Friday v Minister for Primary Industry and Resources

background 10 The applicants are accepted, subject to one qualification, as being the common law holders of native title of a relevant area the subject of the proceedings (Amended Defence of the First and Second Respondents [1]). The applicants commenced the principal proceedings on 15 November 2019. There are two substantive issues in the action relevant to this application. The first is whether private (ex parte) dealings between the third respondent, Mount Isa Mines Limited (MIM), and delegates of the first respondent, the Minister for Primary Industry and Resources (Minister), denied the applicants a fair hearing in relation to MIM's application for the grant of ML 29881. The second is whether a decision by a delegate of the Minister to extend time for MIM to give notice of the application to the applicants is effective. 11 The respondents assert that the ex parte communications did not deny the applicants a fair hearing on the application for the grant of ML 29881 as the requirements of procedural fairness did not extend to providing the native title holders with an opportunity to correct or contradict the information in the communications and that the communications would not lead to a reasonable apprehension of bias on the part of the Minister or his delegates (Amended Defence of the First and Second Respondents [17A]). 12 On 31 March 2020, an order was made requiring the respondents to each serve a list of documents in accordance with r 20.17 of the Federal Court Rules 2011 giving discovery of all documents in the party's control: …being or recording communications between: (a) on the one part, the third respondent, McArthur River Mining Pty Ltd and Ward Keller (including their officers and agents); and (b) on the other part, the first respondent and the Department of Primary Industry and Resources Industry and Resources (including their officers and agents); in relation to the application by the third respondent for the grant of mineral lease ML 29881…in the period commencing 8 March 2013 (when the application was made) and ending on 16 December 2019 (when notice of the application was purported to have been given by the third respondent to the fourth applicant). 13 The documents listed in Part 1 of the Schedule to the application, and over which a claim for privilege is pressed (RS [3]), subject to the observation below about Document 121, are: Sch List No Document 4 113 File note of Jennifer Laurence (now described as prepared by Angela Kennedy) of Department of Primary Industry and Resources dated 21 November 2019 [withheld from inspection] 5 115 Email from Jennifer Laurence of Department of Primary Industry and Resources to Rod Applegate of Department of Primary Industry and Resources dated 26 November 2019 at 12.00pm [withheld from inspection] 6 116 Draft (116) and signed (117) Ministerial Briefing dated 26 November 2019 [withheld from inspection] 117 7 119 Email from Jennifer Laurence of Department of Primary Industry and Resources to Rod Applegate of Department of Primary Industry and Resources dated 5 December 2019 at 8.56am [withheld from inspection] 9 121 Part email chain (121), being the email from Jennifer Laurence of Department of Primary Industry and Resources to Alister Trier and Rod Applegate of Department of Primary Industry and Resources dated 6 December 2019 at 4.07pm and attachment to email (122) "Draft Min Brief No 2 - Mineral Lease 29881 - Mount Isa Mines Limited" (excluding copies of emails 3.39pm and 9.18am within document 121) [121 redacted, 122 withheld from inspection] 122 11 125 Emails from Jennifer Laurence of Department of Primary Industry and Resources to Alister Trier and Rod Applegate of Department of Primary Industry and Resources dated 11 December 2019 at 11.26am (125) and 11.51am (127) [withheld from inspection]. 127

