Procedure - Supreme Court procedure - Discovery and inspection of documents - Proceedings in the nature of writ of prohibition - Review of local authority decision making process - Order for discovery sought - Documents the subject of claim for legal professional privilege - Whether privilege been waived by partial disclosure - Whether state of mind of applicant generated as a result of legal advice - Whether discovery unfairly intrude into decision making processes of local authority - Whether interests of fairness to applicant require discovery

1 OWEN J : This is an application by the appellant in an expedited appeal for an order for discovery.

2 An application was made for an order nisi for a writ of prohibition. The effect of the writ of prohibition would be to prevent the City of Joondalup, the respondent, from proceeding with a proposal to amend its town planning scheme in an amendment which is numbered 824. Applications for order nisi are made ex parte. However in this instance when the matter came before the single Judge it was returned on notice and was fully argued. In the end the single Judge gave a considered decision with written reasons in which he refused the order nisi. That is the decision which is the subject of appeal to the Full Court. There will be an argument as to the nature of the hearing before the Full Court, namely, whether it is by way of rehearing, by way of review or by some other form.

3 It is unusual for discovery to be ordered in proceedings for a prerogative writ. It is also unusual for proceedings in the nature of discovery to be entertained in the time between the handing down of a first instance judgment and appeal. I was referred to the decision of the Full Court of the Supreme Court of South Australia in R v City of Tea Tree Gully, ex parte Concrete Systems Pty Ltd (1986) 65 LTRA 56 in which, at 58, the Court proffered the view that there is no all-embracing ban against ordering discovery in proceedings for a prerogative writ. I will proceed on the basis that orders in the nature of discovery are available in proceedings for prerogative relief but nonetheless it is an unusual happening. An order will only be granted where the applicant can demonstrate compelling circumstances. That seems also to be implicit in some of the dicta from the case of Talbot v Lane (1994) 14 WAR 120 and particularly at 153 and 154.

4 I wish to make it clear that what I am dealing with is an application for an order in the nature of discovery. I am not being asked to make any ruling the effect of which would be to grant the applicant leave to adduce further evidence at the hearing before the Full Court. That, of course, is a matter which the applicant would consider and make the appropriate application to the Full Court if as a result of discovery new and admissible material came to light.

5 The applicant says that the decision of the respondent is fatally flawed because it was taken for an improper purpose. This claim under general principles of administrative law would, if it could be made good, found relief in the nature of a writ of prohibition. I do not take it to be in issue that the applicant has standing to make the application.

6 There are some unusual circumstances. There is, in my opinion, no doubt that the applicant took the appropriate steps to try and obtain the information which it now seeks. It made an application under the Freedom of Information Act 1992 for the release of the information. That application had not been fully dealt with by the time the application for the order nisi was made and there can be no criticism of the applicant for tardiness in seeking the information. Similarly, in the context of these proceedings, that was information which could not have been available to the applicant at the time when the application for the order nisi was made. It is not appropriate for proceedings in the nature of discovery to be taken at that stage of the prerogative writ regime.

7 The principles in relation to discovery are well known and need not be repeated. The real dispute here is as to whether, if discovery were to be considered appropriate, the documents concerned would be the subject of a claim for legal professional privilege and thus not available for discovery and inspection. I take the general principles in relation to legal professional privilege to be as stated in the Attorney-General for the Northern Territory v Maurice [1986] HCA 80; (1986) 161 CLR 475 and particularly in the judgment of Deane J at 490.

8 What the applicant says is that legal professional privilege has been waived effectively on one of two bases. First, that there has been partial disclosure, making it necessary in fairness and justice for the entirety of the communications to be disclosed. Secondly, that because the fundamental or the critical aspect of the case is the state of mind of the applicant and because the state of mind was generated either wholly or substantially as a result of legal advice, the privilege does not attach.

