I see no error in this finding and none was demonstrated.
92 The appellants then submitted that a consideration of paragraphs 3.4, 3.5, 3.6, 3.7 and 3.9 of Exhibit 8 indicated the necessary degree of inconsistency between the respondents' conduct on the one hand and their claim for confidentiality of the redacted part of the document on the other, so as to constitute waiver. The primary judge (at [103]) rejected this argument with respect to paragraphs 3.4 and 3.5 and nothing has been advanced to indicate that he was in error in so doing. It should be noted that his Honour does not refer to any submission put to him based on paragraphs 3.6, 3.7 and 3.9 of Exhibit 8. A glance at those paragraphs reveals why they were not relied on.
93 However, the primary judge did regard paragraph 3.8 of Exhibit 8 as constituting a waiver with respect to the assessment of the alleged offences according to the DPP Prosecution Policy and Guidelines to which that paragraph referred. The documents relating to that assessment have now been produced and nothing further turns on that paragraph.
94 The appellants did, however, maintain that his Honour was in error in failing to find that the respondents had waived privilege with respect to the redacted portion of Exhibit 8. Essentially, the appellants advanced four propositions in support of that submission. The first, based on the decision of Besanko J in Egglishaw v Australian Crime Commission (No 2) [2009] FCA 12 at [16]-[18], maintained that it was not open to the respondents to mask the redacted part of Exhibit 8 without the consent of the appellants or the leave of the Court.
95 The second was that, not having objected to interrogatories 13, 14 and 15 at the time the order was made that they be administered on the ground that answers to them would require disclosure of documents for which client legal privilege was claimed, it was too late for a claim for privilege to be made when those interrogatories were answered. This submission was sought to be based upon the decision of McDougall J in Auburn Council v Austin Australia Pty Ltd [2007] NSWSC 85 at [19].
96 The third was that having claimed client legal privilege with respect to the whole of Document 76, by attaching it to their answer to interrogatory 14, they had waived privilege with respect to so much of the document as was redacted as well as with respect to Attachment 1.
97 The fourth proposition was that the prosecutorial duty of disclosure of all facts relevant to the defence of a person charged with a criminal offence required the disclosure of documents which would otherwise attract the privilege but for the requirement to comply with that duty. The appellants conceded that this last proposition was not advanced before the primary judge.
98 As to the first proposition, in my opinion the decision of Besanko J in Egglishaw has no application to the present case. It was not a case that was concerned with a claim for client legal privilege. Rather, parts of discovered documents were masked to conceal those parts that were irrelevant to the issues in the case. His Honour noted that it was an established rule of practice for a party to seal or cover up parts of a document that were claimed to be irrelevant. His Honour also acknowledged that that practice had been followed in Australia. However, at [18] he noted the submission that the rule of practice did not apply under the Rules of the Federal Court. It was submitted to his Honour that a party making discovery was not entitled to seal up or mask parts or sections of a document unless he had the consent of the other party or the permission of the Court.
99 It would seem that his Honour upheld the principle upon which that submission was based so that, where there is a general order for discovery, the whole document must be produced unless there is agreement to the contrary by the party to whom discovery is being made or unless release from the requirement to discover the whole document (such as by masking certain portions of it) is obtained from the Court: see Telstra Corporation v Australis Media Holdings (Supreme Court of New South Wales, McLelland CJ in Eq, 10 February 1997, unreported).
100 However, this principle has no application to the present case. Rule 21.3(1) of the UCPR requires the relevant party to comply with an order for discovery by serving on the other party a list of documents that deals with all of the documents referred to in the order. The list must identify any document for which privilege is claimed. But inspection of the documents in the list is a separate matter. Thus r 21.5(2)(a) of the UCPR requires the party responsible for the list on request of the other party to produce for that party's inspection the documents described in the list "other than privileged documents". There is no reason why the exclusion of the privileged documents or parts thereof cannot be achieved by the form of redaction which occurred in the present case. I would therefore reject the appellants' submissions based upon the decision Egglishaw.
101 I turn then to the second proposition. Rule 22.1 of the UCPR relevantly provides as follows:
"(1) At any stage of the proceedings, the court may order any party to answer specified interrogatories.
(2) An application for such an order must be accompanied by a copy of the proposed interrogatories.
