Does the Evidence Act or Common Law Apply to the Claim for Privilege?
25The council submitted that because this application was made during the course of criminal proceedings that had already been initiated, the claim for privilege is governed not by common law principles, but by Pt 3.10 of the Evidence Act (R v Petroulias (No 22) [2007] NSWSC 692; (2007) 213 FLR 293 at [53]).
26The reasons for this were as follows:
(a) first, by reason of the Land and Environment Court Rules 2007 r 5.2(1), Pt 75 of the Supreme Court Rules 1970 applies to proceedings in Class 5 of the Court's jurisdiction;
(b) second, as a consequence, r 3(1) of Pt 75 makes applicable to Class 5 proceedings certain provisions of the Uniform Civil Procedure Rules 2005 ("the UCPR"), including Pt 1 of the UCPR;
(c) third, r 1.9(1) and (3) of Pt 1 of the UCPR which applies to documents adduced upon subpoena, provides for objections on the grounds that the document is a "privilege document" or would disclose "privileged information";
(d) fourth, the terms "privilege document" and "privileged information" are defined in the UCPR Dictionary and those definitions identify the concept of privilege by reference to Pt 3.10 of the Evidence Act ; and
(e) fifth, to the extent that it has been held that the Evidence Act only applies to the adducing or tender of evidence in court and not to pre-trial disclosure processes such as subpoenas ( Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 at [27] and [144] and Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia [1999] HCA 67; (1999) 201 CLR 49 at [16]-[17], [64] and [146]-[149]), this position has been legislatively abrogated by s 131A of the Evidence Act, which was inserted into that Act by the Evidence Amendment Act 2007 commencing on 1 January 2009.
27Section 131A of the Evidence Act provides as follows:
131A Application of Part to preliminary proceedings of courts
(1) If:
(a) a person is required by a disclosure requirement to give information, or to produce a document, which would result in the disclosure of a communication, a document or its contents or other information of a kind referred to in Division 1, 1A, 1C or 3, and
(b) the person objects to giving that information or providing that document,
the court must determine the objection by applying the provisions of this Part (other than sections 123 and 128) with any necessary modifications as if the objection to giving information or producing the document were an objection to the giving or adducing of evidence.
(2) In this section, disclosure requirement means a process or order of a court that requires the disclosure of information or a document and includes the following:
(a) a summons or subpoena to produce documents or give evidence,
(b) pre-trial discovery,
(c) non-party discovery,
(d) interrogatories,
(e) a notice to produce,
(f) a request to produce a document under Division 1 of Part 4.6.
28In reply, the prosecutor, first, relied on Esso to submit that recourse to the UCPR did not assist the council insofar as that case, and subsequent decisions applying it, had effectively held that r 1.9 of the UCPR does not apply to documents that have already been produced to a court, or in other words, to documents sought to be inspected by the party seeking access to them.
29As Brereton J stated in Carbotech-Australia Pty Ltd v Yates [2008] NSWSC 1151 (at [6]-[11]):
6 Before turning to those issues, however, it is necessary, at least to some extent, to resolve whether the questions pertaining to privilege are to be resolved according to the (NSW) Evidence Act 1995, or according to the common law.
7 The decision of the High Court of Australia in Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia [1999] HCA 67; (1999) 201 CLR 49, establishes that the Evidence Act applies only to the adducing of evidence in the course of a hearing, and not to ancillary processes such as discovery. It must follow that the Act does not apply, of its own force, to claims for privilege in respect of the production and inspection of documents on subpoena.
8 In order to overcome the dichotomy that would otherwise result, the (NSW) Uniform Civil Procedure Rules (" UCPR ") incorporate the Evidence Act test so far as discovery of documents is concerned, by using the terms 'privileged documents' and 'privileged information' and defining them by adopting the Evidence Act provisions. However, there is no equivalent provision in respect of production of documents on subpoena. UCPR , r 1.9, provides a procedure by which objection may be taken to the production of documents required to be produced inter alia by a subpoena upon grounds that the documents are "privileged documents", again defined by reference to the Evidence Act . But this rule relates to the production of documents, and not the inspection of documents already produced. As Mr Kirk has pointed out in the course of argument, r 1.9(3) - providing, as it does, that a person may object to producing a document - is addressed only to an objection by the person required to produce the document, and not an objection or claim for privilege by someone else in respect of a document so produced.
