Plaintiff v Defendants

2 The plaintiff's application, brought by summons, puts in issue the Commonwealth's claimed right to resist the production of documents, such resistance having been put on a number of different bases. Apart from legal advice privilege, another basis is public interest immunity. A regime has been put in place for the hearing and determination of the application according to the different bases of objection to production. This ruling follows the first of those hearings and concerns the Commonwealth's claims of legal advice privilege.

3 The plaintiff's summons attached a schedule which identified the documents in dispute by reference to a document number and a document identifier, the title of the document and the ground of objection. As directed, the Commonwealth filed affidavits in support of its claim for legal advice privilege. The first affidavit was sworn by Philippa Jane de Veau on 17 June 2016 ('first affidavit'). After receiving a written outline of submission from the plaintiff, the Commonwealth sought leave to file a second affidavit from Ms de Veau, sworn 8 July 2016 ('second affidavit'). Although the plaintiff did not consent to the filing of that further affidavit, neither did he oppose it. At the hearing of the application I gave leave for the Commonwealth to rely upon that further affidavit. In addition to the affidavits, both the plaintiff and the Commonwealth filed written outlines of submission which have been most helpful. Short oral submissions were also provided on the day of hearing.

4 As a result of the process just described, the documents in contest gradually reduced in number from about 200 documents, to 64 documents, to 12 documents and ultimately to only 11 documents. Of those 11 documents nine were related, being a submission to a Minister and eight drafts thereof. In reality therefore, only three documents were in dispute: part of a large spreadsheet called a Risk Register (document B36); the Submission to Minister and its various drafts (documents B43, 44, 45, 46, 47, 81, 82, 87 and 120); and a chain of emails concerning 'Medical Aspects Around the Death of the Transferee' (document B105).

5 During the course of oral submissions, some parts of each of the above documents that had initially been in dispute were also conceded to be privileged. So the dispute was narrowed even further. In the result, the ambit of the dispute was quite discrete and the principles necessary to resolve those few narrow issues were quite confined. A comprehensive exposition of relevant legal principles relating to legal advice privilege was outlined in the written submissions filed on behalf of the plaintiff. Accepting it to be accurate, the Commonwealth simply adopted and agreed with those principles, making the task relatively easy for the court.

6 The Risk Register and Submission to Minister each contain text said to be the summary of some other underlying, primary legal advice. No dispute exists as to whether that primary legal advice (assuming, in the case of the Risk Register, it exists) is privileged. The real issue is whether it has been satisfactorily established by the Commonwealth that those parts of the documents now in issue would, if disclosed, result in the disclosure of that primary legal advice.

7 By contrast, the third document, the chain of emails, gives rise to a different issue. The issue there is whether early emails in the chain, which of themselves would not be privileged if viewed alone, attract legal advice privilege by reason of being on-forwarded with the request for legal advice which, it is conceded, is privileged from production.

8 For the reasons that follow, I uphold the Commonwealth's objection to produce each of the relevant parts of the remaining disputed documents on the ground of legal advice privilege.

9 The governing legal principle in relation to the privilege claimed in respect of each document is s 118 of the Evidence Act 2008. It provides as follows:

118 Legal advice

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of -

(a) a confidential communication made between the client and a lawyer; or

(b) a confidential communication made between 2 or more lawyers acting for the client; or

(c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person -

for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.[1]

10 As eight of the documents within this category were simply drafts of the final document, document B81 (A.100.3047.8030), the parties sensibly confined their submissions to the final document. Each of the drafts was substantially in the same form.

11 The final version, B81, is an 11 page document. Except for some passages which are separately subject to a public interest immunity claim, inspection has been given of all of the pages save for the following: two lines on page 1; about 10 or 12 lines on page 2; a portion of a line on page 7; and the whole of pages 8 and 9, headed Attachment A.

12 The evidence about this document is contained in the two affidavits of Ms de Veau, as follows:

25. These documents are various drafts and the final version of a submission from the Department to the Minister, on the subject of 'Managing Health Issues at Offshore Processing Centres'. The final version is dated 21 November 2013 (document A.100.3047.8030) and was reviewed by the Minister on 25 November 2013 (document A.100.3010.6751).

26. A claim for legal advice privilege is made in respect of parts of the document. The documents contained legal advice which was provided to the Department by Ian Deane PSM (Special Counsel, AGS who was, and remains, on outpost to the Department), as well as a summary of, or references to, that advice.[2]

8. The legal advice referred to in paragraph 26 of my first affidavit was provided by Ian Deane by email sent on 6 November 2013. The Department had requested that the advice be provided by way of email sent on 31 October 2013, for the purposes of inclusion in the submission to the Minister.

