing that in the multiple opportunities the applicant had to put this information, he only first lodged much of this material evidence in a post-Tribunal hearing submission (and the applicant has always had the assistance of registered migration agents). However, and for the reasons set out herein, I am not satisfied the applicant was in hiding between October 2010 and his departure from Sri Lanka on 27 July 2012. If the Sri Lankan authorities were interested in the applicant for any reason, I am satisfied he could have been contacted prior to his departure from Sri Lanka (and I do not accept any effort was made to contact the applicant). Further, though not apparently eye-witnesses to the shooting, even the applicant’s statutory declaration dated 8 May 2015 stated inter alia that other fishermen “heard the shooting and saw the flames and the burning boats” and though the SLA had instructed them not to intervene, they had “sent a boat out to accompany us” (at [7]). It may therefore appear there are multiple witnesses to the incident in question and no evidence was available to the fate of same [sic].

[17]    On 9 November 2015 Judge Street set aside the RRT’s decision, and remitted the applicant’s application for review to the RRT for determination according to law. His Honour found the RRT failed to give the applicant a hearing as required by s.425 of the Act. His Honour found the RRT acted contrary to the representation it made to the applicant at the hearing before it that it would accept the applicant’s account of the 2006 hearing without first giving the applicant notice that it intended to depart from the representation. That is apparent from the following passages from his Honour’s reasons for judgment:

    In these circumstances, I am satisfied that the applicant has been denied a fair process in the hearing under s.425 where the applicant was informed by the Tribunal that his evidence as to the 2006 incident would be accepted and without further notice the Tribunal has changed that position. The Tribunal has erroneously treated a supplementary submission as raising for the first time the reference to the applicant’s brother-in-law being killed and identified that as material evidence. On a fair reading, the Tribunal was expressing concern in paras.38 and 40 in relation to credibility that led to the key finding in para.41 as to whether the Tribunal accepted the applicant as having a real chance of being subject to serious or significant harm as a result of the 2006 incident.

    I am satisfied that the departure by the Tribunal from what was represented to the applicant at the hearing in the present case as to the acceptance of the 2006 incident and then without notice a changed position by the Tribunal gives rise to a practical injustice which cannot be said not to have had no possible impact on the outcome. Given the Tribunal’s representation of acceptance of the 2006 incident, I find that the Tribunal failed to afford the applicant a fair hearing as required by s.425 of the Act in relation to the applicant’s evidence as to the 2006 incident at the time of the hearing, which included the fact that the applicant’s brother-in-law was killed without giving the applicant notice that the Tribunal’s acceptance of the plausibility of that evidence had changed. I find this was a jurisdictional error.

Section 438 Documents

11    On 4 December 2015 following the judgment of Judge Street, the Delegate of the Minister placed a non-disclosure certificate on the Department’s file pursuant to s 438(1) of the Act in relation to certain documents. Disclosure of the material the subject of the certificate was said to be “contrary to the public interest” as the documents contained “information which would reveal internal departmental processes”. These are what I have referred to as the s 438 documents. By this certificate the Delegate certified that s 438(1)(a) applied to the relevant documents and that the Tribunal’s use and disclosure of the documents was subject to ss 438(3) and 438(4) of the Act. The existence of the certificate (which the primary judge found to be invalid at [51]) was not disclosed to the appellant or his representative.

12    Section 438 of the Act provides:

438    Tribunal’s discretion in relation to disclosure of certain information etc.

(1)    This section applies to a document or information if:

(a)    the Minister has certified, in writing, that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 437(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or

(b)    the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.

(2)    If, in compliance with a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies, the Secretary:

(a)    must notify the Tribunal in writing that this section applies in relation to the document or information; and

(b)    may give the Tribunal any written advice that the Secretary thinks relevant about the significance of the document or information.

(3)    If the Tribunal is given a document or information and is notified that this section applies in relation to it, the Tribunal:

(a)    may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information; and

(b)    may, if the Tribunal thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the applicant.

