John Cahill v State of New South Wales

John Cahill v State of New South Wales - [2007] NSWIRComm 1 - NSWIRComm 2006 case summary — Zoe

[28]

I understand that the General Secretary needed to rely upon myself and the prosecution's lawyers because of the structure and size of the Association, the diversity of membership and the demands on the Association's secretariat. The Association has approximately 45,000 members across the New South Wales Public Service, universities and non-government organisations. These members work in a diverse range of occupations that produce a diverse range of industrial issues. It is impractical if not impossible for the General Secretary to personally handle every issue given the breadth of issues and their responsibility for the management and administration of the organisation. The practice throughout my time at the Association has been for industrial staff such as myself to undertake duties such as Occupational Health and Safety inspections, the preparation of witness statements and the briefing of solicitors. 10 The annexure "AW2" to Mr Wilson's affidavit was a memorandum from Mr Wilson to Mr Cahill (with a copy to Ayshe Lewis, Principal Industrial Officer) seeking approval to brief a particular firm of solicitors and counsel to prosecute the defendant in relation to the incident that occurred at Ballina on 24 May 2004. The memorandum was dated 14 March 2006. The memorandum provided a brief factual background relating to the incident and attached advice from counsel. The memorandum also contained the following Recommendations: 1. That the General Secretary approve the prosecution of the Department of Community Services for failing to ensure a safe system of work at the Ballina CSC and for failing to ensure that the working environment of staff was safe and without risk as per section 81 (sic - 8(1)) of the Occupational Health and Safety Act 2000. 2. That the General Secretary approve the briefing of Jones Staff and Co and counsel for the purpose of pursuing this prosecution. 11 Beneath the typed text of the memorandum and in the middle of the page appeared the handwritten word "OK" alongside a signature, which was indecipherable but which according to Mr Wilson's affidavit was the "OK of the General Secretary". On the right hand side of the bottom of the memorandum there was also the words "Rec" and "OK" written by hand over the signature of "A Lewis" and dated "14.3.06". 12 The import of the defendant's submission was that having regard to Mr Wilson's affidavit and, in particular annexure AW2, it was open to conclude that Mr Cahill did not make the decision to prosecute; that in reality he delegated that function to Mr Wilson and the PSA's legal advisers and the "OK" and accompanying signature on the memorandum of 14 March 2006 was merely a rubber stamp. 13 Mr Docking of counsel for the prosecutor opposed the amendment of the notice of motion on the ground that the proceedings had been validly commenced under s 246(1) of the Criminal Procedure Act and r 217B of the Industrial Relations Commission Rules 1996: see Ridge Consolidated v WorkCover (NSW) (2000) 100 IR 156 at [27]-[32]; WorkCover v Lucon Aust Pty Ltd (2002) 112 IR 332 at [125]-[128]; WorkCover Authority v Siemans Dematic (2001) 111 IR 362 at [74]. Counsel contended it was now too late for the defendant to challenge the validity of the proceedings on the basis of the proposed amendment to the notice of motion. 14 There was no contest about the Court's power to amend any document in proceedings. Section 170 of the Industrial Relations Act: 170 Amendments and irregularities (1) The Commission may, in any proceedings before it, make any amendments to the proceedings that the Commission considers to be necessary in the interests of justice. (2) Any such amendment may be made: (a) at any stage of the proceedings, and (b) on such terms as the Commission thinks fit (including, if it can award costs in the proceedings, terms as to costs). (3) If this Act, the regulations or a rule of the Commission is not complied with in relation to the institution or conduct of proceedings before the Commission, the failure to comply is to be treated as an irregularity and does not nullify the proceedings, any step taken in the proceedings, or any decision in the proceedings. (4) For the purposes of subsection (3), the Commission may wholly or partly set aside the proceedings, a step taken in the proceedings, or a decision in the proceedings. 15 Further, r 148 of the Industrial Relations Commission Rules 1996 provides: 148 General (1) A tribunal may, at any stage of any proceedings, on application by any party or of its own motion, order that any document in the proceedings be amended, or that any party have leave to amend any document in the proceedings, in either case in such manner as the tribunal considers to be necessary in the interests of justice. (2) Unless the tribunal otherwise orders or permits, an application to amend shall be made by notice of motion. 16 In the present proceedings, Mr Cahill, as the General Secretary of the PSA, has instituted proceedings for breach of the Occupational Health and Safety Act, a function he is entitled to exercise pursuant to s 106(1)(d) of that Act, which provides: 1) Proceedings for an offence against this Act or the regulations may be instituted only: ...

