Questions (i) and (ii)
67Questions (i) and (ii) concerned similar issues and may be dealt with together. Question (i) has a more narrow focus, namely, whether it is open to say that a party (the Department) who has provided a response to a request from another party (here the respondents) has by that conduct put in issue it's state of mind.
68The respondents submitted that neither question is a question of law under s 5AE of the CA Act. In relation to Question (i) (although presumably the same contentions are intended to apply to Question (ii)), the respondents contended that it is not a question of law because:
(a) the formulation of the question referring to "holding" that a "state of mind" was formed, involves a finding of fact;
(b) the question relates to a decision as to whether privilege in a particular document was waived, which is a question of fact: see Bennett v Chief Executive Officer, Australian Customs Service (2004) 140 FCR 101;
(c) there is no identification of any legal test in question (i);
(d) the question in truth seeks to impermissibly challenge the ultimate factual finding made: R v Madden (1995) 85 A Crim R 367; R v Porter (2004) 141 A Crim R 593 at [30];
(e) it seeks to circumvent the operation of the IR Act and the CA Act in relation to criminal appeals because it in essence seeks to challenge a finding of fact in an interlocutory decision; and
(f) the question is not directed at assisting the trial judge to apply the correct law.
69The contentions were not developed to any extent although the respondents in written submissions placed reliance upon a number of authorities said to establish certain propositions applicable to the primary argument that the questions are not questions of law. One contention advanced by the respondents was that the question of waiver of legal privilege has been held to be a question of fact or, at least, mixed fact and law. Osland at [49] was cited in support of the contention. In that paragraph the High Court approved a statement made by Tamberlin J in Nine Films and Television Pty Ltd v Ninox Television Ltd (2005) 65 IR 442 at 447 that, "questions of waiver are matters of fact and degree". The High Court's comments were made in the context of examining whether a limited disclosure of legal advice is inconsistent with maintaining confidentiality in the terms of the advice, which the High Court noted, "depends upon the circumstances of the case". This is undoubtedly correct however it provides little support for the respondents' contention.
70The respondents also relied on authorities in which difficulties have been expressed with the formulation of a proposed question of law which commences with the words "Did I err in finding [x] ...". Questions (i) and (ii) commence with similar wording, namely, "Did I err in holding that ...". One authority relied upon by the respondents was Sasterawan v Morris (2007) 69 NSWLR 547. In that case, the Court of Appeal heard an application for an extension of time to appeal by way of a case stated under s 5B(3) of the CA Act (at [3]). Three questions were referred under s 5B(2). Each question commenced with, or contained within it, the phrase, "Did I err in law in accepting that ...". Basten JA suggested that there was, "some awkwardness in formulating questions in this way". At [15] his Honour said:
... The questions in the present case seek to ask Did I err in law, which does not leave open the possibility of other forms of error, but, at the same time, does not identify any specific question of law for determination by this Court. (This form of question seems not uncommon, but is not therefore appropriate: see Garrett v Freeman (2006) 68 NSWLR 729 at 735 [43].)
71Despite expressing reservations about the form of the questions, Basten JA granted the application to extend time and proceeded to determine the questions (at [37]).
72A further authority relied upon by the respondents to support the contention that Questions (i) and (ii) are not questions of law was Robinson v Woolworths Ltd (T/As Woolworths Plus Petrol Werrington) (2005) 64 NSWLR 612. In Robinson, the Court of Appeal had before it three questions referred by way of a case stated under s 5B of the CA Act. Question 1 commenced with the words, "Did I err in holding ...". In commenting on the form of the question Basten JA said (at [8]):
The awkwardness of the procedure adopted is reflected in the formulation of these questions. For example, the first question asks whether his Honour erred in reaching a conclusion as to the appropriate characterisation of the conduct of the prosecutor. The reference to the prosecutor is imprecise because, as will appear below, there was no assertion that Dr Robinson acted improperly. Putting to one side difficulties with the use of the term "prosecutor" in this context, the conclusion reached would appear to be an inference drawn from the facts, although the reasoning process may involve mixed questions of fact and law. The principal question might better have been formulated:
"On the findings of fact [identified in the case stated] was the conduct capable of constituting 'improper' conduct for the purposes of s 138(1) of the Evidence Act?"
73Again, despite expressing reservations about whether the question was a question of law, his Honour proceeded to determine the question (at [50]).
