Nash v Glennies Creek Coal Management Pty Ltd

Utility 11The issue of utility loomed large. The defendants submitted the Court should not refer questions of law where there was no apparent utility, in the circumstances of the present application. This was put essentially on two bases. Firstly, that what the Department and the prosecutor were seeking to do in reality was to overturn the decision and orders in Nash (No 2) in the manner of an appeal, which was impermissible: see for example, R v Madden (1995) 85 A Crim R 367 at 370; R v Porter (2004) 141 A Crim R 593 and Inspector Ross Wolf v Rockdale Beef Pty Ltd [2005] NSWIRComm 184 at [8] and [33]. Secondly, in relation to questions 4(v) and 4(vi), for example, the defendant contended there was no utility in submitting the questions to the Full Bench because, if it formed the view that I had not provided reasons (as contended by the Department and the prosecutor), and remitted the matter to consider whether reasons ought to be given, such a sequence of events would not lead to any order affecting the ruling already made by the Court. 12Utility has an important role if it were other than the Crown requesting questions of law to be submitted. The Court in those circumstances would have a discretion based on lack of utility to decline to state a case. However, s 5AE of the Criminal Appeal Act provides that where the Crown requests questions of law to be submitted the judge hearing the proceedings must submit "any question of law arising at or in reference to the proceedings to the [Full Bench of the Industrial Court] for determination". 13It seems to me that if the question proposed to be submitted by the Crown (in this case the prosecutor) is a legitimate question of law, it must be submitted and no room exists for the exercise of a discretion based on lack of utility. If the question does lack utility it would seem that is a matter for the Full Bench.

First question 14The first amended question is in the following terms: Did I err in law in holding that an inference drawn from a document, that certain legal advice was given, could constitute disclosure of that legal advice for the purposes of s 122 Evidence Act and the common law relating to waiver of legal professional privilege (see Judgment, paragraphs [156], [160], [165])? 15Paragraphs [156], [160] and [165] of Nash (No 2) were in the following terms: [156] The very clear inference can be made that in the process of determining what to do about the "possible issues/difficulties with certain aspects of Mr Regan's appointments" Ms Nash received legal advice to the effect that it was open to proceed with the prosecutions of the defendants on the basis of Mr Regan's appointment as an inspector under s 47A of the OHS Act, but that the CHMS Act should be amended to retrospectively validate Mr Regan's purported appointment as Chief Inspector on 22 December 2006. [160] In my opinion, Ms Nash's conduct in providing instructions to the CSO to write to the defendants' solicitors in the terms of the 12 July Letter was inconsistent with the maintenance of the confidentiality that the privilege claimed was intended to protect. The 12 July Letter reveals the gist of the legal advice, which Ms Nash proceeded to implement. It would be unfair to the defendants to deprive them of the legal advice upon which Ms Nash acted in circumstances where they are endeavouring to discover whether the charges brought against them were lawfully instituted and maintained and where the 12 July Letter suggests there is some doubt about that. I also note there would appear to be an inconsistency between advice that there was no difficulty with Mr Regan's authority to institute the prosecutions (and apparently no need to advise the defence of any difficulty), but on the other hand that his appointment as a Chief Inspector be validated in the form of Schedule 2.1. The defendants are entitled to get to the bottom of that apparent inconsistency. [165] I find that by disclosing the substance of the legal advice that led Ms Nash to conclude that: (a) it was open to proceed with the prosecutions of the defendants on the basis of Mr Regan's appointment as an inspector of s 47A of the OHS Act, and (b) the CHMS Act should be amended to retrospectively validate Mr Regan's purported appointment as Chief Inspector on 22 December 2006, there has been an implied waiver of client legal privilege. 16The Department and prosecutor contended that: [I]t was not permissible for the Court to determine what might be inferred from the document for the purposes of deciding what had been "disclosed" by the document. The question of law raised is whether, in determining what has been "disclosed" by a document, a court may draw inferences from the contents of that document. 17I think, with respect, that contention and the proposed question itself misconstrues my finding at [156]. The "clear inference" I made was not from the 12 July 2013 letter. That is to say, I did not infer from the letter that Ms Nash disclosed the gist of legal advice she received. If one has regard to the preceding paragraph ([155]) and the following paragraph ([157]) it is apparent that the inference I made was that having had discussions with Mr Bennett, Principal Legal Officer, and "others in the Department", and "information she was given" Ms Nash received legal advice. The substance of the legal advice was plain from the terms of the letter: see, for example [126], [160] and [165] of Nash (No 2). 18Accordingly, question 4(i) is not a question of law "arising at or in reference to the proceedings".