9 I will deal with the latter issue first. In relation to the state of mind argument, it seems to me that the fundamental issue in the order nisi proceedings and in the appeal against the refusal of the order nisi is the question of improper purpose. Improper purpose does not, of itself, necessarily involve state of mind in the sense advanced in support of the appellant's case, namely a change of direction as a result of legal advice. The issues that were alive at the time when the matter came before the single judge are still there. They still relate to an improper purpose. What the respondent did was to take a particular course of action. That is the act to which the writ of prohibition goes.

10 I am not satisfied that the mere fact that there is an improper purpose allegation sufficiently brings into play state of mind in the relevant sense to justify intervention in the form of an order in the nature of discovery. It is not as if there has been some putting in issue of reliance on the legal advice by the respondent. If that were the case it would bring into play principles of the sort referred to in Telstra Corporation Ltd v BT Australasia Ltd (1998) 156 ALR 634.

11 However, the question of partial disclosure is, I think, of greater significance in the context of the circumstances which have arisen here and I think the nature of what is put forward as the partial disclosure has to be seen in its context. It is conveniently set out in the decision of the single Judge. As I understand the way it was put, there are two areas in which there is a partial disclosure of the legal advice.

12 There was on 15 December 1998 a meeting at the respondent's offices between representatives of the respondent and representatives of the applicant. There is a comment attributed to Mr Butcher made at that meeting and which is at page 38A of the appeal book, namely:

"McLeod saw this problem, steered us away from the original form of the amendment. He looked at natural justice in the matter. We will require a specific amendment for each one. Each one will be considered on an individual basis."

13 The reference to McLeod is to Mr McLeod, the solicitor retained by the respondent. The second area of partial disclosure, as I understand it, is that a report was prepared by Mr Butcher for the purposes of the respondent making a decision on this matter. The relevant portions of the report are set out at pages 38 to 40 of the appeal book. At p 38, the report says:

"In order to deal with the problems associated with the use of the local authority's power and the possible emergence of compensation actions, the City's Solicitors have drafted a set of provisions. The intent and effect of these provisions was indicated in the legal advice received. These are as follows:-

Under Sub clause 7.9, restrictive covenants are expressly extinguished or varied. This is the key provision. The clause is to be read in conjunction with Schedule 13 which sets out the restrictive covenants to which the clause applies".

"It is indicated in the Solicitor's advice, that the introduction of this provision is crucial, especially while there is a possibility for an amendment to the Town Planning and Development Act 1928, which would entitle a person seeking a scheme amendment to appeal against a Council refusal.

At a conference between Council's Solicitors, Commissioners and Council's officers held on 16 December 1998, Mr Denis McLeod advised that an additional paragraph be added to Clause 7.9.3 of the proposed Scheme provisions. The additional paragraph includes a provision imposing a charge on the servient tenement (burdened land) to secure an obligation entered into by the owner of the servient tenement to indemnify the Council against any claim for compensation arising from the extinguishment or variation of the restrictive covenant."

15 It seems to me that this does amount to a partial disclosure. The law relating to partial disclosure is, I think, conveniently set out in Maurice particularly at 487 to 488:

"The limiting effect of legal professional privilege on the availability of evidence otherwise relevant is confined inter alia, by the doctrine of waiver. A litigant can of course waive his privilege directly through intentionally disclosing the protected material. He can also lose that protection through a waiver by implication. An implied waiver occurs when, by reason of some conduct on the privilege holder's part, it becomes unfair to maintain the privilege. The holder of the privilege should not be able to abuse it by using it to create an inaccurate perception of the protected communication. Professor Wigmore explains:

'[W]hen his conduct touches a certain point of disclosure, fairness requires that his privilege shall cease whether he intended that result or not. He cannot be allowed, after disclosing as much as he pleases, to withhold the remainder (Wigmore, Evidence in Trials at Common Law (1961) vol. 1, par 2327, p 636)'.

In order to ensure that the opposing litigant is not misled by an inaccurate perception of the disclosed communication, fairness will usually require that waiver as to one part of a protected communication should result in waiver as to the rest of the communication on that subject-matter: see Great Atlantic Insurance Co v Homes Insurance Co [1981] 1 WLR 529; [1981] 2 All ER 485".

