Consideration
23 Although it was submitted that the issue of privilege in the 7 February 2022 letter is an alternate submission only needing to be addressed if I do not accept that privilege has been waived, in my view it is appropriate to refer to it at the outset. If the communication is not privileged, the issue of waiver does not apply.
24 On 28 February 2022, Besanko J, after hearing submissions, concluded that the letter of 7 February 2022 was privileged and the applicant had not satisfied him that the document came within the fraud exception. It is plain from a reading of the submissions that the nature and type of document was hypothesised on by the applicant in founding the submissions as to fraud. His Honour did not consider it necessary to inspect the document. The applicant's request to this Court to reconsider that ruling, even on the basis of an alternative submission, is premised on the fact that the document has now been produced. It is troubling that I am being asked, in effect, to reconsider Besanko J's ruling in a context where it appears he was not asked to do so. That said, it is sufficient for the purposes of this application to observe that nothing about the content of the document, bearing in mind the principles referred to in Southern Equities at 174 and Gartner at [123]-[130], would lead me to a different conclusion than that reached by Besanko J. As noted above, the applicant did not advance any detailed submission as to this aspect of their case.
25 Turning to the issue of waiver.
26 The Court must consider whether there is any inconsistency between the respondents' conduct in waiving privilege in respect to the letter of 7 February 2022 and the maintenance of its claim of privilege over the documents sought by the applicant. The test applied to determine the scope of any waiver of associated material is whether the material that the party has chosen to release from privilege represents the whole of the material relevant to the same issue or subject matter, in the manner explained in AWB Ltd v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30 (AWB (No 5)) at [164]-[165] citing Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475 (Maurice) at 482, 484, 488 and 498-499. The issue is whether the production of the document impliedly waives privilege in associated material: Roberts-Smith (No 25) at [57].
27 As the respondents correctly submitted, the circumstances of this application are different from those which arose in Roberts-Smith (No 25), and that decision does not dictate the outcome of this application. Rather, each case must be assessed on its own facts: Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86; (2006) 151 FCR 341 at [45], [61]; Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 (Mann v Carnell) at [28]-[29]. Questions of waiver are matters of fact and degree: Osland v Secretary, Department of Justice [2008] HCA 37; (2008) 234 CLR 275 at [49]. The applicant bears the onus in establishing waiver: New South Wales v Betfair Pty Ltd [2009] FCAFC 160; (2009) 180 FCR 543 at [54]. I return to consider Roberts-Smith (No 25) in more detail below.
28 The letter of 7 February 2022 was produced to the Court during submissions in respect to Person 4's objection to giving evidence in answer to a question about Whiskey 108. In particular, the interests of justice limb of s 128(4)(b) of the Evidence Act was being considered, in the circumstances described above at [8]-[12]. The letter was produced by counsel for Person 4, with the respondents having waived privilege to enable that to occur. It was deployed in the submission with the purpose of advancing the witness' position. The letter would not have been produced in the manner it was, if it were otherwise. That the letter was initially produced in answer to a question by the trial judge to Person 4's counsel in respect to the interests of justice aspect of s 128(4), does not alter that.
29 The letter was separately produced by the respondents, at a later time, in response to the notice to produce the subject of this application. This was plainly against the background of the letter having been produced by Person 4's counsel during the earlier submission.
30 The terms of the 7 February 2022 letter are relevantly, as follows:
We refer to the above-mentioned proceedings.
As you are aware, the Respondents filed an Outline of Evidence on behalf of Person 4 in May 2019.
As is set out in the Outline of Evidence, we anticipate that your client can give relevant evidence in relation to two missions the subject of these proceedings: (a) a mission to Whiskey 108 on 12 April 2009 (Whiskey 108); and (b) a mission to Darwan on 11 September 2012 (Darwan).
If your client agrees to willingly give evidence at trial in relation to Darwan; we undertake to adopt the following forensic positions under s 128 of the Evidence Act 1995 (Cth) in respect of his evidence.