14 Item 1.9 of the Schedule to the interlocutory application also refers to Documents 121 and 122. The First and Second Respondents' Submissions do not indicate whether the claim for privilege in respect of Document 121 continues to be pressed: [2]-[3]. The Applicants' Reply Submissions similarly omit any reference to Document 121: [2]. Nevertheless, the Bundle contained the three emails which were identified as being "Sch 1.9 - document 121 - 20191206 - Misc Emails (unredacted)". For the purposes of this application, I have assumed that the claim for privilege in relation to Document 121 is maintained. 15 Documents 119, 122, 125 and 127 are said to concern the second substantive issue in the proceedings, namely the decision of the Minister's delegate made on 13 December 2019 to extend the time for service of the mineral title application retrospectively. It is pleaded that the power to extend time limits conferred by s 167 of the Mineral Titles Act 2011 (NT) (MTA) was not exercised reasonably (Further Amended Statement of Claim [27]) and that the effect of ex parte communications between MIM and the Department of Primary Industry and Resources (DPIR) was that the decision was made without regard to the merits of the mineral title application and the native title holders' objection (Reply [4(4)-(5)]). 16 The Minister and the Northern Territory contend that the documents fall into two categories of privilege. Documents 113 and 119 are said to be documents created to obtain legal advice. Documents 115, 116, 117, 122, 125 and 127 are said to be advice provided by the Department's Director of Legal Services. 17 The applicants argued that maintenance of the asserted confidentiality which the privilege is designed to protect is inconsistent with the defences pleaded in paras 17A and 27(7)(d) of the Amended Defence (AS [32]; AS-R [7]-[8]). The applicants submitted that the issues on the pleadings concern "communications", not documents, and that the withheld documents are within the order for discovery of documents "being or recording communications" between the relevant parties (AS-RSS [3]). 18 By the Amended Defence, the Minister and the Northern Territory: admit to ex parte communications between officers in the DPIR with MIM ([17A(a)]); say, inter alia, that procedural fairness did not require the Northern Territory to provide the applicants with an opportunity to correct or contradict the information in those communications ([17A(b)]); and say that the communications would not lead to a reasonable apprehension of bias on the part of his Minister or his delegates ([17A(e)]). The Minister and the Northern Territory say further that the power to extend time was not exercised unreasonably or for a purpose other than that for which it exists ([27(a)(v)(7)(d)]). 19 If a party, by a pleading, expressly or impliedly makes an assertion about the content of a privileged document, it may mean that such an assertion amounts to an implied waiver of privilege: Mann v Carnell (1999) 201 CLR 1 [29]; DSE (Holdings) Pty Ltd v InterTAN Inc (2003) 127 FCR 499 [62]; Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341 [52], [68]. 20 The Minister and the Northern Territory have put in issue whether the content of the (admitted) communications between the officers of the DIPR and MIM would lead to a reasonable apprehension of bias. They have not made any express or implied assertion about the content of the documents over which privilege is claimed. The Minister and the Northern Territory submitted that the documents are wholly internal to the Government of the Northern Territory and record only the communications between the respondents incidentally. They maintain that they have produced all of the documents falling within the scope of the orders for discovery which constitute communications between the first and second respondents on the one hand and the third respondent on the other (RSS [3]). It was submitted that each of the documents is or records a confidential communication between one or more officers of the DPIR and a legal practitioner, none of which has ever been communicated to MIM. Further, it was submitted that each document was brought into existence following the commencement of this proceeding and was prepared for the dominant purpose of obtaining or providing legal advice in connection with this proceeding (RS [3]; RSS [4]). They submitted further that privilege has never been waived in respect of any of the documents (RS [3]).