74Based on the approach taken in the foregoing authorities Questions (i) and (ii) as presently formulated would not be precluded, necessarily, by reason of some awkwardness in drafting, from being treated as questions of law and determined under s 5AE. However in our view both questions are properly characterised as questions of law. Question (i) is directed, broadly, to whether Boland J erred in law in holding that the assertions in the letter of 12 July that the prosecutor's state of mind was formed upon the receipt of legal advice constituted issue waiver in circumstances where the assertions were in response to a request to provide information as to when that state of mind was formed. Question (ii) is directed, broadly, to whether Boland J erred in law in holding that the assertions in the letter of 12 July that the prosecutor's state of mind was formed on the basis of legal advice constituted issue waiver. It is not correct, in our view, as suggested by the respondents, that the formulation of the questions, referring to "holding" that a state of mind was formed, involves a question of fact. Rather, the questions of law arise, as suggested by the Department, on the basis that there was such a holding by Boland J in Nash (No 2) at [170] and [171].
75A further basis upon which the respondents contended that Question (i) is not a question of law is that the question is said to impermissibly challenge the ultimate fact finding made. Two authorities are relied upon in support of the contention: R v Madden (1995) 85 A Crim R 367; and R v Porter (2004) 141 A Crim R 593 at [30]. In R v Madden Hunt CJ at CL found that a question referred under s5B of the CA Act which asked, "Did I err in law in holding that the offence had been proved?" was, "in form no more than an attempt to exercise a right of appeal": at 370. We fail to see any analogy at all to the form of the question posed in Madden and the form of Question (i) in these proceedings. Certainly Question (i) does not in terms seek to challenge "the ultimate fact finding made". Madden in our view provides little support for the respondents' contention. Question (i) is, as we have found, a specific question of law directed toward a discrete issue unlike the question considered by HHhHHunt CJ at CL which was worded generally and failed to identify a question of law (see also R v Porter at [30]).
76Section 122(2) of the Evidence Act, which we have extracted earlier, provides that client legal privilege will be waived where, "the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence". As the Department points out, under the common law, the test is expressed slightly differently - there must be inconsistency between the conduct of the client and maintenance of the confidentiality which the privilege is intended to protect. However the High Court clarified in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46; 303 ALR 199, that the principles recognised in Mann v Carnell, "articulated in relation to waiver at common law, apply with equal force in relation to the statutory question posed by s 122(2) of the Evidence Act, and made applicable by s 131A of that Act to the determination of a question of waiver of client legal privilege arising in the context of pretrial discovery": French CJ, Kiefel, Bell, Gageler and Keane JJ at [32].
77The finding of Boland J relevant to the determination of Question (i), is found in Nash (No 2) at [171], extracted below:
In my opinion, the prosecutor asserted she undertook certain action in reliance on what I consider was legal advice. Accordingly, her state of mind was put in issue in respect of critical issues in the proceedings, with the consequence that an inconsistency arises between the making of the assertion and the maintenance of the privilege. The result is that client legal privilege was waived. I so find.
78The Department's primary contention with regard to Question (i) is that a response to a request to provide information about a state of mind cannot put in issue that state of mind. Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86; (2006) 151 FLR 341 was relied upon to establish the contention. According to the Department, the Full Court of the Federal Court held in that decision (at [62] to [65]) that the Commissioner of Taxation ("the Commissioner") had not raised an issue in the substantive proceedings as to the state of mind in circumstances where the taxpayer had first challenged that state of mind. Thus, the prosecutor in the present case could not "put in issue" her state of mind (for the purposes of the law of waiver of client legal privilege) when she answered questions from the respondents regarding that state of mind.
79In Rio Tinto, the Commissioner issued three notices to Rio Tinto (then called CRA Ltd) in which a payment of some $100,000 was assessed as assessable income. Rio Tinto objected to the notices and the Commissioner substantially rejected the objections. Rio Tinto filed three applications in the Federal Court appealing against the Commissioner's objection decisions. At the time of filing the applications the Federal Court Rules ("the Rules") required the Commissioner to file and serve, "a statement outlining succinctly the Commissioner's contentions and the facts and issues in the appeal as the Commissioner perceives them" ("SFIC"). The Commissioner duly filed the SFIC. Following a successful objection to the sufficiency of an amended version of the SFIC, the Commissioner filed a new SFIC in relation to which Rio Tinto complained, in a letter to the Commissioner, that it was not adequate and further sought more details including, relevantly, the identification of the person who revealed the required state of satisfaction on behalf of the Commissioner and the identification of any documents taken into consideration by that person in reaching the state of satisfaction.
