Nash v Glennies Creek Coal Management Pty Ltd

Applicants' submissions 12It was submitted for the applicants that the additional question they seek to have referred to the Full Bench is a question of law "arising at or in reference to the proceedings" which, if a request to submit the questions is made by the Crown, "must" be submitted to the Full Bench. 13Senior counsel submitted that a finding of "disclosure" of the "substance of the legal advice" was made at [160] in Glennies Creek (No 2) and a finding of waiver was made at [165]. 14It was further submitted that is was apparent from the judgment of Basten JA that there are important questions arising in the present case, including the following: (a) whether the sentence in the letter of 12 July 2013 "During the later part of August 2012 as a result of discussions with others in the Department and of information she was given, Ms Nash formed the view that amendments should be progressed to the CMHS Act" was capable of constituting a waiver of lawyer-client privilege ..." (Basten JA at [23]); (b) whether it was open to the trial judge to find that "Ms Rizzo's letter disclosed 'the substance' of any legal advice" (Basten JA at [28]); (c) whether the statements in the letter of 12 July 2013 could constitute a waiver (Basten JA at [33]); (d) whether, where a person states his or her beliefs which are said to be based upon legal advice, an inference can reasonably be drawn as to the substance of the advice (Basten JA at [37]). 15To assist the Court, senior counsel submitted [I]t may be also helpful to note that, at [33], Basten JA referred to "a real question as to whether the statements in Ms Rizzo's letter in the present case could constitute a waiver ...". An alternative formulation of question[s] (i)... would provide more specificity by replacing the words "in the circumstances of the case," with the words "by reason of the letter of 12 July 2013". This alternative formulation is advanced in compliance with the obligation noted by Basten JA at [43] for any "reformulation" or "refinement" to be "sought in terms".

Respondents' submissions 16In opposing the applicant's application to refer the question the respondents submitted: (a) What the applicants were seeking to do was, in substance, to re-litigate an application which had already been determined by this Court and the Court of Appeal. It was not in the interests of justice that the respondents be put to the further expense and time of having interlocutory matters re-litigated, now for the third time, when there has been no change in the evidence or any other material circumstances: see Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 at 46 per McLelland J; Wentworth v Rogers (Sperling J, 28 April 1995, Supreme Court of NSW, unreported); Nominal Defendant v Manning (2000) 50 NSWLR 139 at 142-143 per Mason P and at 156 per Heydon JA; R v Taylor [2007] NSWCCA 104, (2007) 169 A Crim R 543 at 550 per Hidden J; (b) The application amounts to an abuse of process because: (i) there is no fresh evidence (and nor could there be any on such an application); (ii) there are no new principles of law which have subsequently been delivered by a superior court since the first litigation. The statement by Basten JA at [33] of Glennies Creek (No 2) is obiter. Moreover, whilst Basten JA stated at [43] that "... the respondents conceded that an appropriately worded question of law could have been, and might even now be, submitted to the Full Bench", this was in the context of his Honour referring to the possibility of an express and single question being referred to the Full Bench as to whether I had erred in deciding not to refer the question (i) concerning disclosure waiver which the Prosecutor and Department had requested be referred. There was no discussion before the Court, or any proposition put by the Court or the applicants, that further (new) questions concerning disclosure waiver could be referred to the Full Bench; (iii) the applicants have at no time in the proceedings before the Court of Appeal, the Full Bench of the Industrial Court, or subsequent to the delivery of the judgment in Glennies Creek (No 4), in this Court, indicated any intention to apply to have any further, new, questions of law be referred