RELEVANT PRINCIPLES 21 The principles relevant to legal advice privilege are well known. They have been recently summarised by Thawley J in Kenquist Nominees Pty Ltd v Campbell (No 5) [2018] FCA 853 [9]-[25] and, where relevant, I gratefully adopt his Honour's articulation of the principle. 22 The present application is concerned with pre-trial disclosure and inspection. It is therefore to be determined according to the common law rather than the Evidence Act 1995 (Cth): Esso Australia Resources Limited v Commissioner of Taxation (1999) 201 CLR 49 [17]-[28] (per Gleeson CJ, Gaudron and Gummow JJ); [64] (per McHugh J); [91] (per Kirby J); and [149] (per Callinan J); Kenquist Nominees [9]. 23 Legal advice privilege "may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice": Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 [9], (per Gleeson CJ, Gaudron, Gummow and Hayne JJ); Kenquist Nominees [10]. 24 The onus of establishing that privilege applies is on the person asserting it: Grant v Downs (1976) 135 CLR 674, 689. To sustain a claim of privilege, the claimant must not merely assert it, but must prove the facts that establish that it is properly made: Hancock v Rinehart (Privilege) [2016] NSWSC 12 [7]. The Court must act upon admissible evidence, not upon hearsay: Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501, 513-4. 25 The "dominant" purpose is a prevailing or paramount purpose or one which predominates over other purposes: AWB Ltd v Cole (2006) 152 FCR 382 [105]; Archer Capital 4A Pty Ltd v Sage Group Plc (No 2) (2013) 306 ALR 384 [11]. The purpose for which a communication is made is a question of fact to be determined objectively from the nature of the relevant communication, the content of the communication, the relevant commercial context and the relationships between the parties: Commissioner of Taxation v Pratt Holdings Pty Ltd (2005) 225 ALR 266, [30]; AWB [110]. Notwithstanding that the purpose must be determined objectively, evidence of subjective purpose is relevant and although not necessarily conclusive, can be decisive: Esso [172]; AWB Ltd v Cole (No 5) (2006) 155 FCR 30 (AWB No 5) [44(2)]; Archer [11]; Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Limited (No 4) [2014] FCA 796 [32]; Kenquist Nominees [11]. 26 Privilege extends to documents from which the nature and content of a legally privileged communication might be inferred: Propend 569; Pratt [20]. It also extends to internal documents or parts of documents of the client, or of the lawyer, reproducing or otherwise revealing communications which would be covered by privilege: AWB No 5 [46]; Kenquist Nominees [13]. 27 Privilege extends to a copy of a non-privileged document where the dominant purpose for bringing the copy into existence was to obtain legal advice: Propend 571 as modified by the dominant purpose test in Esso. Although this principle applies to documents, it should be recognised that the privilege protects communications of which the copy documents might form a component or from which the nature and content of a privileged communication might be inferred. If a client makes a copy of a non-privileged communication or document and sends it to a lawyer without a dominant purpose of obtaining legal advice (or for confidential use in litigation), the copy would not be privileged. The Propend principle also applies to a document copied by a lawyer for the dominant purpose of giving legal advice: Kenquist Nominees [14]. 28 The concept of "legal advice" is not to be narrowly construed as formal advice as to the law; it extends to advising about what should prudently be done in a relevant legal context but does not extend to purely factual or commercial advice: DSE (Holdings) Pty Ltd v InterTAN Inc (2003) 135 FCR 151 [45]; Archer [12]; Kenquist Nominees [15]. Where information is passed between lawyer and client as part of a continuum aimed at keeping both informed so that advice may be sought and give as required, privilege may attach: Balabel v Air India [1988] Ch 317, 330; Pratt [87]; DSE [38]; Kenquist Nominees [16]. 29 Courts may examine the documents the subject of the privilege dispute in order to determine whether the nature and content of the documents support the privilege claim by throwing light on the purpose for which they were brought into existence: Grant 689; AWB No 5 [44(12)]; Asahi [36]; Kenquist Nominees [17]. However, the Court's power is not to facilitate proof by a claimant of facts required to sustain a claim for privilege but to provide a means of enabling that claim to be scrutinised and tested: Rinehart [34]-[35] approved in Rinehart v Rinehart [2016] NSWCA 58 [29]-[31].