80In subsequent correspondence the Commissioner identified the person as "Mr P Alemis" and disclosed that the, "matters, things, circumstances and events", taken into consideration by Mr Alemis, "are to the best of his recollection those evidenced by the documents listed in (Schedules A, B, C and D attached)". When the application came before the docket judge his Honour held that the Commissioner had acted inconsistently with the maintenance of privilege in respect of the privileged scheduled documents. Although the Full Court found that there was no error in his Honour's ultimate disposition of the application before him, the Full Court found (at [62]) that his Honour had fallen into error in taking into consideration in reaching his ultimate conclusion that the Commissioner by his SFIC had raised an issue in the substantive proceedings as to his state of mind. At [64] the Full Court explained:
The fact that the Rules require the Commissioner to file a SFIC before the taxpayer does not alter this analysis. In this statement the Commissioner must outline his or her position, including the issues as he perceives them on the appeal. It must be borne in mind, however, that prior to the formulation of any SFIC, the taxpayer, by objection, has already challenged the Commissioner's assessment, and requisite state of satisfaction and exercises of discretion. Against this background, to say that by formulating a SFIC stating a state of satisfaction that is a condition of the assessment, the Commissioner has put this state of satisfaction or exercise of discretion in issue is to over-simplify the position. In truth, the Commissioner's state of satisfaction is before the court because the taxpayer challenges the relevant assessment, on objection and appeal, on Avon Downs grounds. The Commissioner's assertion about his or her satisfaction or discretion is not in issue unless the taxpayer challenges it, under cover of an objection, as having been reached or exercised other than according to law. The institution of the taxpayer's appeal maintains the taxpayer's challenge. In requiring the Commissioner to file a SFIC the Rules recognise the exigencies of litigation: see Dalco at 625 per Brennan J; Bailey v Commissioner of Taxation [1977] HCA 11; (1977) 136 CLR 214 at 217 per Barwick CJ, 219 per Gibbs J, 221 per Mason J, 221 per Jacobs J and 227 per Aickin J. This requirement does not, however, alter the fundamental character of a taxation appeal.
81Significantly, the Full Court said that even if the Commissioner had raised an issue in the substantive proceedings as to his state of mind this alone would not provide a proper basis for "issue waiver". The Full Court said on this matter (at [65]):
In any event, even if his Honour was correct in holding that, by the SFIC, the Commissioner raised an issue in the substantive proceeding as to his states of mind, this alone would not provide a proper basis for 'issue waiver'. As the previous examination of the authorities shows, the question is not whether the Commissioner has put his state of mind in issue but whether he has directly or indirectly put the contents of the otherwise privileged communications in issue in the litigation, either in making a claim or by way of defence. Put another way, to adapt Allsop J's language in DSE, has the Commissioner (being the privilege holder) made an assertion as part of his or her case in the litigation that lays open the privileged documents to scrutiny, with the consequence that an inconsistency arises between the making of the assertion and the maintenance of the privilege?
82Applying the test set out at [65] the Full Court found that the Commissioner, by stating that he had taken into account the matters "evidenced" by the scheduled documents, including the privileged documents, had made an assertion that put the contents of the privileged documents in issue, or necessarily laid them open to scrutiny, with the consequence that there was an inconsistency between the making of the assertion and the maintenance of the privilege: at [72].
83In developing its primary contention with regard to Question (i) the Department submitted that it is not open to another party to litigation to force waiver of a party's legal professional privilege by making assertions about, or seeking to put in issue, that party's state of mind: Commonwealth v Temwood Holdings Pty Ltd [2002] WASC 107 at [10] per Wheeler J; In the matter of Idoport Pty Ltd (in liq)(recs apptd); National Australia Bank Limited (& Ors) v John Sheahan (& Ors) [2012] NSWSC 58, Ward J at [67] (proposition 3).
84The principle relied upon by the Department is succinctly stated in Temwood Holdings at [10] per Wheeler J:
It is to be noted, however, that it is the conduct of the party who possesses the privilege which is capable of waiving it. It is not apparently open to another party to litigation to force waiver of a party's legal professional privilege by making assertions about, or seeking to put in issue, that party's state of mind.
