Attorney-General (NT) v Maurice [1986] HCA 80;

Attorney-General (NT) v Maurice [1986] HCA 80; - HCA 1986 case summary — Zoe

[53]

DEANE J.: It is a substantive general principle of the common law and not a mere rule of evidence that, subject to defined qualifications and exceptions, a person is entitled to preserve the confidentiality of confidential statements and other materials which have been made or brought into existence for the sole purpose of his or her seeking or being furnished with legal advice by a practising lawyer or for the sole purpose of preparing for existing or contemplated judicial or quasi-judicial proceedings (see, generally, Baker v. Campbell [1983] HCA 39; (1983) 153 CLR 52). That general principle is of great importance to the protection and preservation of the rights, dignity and freedom of the ordinary citizen under the law and to the administration of justice and law in that it advances and safeguards the availability of full and unreserved communication between the citizen and his or her lawyer and in that it is a precondition of the informed and competent representation of the interests of the ordinary person before the courts and tribunals of the land. Its efficacy as a bulwark against tyranny and oppression depends upon the confidence of the community that it will in fact be enforced. That being so, it is not to be sacrificed even to promote the search for justice or truth in the individual case or matter and extends to protect the citizen from compulsory disclosure of protected communications or materials to any court or to any tribunal or person with authority to require the giving of information or the production of documents or other materials (see Pearse v. Pearse (1846) 1 De G. & Sm. 12, at pp 28-29 (63 ER 950, at p 957); Baker v. Campbell, at pp 115-116). The right of confidentiality which the principle enshrines has recently, and correctly, been described in the European Court of Justice as a "practical guarantee" and "a necessary corollary" of "fundamental, constitutional or human rights" (see A.M. & S. Europe Ltd. v. Commission of The European Communities (1983) 1 QB 878, at pp 941, 947; Baker v. Campbell, at p 85). Indeed, the plain basis of the decision of the majority of this Court in Baker v. Campbell was the acceptance of the principle as a fundamental principle of our judicial system (see Murphy J., at p 88; Wilson J., at pp 95-96; Deane J., at pp 116-117; Dawson J., at pp.131-132). Like other traditional common law rights, it is not to be abolished or cut down otherwise than by clear statutory provision. Nor should it be narrowly construed or artificially confined.

[54]

2. It would seem to be common ground that the materials, to which the appellant Attorney-General for the Northern Territory seeks access through the present appeal and which I shall call the "source materials", are of a kind which prima facie brings them within the protection of the "legal professional privilege" of the Aboriginal claimants in the quasi-judicial proceedings before the Aboriginal Land Commissioner under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ("the Act") in relation to the Warumungu Land Claim. It is not suggested that there is anything in the nature of the source materials or the circumstances of their preparation which deprives them of that prima facie protection. What is submitted on behalf of the appellant Attorney-General is that the Aboriginal claimants have waived the right to rely upon the privilege to resist disclosure of the source materials in relation to the current proceedings before an Aboriginal Land Commissioner (Maurice J.) by reason of the publication to other parties of the 1982 claim book and the subsequent tender of and reference to that book in the course of the earlier and discontinued hearing before a different Aboriginal Land Commissioner (Kearney J.). In that regard, it should be mentioned that the tender of the book was not accepted and that any subsequent references to it were not on the basis that it constituted evidence of the truth of its contents. For their part, the Aboriginal claimants do not now dispute that that publication, tender of and reference to the 1982 claim book involved a waiver by them of any right to assert legal professional privilege in relation either to the documents actually constituting the book or to the documents expressly referred to in it. The only issue in the present appeal is whether that publication and tender of the claim book waived the right of the Aboriginal claimants to rely on legal professional privilege in relation to some or all of the source materials, which were not specifically mentioned in the book, by reason of the fact that they constituted the basis or source of allegations or statements contained in it. Plainly enough, there was no actual waiver of the right to assert legal professional privilege in relation to such materials as a matter of subjective intent (see Craine v. Colonial Mutual Fire Insurance Co. Ltd. [1920] HCA 64; (1920) 28 CLR 305, at p 326). If the right to assert the privilege has been waived, it must be by imputation of law in the circumstances of the case.