First, in relation to Darwan:
1. we agree not to oppose a submission by your client under s 128(1)(a) that the evidence may tend to prove that he has committed an offence against or arising under Australian law; and
2. we agree not to oppose a submission by your client under s 128(2) that there are reasonable grounds for the objection.
If the Court determines that there are reasonable grounds for such an objection, then in accordance with the position outlined above, your client would then give the evidence willingly with the protection of a certificate issued under s 128(3)(b)(i).
Secondly, in relation to Whiskey 108:
1. we agree not to oppose a submission by your client under s 128(1)(a) that the evidence may tend to prove that he has committed an offence against or arising under Australian law;
2. we agree not to oppose a submission by your client under s 128(2) that there are reasonable grounds for the objection; and
3. if the Court determines that there are reasonable grounds for such an objection, and your client does not willingly give the evidence with the protection of a certificate issued under s 128(3)(b)(i), we agree not to ask the Court to require your client to give the evidence under s 128(4) of the Evidence Act.
Please let us know if you would like to discuss any aspect of the above.
31 It is the content of the communication, the fact that an undertaking had been given by the respondents to Person 4 as to their approach to his evidence on the condition that he give evidence willingly in respect to the Darwan events, which was relied on by Person 4 in his s 128 submission, supported or facilitated by the respondents. The subject-matter over which waiver has occurred is evidence of the existence and content of that undertaking. Indeed, the applicant's submission acknowledges as much, as he submitted that it is inconsistent for the respondents, who permitted Person 4 to rely on "evidence of the forensic agreement", to resist production of the communications culminating in the agreement.
32 As noted above, the applicant relied significantly on Roberts-Smith (No 25), in support of his submission that privilege has been waived, and that he is, therefore, entitled to any associated material. However, the factual circumstances that arose for consideration in that case, are significantly different to those in this current application. In Roberts-Smith (No 25), the applicant had on foot an application for leave to issue a subpoena to a witness, Person 56, in a context where leave had already been previously refused. On that application, the respondents would be required to explain the timing of the application and the circumstances in which it was made, and to that end relied on an affidavit of their solicitor which, inter alia, was directed to those issues. The affidavit referred to the solicitor's state of mind and reasoning process, and was being deployed by the respondents to advance their application as to why leave to issue a subpoena to Person 56 should be granted at the late stage of the proceedings. The applicant relied particularly on [71] in Roberts-Smith (No 25), which discussed the concept of associated material in that case. However, that paragraph cannot be divorced from its context. Shortly thereafter, I concluded at [73] (emphasis added): "Given the nature of the application, and the use to be made of the material already disclosed, the waiver goes beyond recording the terms of the agreement and includes the circumstances associated with its making". The conclusion in Roberts-Smith (No 25) necessarily depended on the particular circumstances of that case.
33 The issue to be decided is whether the use in these legal proceedings of one document, the letter of 7 February 2022, impliedly waives privilege in any associated documents that might exist.
34 The applicant submitted the conduct of the respondents in claiming privilege over the documents in the objection schedule was inconsistent with deploying the letter of 7 February 2022, but does not explain why that is so. Rather, the submission appears to presuppose an entitlement to the associated material. However, simply because a document has been used, and in doing so privilege is waived in respect to that communication (in this case, the letter of 7 February 2022), it does not necessarily follow that the privilege has been waived in associated documents: see for example, AWB (No 5) at [164], [165], and see [133]. The applicant also contended that, by the respondents relying on the "evidence of the forensic agreement", this laid open the forensic agreement recorded in the 7 February 2022 letter to scrutiny. Again, there was no real explanation as to why that was so. As best as can be ascertained, the applicant relies on unfairness which was said to arise from his "inability to test the circumstances of the making of that agreement, the propriety of the arrangement and Person 4's evidence that he was unsure whether any such forensic agreement was actually made and agreed upon".