Second question 19The second amended question was in the following terms: (ii) Did I err in law in holding that disclosure of the substance of legal advice that has been received could thereby waive privilege pursuant to s 122 Evidence Act and the common law with respect to more than that legal advice (see Judgment, paragraphs [160], [165])? 20The Department and prosecutor observed, correctly, that at [165] it was held that, as a result of "disclosing the substance of the legal advice ..." there was "an implied waiver of client legal privilege". It was noted that it was not stated by me what material that waiver applied to. However, it was further noted the defendants had claimed (see [145]) that, as a result of disclosure waiver, privilege was lost in respect of "any record in connection with" the validity of Mr Regan's appointment and the (anticipated) issue of alleged abuse of process. 21It was submitted that the defendants' claim was not limited to legal advice received by Ms Nash. In those circumstances, it was submitted that it appeared to the Department and the prosecutor that the ruling at [161] (sic) of Nash (No 2) was in respect of all the documents sought by the defendants and not only the legal advice received by Ms Nash. 22The Department and the prosecutor submitted that, in those circumstances, question 4(ii) raised a question of law as to whether disclosure of legal advice received on some issue had the effect of thereby (that is, quite separately to consideration of the doctrine of "issue waiver") waiving privilege in respect of other legal advice on the same issue that had not been received. 23I made no ruling in [161] of Nash (No 2). Perhaps the reference should have been to [160]. Further, the submission paraphrased in [22] above would seem to go to the question of whether privilege has been waived not only in respect of the legal advice referred to in [156] of Nash (No 2), but also in respect of other legal advice dealing with the same issue as the legal advice referred to in [156], but which Ms Nash had not received. 24Perhaps I should have been clearer in Nash (No 2). My intention was to convey a finding that privilege had been waived in respect of the legal advice referred to in the 12 July 2013 letter. That is, any legal advice received by the prosecutor in connection with the validity of Mr Regan's appointment and the (anticipated) issue of alleged abuse of process. In that respect, I note Ms Nash referred to "information she was given". If that information was provided by a lawyer, whether Departmental or otherwise, privilege has been waived. 25If there was other legal advice in connection with the validity of Mr Regan's appointment and the (anticipated) issue of alleged abuse of process, but which was not received by Ms Nash, I did not know what that advice was so I was in no position to make a ruling about whether or not privilege had been waived in respect of it. 26If there did exist other legal advice on the issues referred to in the 12 July 2013 letter, but which was not received by Ms Nash, I do not think it could be successfully contended that there had been partial disclosure and that the tests of inconsistency and fairness required that other legal advice to be produced (see Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1). The other legal advice would clearly be severable. It could not be said Ms Nash was acting inconsistently with the maintenance of privilege in respect of communications she had not received. 27In clarifying the position, which at least on my interpretation of the question resolves the concern of the Department and the prosecutor, question 4(ii) is not a question of law "arising at or in reference to the proceedings".

