Application of principles: advice privilege
102 The present issue must be determined by reference to the terms of s 118 of the Evidence Act, as picked up by Part 36 r 13 of the Supreme Court Rules. The protection given by s 118 refers to confidential communications between, relevantly, the client and a lawyer. Section 119, by contrast, includes confidential communications between either the client or a lawyer acting for the client and "another person", apparently reflecting the distinction in Wheeler. On the other hand, the definitions in s 117 of both "client" and "lawyer" include an employee or agent of either. Whether or not this was intended, the result appears to subvert the distinction which would otherwise flow from the operation of the principles set out in Wheeler, at least where agency is established.
103 Section 118, pars (a) and (c) are relevant for present purposes: the former protects confidential communications; the latter protects the contents of a confidential document.
104 There was no suggestion in the present case that in general terms, either the communications between the Claimants and the lawyers for QBE or the documents prepared by the Claimants for the purposes of communicating with QBE would not be confidential. Accepting that the matter was to be dealt with at the level of principle, the Opponents did not make any concession in that regard, but did not challenge the generality of that statement as an available inference from the material set out in the affidavit of the Claimants' solicitor. I would draw that inference. It follows that for the relevant communications and documents to fall within the scope of the statutory privilege under s 118, subject to questions of purpose, the Claimants must be agents either of the client (QBE) or its solicitors (Wotton & Kearney). Accordingly, the present argument turns squarely on the scope of the term "agent" in the definition of both "client" and "lawyer" in s 117 of the Evidence Act.
105 Once attention is paid to the terms of the statute, the question of specific or general instructions and the extent to which the solicitor, as opposed to QBE, took the initiative take on a different complexion. Arguably, it does not matter whether the agent is identified as the agent of the solicitor or the agent of the client, for the purposes of par (c). On the other hand, it may matter if it is necessary to rely on par (a), which does not in terms cover communications between a lawyer and his or her employee or agent. If the mining consultant were an agent of QBE, a communication between it and QBE would not be protected, but a communication directly to the lawyers would be.
106 One answer to this conundrum is that so long as the material collected by the mining consultant as an agent is placed in documentary form, the contents of the document will be protected, whether or not it is communicated. Accordingly, it will be protected even if communicated to QBE, pursuant to par (c), if not par (a). However, if the material is communicated orally by the agent or employee of the client to the client, rather than to the lawyers, that oral communication would appear not to be protected. On one view, that result may not have been intended. A means of avoiding it may be found in the proposition that the general law would protect such an oral communication and s 118 demonstrates no intention to exclude such protection, which would still apply, pursuant to s 9 of the Evidence Act.
107 That conclusion, however, would give rise to a further anomaly. If it were correct to conclude that s 118 extends to communications by third party agents of a client, that could override the second limb of the rule in Wheeler v Le Marchant. Accordingly, to the extent that it was necessary to apply general law principles, unless the reasoning in Pratt in the Full Court of the Federal Court is accepted, oral communications would be protected under the general law so long as they arise as between the client and the lawyer directly, but not if they involve third party agents of the client (or the lawyer). It would seem that, as has occurred with other provisions of the Evidence Act, simplicity has been sought at the expense of coherence and completeness.
108 The rules of client legal privilege form part of the common law which apply to, but are not limited to, evidence in a proceeding, for the purposes of s 9(1): see Daniels v Australian Competition and Consumer Commission (2002) 213 CLR 543 at [5]. However, the terms of s 118 in relation to legal advice, when read with the definitions in s 117, expressly prohibit evidence being adduced which would result in disclosure of the contents of a confidential document prepared by an agent of the client or a lawyer for the dominant purpose of the lawyer providing legal advice to the client. Once it is established that the consultants were appointed for that dominant purpose, it follows that confidential reports prepared by them will be immune from production, an immunity which will extend to adducing oral evidence that would result in disclosure of their contents.
109 One response to this approach is to ask whether the use of the term "agent" in s 117 of the Evidence Act is the same as its use in Wheeler v Le Marchant. In that case the term "agent" was used in a restricted sense. Thus, Jessel MR in Wheeler stated (at 682):
"The actual communication to the solicitor by the client is of course protected, and it is equally protected whether it is made by the client in person or is made by an agent on behalf of the client, and whether it is made to the solicitor in person or to a clerk or subordinate of the solicitor who acts in his place and under his direction."