…
(5) An order to answer interrogatories:
(a) may require the answers to be given within a specified time …"
102 Rule 22.2 is in the following terms:
"A party may not object to being ordered to answer an interrogatory except on the following grounds:
(a) the interrogatory does not relate to any matter in issue between that party and the party seeking the order,
(b) the interrogatory is vexatious or oppressive,
(c) the answer to the interrogatory could disclose privileged information."
103 Rule 22 replaced Part 24 of the Supreme Court Rules 1970 (the repealed rules). Part 24 r 1(1) provided that a party may
"serve on any other [party] a notice requiring the party served to answer not more than 30, or such other number as the Court may by order specify, separate specified interrogatories relating to any matter in question between the interrogating party and the party served."
104 Part 24 r 2(1) provided that a party required under r 1 to answer interrogatories must do so within a specified time. Part 24 r 5(1) empowered the court at any stage of any proceedings to order any party
"to serve on any other party, (whether the interrogating party or not): (a) a statement in accordance with rule 6 in answer to interrogatories specified or referred to in the order relating to any matter in question in the proceedings … "
105 Part 24 r 6(3) relevantly provided as follows:
"(3) Subject to subrule (4), a party may object to answering any interrogatory on the following grounds but no other:
(a) where the answer is not required by an order, that the interrogatory does not relate to any matter in question between him or her and the party requiring the answer;
(b) that the interrogatory is vexatious or oppressive;
(c) unless and until the Court directs that the question shall not be prevented by the subrule;
(i) that evidence in answer to a question in terms of the interrogatory could not be adduced in the proceedings over the objection of any person, by virtue of the operation of Part 3.10 Division 1 of the Evidence Act …
(4) On an application under … rule 5 in respect of any interrogatory, the Court may require the applicant to specify on what grounds he objects to answer that interrogatory and may determine the sufficiency of the objection … "
106 It is apparent from the foregoing that under the repealed rules, a party to whom specific interrogatories had been administered pursuant to an order of the court could object to answering any interrogatory on the ground that evidence in answer to a question in terms of the interrogatory was the subject of client legal privilege.
107 The appellants submitted that under r 22.2 of the UCPR that the correct and only time to object to answering an interrogatory upon the ground that the answer could disclose privileged information was when the order to answer it was made. As I have indicated, reliance was placed upon the decision of McDougall J in Auburn Council in support of that proposition.
108 In Auburn Council the plaintiff had delivered draft interrogatories for the consideration of the defendant well in advance of any order made under r 22.1(1) of the UCPR. At the time the order was made no objection was taken to answering the interrogatories so proposed. It was when the answers to the interrogatories were provided that objection was taken to answering a number of them upon various grounds, none of which included that referred to in rule 22.2(c).
109 After setting out the effect of rules 22.1, 22.2 and 22.3, McDougall J noted (at [9]) the plaintiff's submission that the time for objecting on the grounds specified in r 22.2 passed no later than the time the order was made. The plaintiff had submitted that it was not open to the defendant to take a threshold objection at any later time.
110 The defendant had submitted that the mechanism laid out in r 22 of the UCPR had not been engaged but his Honour held to the contrary finding that the Court had exercised its power under r 22.1 to order the defendant to answer specified interrogatories. In those circumstances his Honour considered (at [19]) that the time for objection to specific interrogatories passed no later than the time when the order was made. Had the defendant wished to take the position that it did, it should have done so before the court ordered that they be answered.
111 There is obviously much to be said for the view that the proper time to object to being ordered to answer a specific interrogatory upon the ground that it does not relate to any matter in issue between the parties or that it is vexatious or oppressive, is at the time the order to answer the interrogatory is made. Each of the first two grounds referred to in r 22.2 relate to the form of a specific interrogatory or to whether it seeks an answer which is relevant to the issues between the parties. The third ground of objection, namely that the answer could disclose privileged information, might not be known at that point and is potentially in a different category to the first two grounds.
112 There is a subtle, albeit unexplained, change in language between Part 24 r 6(3) of the repealed rules on the one hand and r 22.2 of the UCPR on the other. The former permitted a party to object to answering any interrogatory on the same grounds as are now set out in sub-paragraphs (a), (b) and (c) of r 22.2. The opening words of r 22.2 are different to the opening words of Part 24 r 6(3) for in lieu of providing that a party may object to answering any interrogatory on the specified grounds, the rule now provides that a party may not object to being ordered to answer an interrogatory except on those grounds.