9. The legal advice provided by Ian Deane was reproduced in full as an attachment to the submission to the Minister.

10. I have viewed a document setting out both the email request sent on 31 October 2013, and the email of Ian Deane sent on 6 November 2013. The document was provided to me by Laura Winkler.[3]

14 At the hearing before me, the plaintiff withdrew any objection to privilege being maintained in respect of Attachment A on pages 8 and 9 of the document. The objection was withdrawn on the basis that the plaintiff accepted that the Commonwealth had established that Attachment A, if disclosed, would result in disclosure of a confidential communication made between a lawyer (Mr Deane) and client (the Department) for the dominant purpose of the lawyer providing legal advice to the client. However, the plaintiff did not concede that the Commonwealth had established that the portions of the document found on pages 1, 2 and 7 were deserving of protection by way of legal advice privilege.

15 The argument really revolved around whether the Commonwealth had established that disclosure of those other portions of the document would result in disclosure of the confidential legal advice of Mr Deane.

16 As stated in the evidence of Ms de Veau, in addition to containing the legal advice of Mr Deane (ie Attachment A), the document also contained 'a summary of, or references to, that advice' which, inferentially, appear on the three other pages I have just mentioned.

17 The plaintiff's argument against the privilege was advanced by reference to what was said by Young J in AWB Limited v Cole & Ors (2006) 152 FCR 382 ('AWB Limited v Cole'). In that case, Young J declined to allow the protection of legal advice privilege to a draft statement that had been prepared by the chief executive officer of the Australian Wheat Board (AWB). The draft was prepared following a telephone conference which, in addition to the chief executive, was attended by a lawyer, a public relations consultant and numerous other employees of AWB. Ultimately, Young J was not persuaded that the dominant purpose for the creation of the draft statement (a statement of contrition to be released to the media) was to obtain legal advice. Although his Honour accepted that one of the purposes for its creation was to obtain legal advice, the judge found there were multiple purposes and was not persuaded that the purpose of obtaining legal advice was the dominant one.

18 In addition, and more pertinently for present purposes, His Honour discussed the principle of protection to be given to secondary material which, if disclosed, might disclose the substance of primary material which is undoubtedly protected by privilege. For example, a document summarising legal advice (secondary material) might, if disclosed, result in the disclosure of the privilege legal advice (the primary material).[4]

19 In AWB Limited v Cole, it had been argued that the draft statement of contrition, having been drafted by the relevant chief executive officer following receipt of legal advice from a lawyer, would, if disclosed, result in the disclosure of the legal advice itself. Having heard the evidence of both the lawyer and the chief executive officer, and read the statement itself carefully, His Honour concluded:

At its most specific, the effect of the evidence is that [the chief executive] included certain subject matters in [the draft statement] on [the lawyer's] advice. Those subject matters have not been identified and there is nothing to suggest that a reader of [the draft statement] could identify them either directly or as a matter of reasonable inference. The most that could be done by a reader who was aware of all of the evidence given in this Court would be to speculate as to what those subject matters might be.

Taking all of the evidence into account, I have concluded that [the draft statement] would not, if disclosed, allow a reader to know or infer the nature, content or substance of any legal advice given by [the lawyer] to [the chief executive] and AWB. Further, the disclosure of [the draft statement] would not result in any waiver of the privilege inhering in that advice.[5]

20 Here, combining the evidence contained in the first and second affidavits of Ms de Veau, the Commonwealth has established that:

• Attachment A contains legal advice provided to the Department by Mr Deane.

• The other parts of the document over which privilege is claimed contains a 'summary of' or references to that advice.

• Mr Deane's advice was specifically requested by the Department on 31 October 2013.

• The advice was provided to the Department by Mr Deane on 6 November 2013 (and is incorporated in the document).

• Ms de Veau, having seen both the primary advice of Mr Deane and the parts of the submission that were sought to be protected, formed the view that the legal advice privilege claims were properly based.[6]

21 For the plaintiff, it was argued that AWB Limited v Cole establishes that in order to gain protection for secondary material, the party seeking the protection needs to establish two things. First, it must establish that there is a real nexus or link between the secondary material and the protected primary material. That is, it must establish by evidence or by necessary inference that the secondary material is in fact related to some primary, privileged material. Secondly, the party seeking protection must also satisfy the court that disclosure of the secondary material would result in the disclosure of the primary, protected communication between lawyer and client or client and lawyer. It is not enough simply to leave the reader to wonder or speculate whether the secondary material actually discloses the substance of the protected advice.