Third question 28The third amended question was as follows: (iii) Did I err in law in holding that an assertion that a state of mind was formed after the receipt of legal advice, in response to a request to provide information as to when that state of mind was formed, could put in issue that state of mind for the purposes of s 122 Evidence Act and the common law relating to waiver of legal professional privilege and thereby waive privilege in respect of that advice (see Judgment, paragraphs [123], [125], [170]-[171])? 29Paragraphs [123], [125] and [170]-[171] of Nash (No 2) were in the following terms: [123] The waiver is said to arise as a result of the contents of the letter from the Crown Solicitor's Office ("CSO"), as solicitors for the prosecutor, to the defendant's solicitors on 12 July 2013 ("the 12 July Letter"). That letter was a response to a letter to the CSO from the defendants' solicitors dated 10 July 2013 in which a series of questions were put regarding the appointment relied upon by Mr Regan to make the Application for Order on 31 March 2011 and the state of the prosecutor's (Ms Nash's) knowledge in relation to the purported appointment of Mr Regan as a Chief Inspector on 22 December 2006. [125] In relation to the prosecutor's knowledge about issues concerning Mr Regan's appointment as Chief Inspector on 22 December 2006, the defendants were interested in knowing when Ms Nash became aware of any difficulty concerning the appointment, when Ms Nash became aware of the proposed amendment that is Schedule 2.1, whether Ms Nash provided instructions to the CSO concerning the difficulty in relation to Mr Regan's purported appointment, and, if Ms Nash was aware of the difficulty, why she did not instruct her lawyers to disclose this to the defendants' solicitors. These matters obviously go to the duties of a prosecutor and the issue of whether there was an abuse of process warranting a permanent stay of proceedings. [170] According to the 12 July Letter, on the basis of certain advice and information she received, the prosecutor formed a particular belief about the validity of Mr Regan's appointment and his authority to commence and continue prosecutions under the OHS Act. Ms Nash also formed a particular belief about the need for amendments to the CMHS Act in order to validate the appointment of Chief Inspectors and others. It is apparent Ms Nash formed and acted on those beliefs for the forensic purpose of dealing with the possibility of any challenge to Mr Regan's authority, the very challenge that the defendants seek to make in these proceedings. [171] 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. 30As senior counsel for the Department explained in written submissions, the substance of the question of law sought to be raised in this question is whether the prosecutor "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 defendants regarding that state of mind? 31The letter of 12 July 2013 was in response to a letter from the defendants asking (see [124]-[125] of Nash (No 2)): when Ms Nash became aware of any difficulty concerning the purported appointment of Mr Regan; when Ms Nash became aware of the proposed amendment that is Schedule 2.1 of the Petroleum (On-Shore) Amendment Bill 2013; whether Ms Nash provided instructions to the Crown Solicitors Office concerning the difficulty in relation to Mr Regan's purported appointment; if Ms Nash was aware of the difficulty, why she did not instruct her lawyers to disclose this to the defendants' solicitors. 32If I were in a position to exercise a discretion as to whether I should refer this question, I would not do so. In my opinion, the fact that Ms Nash revealed her state of mind in the course of answering questions put by the defendants simply amounts to voluntary disclosure of her state of mind and is no different to disclosure waiver cases such as Benecke v National Australia Bank (1993) 35 NSWLR 110. The plurality referred to Benecke in Mann v Carnell at [29] where it was stated: Thus in Benecke v National Australia Bank the client was held to have waived privilege by giving evidence, in legal proceedings, concerning her instructions to a barrister in relatd proceedings, even though she apparently believed she could prevent the barrister from giving the barrister's version of those instructions. She did not subjectively intend to abandon privilege. She may not even have turned her mind to the question. However, her intentional act was inconsistent with the maintenance of the confidentiality of the communication. What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of confidentiality; not some overriding principle of fairness operating at large. 33Given that I must refer the question of law, and question 4(iii) would seem to be a question of law "arising at or in reference to the proceedings", I will refer it to the Full Bench.