to the Full Bench; (iv) there will be further substantial time and resources invested by the applicants (involving the expenditure of public moneys), this Court, and the respondents, in proceedings before the Court in dealing with a further motion to agitate issues which have already been agitated before this Court on two occasions, and before the Court of Appeal. (c) The Court has power to manage cases in the interests of justice and the public, including to dismiss applications which are unmeritorious or amount to an abuse of process: see State Pollution Control Commission v Australian Iron & Steel Pty Ltd (No 2) (1992) 29 NSWLR 487 at 493-4 per Gleeson CJ: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [98] and [114]; Chevalley v Inspector Morrison [2012] NSWIRComm 18; (2012) 219 IR 193 at [52]; (d) By parity of reasoning with the judgments in State Pollution Control Commission v Australian Iron & Steel Pty Ltd (No 2), Aon Risk Services Australia Ltd v Australian National University, Chevalley v Inspector Morrison the Court should not permit its limited resources to be taken up, and the substantive criminal proceedings before the Court further disrupted and delayed, by the applicants seeking to "fight over again a battle which has already been fought" (Buckley LJ in Chanel Ltd v F W Woolworth & Co Ltd [1981] 1 WLR 485 at 492). 17In further written submissions filed on 18 November 2013, the respondents addressed in particular, whether the question sought to be referred was a question of law. It was submitted to the contrary because: (a) despite reliance by the applicants on what Basten JA said at [33], it was merely obiter and his Honour did not specifically identify an appropriate question of law that might be referred; (b) on the basis of comments made by Sackville A-JA in the course of the proceedings, the applicants formulated a question making reference to section 122 of the Evidence Act, but used the phrase "disclosure of the substance of legal advice", which does not appear in s 122. Instead, the section refers to "the substance of the evidence"; (c) the words "disclosure" and "substance" have their ordinary meanings within section 122 of the Evidence Act. Neither of those terms is defined within the Dictionary, under section 3, to that Act. The determination of whether the "undisputed material" (as referred to by Sackville A-JA in the course of the proceedings before the Court of Appeal) or "facts fully found"(as referred to in Hope v Bathurst City Council (1980) 144 CLR 1) fall within the meaning of the words used in section 122 of the Evidence Act, is a question of fact or at best a mixed question of fact and law: NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 309 at 511-2 per Kitto J; (d) the exercise which was undertaken by the Court in Nash v Glennies Creek Coal Management Pty Ltd (No 2) [2013] NSWIRComm 67 (Nash No 2) was an assessment of the contents of the letter of 12 July 2013, against the documents over which client legal privilege has been claimed by the Department. The question therefore seeks, effectively, for the findings of fact to be reviewed and further, that their application to legal issues under the common law, is then subsequently reviewed. At best, the question is one of mixed fact and law. The question seeks to utilise section 5AE of the CA Act as an appeal of the findings of the Court in Nash No 2. Such an approach is not permissible. (e) it is difficult to identify what "undisputed material" (as referred to by Sackville A-JA) or "fully found facts "there are in the present case, which would be the subject of analysis under question (i). The relevant "materials" or "facts" which must be considered are: (i) the letter of 12 July 2013, of which only a summary has been included in the case stated to the Full Bench; and (ii) the documents over which client legal privilege has been claimed in confidential exhibits MP-A through MP-F, and Exhibit JMM-1, which have not been provided the Full Bench. It is these "materials" which were examined by the Court in Nash No 2 to determine whether the letter dated 12 July 2013 disclosed the substance of legal advice contained in the documents within Exhibits MP-A to MP-F and/or JMM1. Such evidence is not before the Full Bench.