22 For these propositions the plaintiff relied upon the fact that in AWB Limited v Cole, even though Young J had evidence before him of a relationship or nexus between the draft statement and protected legal advice, the judge was still not satisfied that a reader of the statement would recognise in it what was the alleged advice of the lawyer. The evidence of the link or nexus was that the chief executive said he drafted the statement based upon the lawyer's advice, and the lawyer said he had read the draft statement and recognised aspects of his advice reflected in the draft statement. The plaintiff highlighted the following reasoning by Young J:

... the question is whether the disclosure of the document in question will directly reveal, or allow its reader to infer, the actual content or substance of a privileged communication.

There is, of course, a difference between explicit disclosure and disclosure by inference. Inferences are rarely certain. ... but the inference of fact must have a definite and reasonable foundation in the contents of the document. It would not be sufficient that the document as a whole, or particular statements within it, cause a reader to wonder or speculate whether legal advice had been obtained and what was the substance of that advice.[7]

23 The plaintiff argued that the evidence of the Commonwealth, in respect of the contested parts of Submission to Minister, does not sufficiently establish that those parts of the document would directly reveal, or allow a reader to infer, the actual content or substance of the privileged communication (ie Attachment A).

24 For my part, on the evidence of Ms de Veau alone, I think the court can be comfortably satisfied of that fact. Ms de Veau (whose evidence is not contradicted or challenged) plainly deposes to the fact that the contested portions of the document do contain a summary of and references to the privileged advice. That evidence is unqualified and is quite explicit. In my view, that evidence in turn establishes that the disclosure of those parts of the document which contain the summary of the advice would directly reveal the actual content or substance of the fuller advice which appears on pages 8 and 9. Moreover, having read the contested portions for myself, and compared them with Attachment A, I am reinforced in that view.

25 Accordingly, the Commonwealth's claim for legal advice privilege in respect of the redacted portions of the nine documents comprising the Submission to Minister and its various drafts is upheld.

27 This document raises an issue of the same type as raised by the Submission to Minister. The Risk Register is a 12 page spreadsheet. On each page there are about 18 columns and numerous rows. Most of the spreadsheet has been produced for inspection in an unredacted form. So far as the claimed legal advice privilege is concerned, only a portion of each of two cells appearing on one page, the fifth page of the spreadsheet,[8] is the subject of objection to production. In one of those cells, in a column headed 'Cause of Risk' and a row with a Risk Category description labelled 'Legal and Regulatory Compliance', about four lines of text are redacted. In the other cell, in a column headed 'Existing Controls' and in the same Risk Category row as the first cell, about two lines are redacted.

28 At the hearing of argument, the plaintiff withdrew its contention that the second of the two cells should be produced for inspection so argument only proceeded in respect of the first (longer) cell. The evidence concerning the document was as follows:

21. This document is a Department risk assessment and management plan prepared in respect of regional processing programs, updated on 21 December 2013.

22. A claim for legal advice privilege is made in respect of parts of the document. On page 5 in row 11 the document contains:

22.1 Firstly (in the column headed 'Cause of Risk'), a summary of legal advice provided to the Department; and

22.1 Secondly (in the column heading 'Existing Controls'), a summary of legal advice sought by the Department from its legal officers (not yet received at the time the document was updated).[9]

The further evidence from Ms de Veau was as follows:

5. The legal advice referred to in paragraph 22.1 of my first affidavit was provided to the Department in writing by Nana Frishling (Senior Legal Officer in the Office of International Law, Attorney-General's Department) on 9 March 2012.

6. I have viewed a copy of the advice, which has been provided to me by Laura Winkler (Senior Legal Officer in the Civil Litigation and Compensation Section of the Department).[10]

29 Like the Submission to Minister, the disputed part of the Risk Register is said to be a summary of primary legal advice which elsewhere has been given to the Department by a lawyer (Ms Frishling). In other words, the contested material is secondary material which the Commonwealth says would, if disclosed, result in the disclosure of a confidential communication made between Ms Frishling and the Department for the dominant purpose of Ms Frishling providing legal advice to the Department.

30 It was not disputed that the primary advice of Ms Frishling would, itself, be protected by legal advice privilege. But what is in dispute is whether the Commonwealth has established that the redacted text in row 11 of the column headed 'Cause of Risk' is in fact a summary of Ms Frishling's advice which, if disclosed, would result in disclosure of the advice. The plaintiff argued that both issues considered in the decision of AWB Limited v Cole were in question: that is, whether any proper nexus has been established between what appears in the Risk Register and some other protected advice; and, if so, whether what appears in the Risk Register would actually disclose that advice.