9 A number of cases seem to have proceeded on the basis that r 1.9 has the effect of applying the provisions of the Evidence Act in the present circumstances. In Re Bauhaus Pyrmont Pty Limited (in liq) [2006] NSWSC 543 and Ryder v Frohlich [2005] NSWSC 1342, it does not appear that any attention was directed to the distinction between producing a document to the Court, and granting access for the purposes of inspection to a document already produced. In ML Ubase Holdings Co Limited v Trigem Computer Inc [2007] NSWSC 859, I treated an application for access to documents produced on subpoena as if it were an objection to production of documents on the ground that the documents were privileged documents under r 1.9, again without attending to that distinction. In Westpac Banking Corp v 789TEN Pty Ltd [2005] NSWCA 321; (2005) 55 ACSR 519, Tobias JA observed that r 1.9 had the effect of reproducing former (NSW) Supreme Court Rules , Part 36, r 13(2), and said that those provisions governed the issue as to whether the Court should or should not have compelled the production of the relevant documents. Again it does not seem that attention was given to the distinction between inspection after production, and the act of production itself. But, in Cassaniti v Paragalli [2006] NSWSC 160; (2006) 229 ALR 416, Barrett J recognised the distinction between r 1.9's focus on an objection made at the time at which production of a document was required, as opposed to the time at which an application for access to a document already produced is under consideration, and at least left open the possibility that the common law might apply in the latter situation.
10 The distinction to which I have referred is a well-recognised one, as it has been at least since National Employers' Mutual General Association v Waind & Hill [1978] 1 NSWLR 372, which explained the three steps in the process of complying with the subpoena: first , the production of the document to the Court in answer to the subpoena; secondly , the interim use which might be made of the document, such as the granting of access for the purposes of inspection, at which stage typically any questions of privilege are agitated; and, thirdly , the tender of the document into evidence. Nowadays, the third stage is governed by the provisions of the Evidence Act . The first stage is governed by r 1.9, which authorises an objection on the ground of a claim for privilege to production of a document - contrary, I should add, to the suggestion in Ritchie's Uniform Civil Procedure NSW , at [33.9.5] - and applies the Evidence Act to such an objection.
11 But neither the Act nor the Rules apply to the second stage, and it follows that the common law continues to apply to the second stage. Inconvenient as this result may be, I do not think that inconvenience can be used, as it were, to apply the statutory provisions "derivatively" to the second stage: to do so would run contrary to the High Court's decision in Esso Australia Resources v Commissioner of Taxation .
30This reasoning has been affirmed and adopted in a number of subsequent decisions (Waugh Asset Management v Merrill Lynch [2010] NSWSC 197 at [7]-[8] per McDougall J, d'Apice v Gutkovich (No 1) [2010] NSWSC 1336 at [9]-[10] per White J, Alderman v Zurich [2011] NSWSC 754 at [12] per Adams J and TransGrid v Members of Lloyds Syndicate 3210 [2011] NSWSC 301 at [9] per Ball J).
31I would not adopt a contrary position.
32Second, the prosecutor submitted that, properly construed, s 131A also had no application to documents produced that were now sought to be inspected, rather the provision only applied to the production of documents or the adducing of documents in court, and therefore, the common law applied. In this regard the prosecutor relied on several authorities commencing with Carbotech-Australia , the reasoning of which, the prosecutor asserted, applied to the present application by analogy.
33In Carbotech-Australia Brereton J emphasised the three stages of complying with a subpoena: first, the production of documents to the court; second, the interim use to be made of those documents by gaining access to them for the purposes of inspection; and third, the tender of those documents into evidence at trial (at [10]). The first stage was clearly governed by r 1.9 of the UCPR, and therefore, the Evidence Act applied. The third stage was clearly governed by the Evidence Act to the extent that it concerned the use made of any documents produced in answer to the subpoena at the trial. However, because both r 1.9 and the Evidence Act were silent as to the second stage, and therefore, did not apply, it followed that this stage was governed by the common law.
34The documents having already been produced to the Court but not yet tendered at trial, this application concerns the second stage of the compliance with the subpoena.
35Because s 131A of the Evidence Act refers only to the "giving of information" or to "producing the document", the prosecutor submitted that properly construed according to its ordinary meaning s 131A is equally silent as to the second stage of compliance and similarly, by parity of reasoning with Carbotech-Australia, the common law applies.
36This argument has been accepted by some judges in the Supreme Court of New South Wales. In Waugh Asset Management McDougall J stated (at [9]-[12]) the following:
9 Section 131A of the Evidence Act applies where a party to litigation is required by a "disclosure requirement" to give information or produce documents. Where the person objects to giving information or providing documents, for example on the grounds of privilege, the objection is to be determined by applying the relevant provisions of Division 1A of Chapter 3 of the Evidence Act "with any necessary modifications as if the objection to giving information or producing the document were an objection to the giving or adducing of evidence".
