Commonwealth of Australia v. Frost, S. & Ors [1982] FCA 113

A Board of Accident Inquiry was appointed by the Minister' for Transport on 13 October 1981 to inquire into the cause of an accident to Beech Super King Aircraft VH.AAV operated by Advance Aviation Pty. Limited (trading as Advance Airlines of Australia) at Sydney (Kingsford Smith) Airport, on 21 February 1980.

The Board was appointed under reg. 287 of the Air Navigation Regulations (Commonwealth) ("the regulations") and its appointment followed on an investigation into the circumstances surrounding the accident by investigators authorised by the Secretary to the Department of Transport pursuant to reg. 278 of the

The report of that investigation was made public and a copy is in evidence before me. It expressed a number of conclusions and made a statement as to the cause of the accident.

Pursuant to reg. 291 of the regulations, the chairman of the Board, at the outset of the Board's hearings, granted leave to appear before it to the Commonwealth and the representatives of the families of certain persons killed in the accident,

Since then a great deal of evidence has been received by the Board. On 9 March 1982 counsel appointed to assist the Board called Miss Vivian Soar, an officer of the Department of Transport to give evidence before it.

In the course of her evidence she was asked,by counsel for certain of the families represented, whether she had given a statement to Mr Bermingham, principal legal officer, employed in the Commonwealth Attorney-General's Department and based in the Deputy Crown Solicitor's office in Canberra, who! has acted as solicitor for the Department

of Transport in respect of the inquiry. She said she had. She was then asked - "What form did that statement take?"

Counsel for the Commonwealth objected to the question, claiming that the statement was the subject of legal professional privilege. After argument the learned Chairman of the Board gave reasons and indicated that the question asked should be admitted.

The Commonwealth has now applied to this court under the Administrative Decisions (Judicial Review) Act 1977 seeking

an order of review of the Board's decision to admit the

evidence, claiming that there has been a breach of natural

justice, a failure to observe proper procedures and an improper exercise of the power conferred on the Board.

Laraine Alice Kassimatis, the executrix of the estate of Brian Christopher Kelly,who was killed in the accident,has been made a respondent to these proceedings and, in ordering that she be a respondent, this court directed that she represent the relatives of nine other persons who were killed in the accident.

The determination of the issue in this matter involves a consideration of a number of the regulations and I propose to refer to those of particular relevance.

As is apparent from what I have already said, where an accident such as this occurs, it is open to the Secretary to the Department of Transport to authorise an investigation under reg. 278. When that happens the investigators have power to summon witnesses, take evidence on oath or affirmation or require the production of documents or components of an aircraft relevant to the investigation (see reg. 279(1)).

There are several provisions placing obligations on witnesses before the investigators including the sanction of a penalty for failing to answer any question which the witness is "Lawfully required" by the investigator to answer (see reg. 281(1)(c)).

As stated earlier, the report of this investigation set out a number of conclusions which related (inter alia) to the practices adopted by the aircraft operator as to standard passenger weights and the limits of inter-turbine temperature (ITT) on take-off. These practices were not approved by the

"Officers of the Department of Transport were aware of the unapproved practices in respect of standard passenger weights and reduced power take-offs but action had not been taken to regularise the company's operation."

"The cause of the accident has not been determined, but the most likely explanation is that the aircraft was operated in a reduced power configuration which, under the prevailing conditions, render its single engine performance critical in respect of aircraft handling."

The Board was established under reg. 287(1). That regulation provides:-

"287(1) Where an accident has been investigated under Division 4, 5 or 6 of this Part, the Minister may, whenever he considers it desirable to do so in the public interest, appoint a Board of Accident Inquiry to inquire into the causes of the accident and such other matters relating to the accident as are referred to 1t by the Minister."

Regulation 291(1) provides that the Board "shall conduct an inquiry into the causes of the accident and into the other matters referred to it." In this case no other matters were in fact referred. Under reg. 291(2) the Board may conduct the inquiry "in such manner as it thinks fit without being bound by legal rules of evidence,"

Regulation 291(3) to (7) inclusive and reg. 292 (1) to (8)

"291.(3) The time and place for conducting the inquiry shall be f1uxed by the Chairman of the Board of Accident Inquiry, not being a date less than fourteen days after receipt py the Chairman of the report referred to in sub-regulation (1A) of this regulation.

(4) The Chairman of the Board of Accident Inquiry may grant leave to appear before the Board to a person being -

(a) a person whom the Chairman considers may be affected or prejudiced by the

(b) the representative of an association a member of which the Chairman considers may be affected or prejudiced by the inquiry; and

(c) in the case of an accident to an aircraft of a Contracting State - the accredited representative of the Contracting State.