16 There is also reference to an unreported decision of the Full Court of the Federal Court in the Commissioner of Taxation v Coombes (1999) FCA 842 handed down on 25 June 1999. In par 39, the Court said:

"Where only part of the content of a privileged communication is disclosed, waiver may be imputed by operation of law. In such a case the governing consideration is whether fairness requires that the privilege shall cease. If fairness so requires, it does not matter that there was not intention to waive privilege. See Goldberg v Ng at 96 per Deane, Dawson and Gaudron JJ and Attorney-General (NT) v Maurice at 481 per Gibbs J and 488 per Mason and Brennan JJ. As was said by Toohey J in Goldberg v Ng (at 106), if the disclosure is 'incompatible with the retention of confidentiality' there will ordinarily be a general waiver of privilege. The principle applied in Great Atlantic Insurance Co v Homes Insurance Co at 490, which was cited with approval in Maurice at 488 by Mason and Brennan JJ, is that fairness will usually require that waiver as to one part of a protected communication should result in waiver as to the rest of the communication on that subject matter. We can see no reason why that principle should not apply in the present case."

17 There are at least three general principles that can be extracted from these authorities. The first is that intention to waive privilege is not a relevant issue. The second is that questions of fairness intrude. Finally, and following on from the earlier principles, if there is to be a disclosure of the whole (because part has been disclosed), what must to be borne in mind is that the remedy must be fashioned so that it meets the need to redress the unfairness without being unduly intrusive.

18 Counsel for the respondent raised a general point which I think is important. The subject matter of this application is the decision making process of a local government authority. Such an authority can only act on the basis, or will usually act on the basis, of reports given to it by its officers. So far as is possible there should not be any impingement on the free flow of communications between council officers and councillors, in the decision-making processes. Nonetheless, where the propriety of the decision-making process is in issue the persons affected should have the normal recourse to the free flow of information that applies generally in the community, subject of course to the acknowledgment of the public interest in the decision-making process of government and quasi government bodies.

19 In my view, what distinguishes this case from the norm is that there was a disclosure not just of the fact of legal advice but of the essential content of that advice. It seems to me that fairness demands that the applicant be made aware of the nature of the advice in its entirety. I rest this decision on the issue of partial disclosure rather than on the state of mind concept. Because the privilege has, in my view, been the subject of an imputed or implied waiver by way of the partial disclosure, it seems to me that the disclosure which should be made now should be limited to that which was directly concerned with the giving of the advice.

20 I think I need to say one other thing. There must be shown to be a relationship between the partial disclosure and the proceedings because the disclosure was made before the proceedings were commenced. However, it is clear from Maurice and also from Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83 that this will not necessarily be a bar provided there is a sufficient relationship between the subject matter of the disclosure and the subject matter of the proceedings. In this case the disclosure was in relation to the amendment, or the proposed amendment, and the proceedings are in relation to the proposed amendment. That seems to me to satisfy the relationship test.

21 I need, therefore, to balance the interests of fairness so that the applicant knows the full extent of the advice which was the subject of partial disclosure. In so doing I must bear in mind the need not to intrude into the decision-making processes of councils any more than is absolutely necessary to do justice in the particular case. I must also bear in mind that this is an instance of disclosure not simply of the existence of legal advice but of a reasonable degree of its contents. I am prepared to make this order that the respondent prepare an affidavit which details and annexes the letter of advice which was the subject of the communication by Mr Butcher to the council and any other letters of advice which are referred to in that letter or which are directly relevant to the content of the letter. The obligation extends only to letters passing between the solicitor and the city. In the chamber summons an order is sought seeking correspondence between other entities. The order does not extend to those documents.

22 To limit the degree of intrusion so that it will not be unnecessarily intrusive I will order that the material that is disclosed is, until further order, to be regarded as confidential. It is to be viewed only by the solicitors and counsel for the applicant and may not be used other than for the framing of an application, if appropriate, to the Full Court for leave to adduce further evidence.