Consideration 18It is, indeed, regrettable, as the applicants conceded that this is the third application made in these proceedings for submission of questions of law to the Full Bench. The first application was completely unsuccessful, the second application was successful to the extent six out of nine questions of law proposed by the applicants were referred to the Full Bench and the third application became necessary because this Court and the Court of Appeal found that a critical question posed in the second application was not a question of law within the meaning of s 5AE of the Criminal Appeal Act. The exercise has undoubtedly consumed a good deal of time and public money, including the Courts' time. 19Whilst the question sought to be referred might be described as a "reformulation" of the original flawed question, it must also be accepted that if the reformulated question is a question of law, it is a new question. This is because the original question was found not to be a question of law and did not meet the requirements of s 5AE. If the reformulated question is a question of law it is, for the purposes of s 5AE, a question of an entirely different character and, therefore, a new question. 20Whilst I have not had the advantage of full legal argument, especially regarding the respondents' submissions that the question posed is a question of fact, I have come to the view, with some reservations, that subject to an amendment, the question is a question of law. The amendment involves deleting the words "in the circumstances of the case" and substituting the words "by reason of the letter of 12 July 2013". To use the words "in the circumstances of the case" would require the Full Bench to have before it the whole of the evidence and to engage in fact finding regarding the circumstances of the case when it has not been provided with all of the factual evidence. By using the phrase "by reason of the letter of 12 July 2013" the Full Bench will only need to have regard to the facts relating to that letter as I have found them in Nash (No 2) and, if necessary, the summary of facts in Annexure B to that judgment. 21Whilst the question refers to the "substance of legal advice" and not the "substance of the evidence", nothing turns on the distinction. The evidence that may be adduced according to my decision in Nash (No 2) is the legal advice: see Nash (No 2) at [152], [160], [165]. 22The respondents submitted that the determination of whether the "undisputed material" or "facts fully found" fall within the meaning of the words used in section 122 of the Evidence Act was a question of fact or, at best, a mixed question of fact and law. This was because, according to the respondents, "disclosure" and "substance" had their ordinary meaning within s 122. Reliance was place on what Mason J stated in Hope v Bathurst City Council at 7, where the question was whether the word "business" in the Local Government Act 1919 (NSW) was a word used according to its common understanding. Mason J found (Gibbs, Stephen and Aickin JJ agreeing) this was so and was, therefore, a question of fact. As such, it was an exception to the rule that the question whether facts fully found fall within the provisions of a statutory enactment properly construed was a question of law. 23If the respondents are correct it would mean that the determination of whether "facts fully found" fell within the meaning of the words in s 122 could never be a question of law for the purposes of s 5AE of the Criminal Appeal Act. It does not seem to me that was the legislature's intention. The purpose of s 5AE is to permit a single judge of the Court to obtain advice from the Full Bench of the Court upon questions of law that will assist that judge in determining how the matter should be finally disposed of. 24There are important issues to be determined including whether it was open to me to find that "Ms Rizzo's letter disclosed 'the substance' of any legal advice" (Basten JA at [28]); whether, where a person states his or her beliefs which are said to be based upon legal advice, an inference can reasonably be drawn as to the substance of the advice (Basten JA at [37]). 25If the respondents are correct I am unable to be provided with the advice of the Full Bench on these fundamental questions going to the operation of s 122 and the common law. 26In my view the word "substance" as it is used in s 122 is a word whose meaning or interpretation is to be determined from its context: Ampolex Ltd v Perpetual Trustee Company (Canberra) Ltd (1996) 40 NSWLR 12 at 18, 19, which in the present case would appear to raise a question of law, including, whether, where a person states his or her beliefs which are said to be based upon legal advice, an inference can reasonably be drawn as to the substance of the advice. Moreover, the word "substance" has been given a meaning: Adelaide Steamship Pty Ltd v Spalvins (1998) 81 FCR 360 at 371, 375, so I am not required to determine whether it has its ordinary meaning. 27As to the word "disclosure" or "disclosed" as used in s 122, those words cannot be considered in isolation, but are qualified. For example, in s 122(2) privilege may be lost if a client or party has "knowingly and voluntarily disclosed" to another person the substance of the evidence. I do not think the statute uses the words according to how they might be understood in ordinary speech. A consideration of the words in s 122 is not akin to determining whether grazing is a business (Hope v Bathurst City Council) or whether the quarrying of blue metal is a mining operation (NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509). Determining whether a client or party "knowingly and voluntarily disclosed" the substance of evidence will require the context to be considered and as the authorities reveal may involve such questions of a legal nature as whether mistaken disclosure is knowing and voluntary disclosure (Meltend Pty Ltd v Restoration Clinics of Australia Pty Ltd (1997) 145 ALR 391), accidental disclosure (Sovereign v Bevillesta [2000] NSWSC 521), whether certain conduct was inconsistent with the maintenance of the confidentiality that the privilege claimed, or whether there has been a waiver of legal professional privilege in respect of the legal advice as a whole. 28In the present case an issue arises as to whether information provided by Ms Rizzo to the respondents in the 12 July 2013 letter in response to a request from the respondents for further information amounted to knowing and voluntary disclosure. That would seem to me to be a question of law. 29If I had found the new question was not a question of law it may have been open to me to accept the respondents' submission that what the applicants were seeking was a "re-litigation of a matter already determined" and that the application was an abuse of process. However, because I have determined that the question is a question of law I am bound, by virtue of s 5AE(1) of the Criminal Appeal Act, to refer the question to the Full Bench and there is no discretion to do otherwise. There is no statutory limit, it would appear, on the time in which such questions are to be submitted under s 5AE or on the number of times the Court may be requested to submit a question or reformulation of a question.

Orders 30The Court makes the following orders: (1) Annexure B to the judgment of Nash v Glennies Creek Coal Management Pty Ltd (No 4) [2013] NSWIRComm 80 is amended by adding the following question to the list of questions in section 4 of that Annexure: (vii) Was it open to me to find that, by reason of the letter of 12 July 2013, there was disclosure of the substance of legal advice received by the prosecutor for the purposes of s 122 Evidence Act 1995 and the common law? (2) I direct that a copy of this judgment be provided to the Full Bench. (3) Costs are reserved.

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: 19 November 2013