(4)    If the Tribunal discloses any matter to the applicant, under subsection (3), the Tribunal must give a direction under section 440 in relation to the information.

13    Section 418 of the Act relevantly provides:

418    Tribunal to notify Secretary of application for review of Part 7-reviewable decisions

(1)    If an application for review is made to the Tribunal, the Registrar must, as soon as practicable, give the Secretary written notice of the making of the application.

…

(3)    The Secretary must, as soon as is practicable after being notified of the application, give to the Registrar each other document, or part of a document, that is in the Secretary’s possession or control and is considered by the Secretary to be relevant to the review of the decision.

14    Section 440 of the Act enables the Tribunal to restrict publication or disclosure of any information given to it, or the contents of any document produced to it, if the Tribunal is satisfied that it is in the public interest to impose such a restriction. Section 438(4) of the Act requires the Tribunal to give such a direction in relation to any document or information the subject of a s 438 certificate that the Tribunal discloses to an applicant.

The Privilege Issues

The Tribunal’s Ruling

15    The Tribunal noted in its decision that the s 438 documents are “documents containing legal advice from the Department’s legal advisors as to the reasons for the remittal and other legal advice”. The Tribunal stated at [19]-[20]:

[19]    The delegate has placed a non-disclosure certificate on the Department's file pursuant to s.438(1). The certificate applies to documents which refer to internal departmental processes. The subject documents are documents containing legal advice from the Department's legal advisors as to the reasons for remittal and other legal advice. Whilst it may be that the documents have not been correctly described, the Tribunal finds that the certificate is valid as the documents contain “legal in confidence”·material and are subject to legal professional privilege. However the Tribunal considers that the material is not relevant to the review as it deals only with background facts, a summary of the Tribunal’s decision, a discussion of the reason for the Federal Circuit Court (FCC) remittal and advice on its legality. Most of the material in the advice has already been published in the Tribunal’s decision record and the Federal Circuit Court judgment. The remaining material is concerned with the legality of the judgment and is not relevant in any way to the review of the delegate’s refusal of the protection visa.

[20]    Accordingly the Tribunal has not disclosed the existence of the certificate as it finds the documents are not relevant to the review.

(footnote omitted)

Were the s 438 documents privileged?

16    Before the primary judge the appellant sought production of the s 438 documents and resisted the contention that they were privileged. The first ground of appeal asserts that the primary judge misapplied the relevant legal principles in holding that the s 438 documents were subject to legal professional privilege.

17    Before the primary judge the Minister relied on an affidavit of a lawyer (Mr Cabarrus) employed by Clayton Utz, the law firm that was then acting for the Minister. In his affidavit of 2 September 2019 Mr Cabarrus annexed a copy of the s 438 certificate of 4 December 2015 and exhibited the s 438 documents, and relevantly said:

4.    The nature of the exhibited documents are emails between legal officers of the litigation branch of the then-Department of Immigration and Border Protection (Department) and other stakeholders regarding the judgment made in favour of the applicant in proceeding SYG 1726/2015.

5.    The Minister claims privilege over the documents comprised in the exhibit marked “JRC-1” in that the documents record legal advice and internal Departmental processes concerning procedural legal decisions, and are otherwise privileged.

18    His Honour dealt with the claim for privilege in some detail at [26]-[33] of his reasons before concluding that each of the s 438 documents was the subject of legal professional privilege. In the course of his reasons his Honour, having referred to, inter alia, the High Court’s decision in Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543, found at [33]:

… On the basis of my examination of those documents I am satisfied they all record communications that refer or relate to legal advice concerning the judgment of Judge Street or the orders his Honour made; the communications are confidential; and they pass between a lawyer employed by the Department, and an officer or officers of the Department. From these findings I further find that the communications recorded in the documents were made for the dominant purpose of the giving of legal advice to a delegate of the Minister for the purpose of the delegate exercising his powers under the Act in relation to the applicant, having regard to the orders Judge Street made. I am satisfied, therefore, that each of the 438 Documents is subject to legal professional privilege to which, at the time the documents were created, the Minister was entitled.