(5) A person who is granted leave under the last preceding sub-regulation may be represented by counsel, solicitor or agent, who may examine witnesses and address the Board of Accident Inquiry on the person's behalf.

(6) Unless the Chairman of the Board of Accident Inquiry otherwise directs, the sittings of the Board shall be open to the public.

(7) The Chairman of a Board of Accident Inquiry may -

(a) direct that a witness be excluded from the sittings of the Board while another witness is giving evidence; and

(b) direct that the whole or a specified part of the evidence not be published if, in his opinion, this course is in the public interest.

292.(1) The Chairman of the Board of Accident Inquiry may, by writing under his hand, summon a person to attend before the Board at a time and place specified in the summons to give evidence and to produce books, documents and writings or a part or component of an aircraft in the custody or control of the -

person which the person is required by the summons to produce.

The Board of Accident Inquiry may inspect books, documents or writings or a part or component of an aircraft produced before it, and may retain them for such reasonable period as it thinks fit, and may make copies of such portions of the books, documents or writings as are relevant to the inquiry.

The Board of Accident Inquiry may examine on oath a person appearing as a witness before it, whether the witness has been summoned or appears without being summoned, and for this purpose may administer an oath to the witness.

Where a witness conscientiously objects to take an oath, the witness may make an affirmation instead of taking an oath, and an affirmation so made shall be of the same force and effect, and shall entail the same liabilities, as an oath.

A person served with a summons to attend before the Board of Accident Inquiry shall not, after payment to him of reasonable expenses, fail, without reasonable excuse -

(a) to attend before the Board and to continue in attendance from day to day, unless excused by the Chairman of the Board or until he is released from further attendance by the Chairman of the Board; or

(b) to produce the books, documents or writings or the part or component of an aircraft in his custody or control which he is required to produce.

A person appearing as a witness before the Board of Accident Inquiry shall not refuse to be sworn or make an affirmation instead of taking an oath, or answer a question relevant to the proceedings put to him as a witness.

to the Board of Accident Inquiry is not admissible in evidence against him in civil

or criminal proceedings in a court except in a prosecution for giving false testimony in proceedings before the Board.

A witness summoned to attend before the Board of Accident Inquiry shall be paid fees and travelling expenses in accordance with the scale set out in the Second Schedule to the Public Works Committee Regulations.

Provision is made in reg. 288 for the constitution of the Board. It provides:-

"288.(1) A Board of Accident Inquiry shall be constituted by a Chairman and such assessors as the Minister considers necessary.

(2) The Chairman shall be a person who is a Justice or Judge of a Federal Court, a State Court or a Court of a Territory or a person possessing legal, aeronautical or engineering knowledge or experience or other special knowledge or experience of air navigation."

Regulation 312 deals with offences and provides (reg. 312(1)) that a person who contravenes or fails to comply with a provision of the regulations is guilty of an offence. Certain penalties are stipulated (reg. 312(5)).

In support of the Commonwealth's claim to privilege, evidence was given by Mr Bermingham. He said that he had7 since November 1981, been acting as instructing solicitor for the Department of Transport in respect of the Inquiry. In January 1982 he visited Kingsford Smith Airport and spoke to Miss Soar who is a trainee air traffic controller employed by the Department.

In the presence of Mr Adams, the Assistant Director of Operations, he told Miss Soar that he was instructing solicitor for the Department in respect of the Inquiry and that he wished to take a statement for the purpose of instructing counsel appearing for the Department in the

Inquiry. She dictated a statement to him which he wrote

down and read over to her and she agreed it was true and correct. It was later typed and sent to her for checking and it was subsequently returned initialled. He says that the statement was taken by him solely for the purpose of obtaining evidence to be used in the Inquiry, preparing the Department's case in the Inquiry and instructing counsel appearing for the Department in the Inquiry.

In his reasons, the Chairman held that the effect of the regulations was that legal professional privilege was not available to a witness as a matter of right and that the defeat of that privilege would not constitute a reasonable excuse for a witness refusing to answer a question. He went on to point out that the Board had a discretion whether to admit the question to which objection was taken and held that the statement in question was relevant to the assessment of the weight to be accorded Miss Soar's evidence or might prove to be so and accordingly he decided to admit the question.

In my opinion a person who is granted leave to appear before the Board pursuant to reg. 291(4) is entitled to claim legal professional privilege in relation to documents which are brought into existence for the sole purpose of their being used to enable legal advisers to represent that person before the Board pursuant to reg. 292(5). Such documents would include a statement obtained

from a witness called to give evidence before the Board.