[35]

The prosecutor claimed privilege in respect of the sentence edited out in paragraph 4 of the memorandum and in respect of the attached advice. 26 Rule 161 of the Commission's Rules is in the following terms: 161 Notice to produce for inspection (1) A party (party A) may by notice served on another party (party B) require party B to produce for the inspection of party A: (a) any document (other than a privileged document) referred to in any originating process, pleading, affidavit or witness statement filed or served by party B, (b) any other specific document (other than a privileged document) clearly identified in the notice, relevant to a fact in issue. (2) The maximum number of documents which party A may require party B to produce in reliance on subrule (1) (b), whether by one or more notices, is 50. (3) Party B, upon being served with a notice under subrule (1), shall within a reasonable time: (a) produce for the inspection of party A such of the documents as are in the possession, custody or power of party B, (b) in respect of any document which is not produced, serve on party A a notice stating in whose possession the document is, to the best of the knowledge, information and belief of party B, or that party B has no knowledge, information or belief as to that matter. (4) A notice under subrule (1) may specify a time for production of all or any of the documents required to be produced. If the time specified is 14 days or longer after service of the notice it is to be taken to be a reasonable time for the purpose of subrule (3) unless the contrary is shown. If the time specified is less than 14 days after service of the notice it is to be taken to be less than a reasonable time unless the contrary is shown. 27 The term "privileged document" as it is used in r 161 is defined in r 160 to mean: ... (c) privileged document means in relation to proceedings: (i) a document of which evidence could not be adduced in the proceedings over the objection of any person, by virtue of the operation of Part 3.10 of the Evidence Act 1995,

[39]

30 In any event, given the nature of the present proceeding, which is an interlocutory motion to dismiss or, in the alternative, to permanently stay the proceeding, the proceeding is not a "criminal proceeding" for the purpose of s 123 of the Evidence Act: see definition of "criminal proceeding" in the Dictionary to the Evidence Act and see also DPP (Cth) v Kane (1997) 140 FLR 468. In those circumstances, the relevant provisions of Part 3.10 of the Evidence Act (not including s 123) apply to this proceeding by virtue of r 160. 31 In ss 118 and 119, the Evidence Act refers to client legal privilege rather than legal professional privilege, as it is known in the common law. This would appear to be because the privilege is that of the client. Section 118 creates a privilege for confidential communications made, and confidential documents prepared, for the dominant purpose of a lawyer providing legal advice, sometimes referred to as "advice privilege". Section 119 deals with what is referred to as "litigation privilege" and prevents the disclosure of a confidential communication between, on the one hand, the client or his or her lawyer, and on the other hand a third party, such communication that was made, or the contents of a document that was prepared, for the dominant purpose of the client being provided with professional legal services in relation to legal proceedings that are in existence or are anticipated or pending. 32 Section 122(1) provides that the privilege created by ss 118 and 119 of the Evidence Act will be lost where the client consents to the evidence in question being adduced. Section 122(2) provides that the privilege created by ss 118 and 119 of the Evidence Act will be lost where the client knowingly and voluntarily discloses to another person the substance of the evidence and the disclosure was not made in the circumstances described in s 122(2)(a)-(d) or s 122(3) or s 122(5)(a) and (b). 33 At issue in the proceeding is whether, by putting into evidence communications such as "AW2", the prosecutor has lost any claim to privilege over those documents the defendant seeks to inspect. In other words, having disclosed the existence of legal advice in the context of AW2 has the prosecutor waived his right to claim privilege over the whole of the contents of "AW2" and the legal advice referred to in that document? Waiver arises when: [T]he party entitled to the privilege makes an assertion (express or implied), or brings a case, which is either about the contents of the confidential communication or which necessarily lays open the confidential communication to scrutiny and, by such conduct, an inconsistency arises between the act and the maintenance of the confidence, informed partly by the forensic unfairness of allowing the claim to proceed without disclosure of the communication: DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499 at [58] (emphasis original).