Fourth question 34The fourth amended question was as follows: (iv) Did I err in law in holding that a prosecutor's assertion in correspondence with a defendant, that she formed a particular state of mind with regard to an issue in the proceedings on the basis of legal advice, could put in issue that state of mind for the purposes of s 122 Evidence Act and the common law relating to waiver of legal professional privilege and thereby waive privilege in respect of that advice (see Judgment, paragraphs [170]-[171])? 35Senior counsel for the Department explained the point of this fourth question: The question of law raised in 4(iv) is, in substance, whether an assertion about state of mind by a party in correspondence with another party can ever "put in issue" that state of mind for the purposes of the law of waiver of client legal privilege. Current authority tends to indicate that issue waiver arises where a party raises an issue in the proceeding by pleadings, particulars or some comparable curial process. That is the conventional way in which a party puts some fact "in issue" in proceedings. It is an important question whether this can occur, as a matter of law, on the basis of an assertion in correspondence. The challenge sought to be made is to the finding (at [171]) that the prosecutor's assertions in the correspondence with the defendants "put in issue" her state of mind. It will be contended before the Full Bench that, in the present case, the defendants may choose to put in issue the state of mind of the prosecutor by seeking a stay of proceedings based on prosecutorial misconduct (by alleging prosecutorial misconduct in order to obtain a permanent stay of proceedings on the basis of abuse of process, the defendants, not the Department or the prosecutor, raises an issue regarding the prosecutor's state of mind). However, a prosecutor would not, as a matter of law, "put in issue" her state of mind simply by making assertions about her state of mind in correspondence with the defendants. If the prosecutor sought to rely on that state of mind to advance the prosecution of the defendants in some way, the situation would be different, but there is no such reliance. 36The defendants submitted question 4(iv) was a hypothetical question and inappropriate to refer to the Full Bench. The defendants referred to the phrase "...can ever put in issue..." used by senior counsel for the Department in explaining the purpose of the question. The defendants submitted such a question was contrary to the principle that questions of law, sought to be referred in a stated case, may not be hypothetical or academic: Environment Protection Authority v Sydney Water Corporation Limited (1997) 98 LGERA 361 at 365; Director of Public Prosecutions, South Australia v B [1998] HCA 45; (1998) 194 CLR 566 at [11] - [12] and Director of Public Prosecutions Reference No 1 of 1999 (1999) 105 A Crim R 489 at [11]. 37I assume the use of the word "ever" in submissions was simply an infelicitous use of language because the actual question does not use that word. I regard question 4(iv) as a question of law within the meaning of s 5AE of the Criminal Appeal Act and I will refer it to the Full Bench.