On the basis of what is before me it would seem that the statement taken from the witness Miss Soar by Mr Bermingham falls within this category.

In considering the problem raised 1n these proceedings it is important to bear in mind that legal professional privilege is the privilege of the client and not of the lawyer or of a witness, unless of course he or she be the client. Thus in the present case the privilege claimed, if it exists, belongs to the Commonwealth not to the witness Miss Soar. If entitled to claim it, only the Commonwealth can waive it. We are not dealing therefore with rights alleged to belong to the witness, Miss Soar.

Much of the argument before me was directed to the true construction of reg. 292(5) and (6) and the meaning in sub-reg. (5) of the words "without reasonable excuse". Cases were referred to which deal with similar phrases such as "without lawful excuse". (Signorotto v. Nicholson (Fullagar J. 13/11/81 unreported); Crafter v. Kelly (1941) S.A.S.R. 237; Kempley v. The King 1944 S.R. (N.S.W.) 416; (1944) Arg.L.R. 249)).

The right of the Commonwealth to claim privilege before the Board does not, in my view, depend on the true construction of reg. 292(5) and (6). Those sub-paragraphs are dealing only with the obligations of witnesses. The obligation to answer may turn on whether privilege is claimed by another but they are two distinct questions. Thus, in court proceedings, a witness might be quite willing to answer questions revealing privileged communications

they would. In the former case the person entitled to

and prevent the disclosure. claim the privilege may object/ In the latter the witness would have no right to refuse to answer the questions if that person had waived the claim to privilege.

In this case, therefore, the right of a person entitled to appear before the Board by a legal representative to claim legal professional privilege by virtue of that relationship must be found to exist independently of anything contained in reg. 292(5) and (6). If such a person has that right,the Board, in my view, is bound to respect the privilege and, unless it 1s waived, to disallow questions to any witness or the inspection of any documents which questions or documents would,if allowed breach the privilege. The fact that reg. 292(6), unlike reg. 292(5), does not contain the words "without reasonable excuse" does not seem to me to affect the question.

In considering whether the Commonwealth has this right, it is also important to have in mind the reasons for the recognition of legal professional privilege in cases coming before the Courts. They are stated in Waugh v. British Rarlways Board ((1980) A.C. 521)in the following passage from the reasons of Lord Wilberforce at p.531:-

protect its revenues, to place all the facts before

the public and to pay proper compensation to those it has injured. A more powerful argument to my

mind is that everything should be done in order to encourage anyone who knows the facts to state them fully and candidly ~- as Sir George Jessel M.R. said, to bare his breast to his lawyer: Anderson v. Bank of British Columbia (1876) 2 Ch.D 644, 699. This

he may not do unless he knows that his communication is privileged."

It has now been held in Australia that legal professional privilege is confined to documents which are brought into existence for the sole purpose of their being submitted to legal advisers for advice or for use in legal

National Employers' Mutual General Insurance Association

Limited v. Waind & Anor. (1979) 141 C.L.R. 648). Within the scope of the privilege are the statements of witnesses taken for

presentation of the client's case. (See generally on the

scope of the privilege T.P.C. v. Sterling (1979) Australian

High Court and Federal Court Practice (CCH) 95,453).

Clearly enough, by virtue of reg. 291(5), a person given leave to appear before the Board may be represented by counsel or solicitor. At common law, a person who has a statutory right to appear before a non-judicial tribunal may do so by an agent including solicitor or counsel unless the right is taken away. (See R. v. Assessment Committee of St. Mary Abbotts (1891) 1 Q.B. 378; R. v. The Board of Appeal (1916) 22 C.L.R. 183). Here the right is not taken away but expressly conferred.

In my opinion the right to legal representation before

the Board, which reg. 291(5) expressly confers, carries with

it the right to claim legal professional privilege. Although the

rule which recognises such privilege is a rule of evidence developed by the Courtsin adversary proceedings, it is, as the passage I have quoted from in Waugh's Case indicates, designed to ensure candour on the part of the client and, as a result, a greater likelihood of the full facts relevant to the issues being ascertained. There is to my mind, as much reason for encouraging candour and full disclosure in the Board's inquiry as there would be in adversary proceedings. This is an object which I think it 1s reasonable to assume the craftsman of these regulations would have had in mind. Furthermore, if a person who had the right to legal representation before the Board was unable to preserve the confidence of that relationship before the Board it would mean that the legal representation was potentially much less effective than it would be if it occurred in court proceedings. The right to claim privilege is an incident of the relationship in court proceedings and,in my view,the draftsmn of the regulatin, in conferring a right to be represented by counsel before the Board, intended that it should carry with it the right to protect the confidence of tine relationship. Regulation 291(2), which provides that the Board may conduct the inquiry in such manner as it thinks fit and is not bound by the rules of evidence, is,in my view,no answer to this. Clearly enough the Board's power so to conduct the inquiry is not unlimited. It must, for instance, observe the rules of natural gustice (cf. Ex_parte Hardiman (1980) 144 C.L.R.