[45]

14 Disclosure of one conclusion but not others in an advice does not necessarily amount to waiver in respect of the non-disclosed conclusions. However, if the conclusions and reasoning are so interconnected that they cannot be separated or isolated, then it may be that the whole of the advice on which all those conclusions are based, must be considered to have been waived. 41 In the same case at [68] Gyles J stated: The authorities to which I have referred show that it is well established that for a client to deploy the substance or effect of legal advice for forensic or commercial purposes is inconsistent with the maintenance of the confidentiality that attracts legal professional privilege. 42 In Switchcorp Pty Ltd & Ors v Multiemedia Ltd [2005] VSC 425, Whelan J found privilege had been waived over legal advice referred to in an announcement to the Stock Exchange. Multiemedia made a statement that, "The Board's lawyers have been instructed to vigorously defend the claim and have advised the plaintiff's claim will not succeed". The statement was found to be "a clear and deliberate disclosure of the gist or the conclusion of legal advice received by Multiemedia from its lawyers". Consequently, privilege was found to have been waived. 43 Maurice, Mann v Carnell, Bennett, Rio Tinto and Switchcorp were concerned with the common law of privilege and not the provisions of the Evidence Act. However, the approach developed by the courts to waiver under the Evidence Act, has not been, in so far as it is relevant, materially different from that taken in respect of waiver under the common law. In Adelaide Steamship the Full Federal Court said at 425: We have not had the benefit of submissions on the extent of operation of s 122(1), although we consider it of some relevance to the topic of issue waiver' raised by the respondents. There seems to us no reason for construing the term consent' in s 122(1) as referring only to express consent, even if the formula `with the express or implied comment', which appears in s 122(4), is not used. It is unnecessary for us on this appeal to comment further on the extent to which common law doctrines, such as estoppel, might operate to preclude the client or party concerned from denying that the relevant consent was given.

[46]

44 In Telstra v BT Australasia (1998) 85 FCR 152 Branson and Lehane JJ, Beaumont J dissenting, held that consent in s 122(1) should be construed to extend to imputed consent. At 168 the majority stated: In our view, s 122(1) of the Act is to be construed as reaching to cases in which the client or party concerned is deemed to have consented to the disclosure of the otherwise privileged material in the sense discussed above. To constrain the operation of the subsection to instances of voluntary assent to the adducing of evidence which would otherwise attract client legal privilege is, in our view, to give insufficient weight to the context in which the subsection is found, and to the common law background against which the Act as a whole is to be understood. The primary judge expressed the view that, while "consent" in s 122(1) might include implied as well as express consent, it would be straining language excessively to hold that it extended to a "consent" imputed to a party on the basis of fairness. Presumably an implied consent, as envisaged by his Honour, is one that is found to be, on the evidence, real and voluntary though not express. In fact, however, the cases, not surprisingly, use the terms "implied" and "imputed" interchangeably (see, for example, Maurice at 488 per Mason and Brennan JJ, Goldberg at 95-96 per Deane, Dawson and Gaudron JJ and at 109 per Toohey J). Once it is accepted that consent for the purposes of the section extends beyond express consent, we think it should be taken to extend to imputed consent. In particular, if that were not so, a defendant ordinarily would no longer be able, where the plaintiff alleges that a transaction was procured by the defendant's undue influence, to lead evidence to the effect that the plaintiff had comprehensive legal advice, immediately before entering into the transaction as to its effect. We cannot believe that that was intended. It follows that, in such cases, the position has changed little, if at all, following the introduction of the Act. Of course, as the Adelaide Steamship case demonstrates, the position may be different where the conduct relied upon is some disclosure of legal advice, but that need not be further considered here.

