Nash v Glennies Creek Coal Management Pty Ltd

INTERLOCUTORY Judgment 1In Nash v Glennies Creek Coal Management Pty Ltd (No 4) [2013] NSWIRComm 80, the Court submitted six questions of law to the Full Bench pursuant to s 196 of the Industrial Relations Act 1996 and s 5AE of the Criminal Appeal Act 1912. However, the Court declined to submit three other questions proposed by the applicant (Director General, Department of Trade and Investment, Regional Infrastructure and Services) and the prosecutor (Jennifer Nash). One of those three questions was the following question: (i) 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])? 2In Director General, Department of Trade and Investment, Regional Infrastructure and Services v Glennies Creek Coal Management Pty Ltd [2013] NSWCA 371 (8 November 2013) ("Glennies Creek (CA)") the Court of Appeal dismissed a summons seeking orders quashing the refusal to submit that question and an order to compel this Court to submit that question to the Full Bench of the Industrial Court. 3On 12 November 2013 the applicant and prosecutor ("the applicants") filed a notice of motion in this Court seeking the following orders: 1. The Court refer questions of law to a Full Bench of the Court pursuant to s 5AE of the Criminal Appeal Act 1912 as applied by s 196 of the Industrial Relations Act 1996, as contained in Annexure A to this motion. 2. The referral of the two (sic) further questions to be joined to the six questions of law already referred to the Full Bench by the President. 3. That the costs of this Notice of Motion be reserved ... 4The questions of law were framed as follows: (i) Was it open to me to find that, in the circumstances of the case, there was disclosure of the substance of legal advice received by the prosecutor for the purposes of s 122 Evidence Act 1995 (NSW) and the common law? (ii) Was it open to me to find that, in the circumstances of the case, there had been waiver of client legal privilege for the purposes of s 122 Evidence Act 1995 (NSW) and the common law? (iii) Did I apply the correct legal principles in determining whether there was disclosure of the substance of legal advice received by the prosecutor for the purposes of s 122 Evidence Act 1995 (NSW) and the common law? (iv) Did I apply the correct legal principles in determining whether there had been waiver of client legal privilege for the purposes of s 122 Evidence Act 1995 (NSW) and the common law? 5At the hearing of the motion senior counsel for the applicants indicated that it was only question (i) that was sought to be referred to the Full Bench, that is: (i) Was it open to me to find that, in the circumstances of the case, there was disclosure of the substance of legal advice received by the prosecutor for the purposes of s 122 Evidence Act 1995 (NSW) and the common law? 6If I were to grant the applicants' application it would mean a referral of an additional question to the Full Bench, making a total of seven questions arising out of my judgment in Nash v Glennies Creek Coal Management Pty Ltd (No 2) [2013] NSWIRComm 67 (Glennies Creek (No 2)") where I disallowed certain claims by the applicants of public interest immunity and client legal privilege. 7The respondents, Glennies Creek Coal Management Pty Ltd and Integra Coal Operations Pty Ltd, opposed the motion. 8In Glennies Creek (No 4) I sought to explain my reasons for refusing to refer the question that the applicants now seek to reformulate and I commenced with quoting what I had said in [126], [160] and [165] of Nash (No 2): [15] Paragraphs [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. [16] The 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. [17] I 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). [18] Accordingly, question 4(i) is not a question of law "arising at or in reference to the proceedings". 9The effect of what I found in Glennies Creek (No 2) was that a letter written by Ms M Rizzo of the Crown Solicitor's Office, on instructions from Ms Nash, and which was in evidence, disclosed the substance of certain legal advice provided to Ms Nash. Accordingly, I found client legal privilege had been waived in respect of that legal advice. 10In Glennies Creek (CA), Basten JA, who gave the leading judgment (Ward JA and Sackville AJA agreeing), after referring (at [30]-[32]) to Osland v Secretary, Department of Justice (Vic) [2008] HCA 37; 234 CLR 275 and Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1996) 40 NSWLR 12, stated at [33]: [33] There may be a real question as to whether the statements in Ms Rizzo's letter in the present case could constitute a waiver for the purposes of s 122 of the Evidence Act, in the light of these authorities. That could amount to a question of law, if a question asked whether it was open to the trial judge to find that there had been waiver in the circumstances of the case, or if it asked whether the trial judge had applied the correct legal principles in determining the question. 11His Honour then stated at [34]: The problem in the present case is that no such question was formulated by the appellants, either for referral to a Full Bench, or for the purposes of the application in this Court....