19    The appellant’s first ground of appeal seeks to challenge the primary judge’s finding on this issue. However, neither the appellant’s notice of appeal nor his written or oral submissions identify any particular error in his Honour’s legal analysis.

20    Having regard to Mr Cabarrus’ affidavit and the s 438 documents themselves, I do not think there is any reason to doubt the correctness of his Honour’s finding that the s 438 documents attracted legal professional privilege. In my opinion they are documents recording confidential communications that were made for the dominant purpose of obtaining and providing professional legal advice to the Minister and officers of the Department in relation to the judgment of Judge Street.

21    During the course of his oral submissions Senior Counsel for the appellant suggested that the relevant communications contained in the s 438 documents may not be between lawyers who could be properly regarded as independent. This submission also referred to the mention of “stakeholders” in Mr Cabarrus’ affidavit, with Senior Counsel for the appellant submitting that “[t]here is no explanation of … who those other stakeholders are, or whether they are within an umbrella of privilege”. Although these submissions were not developed by reference to any authority, counsel was apparently referring to the requirement that the relationship between a lawyer who works “in-house” and his or her employer “must be a professional relationship which secures to the advice an independent character notwithstanding the employment”: Waterford v The Commonwealth of Australia (1987) 163 CLR 54 at 62 per Mason and Wilson JJ. Brennan J (at 70) reasoned that since the purpose of legal professional privilege is to facilitate the seeking and giving of advice and to ensure that the law is applied, and litigation is properly conducted, professional detachment was required in both giving advice and conducting litigation.

22    It is not apparent whether these arguments were raised before the primary judge. In any event, it is apparent from my own inspection of the s 438 documents that the relevant legal advice (as would have also been apparent to the primary judge) was provided by Senior Legal Officers working in the Legal Division of the Department to other members of the Department. Further, there is nothing about the advice, or the circumstances in which it was provided, that would lead me to infer that the Senior Legal Officers providing the advice were not acting independently or that they lacked the professional detachment necessary to give legal advice capable of attracting legal professional privilege. I infer from the content of the advice and the form in which it has been provided that the necessary professional relationship existed and that those providing the advice were acting in a sufficiently professional and independent character to justify the claim to legal professional privilege.

Was there a waiver of privilege?

23    Before the primary judge the appellant submitted that any privilege attaching to the s 438 documents had been waived when the Secretary gave the documents to the Tribunal. The primary judge rejected this submission on three grounds.

24    First, his Honour held that the privilege was that of the Minister, not the Secretary, and there was nothing in the evidence to suggest that the Secretary was acting as the Minister’s Delegate or agent when forwarding the s 438 documents to the Tribunal. In essence, his Honour was not satisfied that the disclosure by the Secretary was authorised by the Minister.

25    Second, his Honour found that the s 438 documents were sent to the Tribunal under compulsion of law because the Secretary or his or her Delegate believed that s 418(3) of the Act required that this be done. His Honour acknowledged that the relevant belief may have been based on a mistaken understanding as to what s 418(3) required but, even so, the act of the Secretary in forwarding the s 438 documents to the Tribunal could not be characterised as an intentional act done with knowledge.

26    Third, his Honour held that, even if the sending of the s 438 documents to the Tribunal amounted to an intentional act done with knowledge by the Minister, then:

… the documents were sent to the Tribunal subject to the qualification that the Tribunal deal with the documents in the manner provided for by s.438(3) of the Act. That could be viewed as the Minister’s delegating to the Tribunal the power to decide whether to disclose what would otherwise be a confidential communication to which legal professional privilege attached; and the Tribunal maintained the confidentiality of the 438 Documents by finding the documents were privileged, and by not disclosing them to the applicant.

27    The primary judge then referred to Mann v Carnell (1999) 201 CLR 1 in support of the proposition that “[d]isclosing to a third party for a limited and specific purpose an otherwise privileged communication does not by itself constitute a waiver of the privilege”.