85It was the Department's contention that by putting in issue prosecutorial misconduct in order to obtain a permanent stay on the basis of abuse of process that the respondents, not the prosecutor, raised an issue with regard to the prosecutor's "state of mind". The prosecutor, simply by complying with her duty of disclosure and making assertions about her state of mind in the letter of 12 July 2013, did not put in issue her state of mind. To suggest otherwise would mean that every time a party to litigation wrote to another party asking that party to explain her or his state of mind on some issue, privilege would be waived in respect of any legal advice that was given relating to that state of mind. The respondents, according to the Department, attempted to force the waiver by writing the letter of 10 July 2013 in which Ms Nash was asked about her state of mind.
86The respondents also relied upon the above passage from Temwood Holdings to draw an analogy to the present proceedings, namely that the relevant conduct of the prosecutor (Ms Nash) was in instructing the lawyer acting for her to prepare and send the letter dated 12 July 2013 to the respondents' lawyers. The respondents submitted that it was open to the prosecutor to prepare and send a letter, "so as not to refer to the legal advice she had received". According to the respondents the prosecutor chose to respond in the manner she did and in doing so, by her own conduct she waived client legal privilege. As the Department points out, however, Ms Nash was asked by the respondents in the letter of 10 July 2013 why she did not instruct her lawyers to disclose the "difficulty" in relation to Mr Regan to the respondents' solicitors and she answered this by explaining her state of mind at the time, which was, that having obtained legal advice, she believed there was no difficulty regarding Mr Regan's authority to commence or continue prosecutions which she was required to disclose. The reason she had that belief was, at least in part, because of the legal advice she had received. That was the answer to the question she was asked. Merely by making assertions about her state of mind in correspondence the prosecutor did not "put in issue" her state of mind. Moreover, according to the Department the prosecutor did not rely on her state of mind to advance the prosecution of the respondents in these proceedings.
87We also add that contrary to the respondents' contention (that it was open to Ms Nash to prepare and send a letter "so as not to refer to the legal advice she had received"), the mere reference to legal advice does not amount to conduct inconsistent with the maintenance of privilege. Rio Tinto at [71] provides a useful statement of this proposition:
By his answers to Rio's requests, the Commissioner disclosed that the eight privileged scheduled documents were relevant to reaching his state of satisfaction and exercising his discretions. Although the validity of his state of satisfaction and the exercises of his discretion are key issues in the substantive proceeding, as indicated earlier, the mere acknowledgement of the relevance of privileged documents to the key issues does not amount to an act inconsistent with the maintenance of privilege. As we have seen, so far as the Commissioner was concerned the relevant inquiry was whether, having regard to the material before the decision-maker, the contested decisions were vitiated on Avon Downs grounds. If the particulars merely disclosed that the Commissioner took into account legal advice in reaching his state of satisfaction and exercising his discretions, then that disclosure would not be inconsistent with the maintenance of privilege.
88As we sought to explain in our consideration of Question (vii), the letter of 12 July 2013 consists primarily of expressions of the prosecutor's views, beliefs and understanding based on advice she had received but without revealing the content or substance of that advice. Placing those findings in the present context, the views of Ms Nash based on legal advice do not and cannot amount to conduct inconsistent with the maintenance of the privilege. These observations apply irrespective of which party raised an issue in the substantive proceedings as to the prosecutor's state of mind: see Rio Tinto at [62] and [65].
89Turning to Question (ii) the Department explained that the question has a broader basis than Question (i). It raises a question of law which does not relate to the fact that the letter of 12 July was in response to the respondents' letter of 10 July 2013. Boland J erred in law in relation to Question (ii), according to the Department, for four reasons. First, the Department submitted that an assertion that a state of mind by a party in correspondence with another party cannot "put in issue" that state of mind for the purpose of the law of waiver of client legal privilege. According to the Department current authority indicated that the issue of waiver arises where a party raises an issue in the proceedings by pleadings, particulars or some comparable curial process. That is the conventional way in which a party puts a fact in issue in the proceedings. The Department relied upon Mann v Carnell to illustrate this point (at [28]) where the High Court stated, relevantly:
It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege. Examples include disclosure by a client of the client's version of a communication with a lawyer, which entitles the lawyer to give his or her account of the communication, or the institution of proceedings for professional negligence against a lawyer, in which the lawyer's evidence as to advice given to the client will be received.