[47]

45 In Telstra the Court was concerned with issue waiver, that is where a litigant opens up the source and basis for its belief on a particular question, inspection cannot be denied by a general law claim of legal professional privilege (Telstra at 155), as distinct from disclosure waiver, which is exemplified by Mann v Carnell and Benecke v National Australia Bank (1993) 35 NSWLR 110. However, the Full Federal Court in Rio Tinto appears to have adopted the view expressed in Adelaide Steamship at 371 that issue waiver was "no more than a particular manifestation of the principles applying either to waiver by disclosure or to implied consent to disclosure". At [54] The Full Court in Rio Tinto stated: 54 Although the Full Court was necessarily guided by the authorities prior to Mann , there is little, if anything, in the passage quoted above that would require modification to take account of Mann . It is plain enough that the majority in Mann also saw the 'issue waiver' cases as a species of waiver, to which the same basic principle applied. Their Honours' analysis in Spalvins emphasises, as does the majority in Mann , that waiver comes about because the privilege holder's conduct is inconsistent with the continued confidentiality of the communication because he or she has put in issue the character or contents of the communication in pursuing a right or claim, or has created a situation where another party must reasonably do so by way of a defence. 46 As Campbell J noted in Van Zonneveld v Seaton [2004] NSWSC 960 at [11]: The decision in Telstra Corporation Ltd v BT Australasia Pty Ltd has been followed by numerous judges: see Wayne Lawrence Pty Limited v Hunt [1999] NSWSC 1044 per Hodgson CJ in Eq; Garratt's Ltd v Thanga Thangathurai [2002] NSWSC 39 at [51] per Bergin J; Ford Dodge Australia Pty Ltd v Nature Vet Pty Ltd [2002] FCA 501 per Hely J; Perpetual Trustees Victoria Limited v Richard Kingsley Sheehan [2004] NSWSC 294 at [20] per Dunford J; Singapore Airlines v Sydney Airports Corporation [2004] NSWSC 380 per McDougall J; Gordian Run-Off v Price [2004] NSWSC 600 per McDougall J; ASIC v Rich [2004] NSWSC 923 at [12] per Austin J; and Travel Compensation Fund v John Harvey Blair [2004] NSWSC 501 per McDougall J. 47 His Honour went on to say, however, in the same paragraph: However, when the High Court has expressly said, in Mann v Carnell (1999) 201 CLR 1 at 11, [23], that "the provisions of s.122 as to the circumstances in which privilege may be lost are not identical to the corresponding common law principles", it would only be after full argument that I would be willing to decide whether section 122(1)'s concept of consent operated identically to the common law concerning waiver of legal professional privilege. Deciding that question would also involve considering whether the common law concerning waiver of legal professional privilege continues to depend on considerations of fairness, as laid down by Attorney-General (for the Northern Territory) v Maurice (1986) 161 CLR 475 and Goldberg v Ng (1995) 185 CLR 83, or whether Mann v Carnell has substituted a test which looks at whether there is inconsistency between maintaining the privilege and the act said to amount to a waiver of it: see DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 384; (2003) 127 FCR 499 per Allsop J. 48 Nonetheless, in Chen v City Convenience Leasing Pty Ltd [2005] NSWCA 297 Gzell J with whom Bryson JA and Windeyer J agreed, stated at [32]: In my view, the majority in Telstra were correct in concluding, at 168, that the Evidence Act 1995, s 122(1) is to be construed as reaching to cases in which the client or party concerned is deemed to have consented to the disclosure of otherwise privileged material in terms of the common law rule. In making this statement, as it was noted by Odgers in Uniform Evidence Law , Lawbook Co, 7th ed at 532, Gzell J made no distinction between issue waiver and disclosure waiver.

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