28    The appellant did not in his written or oral submissions identify any specific legal error in his Honour’s approach to the issue of waiver. Instead, Senior Counsel for the appellant submitted that the primary judge was wrong to find that the act of the Secretary in forwarding the s 438 documents could not give rise to a waiver of legal professional privilege by the Minister. In effect it was submitted that the Minister and the Secretary were, for this purpose, to be treated as the same person or, alternatively, that the Minister should be taken to have authorised the provision of the s 438 documents by the Secretary to the Tribunal.

29    It is true, as the primary judge found, that the Secretary was not shown to have been acting as the Delegate or agent of the Minister when providing the s 438 documents to the Tribunal. Rather, I would infer that the Secretary forwarded the s 438 documents to the Tribunal in the belief that s 418(3) required this to be done. It follows that I agree with his Honour’s finding that the s 438 documents were provided to the Tribunal in the belief that s 418(3) of the Act applied.

30    Whether s 418(3) of the Act actually required the Secretary to provide the s 438 documents to the Tribunal is a different question. Section 418 does not expressly or by necessary implication abrogate legal professional privilege. As McHugh J observed in Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 at [39]:

… It is an elementary rule of statutory construction that courts do not read general words in a statute as taking away rights, privileges and immunities that the common law or the general law classifies as fundamental unless the context or subject matter of the statute points irresistibly to that conclusion.

See also Baker v Campbell (1983) 153 CLR 52 at 96-97 per Wilson J and 122-123 per Dawson J; Carter v The Managing Partner, Northmore Hale Daly & Leake (1995) 183 CLR 121 at 161-162 per McHugh J and AWB Ltd v Cole (2006) 152 FCR 382 at [34]-[35] per Young J.

31    Section 418(3) must be read in light of ss 437 and 438 of the Act. As the plurality (Bell, Gageler and Keane JJ) observed in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 241 at [19]:

The precondition in s 438(1)(a) is met if the Minister, acting within the bounds of reasonableness and on a correct understanding of the law, has certified that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for a reason specified in the certificate. The reason so specified must be a reason (other than a reason which would permit certification under s 437) that could form the basis for a claim by the Executive Government of the Commonwealth in a court proceeding that the matter contained in the document, or the information, should not be disclosed. Where no ground of privilege or statutory immunity from disclosure is engaged, the reason specified in the certificate must therefore be a reason capable of grounding a claim for public interest immunity from disclosure at common law or under s 130 of the Evidence Act 1995 (Cth).

32    The plurality later acknowledged that if the Tribunal is notified that s 438 applies to a document or information then this will affect how the document or information can be dealt with by the Tribunal. Their Honours said at [22]-[23]:

[22]    Being notified by the Secretary that a document or information is a document or information to which s 438 applies then has consequences for how the document or information can be dealt with by the Tribunal if the notified document or information is in fact a document or information to which the section applies.

[23]    … [T]he Tribunal has a discretion under s 438(3)(a) to have regard to the information or to any matter contained in the document for the purpose of exercising its powers, including for the purpose of making a decision on the review. Implicit in the conferral of that discretion is that the Tribunal has no power to have regard to the information or to any matter contained in the document for the purpose of making a decision on the review unless the discretion is affirmatively exercised.

33    However, the language of s 438(1)(a) indicates that it is directed to what might generally be referred to as public interest privileges and immunities under which the courts are required to decide whether the Executive should be required to produce a document the production of which is resisted on public interest grounds: see generally Sankey v Whitlam (1978) 142 CLR 1 at 38-46, 58-59, 95-96. A party asserting legal professional privilege does not justify the claim by reference to the public interest. The language of s 438(1)(a) is therefore not apt to extend to documents or information that are the subject of legal professional privilege. This reinforces the view that s 418(3) of the Act does not require the Secretary to provide to the Tribunal documents attracting legal professional privilege.