31 Whether disclosure of secondary material would, in substance, disclose privileged legal advice involves questions of degree.[11] Unlike the situation in respect of the Submission to Minister, I do not have Ms Frishling's advice available to me to see for myself whether the text appearing in the cell of the Risk Register is in fact related to Ms Frishling's advice and, if so, whether disclosure of the text in the cell would, in substance, disclose the contents of that advice.

32 However, I do have the evidence of Ms de Veau - again not contradicted or challenged - to the effect that what appears in the Risk Register is 'a summary of legal advice provided to the Department' and that the legal advice was that of Ms Frishling given on a particular date. Once again, Ms de Veau deposes that she has viewed a copy of the advice and, self-evidently, the Risk Register itself, and is able to say that one is a summary of the other and that she considers the claim for legal advice privilege to be properly based.

33 I do not consider that this is a case where I am left to wonder or speculate whether legal advice had been obtained or whether what is in the Risk Register represents the substance of that advice. Accepting Ms de Veau's evidence, I can be satisfied that legal advice was in fact obtained. And, again accepting Ms de Veau's evidence, prima facie, I can be satisfied that the substance of that advice is represented by what appears in the Risk Register. She says on oath that the relevant cell in the Register is a 'summary' of the advice.

34 Moreover, having myself inspected the text contained in the Risk Register, I am fortified in that view. By its nature, what appears in the Risk Register is a pithy statement of two mixed fact/law propositions. The first refers to a factual circumstance and contains a legal opinion as to its possible effect. The second builds from that opinion to another as to a further potential legal consequence. The two statements have the character of a legal opinion and the reason for that opinion, albeit expressed in short, summary form.

35 It is true that the evidence in favour of the existence of legal advice privilege in respect of the Risk Register is less fulsome than in the case of the Submission to Minister. But I must be careful not to decide the Risk Register issue as if the Submission to Minister document sets the bar for the evidence that must exist to find that a claim for privilege has been justified. Merely because the ability to look at the primary advice and the summary, side by side, in the Submission to Minister document made it obvious that one disclosed the substance of the other, does not mean that one can only draw that conclusion if both documents are presented to the court for comparison. E depends on the evidence, the nature of the document in question and the submissions of the parties.

36 Although, from the text of the cell alone I could not have concluded that its disclosure would disclose legal advice given by a lawyer to the Department, married with the evidence of Ms de Veau I am sufficiently satisfied that is what it would do.

37 I uphold the privilege claimed in respect of that document.

38 The final document, the chain of emails (document B105), is a seven page document. Reading from the oldest to most recent (last to first in the printed document), the emails are as follows: (1) an email from a Mr Gullery of International Health and Medical Services (IHMS) to Katrina Neuss (a Department employee) and Kevin Pye (of G4S) dated 9 March 2014 at 12:38 pm; (2) a short email from Mr Pye to Mr Gullery and Ms Neuss in response, at 9 March 2014 at 1:02 pm; (3) a return email from Mr Gullery to Ms Neuss and Mr Pye on 9 March 2014 at 2:02 pm; (4) an email from Ms Neuss to Cait Vignon and Hayley Abbott (both Department employees) on 10 March 2014 at 9:07 am; (5) an email from Ms Abbott to Ms Neuss, Ms Vignon and a Mr James Nilsson on 11 March 2014 at 1:40 pm; and, finally, (6) a two page email from Mr Nilsson to Ms Abbott, Ms Neuss, Ms Vignon, Susan Jones and Natasha Ward (all Department employees) which is not dated but, from the evidence below, I infer was also sent on 11 March.

39 The evidence in relation to these emails contained in Ms de Veau's affidavits is as follows:

63. This document is an email chain between officers of the Department and International Health and Medical Services, constituted by emails sent between 9 and 11 March 2014.

64. A claim for legal advice privilege is made in respect of part of the document. The document contains legal advice provided by James Nilsson to the Department.[12]

40 Further information about that email chain was provided in the second affidavit as follows:

12. I have personally reviewed the document and note that:

12.1 The request for legal advice was made by Hayley Abbott (A/g Director in the Health governance and Coordination Section of the Department) on 11 March 2014.