113 As I have observed, there is something to be said for the view that an objection on grounds (a) and (b) should be taken at the time that consideration is given to the making of an order to answer specific interrogatories. But the same considerations do not, in my view, apply to ground (c). In any event, I do not construe r 22.2 as prohibiting an objection to answering an interrogatory on any of the three stated grounds where that objection is not taken at the time that the order that specified interrogatories be answered is made.
114 As a matter of discretion the court may well consider that a failure to take an objection to answer a specified interrogatory at the time the order is made results in the outcome that such an objection ought not to be permitted at the time the interrogatory is answered. Possibly some form of waiver may come into play. But I see no reason in principle why, at least in appropriate cases, an objection to answering a specified interrogatory upon the basis that it would disclose privileged information cannot be taken at the time that the answer to that interrogatory is called for.
115 In any event, as I have indicated, Auburn Council did not involve an objection on the basis that the answer to the specified interrogatory could disclose privileged information. Furthermore, in the present case the relevant orders made by Adams J relating to interrogatories were as follows:
"5. Order that the [appellants] administer interrogatories on or before 20 September 2007.
6. Order the [respondents] to provide their answers to interrogatories on or before 19 October 2007."
116 At the time those orders were made no draft of the proposed interrogatories had been provided by the appellants to the respondents. When this was drawn to the attention of his Honour so as to enable the respondents to indicate their response to any proposed interrogatories, he specifically stated that the appellants could supply the respondents with the proposed interrogatories and
"if you [the respondents] object to any, you will state 'we refuse to answer' or 'we object to this interrogatory' …"
117 The orders made by Adams J on 27 July 2007 were amended by him on 27 August 2007 when he ordered that the appellants administer interrogatories on or before 11 October 2007 and that the respondents provide their answers on or before 19 October 2007. These orders were by consent further amended by the Registrar on 2 November 2007 when he ordered the appellants to administer interrogatories by 14 December 2007 and the respondents to answer them on or before 29 January 2008.
118 At the time the foregoing orders were made, no interrogatories, whether in draft form or otherwise, had been provided to the respondents. As his Honour noted at [84] of his judgment, it was not until 19 November 2007 that the appellants' solicitors forwarded interrogatories to the Crown Solicitor to be answered by the respondents on or before 29 January 2008. That date was, by consent, extended by the Registrar on 29 January 2008 to 22 February 2008.
119 It is therefore clear that at the time any orders were made for the respondents to answer interrogatories, whether by Adams J or by the Registrar, there were no specified interrogatories in respect of which an objection could be taken. On this basis alone it seems to me that r 22.2 had no application and that the decision of McDougall J in Auburn Council is distinguishable.
120 I turn now to the third proposition. The appellants submitted that the respondents should have claimed client legal privilege in respect of the whole and not just part of Document 76 and that by disclosing so much of that document as became Exhibit 8 in answer to interrogatory 14, they were acting inconsistently with their claim for confidentiality and had thereby waived privilege with respect to the whole document in its original form.
121 This submission was based upon the decision of the English Court of Appeal in Great Atlantic Insurance Co v Home Insurance Co [1981] 1 WLR 529; [1981] 2 All ER 485. In that case the plaintiff's solicitors disclosed a document which comprised the first two paragraphs of a memorandum sent to the plaintiff by American attorneys in their capacity as the plaintiff's legal advisers. The solicitors regarded the remainder of the memorandum as privileged but failed to make it clear that the memorandum contained additional matter in respect of which privilege was claimed. In opening the trial, counsel for the plaintiff read the document to the judge unaware that it was incomplete and without any intention of waiving any privilege. When later in the trial it emerged that the document did not represent the whole of the memorandum, the defendant applied for disclosure of the additional matter. The judge ordered disclosure of the whole memorandum and an appeal by the plaintiff to the Court of Appeal was dismissed.
122 It was held on appeal that the whole of the memorandum, being a communication to the plaintiff from their legal advisers, was privileged; that the memorandum dealt with a single subject matter and was not capable of being divided into two separate and distinct memoranda; and that accordingly, privilege could not be waived as to part and asserted as to the remainder.