[56]

4. In these circumstances, there is simply no basis in law for a finding that the effect of the preparation, publication, tender of and limited reference to the 1982 claim book was that there was to be imputed to the Aboriginal claimants a waiver of their right to rely upon legal professional privilege in relation to documents which neither formed part of nor were expressly referred to in the book. Waiver of legal professional privilege by imputation or implication of law is based on notions of fairness. It occurs in circumstances where a person has used privileged material in such a way that it would be unfair for him to assert that legal professional privilege rendered him immune from procedures pursuant to which he would otherwise be compellable to produce or allow access to the material which he has elected to use to his own advantage. Thus, ordinary notions of fairness require that an assertion of the effect of privileged material or disclosure of part of its contents in the course of proceedings before a court or quasi-judicial tribunal be treated as a waiver of any right to resist scrutiny of the propriety of the use he has made of the material by reliance upon legal professional privilege. There are, however, no considerations of fairness which require that compliance by a party with a procedural requirement that he prepare and make available a document setting forth the case which he proposes to make before a court or quasi-judicial tribunal should be treated as a waiver of his right to claim legal professional privilege in respect of all the material upon which he has relied in the preparation of that document. If, in such a document, a party sets forth part of the contents of a particular identified document or communication or asserts the effect of or his reliance upon a particular identified document or communication, it may be that considerations of fairness might require that he be treated as having waived any legal professional privilege in relation to the whole document or communication (cf. Buttes Gas and Oil Co. v. Hammer (No. 3) (1981) 1 QB 223, at pp 251-252). Where, however, he does no more than make use of privileged material (e.g. legal advice, expert opinion or statements of potential witnesses) for the purpose of formulating the statement in such a document of the details of the case which he proposes to make, it would be an affront to ordinary notions of fairness to hold that the effect of his compliance with that procedural requirement was that he has waived his legal professional privilege in relation to such material.

[71]

13. In Geo. Doland Ltd. v. Blackburn & Co. (1972) 1 WLR 1338; (1972) 3 All ER 959 waiver of privilege with respect to a conversation between solicitor and client, which took place before litigation was contemplated, was held to extend to any other communications in relation to the subject matters of the conversation, although the implied waiver was held not to cover similar documents which came into existence for the purpose of prosecuting the litigation. This decision was not followed in General Accident Corporation Ltd. v. Tanter (1984) 1 WLR 100; (1984) 1 All ER 35 where a distinction was drawn between the waiver of privilege before a trial and the further waiver of privilege by calling evidence in a trial. In the latter situation the waiver was held to extend to the transaction constituted by the privileged communication but not to the subject matter of that communication arising upon other privileged occasions. General Accident Corporation Ltd. v. Tanter has been criticized for the distinction which it draws between waiver by the tender of evidence of a privileged communication and waiver by the disclosure of the communication in some other way and for the restriction which it places upon the extent of associative waiver. See Phipson on Evidence, par.15-20. In Nea Karteria Maritime Co. Ltd. v. Atlantic & Great Lakes Steamship Corporation (No.2) (1981) Com. LR 138, at p 139, a broader view was taken by Mustill J. that "... where a party chooses to deploy evidence which would otherwise be privileged the court and the opposition must, in relation to the issue in question, be given the opportunity to satisfy themselves that they have the whole of the material and not merely a fragment". This view was approved by the Court of Appeal in Great Atlantic Insurance Co. v. Home Insurance Co. In the United States it has been widely held that voluntary disclosure of the content of a privileged attorney communication constitutes waiver of the privilege with respect to all other such communications upon the same subject matter: Weil v. Investment/Indicators, Research and Management [1981] USCA9 1313; (1981) 647 F 2d 18 at p 24 and the cases there cited; Diotima Shipping Corp. v. Chase, Leavitt & Co. (1984) 102 FRD 532; United States v. Aronoff (1979) 466 FSupp 855; In re Sealed Case [1982] USCADC 142; (1982) 676 F 2d 793.

At a glance

Court

Decision date

Before

Source

Judgment (72 paragraphs)

Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475 (16 December 1986)

Parties

Legislation Cited (1)

Cases Cited (5)