10 Further, by sub-s (2) a "disclosure requirement" is defined to mean a court process or order that requires the disclosure of information or a document, and includes a subpoena to produce documents.
11 Accordingly, I agree with Brereton J that the focus of r 1.9 (which is the rule that deals with objections to production of documents) and s 131A applies at the stage of production. It does not, as it seems to me, apply at the stage of subsequent use. Of course, it is not at the first stage (production), but at the second (interim use, such as access or photocopying), where questions of privilege are raised.
12 I therefore think that the better view is that the question ought to be dealt with in accordance with the relevant principles of the common law. But that does not seem to me to matter because, as I shall indicate, the same answer is to be given whether the situation is dealt with under the common law, or pursuant to the Evidence Act .
37Likewise in d'Apice White J stated (at [10]):
10 However, his Honour held that rule 1.9 does not apply to the second stage where documents are called for production on subpoena, namely whether access to documents produced to the Court should be provided to the parties for inspection. The Evidence Act does not apply to pre-trial procedures analogically and as neither the Civil Procedure Act 2005 (NSW) nor the Rules expressly apply to the second stage, his Honour found that at the stage of inspection the question of whether privilege attaches to the documents and whether such privilege has been waived was to be decided according to common law. His Honour's decision was followed by McDougall J in Waugh Asset Management Pty Ltd v Merrill Lynch [2010] NSWSC 197, where his Honour also held (at [11]) that s 131A (introduced after Carbotech-Australia Pty Ltd v Yates applies only " at the stage of production " of a document to the court, and not to the second stage. I would not depart from these decisions unless I were satisfied that they were clearly wrong. I do not consider them to be clearly wrong.
38And in Alderman Adams J opined the following (at [12]):
12 Given the nature of the dispute here, its determination may not ultimately depend on any differences between the Evidence Act and the common law but I should note that, whether access to, as distinct from production of, documents should be provided to the parties does not, it seems, depend upon the Evidence Act (either directly or indirectly via UCPR 1.9) and the question whether privilege attaches to the documents is answered by the common law: Carbotech-Australia Pty Ltd v Yates [2008] NSWSC 1151; Waugh Asset Management v Merrill Lynch [2010] NSWSC 197; D'Apice v Gutkovich - Estate of Abraham (No1) [2010] NSWSC 1336.
39However, in TransGrid Ball J declined to decide the issue and in doing so made the following pertinent, and correct in my respectful opinion, observations (at [10]):
10 Notwithstanding that submission, Mr Miller said that he was content for the issue to be determined by reference to the Evidence Act on the basis that there was no relevant difference between it and the common law. In those circumstances, it is not necessary for me to deal with the issue he raised. I should, however, say that, in my opinion, it would be most unfortunate if different principles were to apply depending on whether the documents had actually been produced to the court. The clear purpose behind UCPR rule 1.9 and its predecessor Part 36, r 13(2) of the Supreme Court Rules, and behind s 131A of the Evidence Act, is to bring the law of privilege in relation to pre-trial production into line with the law (stated in the Evidence Act) as it applies at trial. So far as s 131A of the Evidence Act is concerned, it may be that the reference in subs (1)(b) to an objection to "providing that document" can be read as covering a case where objection is taken to the document being made available for inspection. Moreover, it may be that the court could make an order under UCPR rule 33.8 for the return of documents produced in response to a subpoena so that the matter could be dealt with under UCPR 1.9. However, as I have said, it is not necessary to deal with these possibilities in this case.
40The contrasting positions of the parties reveals a latent, if not patent, ambiguity contained within s 131A of the Evidence Act .
41As Mr To, on behalf of the council, persuasively submitted, an equally defensible interpretation of the provision is that it extends to the second stage of compliance with a subpoena. To construe the section otherwise would be to ignore the clause following the words "to produce a document", namely, "which would result in the disclosure of a communication, a document or its contents or other information of a kind referred to in Division 1". Division 1 is the division that deals with client legal privilege and relevantly contains ss 117, 118 and 119. When the provision is read as a whole, the better view is that it extends to both the first stage and the second stage of complying with a "disclosure requirement" (which as defined in sub-section (2)(a) includes a subpoena). Logically this must be so because the mere production of a document will not, of itself, result in the disclosure of a communication that would otherwise engage Div 1 of the Evidence Act . It is only the gaining of access to that communication or document that causes the disclosure. If the prosecutor's interpretation were correct, the clause would be otiose, and accordingly, such a construction ought not be preferred. A court must strive to give meaning to every word of a statutory provision ( Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [71]) and Wilson v State Rail Authority of New South Wales [2010] NSWCA 198 at [13]).