34    During the course of the hearing I granted leave for the Minister to file a brief written submission outlining the Minister’s position regarding whether s 418(3) requires the Secretary to provide documents attracting legal professional privilege to the Tribunal. In the brief written submission subsequently filed, counsel submitted that the question of whether s 418(3) extended to documents that attracted legal professional privilege did not need to be decided in this case but that, in the Minister’s submission, s 418(3) requires the Secretary to provide to the Tribunal each document in the Secretary’s possession or control which “is considered by the Secretary to be relevant to the review of decision” and that this encompasses documents attracting legal professional privilege. The submission does not address the principles of statutory construction to which I have referred nor does it identify any statutory language said to expressly or impliedly abrogate the privilege, or the absence of any express or implied abrogation of the privilege. In those circumstances I do not find the Minister’s submission persuasive.

35    It is not clear from the evidence on what date the Secretary forwarded the s 438 documents to the Tribunal and whether this occurred before or after the s 438 certificate was issued by the Minister’s Delegate on 4 December 2015. I do not think anything turns on the question of when the s 438 documents were supplied to the Tribunal. It is apparent from the certificate of 4 December 2015 that the Minister, by his Delegate, was aware that the Secretary would provide or had already provided the s 438 documents to the Tribunal. In those circumstances I think the clear inference to be drawn is that the Secretary was either authorised by the Minister through his Delegate to forward the s 438 documents to the Tribunal if the Secretary considered that he or she was required to do so or the Secretary’s actions in forwarding the documents to the Tribunal were subsequently ratified by the Minister’s Delegate.

36    That is not the same as saying that the Secretary was authorised to waive the Minister’s legal professional privilege in the s 438 documents. But it does mean that the Secretary was authorised (either before or after the documents were forwarded to the Tribunal) to perform the act that is now said to give rise to a waiver of the Minister’s legal professional privilege. That act resulted in the disclosure of the s 438 documents to the Tribunal with the result that the Tribunal was left to determine whether the appellant should be granted access to the documents.

37    In Mann v Carnell the Chief Minister of the Australian Capital Territory sent to a member of the Legislative Assembly a copy of legal advice relating to the settlement of proceedings brought against the Government by a member of the public. That person later sought production of the advice on the basis that legal professional privilege had been waived. The plurality (Gleeson CJ, Gaudron, Gummow and Callinan JJ) said at [29]-[35]:

[29]    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. When an affirmative answer is given to such a question, it is sometimes said that waiver is “imputed by operation of law” [eg, Goldberg v Ng (1995) 185 CLR 83 at 95]. 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.

[30]    In Goldberg v Ng [(1995) 185 CLR 83] this Court considered a case in which there was disclosure of a privileged communication to a third party, for a limited and specific purpose, and upon terms that the third party would treat the information disclosed as confidential. The Court was divided upon whether, in the circumstances of the case, privilege was waived. However, the reasoning of all members of the Court was inconsistent with the proposition that any voluntary disclosure to a third party necessarily waives privilege. No application was made on the present appeal to re-open Goldberg or any of the earlier authorities on the subject. In Goldberg, reference was made [Goldberg v Ng (1995) 185 CLR 83 at 120] to the statement of Jordan CJ in Thomason v Campbelltown Municipal Council [(1939) 39 SR (NSW) 347 at 355]:

    “The mere fact that a person on some one occasion chooses to impart to another or others advice which he has received from his solicitor indicates no intention on his part to waive his right to refuse on other occasions to disclose in evidence what that advice was, and supplies no sufficient reason for depriving him of a form of protection which the law has deemed it specially necessary to throw around communications between solicitor and client.”

[31]    His Honour's reference to intention must be read subject to what has been said above.

[32]    Reference was also made [Goldberg v Ng (1995) 185 CLR 83 at 107-108] to British Coal Corporation v Dennis Rye Ltd [No 2] [[1988] 1 WLR 1113; [1988] 3 All ER 816] and Goldman v Hesper [[1988] 1 WLR 1238; [1988] 3 All ER 97], in which the English Court of Appeal held that, in the circumstances of those cases, disclosure to a third party for a limited and specific purpose did not lead to a loss of the privilege as against a person opposed in litigation. To like effect is the recent decision in Gotha City v Sotheby's [No 1] [[1998] 1 WLR 114].