13 at p.34). Lakew1zse it must observe the requirements of

reg. 291(5). It must allow legal representation to a person granted leave to appear and permit the examination of witnesses and addresses by the legal representative. In my opinion, because, as I construe it, the right to legal representation which reg. 291(5) confers carries with it the right to protect the confidence of that relationship the Board must uphold the right to privilege if it is claimed.

As I have already pointed out if the person represented could not in strict confidence instruct his solicitor, confer with solicitor and counsel, receive advice and obtain and supply to counsel the proofs of witnesses for the purposes of his representation before the Board the value of the right to representation must be seriously diminished. The Board would, if it did not respect the confidence, be detracting in large measure from what the regulations have, in my view, expressly given.

It is true that the Board's inquiry is investigative in character and that it is not an adversary proceeding. However, the Chairman of the Board is to give a report stating his findings as to the causes of the accident. Under reg. 291(4) leave to appear can be given to persons whom the Chairman considers "may be affected or prejudiced by the inquiry". Even though the proceedings are not adversary in character, a person who may possibly be prejudiced or affected will want to put what he regards as his "case", He

some of whom he may offer to the Board himself, the production of relevant documents and the making of submissions. In a given case there will be several

persons represented who have competing interests each contending that others were the cause of the accident. Although not strictly adversary in character the inquiry can take on many of the characteristics of such a proceeding all with a view to reaching a finding which could be prejudicial, if not strictly adverse, to one or other of those represented.

In my view an analysis of the nature of the proceedings before the Board only serves to support what I regard as the effect of reg. 291(5), namely, to give to a person represented the full benefit of the lawyer-client relationship.

The question before me does appear to be devoid of direct authority in Australia. However, consideration was given to a.similar question in the United States in Civil Aeronautics Board v. Air Transport Association (1961) 201 Fed Sup. 318. It was held by the United States District Court that attorney - client privilege could be asserted in an administrative proceeding by the Civil Aeronautics Board against a trade association of air carriers. Certain documents were subpoenaed but the defendant trade association declined to produce the documents on the ground that they were covered by the attorney-client privilege. District Judge Holtzoff, in a passage which is consistent with the

"The Court is of the opinion that the attorney- client privilege may be asserted 1n the proceeding pending before the Civil Aeronautics Board and involved in this action. The attorney-client privilege 1s deeply imbedded and 1s part of the warp and woof of the common law. In order to abrogate it in whole or in part as to any proceeding whatsoever, affirmative legislative action would be required that is free from ambiguity. The very existence of the right of counsel necessitates the attorney-client privilege in order that a client and his attorney may communicate between themselves freely and confidentially."

For these reasons the Chairman of the Board, in my opinion, erred in law in holding that the effect of the regulationsis that legal professional privilege is not available as a matter of right.

I have already indicated, that,on the basis of what is before me, the statement taken from Miss Soar by Mr Bermingham appears to fall within the privilege and that therefore questions relating to it should be rejected.

I have considered whether I should so find but have decided that, having indicated my view on the matter of principle, I should refer the matter back to the Board and direct that it act in accordance with it. The

question whether documents fall within the scope of legal

professional privilege often depends on other evidence. This

is particularly so in the light of the decision 1n Grant v.

Downs and the adoption of the "sole purpose" test. In

some cases the tribunal will find it necessary,or at least desirable,to look at the document before determining the

16, I therefore propose to leave to the Board the decision as to whether the question should be permitted. In so doing, I must not be taken to be expressing any doubt that on the facts before me the statement of the witness is privileged. I think it 1s. However, if additional facts emerged before the Board, a different view might, on the authorities, be justified and I consider that I should therefore leave the actual decision to the Board. With the consent of all parties I propose to make no order as to costs. The orders I propose making are:-

1. Declare that the Chairman of the Board erred in law in deciding that the effect of the Air Navigation Regulations is that legal professional privilege is not available, as a matter of right, to a person entitled to be represented in the proceedings before the Board by solicitor or counsel.
2. order that the matter be referred back to the Board of Inquiry for further consideration in the light of the above declaration and these

that this andthe 7.Ceew oo ., ages are a true copy of the tec. .s for Judgment herein of his Honour ir. Justice Ellicott.;~ - !) a