42The construction proffered by the council is also harmonious with the remaining text in sub-section (1) ("as if the objection to giving information or producing the document were an objection to the giving or adducing of evidence"). Again, on the interpretation provided for by the prosecutor this text would also be redundant.
43More importantly, the council's construction conforms with the objective legislative intention manifested by not only the words of s 131A themselves but also the purpose or object underlying the enactment of the section. A construction that promotes the avoidance of the mischief to which the provision is plainly directed is to be preferred (s 33 of the Interpretation Act 1987, CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384 at 408, Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at 99, Project Blue Sky at [69], Wilson at [13] and Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190; (2010) 272 ALR 750 at [42]). It must be remembered that the manifest intention of a statue must not be defeated by an overly literal adherence to its precise language (Minister for Immigration and Citizenship v SZJGV; Minister for Immigration and Citizenship v SVJXO [2009] HCA 40; (2009) 238 CLR 642 at [20]).
44The purpose of s 131A may be deduced not only from its heading ("Application of Division to preliminary proceedings of courts"), which suggests a broader application of the section to all preliminary proceedings, and not just the production of documents upon compulsion, but also from its legislative history as illuminated by the extrinsic material.
45If extrinsic material is "capable of assisting in the ascertainment of the meaning of" a provision then it may be used in its interpretation (s 34 of the Interpretation Act ). In the present case, resolution of the ambiguity identified by the parties inherent in s 131A is assisted by recourse to such material (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [52] and Commissioner of Taxation of the Commonwealth of Australia v BHP Billiton Ltd [2011] HCA 17; (2011) 277 ALR 224 at [46]-[47]).
46Of course the extrinsic material can never be substituted for the text of the law (SAEED v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 at [32]-[33], Alcan at [47] and Jemena Asset Management (3) Pty Ltd v Coinvest Ltd [2011] HCA 33 at [50]).
47In the present case, the extrinsic material complements rather than derogates from the text of s 131A. This material unequivocally reveals that the purpose or mischief underlying s 131A was to overcome the anomalous result in Esso as subsequently applied in decisions such as Carbotech-Australia , whereby production of documents pursuant to court process and their ultimate use at trial was governed by the Evidence Act , but that the intermediary step of their use post-production but pre-trial was governed by common law. That is to say, the purpose and object in enacting s 131A was to ensure that the operation of the privileges contained in Div 1, 1A and 3 of the Evidence Act extended to all aspects of pre-trial court proceedings.
48The Explanatory Note to the Evidence Amendment Bill 2007 bears this out. It states as follows (at p 15):
Extension of privilege provisions to pre-trial disclosure procedures and proceedings outside court
Schedule 1 [63] inserts new section 131A to extend certain specified privilege provisions in Part 3.10 of the Principal Act to compulsory processes for disclosure, such as discovery and subpoenas. Issues relating to this extension were discussed in relation to recommendations 14-1, 14-6, 15-3, 15-6 and 15-11 of the Report and a draft provision was included in the Victorian Law Reform Commission's report titled "Implementing the Uniform Evidence Act".
49The reference to "the Report" is a reference to the Uniform Evidence Law Report published by the Australian Law Reform Commission (ALRC Report 102), the NSW Law Reform Commission (NSWLRC Report 112) and the Victorian Law Reform Commission (VLRC Final Report) in December 2005. Chapter 14 dealt with "Privileges: Extension to Pre-Trial Matters and Client Legal Privilege". The "need for extension of privilege" to all pre-trial disclosures was articulated in paragraphs 14.7-14.11 of the Report (references omitted):
14.7 Since the commencement of the Commonwealth and New South Wales legislation in 1995, a number of appellate cases have applied the privilege provisions to discovery and inspection of documents on the basis that the uniform Evidence Acts have a derivative application to the common law. However, in Mann v Carnell and Esso v Commissioner of Taxation , the High Court rejected this approach and found that the uniform Evidence Acts apply to the adducing of evidence only in relevant proceedings. The High Court in Esso emphasised the fact that the uniform Evidence Acts had been adopted only by the Commonwealth and certain states. To modify the common law only in those states which had adopted the uniform legislation was considered by the Court to be an unacceptable fragmentation of the common law.