The Independence of the legal advice 30 In support of the claim for privilege, the Minister and the Northern Territory rely on the affidavit of Jennifer Nicole Laurence of 12 June 2020. Ms Laurence's affidavit describes the nature of her role as the Director of Legal Services within the DPIR. 31 There has been a series of conflicting decisions of judges of first instance on the requirement for independence of the in-house legal advisor in a variety of contexts: Seven Network Ltd v News Ltd [2005] FCA 142 (in-house counsel with extensive involvement in commercial activities of the group); Telstra Corporation Ltd v Minister for Communications, Information Technology and the Arts (No 2) [2007] FCA 1445 (internal legal advisors); Rich v Harrington [2007] FCA 1987, (2007) 245 ALR 106 (in-house Office of General Counsel within PricewaterhouseCoopers Australia where the General Counsel was also a partner of the firm); Dye v Commonwealth Securities Ltd (No 5) [2010] FCA 950 (legal advisor employed by respondent's parent company); Archer Capital 4A Pty Ltd (as trustee for the Archer Capital Trust 4A) v Sage Group plc (No 2) [2013] FCA 1098, (2013) 306 ALR 384 (scope of agency arrangement with third party in respect of provision of legal advice to Sage); Aquila Coal Pty Ltd v Bowen Central Coal Pty Ltd [2013] QSC 082 (in-house counsel not admitted to practice in Australia); Martin v Norton Rose Fulbright Australia (No 2) [2019] FCA 96 (advisor a member of the partnership to whom the advice was provided). In relation to the latter decision, leave to appeal was also granted in respect of this issue: [2019] FCA 1101. 32 The "conflict" within these decisions centres on whether the decision of the High Court of Australia in Waterford v The Commonwealth of Australia (1987) 163 CLR 54 requires, in every case, that the legal adviser be "independent". Such a requirement had been discerned by Branson J in Rich from the judgment of Brennan J, at 70: The purpose of legal professional privilege is to facilitate the seeking and giving of legal advice and thereby to ensure that the law be applied and litigation be properly conducted … If the purpose of the privilege is to be fulfilled, the legal adviser must be competent and independent. Competent, in order that the legal advice be sound and the conduct of litigation be efficient; independent, in order that the personal loyalties, duties or interests of the adviser should not influence the legal advice which he gives or the fairness of his conduct of litigation on behalf of his client. If a legal adviser is incompetent to advise or to conduct litigation or if he is unable to be professionally detached in giving advice or in conducting litigation, there is an unacceptable risk that the purpose for which privilege is granted will be subverted. 33 In Martin, Charlesworth J took a different view of the judgments in Waterford and did not consider that there was majority support in Waterford for the view expressed by Brennan J, at least as interpreted in Rich: Martin [2019] FCA 96 [187]. In Archer Capital, Wigney J doubted whether "Waterford establishes that there is a separate or distinct requirement to prove independence in the case of privilege claims involving in-house lawyers", expressing agreement with a similar view that had been expressed by Katzmann J in Dye: Archer Capital [72]. 34 It is unnecessary for present purposes to add to the nuances of interpretation of Waterford expressed in these various judgments, each of which was concerned with salaried legal advisers employed, or engaged, by a commercial entity and whether, in that context, there was majority support for the views expressed by Brennan J. By contrast, Waterford was concerned with communications between the Commonwealth and officers of the Attorney-General's Department. It was held by the plurality that "legal professional privilege attaches to confidential, professional communications between government agencies and their salaried legal officers undertaken for the sole purpose of seeking or giving legal advice or in connexion with anticipated or pending litigation": Mason and Wilson JJ, 63-64; Brennan J, 75; Deane J, 78. Brennan J said, at 72-73: In [Alfred Crompton Amusement Machines Ltd v Customs & Excise Commissioners [No 2] [1972] 2 QB 102], as in this, the legal advisers were the salaried employees of government and their position is, for reasons presently to be mentioned, distinguishable from the position of salaried employees of other clients. … I am … unable to accept the notion that salaried lawyers are generally to be assimilated to the position of the independent legal profession for the purposes of determining the availability of legal professional privilege. Although this view may seem to give insufficient acknowledgement to the personal integrity, as well as competence, of many salaried lawyers, we are concerned with a general legal rule which is framed not with regard to the characteristics of individuals but with regard to the influences that naturally attend the relationship of employer and employee. However, those influences are not so significant when the legal adviser is in the employment of the Crown. Then the adviser's independence is protected in the manner to which Mason J and I referred in Attorney-General (NT) v Kearney [(1985) 158 CLR 500, 517] … The Commonwealth, State and Territorial statutes under which officers are employed in the offices of Crown Solicitors, the Australian Government Solicitor and in the Departments of the respective Attorneys-General give them a certain security of tenure and those statutes would be construed, in the absence of express provisions, as leaving these officers completely professionally independent. The protection of the respective Attorneys-General, as the first Law Officers of the Crown, should extend to all of these officers, so that none of them will be affected in the performance of their professional duty by any sense of loyalty or duty to, or hope of reward, from the government of the day (emphasis added). 