[33]    It does less than justice to the respondent's position to describe what occurred in the present case as disclosure to a third party. The privilege was that of the body politic, the Australian Capital Territory. The head of the Territory's Executive, the Chief Minister [Australian Capital Territory (Self-Government) Act, s 40], in response to a question raised by a member of the Territory's Legislative Assembly as to the reasonableness of the conduct of the Territory in relation to certain litigation, gave the member, confidentially, access to legal advice that had been given to the Territory, and on the basis of which it had acted. Although "disclosure to a third party" may be a convenient rubric under which to discuss many problems of this nature, it represents, at the least, an oversimplification of the circumstances of the present case.

[34]    The purpose of the privilege was to enable the Australian Capital Territory to seek and obtain legal advice, in relation to the litigation which Dr Mann had instituted, without the apprehension of being prejudiced by subsequent disclosure of that advice. That included, and perhaps included above all, subsequent disclosure to Dr Mann. If Mr Moore had been given copies of the legal report and advice given to the Territory in relation to the proceedings brought by the appellant upon the basis that he was at liberty to show them to the appellant (even if to nobody else), that would have waived the privilege, because it would have been inconsistent with the confidentiality protected by the privilege. It is not difficult to imagine other circumstances in which the basis on which the communications were made available to Mr Moore, even though limited, would have been inconsistent with the purpose of the privilege and thus would have resulted in waiver. Disclosure by a client of confidential legal advice received by the client, which may be for the purpose of explaining or justifying the client's actions, or for some other purpose, will waive privilege if such disclosure is inconsistent with the confidentiality which the privilege serves to protect. Depending upon the circumstances of the case, considerations of fairness may be relevant to a determination of whether there is such inconsistency. The reasoning of the majority in Goldberg [(1995) 185 CLR 83 at 101-102] illustrates this.

(emphasis added).

38    I have emphasised the statement appearing in [34] because, in my view, it is directly relevant to the circumstances of the present case. Here the s 438 documents were provided to the Tribunal within the context of s 438 of the Act which permitted the Tribunal to disclose the s 438 documents to the appellant pursuant to ss 438(3) and 438(4) if it had considered it appropriate. By referring to ss 438(3) and 438(4) of the Act in the certificate the Minister’s Delegate must be taken to have understood that the Tribunal could disclose the relevant documents or information to the appellant.

39    In Osland v Secretary, Department of Justice (2008) 234 CLR 275 (“Osland”) the plurality (Gleeson CJ, Gummow, Heydon and Kiefel JJ) made clear that the question whether a limited disclosure of the existence and effect of legal advice is inconsistent with the maintenance of the confidentiality of the advice involves matters of fact and degree. Determining whether or not such an inconsistency exists requires a judgment to be made in the context and circumstances of the particular case, and in light of any relevant consideration of fairness: Osland at [45].

40    In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303 the High Court said at [30]-[31]:

[30]    According to its strict legal connotation, waiver is an intentional act done with knowledge whereby a person abandons a right (or privilege) by acting in a manner inconsistent with that right (or privilege). It may be express or implied. In most cases concerning waiver, the area of dispute is whether it is to be implied. In some cases waiver will be imputed by the law with the consequence that a privilege is lost, even though that consequence was not intended by the party losing the privilege. The courts will impute an intention where the actions of a party are plainly inconsistent with the maintenance of the confidentiality which the privilege is intended to protect.

[31]    In Craine v Colonial Mutual Fire Insurance Co Ltd, it was explained that “‘[w]aiver’ is a doctrine of some arbitrariness introduced by the law to prevent a man in certain circumstances from taking up two inconsistent positions … It is a conclusion of law when the necessary facts are established. It looks, however, chiefly to the conduct and position of the person who is said to have waived, in order to see whether he has ‘approbated’ so as to prevent him from ‘reprobating’”. In Mann v Carnell, it was said that it is considerations of fairness which inform the court’s view about an inconsistency which may be seen between the conduct of a party and the maintenance of confidentiality, though “not some overriding principle of fairness operating at large”.