12.2 The legal advice was provided thereafter by James Nilsson.

13. In making my first affidavit and this further affidavit, I have been provided with information by legal officers from the Civil Litigation and Compensation Section of the Department, principally James Nilsson and Laura Winkler. I have been informed that:

13.1 The legal advice was provided by James Nilsson on 11 March 2014;

13.2 The legal advice provided by James Nilsson was sent only to officers of the Department, namely Katrina Neuss, Cait Vignon, Susan Jones and Natasha Ward;

13.3 The legal advice was provided by James Nilsson for use within the Department only, and not intended for distribution to IHMS;

13.4 There is no information suggesting that the legal advice has been distributed to IHMS.[13]

41 There was no issue at the hearing concerning the fifth email, the one sent from Ms Abbott on 11 March 2014 at 1:40 pm to, amongst others, Mr Nilsson. Nor was there any issue about the final two page reply from Mr Nilsson. That is, the plaintiff accepted that it had been established that Ms Abbott's email was a request for legal advice and Mr Nilsson's reply email contained the requested legal advice. In short, it was accepted that disclosure of those communications would result in the disclosure of confidential communications made between client and lawyer for the dominant purpose of providing legal advice and so they must be protected by the privilege.

42 What was in dispute was whether protection should be given to the emails before the 11th of March, namely the three emails to and from Mr Gullery on 9 March and the emails between the Department employees on 10 March.

43 The Commonwealth did not seek to argue that disclosure of these four emails themselves would result in the disclosure of confidential legal advice. Rather, it argued that by attaching them to record the subject matter about which legal advice was sought, these versions of the emails were, in effect, brought into existence for the dominant purpose of seeking legal advice. Reference was made to the High Court decision of Commissioner of Australian Federal Police v Propend Finance Pty Ltd[14] as authority for the proposition that legal advice privilege can attach to copies of non-privileged documents when the purpose of bringing the copy into existence may be different from the purpose of bringing the original into existence. That is, if the dominant purpose of bringing the copy into existence is for the purpose of obtaining confidential legal advice, then the copy may be protected by the privilege even though the original would not have been.

44 This raises a somewhat interesting question in the context of modern email communication. Whilst the emails of the 9th and 10th of March between third parties and officers of the Department, and between officers of the Department, may not have attracted legal advice privilege in their own right, if they were 'copied' and then attached to a request sent to a lawyer for legal advice, those 'copies' could qualify for privilege because of the purpose for which they were brought into existence.

45 Using the particular processes of email communication, instead of making additional 'copies' of emails that precede a proposed new email to another person, it is possible (and commonplace) to 'attach' the earlier emails by simply 'forwarding' them prefaced by the new email. In this case, the earlier emails of 9 and 10 March were 'forwarded' by Ms Abbott to Mr Nilsson with the request for advice.

46 In my view, that on-forwarding of the email chain was tantamount to making 'copies' of the original email communications for the purpose of seeking the advice. Emails, of course, do not exist in their original form as the printed documents that have been shown to the court. In their original form, emails are digital data transmissions which are collected and displayed on a computer screen in the form of letters and words due to computer software which causes that to occur. Each email is a standalone communication. But at the click of a particular button on the computer a received email can be reproduced and on-sent to a new recipient with or without a new message, or copied back to the original recipient in the course of a reply. In my view, the use of these processes in email communication effects a copying (or reproducing) function which generates a new form of the original email. The purpose for generating that new form is whichever purpose lies behind the decision to choose to 'reply to' or 'forward' the original email.

47 In the current context, the forwarding of the emails of 9 and 10 March as the antecedent chain, when Ms Abbott sent the request for advice to Mr Nilsson on the 11th of March, amounted to the bringing into existence of a copy of the previous emails for the purpose of instructing Mr Nilsson to give legal advice. On the authority of Propend those versions of the emails of 9 and 10 March are protected by legal advice privilege.

48 I am not aware whether the emails of 9 and 10 March 2014 have been discovered in their 'original' stand-alone forms. No argument was directed to that question before me and I make no further comment about it.

49 It follows that the plaintiff's application for the production of each of the remaining documents or parts of documents, the subject of the Commonwealth's claim for protection for legal advice privilege, is refused.

[1] By virtue of s 131A, objections taken to production of documents at the pre-trial discovery stage, on the basis of client legal privilege, are also to be determined applying s 118.

[3] Second affidavit, [8]-[10]. Laura Winkler is elsewhere identified as the Senior Legal Officer in the Civil Litigation and Compensation Section of the Department.

[4] See also Fenwick v Wambo Coal Pty Ltd (No 2) [2011] NSWSC 353 [30].

[5] AWB Limited v Cole (2006) 152 FCR 382, 420 [142]-[143].

[6] As she deposes, generally, at [18] of the first affidavit.

[7] AWB Limited v Cole (2006) 152 FCR 382, 417 [132]-[133].

[8] Document page ID: A.100.2023.0376_004.

[11] Fenwick v Wambo Coal Pty Ltd (No 2) [2011] NSWSC 353 [24].

[12] First affidavit, [63] and [64].

[13] Second affidavit, [12] and [13].