35 Ms Laurence's affidavit explains that she holds an unrestricted practising certificate and remains employed by the Chief Executive Office of the Attorney-General's Department, not the DPIR. In February 2019, she was transferred to the DPIR, which is now her sole client. Her affidavit details the nature of her role within the DPIR and, in particular, that she does not perform any non-legal role. She attests that: her office is separate from that of other DPIR officers; the documents created by her are kept separate from those of other DPIR officers; she does not use the same document management server as any of the other officers; and that other officers of the DPIR are unable to access electronic or physical files and records created by her nor to access her individual work email account. Ms Laurence's affidavit also explains the protocol that exists within the DPIR for providing legal advice to the Minister. She explains that it is the usual practice for such advice to take the form of a Memorandum from the CEO of the DPIR to the Minister, which Memorandum is prepared by Ms Laurence with her name and title recorded as the "action officer". This evidence was not challenged by the applicants. 36 Ms Laurence's affidavit is evidence of her role as an independent in-house legal adviser whose communications with her client are, prima facie, capable of attracting legal advice privilege. 37 The applicants submitted that Ms Laurence was not acting qua lawyer in relation to the communications in issue and seek to draw an inference to that effect by a comparison with documents that have been produced in which Ms Laurence has merely reported on a teleconference with the solicitor for MIM or forwarded an email and letter from MIM and its solicitor to the Minister (AS-R [9]-[10]). The existence of some non-privileged communications between a legal adviser and client says nothing about the capacity in which the legal adviser was acting, particularly in the face of uncontroverted evidence to the contrary. 38 The applicants submitted further that it is "not readily apparent how the inter-Departmental emails and Ministerial briefs" constitute confidential communications made to or by a legal adviser in a professional capacity to enable a client to obtain, or the adviser to give, legal advice. It was also submitted that the "affidavit rises no higher than the formulaic assertion that the other documents [being those other than Document 113] were 'created … for the purpose of giving' or 'providing' or 'conveying', legal advice", which assertions are not sufficient (AS-R [11]). 39 The applicants did not proffer any evidence to contradict that given by Ms Laurence in her affidavit.

The Documents 40 Ms Laurence's affidavit provides direct evidence of the circumstances surrounding the creation of each of the documents the subject of the claim for privilege, with the exception of Document 121. In each case, she sets out the characteristics of each document, the circumstances in which the document was created, and the purpose for which the document was created. It was my preliminary view that the claim for privilege in respect of each document had been substantiated. However, as I was invited to do so by the parties, I have inspected the documents to scrutinise and test that conclusion. 41 Document 113 is a file note prepared by Angela Kennedy, Manager Mineral Titles within the Department, at the request of the Director of Legal Services (Laurence) within the Department. The evidence is that it was prepared for the purpose of giving instructions to the Solicitor for the Northern Territory regarding these proceedings. It was never communicated to MIM (JNL [21]-[22]). The document is privileged. 42 Document 115 is an email from the Director of Legal Services (Laurence) within the Department to three other Departmental officers, Rod Applegate (Deputy CEO), Alister Trier (CEO), and Armando Padovan (Executive Director Mines Division). The email identifies the subject matter of the attachments. The attachments comprise a draft memorandum from the CEO to the Minister, to which is attached a draft memorandum from the Minister to the Chief Minister of the second respondent (Northern Territory). The draft memorandum, and its attachment, were prepared by the Director of Legal Services for the purpose of providing legal advice to the Minister and the Northern Territory concerning these proceedings following the service of the Statement of Claim. It was not communicated to MIM (JNL [25]). The lead email, and its two attachments, are privileged. 43 Documents 116 and 117 are, respectively, a copy of the draft memorandum to the Minister included in Document 115, and copies of the draft memoranda in Document 115 signed by the Minister and the Chief Minister of the Northern Territory. Neither the draft nor the signed memorandum was communicated to MIM (JNL [27]-[28]). For the same reasons as pertain to Document 115, Documents 116 and 117 are privileged 44 Document 119 is an email to the Deputy CEO of the DPIR in which the Director of Legal Services summarises legal advice about the proceedings obtained from counsel for the Minister and the Northern Territory. It was not communicated to MIM (JNL [29]). The dominant purpose of the email was not to give or obtain legal advice. It was sent for the dominant purpose of communicating to the Deputy CEO legal advice which had been received from counsel. It is privileged because it discloses the nature of the legal advice received. 