14.8 The introduction of the uniform Evidence Acts has thus created a situation in which two sets of laws operate in the area of privilege. The uniform Evidence Acts govern the admissibility of evidence of privileged communications and information. The common law does not apply. In all other situations the common law rules persist, unless a statute abrogates the privilege.
14.9 This has several consequences:
· within a single proceeding different laws apply at the pre-trial and trial stages;
· different laws also apply in determining privilege applications in the context of warrants and in reviewing decisions of bodies not bound by the uniform Evidence Acts;
· legal practitioners are required to understand and advise on two sets of laws; and
· individuals and bodies are subject to two legal regimes which determine their ability to resist or obtain disclosure of information. Their ability to resist or obtain disclosure of the same information may differ depending on the context in which it is sought.
14.10 This has led to criticism of the uniform Evidence Acts:
The ALRC Reports failed to come to terms in any meaningful way with the practical consequences that would flow from the enactment of detailed provisions governing privilege that would apply only to the admission of evidence once privilege had, under the different common law rules, been determined not to apply to that evidence at the pre-trial process stage.
14.11 Kirby J has stated that a 'great deal of inconvenience would be avoided if the bringing forward of evidence for use in a later trial (as by responding to an order for discovery, a subpoena or some other ancillary process) were held to fall within the Act'. The Commissions agree that this is an undesirable situation and needs to be addressed. There are different ways of doing so.
50It was the strong view of the Commissions that the bifurcated system of the privileges contained in the Evidence Act applying only at trial and not to pre-trial processes was undesirable and in need of reform (at paragraphs 14.63-14.66, references omitted):
14.63 The Commissions strongly support the view that a dual system of client legal privilege operating in any one jurisdiction is undesirable. It is the clear position of the courts in Australia since Baker v Campbell that legal professional privilege is a fundamental right that applies to court, administrative and investigative proceedings. The Commissions' view is that, in the interests of clarity and uniformity, the client legal privilege sections of the uniform Evidence Acts should be extended to apply to these pre-trial contexts, as currently regulated by the common law rules of legal professional privilege.
14.64 The current system has resulted in extensive confusion and on-going litigation. Attempts to extend the privilege to some pre-trial matters via the rules of court have led to further litigation. As will be discussed further below, client legal privilege is a heavily litigated area of law and, as a doctrine, continues to develop in response to changing business and legal practices. Should the common law continue to operate pretrial and the uniform Evidence Acts at trial, there is likely to be an increasing disparity between the two systems which can only add to the complexity of the law in this area.
14.65 Therefore, it is the Commissions' view that the client legal privilege sections of the uniform Evidence Acts should apply to pre-trial contexts and to any situation where a person is requested to produce a document
14.66 Some of the options available to achieve this are discussed above. The Commissions do not make any specific recommendation about how this recommendation should be implemented. The draft amendments to Part 3.10 included in Appendix 1 contain only those amendments flowing from other recommendations.
51While the language of the Report frequently refers to the "production" of a document, a fair reading of Ch 14 makes it tolerably clear that the Commissions in no way intended that the extension should apply to production only, but should extend the operation of the privileges contained in the Evidence Act to all pre-trial disclosures, including inspection of documents produced in answer to a subpoena.
52As a consequence, Recommendation 14-1 of the Report was as follows:
Recommendation 14-1
The client legal privilege provisions of the uniform Evidence Acts should apply to any compulsory process for disclosure, such as pre-trial discovery and the production of documents in response to a subpoena and in non-curial contexts including search warrants and notices to produce documents, as well as court proceedings.
53The Victorian Law Reform Commission's Report Implementing the Uniform Evidence Act published in February 2006, and referred to in the Explanatory Notes, stated as follows in a section entitled "Extension of Privilege - Section 131A" (at paragraphs 2.70-2.72, references omitted):
2.70 Most of the privilege provisions in Part 3.10 apply to the adducing of evidence. This has the consequence that common law privileges continue to apply to pre-trial disclosure procedures and in matters outside court. The joint Final Report recommends the extension of a number of the privilege provisions in Part 3.10 to compulsory processes for disclosure, such as discovery and subpoenas. Issues surrounding the extension of the privilege provisions are discussed at length in the joint Final Report. However, the commissions do not put forward a draft amendment or provision as the preferred means of achieving the desired result.