123 Critical to the decision in Great Atlantic was the finding of the Court that the whole of the memorandum was a privileged communication between legal adviser and client. The question that therefore arose was whether the plaintiff could waive privilege with respect to the first two paragraphs of the memorandum but assert privilege over the balance. At 536 Templeman LJ relevantly said:
"In my judgment, severance would be possible if the memorandum dealt with entirely different subject matters or different incidents and could in effect be divided into two separate memoranda each dealing with a separate subject matter. The judge … came to the conclusion that the first two paragraphs of the memorandum and the additional matter dealt with the same subject matter. … But once it is decided that the memorandum deals with only one subject matter, it seems to me that it might be or appear dangerous or misleading to allow the plaintiffs to disclose part of the memorandum and to assert privilege over the remainder."
124 The decision in Great Atlantic was distinguished by Hoffmann LJ (as he then was), with the agreement of Leggatt and Dillon LLJ, in GE Capital Corporate Finance Group Ltd v Bankers Trust Co [1995] 1 WLR 172; [1992] 2 All ER 993 where at 175, his Lordship said:
"[Counsel] submitted that on the authority of Great Atlantic … the test for whether part of a document could be withheld was not whether that part was relevant … but whether it dealt with a 'separate subject matter' so that the document was in effect two separate and complete documents on one piece of paper. This would, in my view, be contrary to all previous authority which has consistently applied the same … test to a covered up part of the document as to the whole.
On its facts the Great Atlantic case was not about discovery at all. It concerned a privileged document of which counsel read out part in the course of his opening. It was held that, although he was unaware that the document was privileged, he thereby waived privilege in the whole."
125 After citing the passage from the judgment of Templeman LJ which I have set out at [123] above, his Lordship continued:
"If this test is confined to the context in which it was applied, namely, the case of a party who puts in evidence part of a privileged document, I would not in any way differ. … The test for whether part can be withheld on grounds of privilege is simply whether that part is privileged. There is no additional requirement that the part must deal with an entirely different subject matter from the rest."
126 Great Atlantic was referred to with apparent approval in Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475 by Gibbs CJ at 482 [8] and by Mason and Brennan JJ at 488 [11]. The Chief Justice cited the following passage, as did Templeman LJ in Great Atlantic at 538, from the judgment of Mustill J in Nea Karteria Maritime Co Ltd v Atlantic & Great Lakes Steamship Corporation [No 2] [1981] Com.L.R 138 at 139 where his Lordship stated the following test:
"… where a party is deploying in court material which would otherwise be privileged, the opposite party and the court must have an opportunity of satisfying themselves that what the party has chosen to release from privilege represents the whole of the material relevant to the issue in question. To allow an individual item to be plucked out of context would be to risk injustice through its real weight or meaning being misunderstood."
127 Mason and Brennan JJ, when referring to Great Atlantic, said (at 488 [11]):
"In order to ensure that the opposing litigant is not misled by an inaccurate perception of the disclosed communication, fairness will usually 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. ..."
128 In Commissioner of Taxation v Coombes [1999] FCA 842; (1999) 92 FCR 240 at 255 [39], the Full Court of the Federal Court (Sundberg, Merkel and Kenny JJ) referred to the principle applied in Great Atlantic in these terms:
"The principle … which was cited with approval in Maurice at 488 by Mason and Brennan JJ, is that fairness will usually 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."
129 Finally, in MAM Mortgages Ltd (in liq) v Cameron Bros (No 2) [2001] 1 Qd R 46 at 48, Wilson J considered as too inflexible the statement of Templeman LJ in Great Atlantic that the most straightforward rule was
"that if a document is privileged then privilege must be asserted, if at all, to the whole document unless the document deals with separate subject matters so that the document can in effect be divided into two separate and distinct documents each of which is complete."
130 As Wilson J observed, the ultimate test is that of fairness in all the circumstances. Where only part of a document is disclosed but the balance is not, the question is whether the failure to disclose the part in respect of which privilege is claimed results in distortion of the part that is disclosed. If it does, then it would be unfair to sustain the non-disclosure of the other part.
131 The governing principle in the context of the present case is that articulated by Mason and Brennan JJ in Maurice at 487-488 [11] where their Honours said:
"An implied waiver occurs when, by reason of some conduct on the privilege holder's part, it becomes unfair to maintain the privilege. The holder of the privilege should not be able to abuse it by using it to create an inaccurate perception of the protected communication."