90The Department also placed some reliance on the judgment in Lillicrap v Nalder & Son (a firm) [1993] 1 All ER 724; [1993] 1 WLR 94 in which the Court of Appeal held that when a client brings proceedings against its former solicitors for professional negligence, implied waiver of privilege will normally extend to facts and documents material to the cause of action upon which the plaintiff brings and to the defendant's proper defence to that cause of action. According to the Department in such a case the bringing of an action for negligence against the lawyers raises an issue as to the contents of the advice given by the lawyers to the client, creating an inconsistency between the raising of that issue and the maintenance of the confidentiality of the advice.
91The following statements made in Rio Tinto (extracted from [54] and [61] respectively) were also relied upon in support of the Department's contentions advanced in relation to the first reason why Boland J was said to have fallen into error:
... 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.
...
Both before and after Mann, the governing principle required a fact-based inquiry as to whether, in effect, the privilege holder had directly or indirectly put the contents of an otherwise privileged communication in issue in litigation, either in making a claim or by way of defence.
92Rio Tinto concerned the provision of particulars in the proceedings by the Commissioner of Taxation in which an assertion was made as part of the Commissioner's case that put the contents of the privileged documents in issue. The sequence of events in Rio Tinto which gave rise to that particular course of action was that after the respondents wrote to the Commissioner of Taxation complaining that the new SFIC was not adequate they chose to request particulars rather than make an application to the docket judge for an order that the Commissioner supply a further SFIC (Rio Tinto at [13]). There was no suggestion that the exchange of correspondence was not part of the curial process.
93The present proceedings, in our view, present a not dissimilar set of circumstances in that the respondents in their letter of 10 July 2013 requested a response from the prosecutor's solicitors in relation to information concerning the prosecutor's knowledge of "the invalid appointment of Mr Regan". The response was provided in the letter of 13 July 2013. It seems to us, on any reasonable analysis, that this exchange of correspondence could be seen as having taken place as part of, or within, the curial process.
94The second reason advanced by the Department as to why it says Boland J fell into error is that, in essence, his Honour is said to have asked the wrong question or addressed the wrong issue when he concluded in Nash (No 2) at [171] (second sentence): "accordingly (Ms Nash's) state of mind was put in issue in respect of critical issues in the proceedings, with the consequence that an inconsistency arises between the making of the assertion and the maintenance of the privilege". According to the Department a passage from Rio Tinto (at [65]), which we have extracted earlier, sets out the correct question, or the correct issue, which needed to be addressed; namely, "... the question is not whether the Commissioner has put his state of mind in issue but whether he has directly or indirectly put the contents of the otherwise privileged communications in issue in the litigation, either in making a claim or by way of defence".
95In our view it is not at all accurate to suggest that Boland J was not guided by, or not fully cognisant of, the correct approach to the issue or that his Honour failed to ask the correct question. When the passages from [170] and [171] of Nash (No 2) (extracted earlier) are considered together it seems reasonably clear that his Honour, consistent with the remarks in Rio Tinto at [65], correctly approached the issue on the basis of whether Ms Nash in the letter of 12 July 2013 had put the contents of otherwise privileged legal advice in issue in the litigation.
96The Department's third reason as to why Boland J fell into error relied on the proposition, said to be supported in Rio Tinto, that an assertion that certain action was taken in reliance on legal advice cannot, of itself, result in a conclusion of waiver. In support of the proposition the Department relied on [67] in Rio Tinto which we have referred to earlier in our discussion of the issues said to arise in relation to Question (i). In that paragraph the Full Court stated that, in exposing his state of mind and the basis for it, the Commissioner of Taxation would not ordinarily act in a manner inconsistent with the maintenance of privilege. In contrast, the Full Court noted in the same paragraph that the situation might be otherwise if the decision-maker puts the contents of the legal advice in issue by, "specifically relying on the contents of the advice (and not merely the fact of the advice) to vindicate his claimed state of satisfaction or exercise of discretion".
97The Department did not seek to illustrate the proposition for which it contended by reference to the facts in this case. However, we have already dealt with the particular issue in our discussion of "disclosure waiver" which was the subject of Question (vii). We found, and we find here, that the letter of 12 July 2013, rather than revealing the substance or content of the legal advice, consisted primarily of expressions of the prosecutor's views, beliefs and understandings based on advice she had received. As we said in relation to Question (i) this does not and cannot amount to conduct inconsistent with the maintenance of privilege.