45 Document 121 is an email from the Director of Legal Services sent at 4.07pm to the Deputy CEO and the CEO of the DPIR attaching a draft memorandum from the CEO to the Minister, Document 122. Ms Laurence's affidavit provides no evidence of the circumstances in which the email was created nor the purpose for which it was created. In relation to the attachment, the evidence is that the draft memorandum was prepared by the Director of Legal Services for the purposes of conveying legal advice to the Minister, through the CEO. It comprises legal advice from the Director herself, as well as a summary of advice provided by counsel about the proceedings and the scope of the Minister's powers under the MTA. It was never finalised nor provided to the Minister, nor was it ever communicated to MIM (JNL [30]-[31]). To the extent that the document provides legal advice given by the Director, it is a privileged communication. To the extent that the document communicates legal advice which had been received from counsel, it is also privileged because it discloses the nature of the legal advice received. 46 It can be inferred from this evidence that the email was sent for the dominant purpose of providing legal advice to the Minister and communicating legal advice which had been received from counsel. To the extent that it summarises legal advice sought and obtained between the Director and counsel, it is privileged. Document 121 has been over-redacted. The second paragraph ought not to be redacted. 47 Document 125 is an email chain which comprises four emails. The lead email is an email to the Deputy CEO and the CEO from the Director of Legal Services (sent at 11.26am on 11 December 2019) which attaches a letter from the General Manager of the McArthur River Mine to the Minister and a further draft of the memorandum that is Document 122. The lead email forwards an email from the Deputy CEO to the Director of Legal Services (sent at 9.24am on 11 December 2019) providing instructions, and an email (sent at 9.21am on 11 December 2019) from the Director to the Deputy CEO seeking those instructions in relation to an email from the solicitor for MIM to the Director of Legal Services attaching the letter from the General Manager of the McArthur River Mine referred to above (JNL [32]-[33]). 48 It is the lead email which has been discovered and which comprises the principal communication. It is therefore necessary to analyse the dominant purpose of making that lead communication. Where the dominant purpose of the communication being the lead email was the giving of legal advice by a legal adviser, then it may be that the email chain will be privileged because the subsequent emails in the chain are to be regarded as copies of documents furnished by the lawyer with the advice being the lead email: Kenquist Nominees [19]. This is so even when the earlier emails themselves are non-privileged communications. 49 The dominant purpose of the lead email was to provide a further draft memorandum prepared by the Director of Legal Services for the purposes of conveying legal advice to the Minister, through the CEO having sought and received instructions about the letter from the General Manager of the McArthur River Mine, which was also attached. The memorandum comprises legal advice from the Director herself, as well as a summary of advice provided by counsel about the proceedings and the scope of the Minister's powers under the MTA. It was never finalised nor sent to the Minister, nor was it ever communicated to MIM (JNL [33]-[34]). In the form in which Document 125 has been discovered, the whole of it is privileged. If the email from the solicitor for MIM to the Director of Legal Services attaching the letter from the General Manager of the McArthur River Mine had been discovered individually and without the subsequent three emails, it would not have been privileged. 50 Document 127 is an email from the Director of Legal Services to the Deputy CEO and the CEO sent at 11.51am attaching a further draft of the memorandum referred to in Document 125, together with the letter from the General Manager of the McArthur River Mine but with further changes made by the Director of Legal Services. The memorandum comprises legal advice from the Director herself, as well as a summary of advice provided by counsel about the proceedings and the scope of the Minister's powers under the MTA (JNL [36]). It was never finalised nor sent to the Minister, nor was it ever communicated to MIM (JNL [37]). The whole of Document 127 is privileged even though it attaches a copy of a non-privileged document.

conclusion 51 For the reasons given, the first and second respondents' claim to legal advice privilege over Documents 113, 115, 116, 117, 119, 122, 125 and 127 is made out. 52 In relation to Document 121, the extent of its redaction should be amended in accordance with these reasons. The application is otherwise dismissed. 53 I will make orders giving effect to these reasons and requiring the parties to provide written submissions on the question of costs, unless agreement can be reached between the parties. I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice SC Derrington.