(citations omitted)

41    Neither the Minister nor the Secretary made any claim of legal professional privilege before the Secretary produced the s 438 documents to the Tribunal. It was the Tribunal itself which first raised the issue of legal professional privilege before concluding that the documents attracted legal professional privilege and, regardless, were not relevant to the review.

42    In his oral submissions Senior Counsel for the appellant focused on the Tribunal’s reasons at [19] and submitted that, contrary to what it said at [19], the s 438 documents were likely to have been relevant to the review and would have played a role in the Tribunal’s reasoning. Senior Counsel further submitted that it was significant that the Secretary considered the s 438 documents to be relevant. I do not accept those submissions. The Tribunal said more than once that the s 438 documents were not relevant to its review and there is no basis to suggest that those statements were incorrect or that the Tribunal was influenced by the documents in some way notwithstanding its express finding that they were not relevant. Merely because the Secretary thought that the s 438 documents were relevant does not make them so, nor does it provide a sufficient basis for doubting the correctness of the statements made by the Tribunal to the contrary.

43    In the present case there has been no express or intentional waiver of privilege. The question is whether an implied waiver should be held to arise from the conduct of the Secretary in forwarding the s 438 documents and the s 438 certificate signed by the Minister’s Delegate to the Tribunal.

44    Relevant to this question is the fact that the confidentiality in the documents was not destroyed by their limited disclosure to the Tribunal and that they played no part in the Tribunal’s consideration of the application for review. On the other hand, I accept that because the documents have not been disclosed to the appellant or his legal representatives, the appellant is at a disadvantage when it comes to testing the correctness of that proposition.

45    The fact that the relevant disclosure was based on a mistaken view of the Secretary’s obligation under s 418 is relevant to whether the Minister has behaved inconsistently with the existence of the privilege in permitting the Secretary to produce the s 438 documents to the Tribunal and subsequently asserting a claim to legal professional privilege, and whether fairness weighs either for or against a finding of implied waiver.

46    In all the circumstances I do not consider a waiver of legal professional privilege in the s 438 documents should be imputed to the Minister. I do not regard either the Secretary’s or the Minister’s conduct to be inconsistent with the maintenance of legal professional privilege in the s 438 documents given that the Minister asserted that disclosure of the s 438 documents would be “contrary to the public interest” and that the documents were found by the Tribunal to be irrelevant to the review. I therefore agree with the conclusion reached by the primary judge. His Honour was correct to uphold the Minister’s claim of legal professional privilege in the s 438 documents. It follows that the appellant has failed to establish grounds 1 or 3 of his appeal.

Materiality

47    I will now consider the second ground of appeal concerning the primary judge’s analysis regarding the materiality of the conceded error, namely, the failure by the Tribunal to disclose the existence of the s 438 certificate to the appellant. The primary judge dealt with the issue of materiality at [59] of his judgment. His Honour said:

… The applicant has not articulated how, had the Tribunal disclosed the 438 Certificate to the applicant and offered the applicant an opportunity to make submissions about whether the 438 Documents were relevant, that could have led the Tribunal to make a decision favourable to the applicant. The only conceivable way the applicant could show that giving the applicant such opportunity could have resulted in the Tribunal making a decision favourable to the applicant is if there was material before the Tribunal on the basis of which the applicant could have submitted that the 438 Documents contained information that could potentially have been of advantage to the applicant. The applicant, however, has not identified there was any such material before the Tribunal.

48    The onus of establishing materiality lies with the appellant. In Minister for Immigration & Border Protection v SZMTA (2019) 264 CLR 421 Bell, Gageler and Keane JJ said at [4]:

Where materiality is put in issue in an application for judicial review of a decision of the Tribunal, it is a question of fact in respect of which the applicant for judicial review bears the onus of proof.

49    The appellant’s submissions relied on the contrary position taken by Nettle and Gordon JJ in their dissenting judgment in SZMTA at [92]-[95]. However, that passage does not reflect the present state of the law which is to be found in the majority judgment.