98In Rio Tinto at [67] the Full Court said that the mere reference to confidential communications is not inconsistent with the maintenance of the privilege because the decision-maker would not put such legal advice in issue merely by saying that the advice was relevant or contributed to the decision. We find nothing in the letter of 12 July 2013 which could rise above the bare fact of asserting reliance on a privileged communication. The letter does not reveal anything about the content of the legal advice received by Ms Nash. The letter does not reveal what Mr Bennett or the unspecified "others" told or advised Ms Nash. To the extent that Boland J held otherwise, his Honour fell into error.
99The respondents contended that, in the letter of 12 July 2013, there was a deployment of legal advice for the forensic purpose of explaining the conduct of the prosecutor in maintaining privilege. The Department disagreed, submitting that it could not be said that there had been an attempt to deploy the advice for any forensic purpose since all the prosecutor did was simply answer questions asked by the respondents regarding why she did not instruct her lawyers to disclose to the respondents' solicitors, "the difficulty in relation to Mr Regan's purported appointment" and "when [she] became aware of the proposed amendment" (see letter of 10 July 2013).
100The test for determining whether there has been a deployment of legal advice (otherwise privileged) for a forensic or commercial purpose in the context of waiver of the privilege was adverted to by Gyles J (Tamberlin J agreeing) in Bennett v Chief Executive Officer of the Australian Custom Service [2004] FCAFC 237; (2004) 140 FCR 101 at [68] where his Honour said:
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.
101In the context of "issue waiver" and the inconsistency principle, Black J in Parkview Qld Pty Limited v Commonwealth Bank of Australia [2012] NSWSC 1599, said (at [11]):
The relevant inconsistency is established, both at general law and for the purposes of Evidence Act s 122(2) where a plaintiff directly or by necessary implication puts the legal advice it received in issue, in order to establish its cause of action, for example where the plaintiff has to prove that it had or did not have knowledge of its legal rights or the content of that knowledge: Thomson v Campbelltown Municipal Council (1939) 39 SR NSW 347.
102Based on these authorities we find that there has been no deployment of the substance of the legal advice received by Ms Nash (and referred to, by implication, in the letter of 12 July 2013) for a forensic or commercial purpose. We agree with the Department in this respect that all the letter of 12 July 2013 was attempting to do, on behalf of Ms Nash, was to answer the questions posed by the respondents.
103According to the respondents the prosecutor in the letter of 12 July 2013 deployed the substance of legal advice for the forensic purpose of asserting to the respondents that there was no issue with the validity of the appointment of Mr Regan (the original prosecutor), and therefore the proceedings had been validly instituted.
104In our view the contention lacks merit. The respondents' letter of 10 July 2013 sought a response from the solicitors acting for the prosecutor to the question:
(iv) If Ms Nash was aware of the difficulty in relation to the purported appointment of Mr Regan on 22 December 2006, why did Ms Nash not provide instructions to the lawyers acting for her in these proceedings to disclose to the solicitors for the Defendants the difficulty in relation to the purported appointment of Mr Regan as Chief Inspector on 22 December 2006 prior to 8 July 2013?
105The letter of 12 July 2013 answered this question in the following way:
iv. Up until 8 July 2013 Ms Nash was of the firm belief and understanding that there was no longer any issue regarding the validity of Mr Regan's authority to commence and continue prosecutions based on information received during the course of her role within the Department of Trade and Investment.
106We are not persuaded that the answer to the question posed by the respondents amounted to a deployment of the prosecutor's state of mind for the purpose of maintaining the prosecution's case against the respondents. The prosecutor could not put in issue her state of mind simply by making assertions about her state of mind in correspondence with the respondents. Moreover, and in any event, as the Department in written submissions sought to emphasise, the prosecutor did not rely on her state of mind to advance the prosecution of the respondents.
107In conclusion, Question (i) raised the issue as to whether a response to a request to provide information about a state of mind could put in issue that state of mind. As we have found, the mere making of assertions about the prosecutor's state of mind in the letter of 12 July 2013 did not put in issue that state of mind. Question (i) should be answered, "yes". Question (ii) was primarily directed to the issue whether an assertion that certain action was taken in reliance on legal advice could of itself result in a conclusion of waiver. We found in relation to that issue that there was no revelation of the substance or content of the legal advice received by Ms Nash in the letter of 12 July 2013 and, that to the extent Boland J held otherwise, his Honour fell into error. Question (ii) should also be answered, "yes".