Fifth question 38The fifth amended question was as follows: (v) Was I required as a matter of law to give reasons for finding, prior to inspecting the documents in respect of which a claim of public interest immunity was made, that the documents were crucial to the proper determination of the proceedings (see Judgment, paragraphs [55]-[58])? 39Paragraphs [55]-[58] of Nash (No 2) stated: [55] As it was observed in Sankey v Whitlam, the Court must balance the public interest in withholding the production of a document, against the public interest in ensuring that courts performing the functions of justice should have access to relevant evidence. In my opinion, both aspects of the public interest in these proceedings require consideration. On the one hand there is the high public interest in the confidentiality of documents relating to Cabinet deliberations. On the other hand, there is the high public interest in determining whether prosecutions against the defendants, in criminal proceedings with high maximum penalties if the offences are made out, were lawfully instituted and whether in maintaining the prosecutions there has been an abuse of process that may provide the foundation for the proceedings to be permanently stayed. [56] The Court must be satisfied that the materials sought are crucial to the proper determination of the proceedings: Commonwealth v Northern Land Council at 619. It would appear that there is considerable doubt over the validity of Mr Regan's appointment as a Chief Inspector under the CHMS Act, although the prosecutor has not admitted it is invalid. The prosecutor appears now to rely on an appointment of Mr Regan as an inspector under s 47A of the OHS Act to maintain the prosecutions, notwithstanding no application has been made to amend the Applications for Order. In addition, whilst the prosecutor knew there were "difficulties/problems" with Mr Regan's appointment under the CHMS Act at least as early as August 2012 and resolved to maintain the prosecutions relying on an appointment of Mr Regan under the OHS Act, Ms Nash did not advise the defence of this. In the meantime, a decision was made to amend the CHMS Act to retrospectively validate Mr Regan's appointment. The defence was also not advised of this development. [57] It appears to me there are important unanswered questions relating to criminal prosecutions for serious OHS offences involving the death of a miner. I regard the materials sought as crucial to the proper determination of the proceedings. [58] Given the balancing exercise I am required to undertake, and noting s 130(3) of the Evidence Act, I decided I should inspect the documents called for. No balancing exercise was required in Spencer. Accordingly, the approach taken there is distinguishable from the present proceedings. Moreover, the defendants submitted the prosecutor had waived the privilege under PII. 40As the Department's counsel observed, this question asks whether the Court erred in making a judgment, without providing reasons, that the documents in respect of which a claim of public interest immunity was made were "crucial" prior to inspecting the documents. 41The defendants submitted in relation to question 4(v): (a) there was no utility in asking this question because, if a Full Court formed the view that a single member had not provided reasons, and remitted the matter to consider whether reasons ought to be given, such a sequence of events would not lead to any order affecting the ruling already made by the Court in respect of its ruling on public interest immunity; (b) the question was a dressed up appeal ground, and is not permissible: see R v Madden (1995) 85 A Crim R 367 at 370 per Hunt CJ at CL; R v Porter (2004) 141 A Crim R 593, per Spigelman CJ, Barr and Kirby JJ agreeing at [29]-[31] cited with approval by the Court at [14] in Nash v Glennies Creek Coal Management Pty Ltd (No 3) [2013] NSWIRComm 72; (c) it was incorrect to contend the Court did not provide reasons for its finding that the relevant documents were "crucial" in the proceedings: see [55] to [57] of Nash (No 2); (d) it was asserted in the submissions of the Department, and implicit in questions 4(v) and 4(vi) that the Court accepted that: (i) it found that the relevant documents were "crucial" prior to inspecting them; (ii) it erred by not determining whether the each individual document was "crucial" after inspecting the documents; (iii) in undertaking the balancing exercise, it failed to consider each of the elements of s 130(5) of the Evidence Act 1995 In respect of the assertion that each document was not considered in undertaking the balancing exercise, part of which included considering the "importance of the information or document (s 130(5)(a), ie. whether it was "crucial" or "very important"), the question is clearly contrary to the statements of the Court that it decided to inspect the documents (at [58]) and then made findings through the judgment, after having conducted the balancing exercise in respect of the documents: see, for example, [86]. The question, and the submissions of the Department, appears to suggest that the Court was required, after inspecting each document, that the Court was required to make a finding in relation to each element of s 130(5) in respect of each one of the hundreds of documents produced to the Court. The Court was not asked to adopt that approach. Nor was there any submissions made to the Court by the Department by reference to each document as to why the document was not crucial or important. The Department made global submissions. The question, and the submission that the Court was required to take such an approach in its judgment is baseless and without merit. (e) At numerous times during the course of the proceedings, counsel for the Department made statements indicating an assumption that the Court would inspect the documents in order to determine the motion, contrary to the premise of question (v), which is that the Court erred by not giving reasons for findings that the documents were crucial to the proper determination of the proceedings prior to inspecting the documents. 42In relation to the terms of proposed question 4(v), I do not understand how I could give reasons for finding, prior to inspecting the documents in respect of which a claim of public interest immunity was made, that the documents were crucial to the proper determination of the proceedings. 43I observed at [56] of Nash (No 2), "The Court must be satisfied that the materials sought are crucial to the proper determination of the proceedings..." Then at [57] and [58]: [57] It appears to me there are important unanswered questions relating to criminal prosecutions for serious OHS offences involving the death of a miner. I regard the materials sought as crucial to the proper determination of the proceedings. [58] Given the balancing exercise I am required to undertake, and noting s 130(3) of the Evidence Act, I decided I should inspect the documents called for. No balancing exercise was required in Spencer. Accordingly, the approach taken there is distinguishable from the present proceedings. Moreover, the defendants submitted the prosecutor had waived the privilege under PII. 44Because I regarded the materials sought by the defendants as crucial to the proper determination of the proceedings (why I so regarded the materials is explained at [55] and [56]) and because I was required to undertake the balancing exercise, I decided to inspect the documents in respect of which public interest immunity was claimed. Other reasons I indicated in the judgment for inspecting the documents were: s 130(3) of the Evidence Act; the question whether the documents were current and controversial; and whether the documents concerned government policy. 45Having considered whether the documents were controversial and having found they were not, I addressed each of the classes of documents that were the subject of the public interest immunity claim. In respect of each class of documents, subject to the exceptions I identified, I disallowed the claim for public interest immunity. 46It must be obvious from my judgment that I did inspect the documents. I found, for instance, that some of the documents were forensically relevant, that many others were not relevant, that documents in classes MP-E and MP-F relating to Schedule 2.1 were not crucial to the defendants' case and that documents marked "Cabinet in Confidence" attracted public interest immunity. Moreover, the orders are quite specific about what is, and what is not, to be produced. 47I do not propose to refer the Department's fifth question: it is not one "arising at or in reference to the proceedings". The more pertinent and relevant question is that proposed as question 4(vi), to which I will now turn.