2.71 The commission has examined this issue further and drafted a provision which achieves a limited extension of the privilege provisions of the UEA to compulsory process for disclosure in courts. We also make recommendations in relation to procedural aspects of claiming privilege in these contexts.
2.72 In relation to compulsory processes outside court proceedings, we recommend that extension of the UEA provisions be achieved through amendment of the Acts in which disclosure powers are located.
54The VLRC's "preferred option" was (at paragraphs 2.76-2.77, references omitted):
2.76 The commission's preferred option is to include a single flexible extension provision in the Act. This would apply the relevant privilege provisions to other compulsory disclosure processes with any appropriate modifications or, as it is said,
mutatis mutandis . Relevant privilege provisions of the Act will then apply to compulsory disclosure processes such as discovery of documents, subpoenas and warrants.
2.77 This option will have the flexibility to apply the privilege provisions with such changes as are necessary to the particular compulsory process. For example, if there is a dispute about whether a discoverable document is subject to the professional confidential relationships privilege, the court can resolve the dispute by applying section 126A. The power to direct that evidence not be adduced would become a power to direct that the document not be required to be produced for inspection. The court would then consider whether it is likely that harm would or might be caused to a protected confider if the document was required to be produced for inspection.
55The result was a recommendation that the Victorian Uniform Evidence Act be drafted to include a provision (s 131A) that is almost identical to the s 131A provision enacted in the Evidence Act .
56That s 131A was intended to extend the privileges contained in, inter alia , Div 1 of the Evidence Act to all curial pre-trial disclosures, including the inspection of documents produced in answer to a subpoena, is reinforced, in my opinion, by the Second Reading Speech of the Evidence Amendment Bill (New South Wales Legislative Council, Hansard , 24 October 2007, at 3204) where the following was said (emphasis added):
( Expanding privileges to pre-trial court procedures )
The last amendment relating to privileges which I will address today also relates to pre-trial proceedings.
The Commissions noted that the introduction of the Evidence Act has resulted in two sets of laws operating in the area of privilege. Where the Evidence Act governs the admissibility of evidence of privileged communications and information, the common law does not apply. In all other situations, the common law rules persist unless a statute expressly abrogates the privilege. This means that within a single proceeding, different laws apply at the pre-trial and trial stages. Individuals' ability to resist or obtain disclosure of the same information may vary depending on the stage of the proceedings in which it is sought.
The Commissions recommended that the operation of client legal privilege, professional confidential relationship privilege and matters of State privilege should be extended to apply to any compulsory process for disclosure (recommendations 14-1 , 15-3 and 15-11 respectively).
The Bill proposes to implement these recommendations in part. The proposed new section 131A extends the operation of these privileges to pre-trial court proceedings . However, the provision does not extend the privileges to non-curial contexts. (Extension to out-of-court proceedings may be considered in future, with the benefit of the Australian Law Reform Commission's final report on client legal privilege, which is due for publication later this year).
57The decisions relied upon by the prosecutor may be dealt within the following way. First, none are binding on me and no notion of comity applies, although I acknowledge that they nevertheless remain of considerable persuasive effect. Second, Carbotech-Australia was decided before s 131A was promulgated. Third, and with the greatest of respect, the decision in Waugh Asset Management does not rest on a detailed textual analysis or construction of s 131A, particularly by reference to the purpose underlying its enactment (see at [11]). A similar observation may be made of the decision in d'Apice, which merely states that Waugh Asset Management was not clearly wrong and thus no departure from it was warranted (at [10]). Similarly Alderman (at [12]). Fourth, against this quartet is the obiter dicta in TransGrid (at [10]). And fifth, the learned authors D Byrne and J D Heydon of Cross on Evidence, 8th Australian ed (2010) LexisNexis Butterworths at pp 923-924 and Stephen Odgers SC of Uniform Evidence Law, looseleaf ed (2002) Thomson Lawbook Co at [1.3.14160] pp 1-20503-1-20504 are of the opinion that s 131A applies to the second stage of compliance with a subpoena. Furthermore, the latter learned author was critical of the decision in Waugh Asset Management noting that in his view it was inconsistent with a purposive approach to statutory interpretation (at [1.3.14160] p 1-20504). I respectfully agree.
58For these reasons I must depart from the decisions referred to above and accept the council's construction of s 131A of the Evidence Act . I therefore find that this application is governed by the Evidence Act and not the common law.
59Having said this, in case I am wrong I have nevertheless determined the application in the alternative, that is, on the basis of the common law. In so doing, it becomes apparent that the result is the same, namely, that the documents are privileged and ought not be disclosed.