50    In support of the appellant’s submission that the s 438 documents were relevant to the review, and could have led the Tribunal to make a decision in the appellant’s favour, Senior Counsel for the appellant placed considerable reliance on the opinion of the Secretary which was that the s 438 documents were relevant to the review.

51    As I have discussed above, the fact that the Secretary may have considered the documents relevant to the review is not determinative of the question whether they were relevant. It is clear from the Tribunal’s statement of reasons that the s 438 documents played no role in its decision-making process.

52    While I have not had regard to the contents of the s 438 documents when considering the issue of materiality, it is apparent from the primary judge’s reasons at [18], the Tribunal’s reasons at [19], and the affidavit of Mr Cabarrus that the relevant documents contain legal advice relating to Judge Street’s judgment. It is not apparent how legal advice as to the correctness of his Honour’s judgment setting aside the RRT’s decision for what might fairly be described as a procedural irregularity could have affected the outcome of the subsequent review by a differently constituted Tribunal.

53    In written submissions counsel for the appellant submitted that the s 438 documents were:

… said by the Tribunal to relate to the legality of the very judgement which was the animating authority for the review, namely the Court’s order to the Tribunal for mandamus and to conduct the review according to law. Any issue of the legality of the court’s decision remitting the matter must necessarily be relevant to the Tribunal’s view of its obligation under those orders which are inextricably entwined with its task pursuant to orders of the court.

54    I do not accept this submission. Judge Street’s judgment set aside the decision of the RRT and remitted the appellant’s application for review to the Tribunal for determination according to law. When the Tribunal referred in its reasons to the “legality” of Judge Street’s decision it may fairly be understood to be referring to the correctness of the decision. That senior legal officers in the Department would be providing legal advice in relation to the correctness of the decision is hardly surprising. But it is impossible to see how advice as to the correctness of his Honour’s decision was relevant to the application for review heard by the Tribunal. If anything was to be gained by the Tribunal from Judge Street’s reasons for decision, then it was open to the Tribunal to read them. The only reference to his Honour’s reasons for judgment in the Tribunal’s reasons appears at [7]-[8] of the Tribunal’s reasons where it said:

[7]    The matter is before the current Tribunal because on 9 November 2015 the Federal Circuit Court found the decision of the Tribunal, differently constituted (first Tribunal), was affected by jurisdictional error and the matter was remitted for reconsideration according to law.

[8]    The court found that the applicant had been denied a fair hearing under s.425 of the Act as the Tribunal had indicated it accepted the applicant's evidence relating to an incident which took place in 2006 but then changed its position without giving the applicant an opportunity to provide further comment.

55    It was also submitted by the appellant that submissions made by his representative to the Tribunal after the hearing concluded demonstrated that matters included in Judge Street’s reasons for decision were relevant to the review by the Tribunal and that it followed that advice relating to the judgment was therefore relevant to the review. The same argument was put to the primary judge who did not accept it. As the primary judge points out, the relevant submissions were contained in a letter to the Tribunal dated 22 July 2016. In those submissions a number of points are made with reference to the judgment of Judge Street including that the RRT found “[a statement] in a supplementary submission referring to the applicant’s brother-in-law being killed was a new claim when it was not”. None of this suggests that legal advice relating to Judge Street’s judgment could have had any influence on the outcome of the review had the existence of either the certificate or the legal advice been disclosed to the appellant by the Tribunal.

56    In the result, I am not persuaded that there was any error in the primary judge’s finding that the Tribunal’s decision not to disclose the certificate given under s 438 to the appellant at or prior to the hearing of his application for review was not material to the outcome of the review. In my view there is no reason to think that the Tribunal’s failure to disclose to the appellant the existence of the s 438 certificate could have denied the appellant an opportunity to give relevant evidence or make relevant arguments to the Tribunal and thereby deprive him of the possibility of a successful outcome. It follows that ground 2 of the appeal is not made out.

Disposition

57    The appeal will be dismissed. The appellant must pay the Minister’s costs of the appeal.

58    Orders accordingly.

Associate:

Dated:    11 May 2021