Sixth question 48The sixth amended question was in the following terms (vi) Did I err in deciding the claim of public interest immunity by failing to determine whether, taking into account the contents of each document in respect of which a claim was made, each document was crucial to, or at least important for, the proper determination of the proceedings (see Judgment, paragraphs [79], [82], [90])? 49Paragraphs [79], [82] and [90] of Nash (No 2) stated: [79] Insofar as the forensic relevance of some of the contents of the documents in MP-C relating to Schedule 2.1 is concerned, the contents in that respect are relevant. Accordingly, in all the circumstances, I am unable to see why I should not follow the approach of Wilcox J in North Australian Aboriginal Legal Aid Service Inc v Bradley. [82] The nature and subject matter of documents in Category D, as they relate to Schedule 2.1 of the Bill, do not, for the reasons I have stated in relation to Category C, attract public interest immunity. [90] As Wilcox J observed in Bradley, "[E]verything must depend upon the nature, and subject matter, of the documents." The nature and subject matter of documents in Categories A and B as they relate to Schedule 2.1 of the Bill do not, for the reasons I have stated in relation to Category C and for the reasons stated immediately above, attract public interest immunity except in relation to those documents or pages of documents marked "Cabinet in Confidence". 50The question raises the issue of whether I was required to inspect the contents of each document and make a finding about those contents as to whether they were crucial to, or at least important for, the proper determination of the proceedings. 51The question is a proper question of law and I propose to refer it to the Full Bench.

Seventh question 52The seventh amended question was as follows: (vii) Was I required as a matter of law to give reasons for finding that, taking into account the contents of each document in respect of which a claim was made, each document was crucial to the proper determination of the proceedings? 53The question raises the issue of whether I was required to give reasons as to why the contents of each document were crucial to the proper determination of the proceedings. A failure, on the part of a tribunal exercising judicial functions, to give reasons for its decision will constitute an error of law: Campbelltown City Council v Vegan [2006] NSWCA 284; (2006) 67 NSWLR 372 at [130]. The question is a proper question of law within the meaning of s 5AE and I propose to refer it.

Eighth question 54The eighth amended question was as follows: (viii) Was it open to me as a matter of law to find that, taking into account the contents of each document in respect of which I disallowed the claim of public interest immunity, all of those documents were crucial to the proper determination of the proceedings? 55Notwithstanding the defendants' submission, which I think is correct, that the question is contrary to the approach taken by the Department in the proceedings, the question is one "arising at or in reference to the proceedings" and, since the request for referral comes from the Crown, it must be referred.

Ninth question 56The ninth amended question was in the following terms: (ix) Was it open to me as a matter of law to allow the claim of public interest immunity with respect to Confidential Exhibits MP-A and MP-B only in relation to those documents or pages of documents marked "Cabinet in Confidence" (see Judgment, paragraph [90])? 57Notwithstanding the apparent pointless nature of the question in terms of how an answer to it could assist me in finally disposing of the proceedings and my reservation about it being a mixed question of fact and law, I propose to refer the question.

Orders and directions 58The Court makes the following orders and directions: (1) I state a case to the Full Bench of the Industrial Court of New South Wales in the terms of Annexure B to this judgment. (2) I direct that a copy of this judgment and a copy of my judgment in Nash v Glennies Creek Coal Management Pty Ltd (No 2) [2013] NSWIRComm 67 be provided to the Full Bench. (3) The judgment and orders made by the Court on 13 August 2013 in Nash v Glennies Creek Coal Management Pty Ltd (No 2) [2013] NSWIRComm 67 are stayed pending the decision of the Full Bench on the case stated. (4) Costs are reserved.

ANNEXURE A | ANNEXURE B DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 September 2013