Bradley Eade-Smith v Commissioner of Police

(3) In the alternative, if legal professional privilege is found to apply, it has been waived. 2 The respondent opposed access to the material on the ground that it was the subject of legal client privilege. 3 The material in issue comprises an email created on 30 May 2008 which attached two documents, being a draft s 181D(3)(a) Notice under the Police Act and a draft document, described in the email as a, "proposed new form Supporting Documentation outline for Senior Constable Eade-Smith". Neither of these documents were annexed to the email which was tendered during the proceedings on the voir dire. They therefore did not form part of the tender and were otherwise not before the Commission. The email and attached documentation were sent by the respondent's solicitor, Henry Davis York, to the respondent. 4 The basis upon which the applicant asserted that the email was not a privileged document was that it was created to meet statutory requirements under s 181D(1) and (3)(a) of the Police Act. The material contained within the email, according to the applicant, was not authored by the respondent's solicitor for the dominant purpose of providing legal advice. Rather it was authored for the dominant purpose of compiling the s 181D(3)(a) Notice. The document therefore falls outside the Evidence Act and privilege does not attach. 5 In reply the respondent submitted that the contents of the email, as well as the two attachments, were created for the requisite purpose such that all three documents attract privilege. It is apparent, according to the respondent, from the contents of the email, that the respondent's solicitors were asked to provide documents that would ultimately be scrutinised by the Commission if a removal Order was ultimately made. In this sense the documents produced (being attachments to the email) are no different from draft pleadings prepared by lawyers that undoubtedly attract legal professional privilege. They are documents created by lawyers at the behest of the client (here the Commissioner of Police) that carry with them the necessary implications that those pleadings comply with the law. Here the author of the communication in question is the legal adviser of the client, and in this context it is much more difficult to identify a "dominant purpose" other than the provision of legal advice, whether or not with litigation in contemplation. 6 Having examined the documents, I have formed the view that they are documents to which privilege attaches. The contents of the documents allow the inference to be drawn that they were created for the dominant purpose of providing legal advice to the client (s 118 Evidence Act 1995). 7 The email which attaches the two documents commences with a factual narrative which touches on the applicant's background leading up to the preparation of the draft Notice. It proceeds to offer legal advice as to the respondent's prospects of success in the event that the Notice is issued, the s 181D(1) Order is made, and proceedings are commenced in this Commission, brought by the applicant for relief against that Order. 8 The two attachments could also fall within the description of documents in which privilege subsists as described by Gummow J in Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 569: [I]t is also significant as Beaumont J emphasised in the present case that the privilege extends to any document prepared by a lawyer or client from which there might be inferred the nature of the legal advice. Examples include communications between the various legal advisers of the client, draft pleadings, draft correspondence with the client or other party and bills of costs. 9 McHugh J in the same judgment said on the issue (at 553): The privilege attaches whenever the communication or material is made or recorded for the purpose of confidential use in litigation or the obtaining of confidential legal advice. The protected communication or material may be a telephone conversation between a solicitor and client, a research memo of the legal adviser on an issue pertinent to the client's affairs or, as in the present case, the collection and collation of material and documents for the purpose of litigation or obtaining legal advice. 10 According to the applicant the dominant purpose of the email was to provide commentary directly related to the draft Notice and the supporting documentation. It was not the dominant purpose of the email to advise on possible legal challenges that could arise if the applicant's removal were to proceed. Having viewed the document myself I cannot agree with this characterisation. It seems reasonably clear from my reading of it that the respondent's solicitors provided legal advice that had a bearing upon two matters, first whether the respondent was mindful to commence a process that may lead to litigation and secondly the respondent's risks or exposure, given the likelihood of litigation, if a s 181D(1) Order was the outcome of the process commenced by the service of the Notice. 11 The applicant also contended that any privilege attaching to the email and annexures has been lost because the content of the email discloses that the respondent's solicitors deliberately created draft documents that excluded much of the background material relevant to the applicant's psychological condition. This was said to be because the solicitors did not want to encourage an argument that the situation was really a medical issue. The deliberate omission, according to the applicant, amounts not only to procedural unfairness but to an abuse of the respondent's power to remove an officer from the New South Wales Police Force. 12 The applicant in support of this contention relied on s 125(1)(b) of the Evidence Act which provides: (1) This Division does not prevent the adducing of evidence of:

(b) a communication or the contents of a document that the client or lawyer (or both), or the party, knew or ought reasonably to have known was made or prepared in furtherance of a deliberate abuse of a power. 13 The contention in my view is simply not sustainable. Section 125(1)(b) is directed to deliberate conduct. The provision requires that abuse of power be a fact in issue in the proceedings, and that there are reasonable grounds for finding that documents are prepared in furtherance of that abuse of power. An ulterior purpose of the kind alleged by the applicant requires appropriate evidence in order for the allegation to made good: see Propend at 575, citing Viscount Finlay in O'Rourke v Darbishire [1920] AC 581 at 604. The proposition also finds support in The Attorney-General for the Northern Territory of Australia v Kearney (1985) 158 CLR 500 at 516. 14 The mere fact that procedural fairness is an issue in the present proceedings does not amount, without more, to a sustained suggestion of abuse of power. There is evidence before the Commission, including the material forming part of the supporting documentation which accompanied the Notice, which is relevant to the applicant's psychological condition. Whether that supporting documentation, annexed to the Notice when service was effected upon the applicant, was deficient in that it did not contain a fair balance of the background material falls to be assessed by reference to all the evidence on that particular issue. 15 The applicant's third contention was that if the email and attachments were found to attract privilege then that privilege has been waived. This was said to arise as a consequence of the Notice having been served upon the applicant. Any privilege attaching therefore, to the advice, which related to the preparation of the Notice, has been waived. 16 In order for this contention to be made good there must be, on the one hand, a disclosure of the nature and effect of the advice and, on the other hand, an assertion that the advice constituted by the email and the attachments is the subject of legal client privilege. These factors are said to constitute an inconsistency which, if found, may justify the conclusion that there has been an implied waiver of the privilege on the part of the client. 17 The principles regarding waiver were stated by the High Court (Gleeson CJ; Gaudron, Gummow and Callinan JJ) in Mann v Carnell (1999) 201 CLR 1 at [29] (references omitted): 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". 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, 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. 18 The difficulty I have with this third contention is that there is no suggestion on the evidence that the advice has been disclosed. The question, therefore, of whether there is an inconsistency between the conduct said to constitute the disclosure and the maintenance of the confidentiality which the privilege is intended to protect, does not arise. If the material, which includes the draft Notice, was created for the dominant purpose of providing legal advice, as I have held, then it is privileged and any copies of the draft Notice would not operate to deprive the material of the privilege which attaches to it: Propend per Brennan CJ at 509. This conclusion of course proceeds upon the assumption that the Notice served on the applicant was in fact a copy of the draft Notice attached to the email of 30 May 2008. 19 For the foregoing reasons I decline to order production of the email and the two attached documents.

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Judgment (12 paragraphs)

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Cases Cited (5)

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