35 Given that submission, it is important to recall that the unfairness talked of in Mann v Carnell is not some overriding principle of fairness operating at large, as explained at [29]:
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 the confidentiality; not some overriding principle of fairness operating at large.
36 The reasoning behind implying waiver in associated documents (as it is in respect to a partly disclosed document) is based on the possibility of the document (or part thereof) being misleading or misunderstood so as to create an inaccurate impression, which would render its use unfair: see for example AWB (No 5) at [165]-[166]; Maurice at 482, 488, 489; Legal Services Commission v JHW [2012] SASCFC 47; (2012) 223 A Crim R 534 (JHW) at [73].
37 Given the content of the 7 February 2022 letter, there is no suggestion in the submissions that the subject-matter of the communication in any way is misleading, inaccurate as to the terms of the undertaking or in any way apt to create an inaccurate perception, absent what was said to be associated material. There is no suggestion by the applicant that the letter of 7 February 2022 does not contain the whole of the content of the undertaking. It was not suggested to Besanko J at the time that the letter was deployed, that it could not be relied on in the manner sought. Nor is that submission advanced now.
38 Although it might be understandable that the applicant wishes to have access to any material underlying the undertaking, it is not immediately apparent how the use of the letter of 7 February 2022 gives rise to any issue waiver as to the circumstances of its making, let alone on the basis of an investigation as to its propriety. There is no submission directed to the issue of inconsistency of conduct, as to why that is so, or why in the circumstances in which the "evidence of the forensic agreement" was used in this case in relation to the evidence of Person 4, such matters are in issue in the substantive proceedings. Person 4 has given evidence. More particularly (and in light of the circumstances referred to in the preceding paragraph), it has not been articulated how the respondents' reliance on the correspondence of 7 February 2022 in this case, is inconsistent with the claim for privilege over the documents sought. Unlike Roberts-Smith (No 25), the significance of the timing and circumstances of the events, or the respondents' state of mind, have not been put in issue by the use of the communication.
39 Turning then to the submission as to credibility. Although the respondents attempted to minimise the content of the undertaking, submitting that the Court may have nonetheless forced Person 4 to give evidence and that the applicant was not prevented from asking any questions of him in cross-examination about Whiskey 108, properly considered, the terms of the undertaking are advantageous to the respondents. Indeed, so much is plain to the respondents, which is the reason that the undertaking was given to the witness. That is, the party who was calling the witness would not ask the Court to require the witness to give evidence as to Whiskey 108 under s 128(4). The undertaking was given to Person 4 before he gave evidence. Person 4 gave evidence in that context. The respondents also carried out the undertaking, after Person 4 fulfilled the condition of willingly giving evidence in respect to Darwan.
40 In relation to matters of credibility, the applicant submits that the circumstances in which the evidence is given affect the witnesses' credibility, and it is plain from the submissions advanced (acknowledged by the respondents), that at this stage it is expected that such a submission will be advanced by the applicant in closing submissions. The respondents deny that this arrangement or undertaking has that effect. That is a matter for the trial judge. It is sufficient for present purposes to approach this issue on the basis that, generally speaking, if a witness gives evidence in a context where there is some arrangement, agreement, inducement or even an undertaking in place between a witness and the party calling them, that fact may be capable of affecting the assessment of the witnesses' evidence. That general observation does not say anything about these proceedings. Whether that is so in a particular case, and if so, in what manner, is dependent on a number of considerations including, inter alia, the nature of the arrangement, agreement, inducement or undertaking, the content of the witnesses' evidence, and other evidence in a trial. It is not for this Court to decide or consider those matters on this application.
41 All that said, it is the terms of the undertaking under which Person 4 gave evidence which is relevant to any such assessment. That is the basis on which he gave evidence.
42 More importantly, the applicant's submission as to credibility is not directed to the issue of establishing any inconsistency of conduct by the respondents, but rather focuses on an assertion of general unfairness.
43 Similarly, in that context, during the applicant's submissions, reference was made to some aspects of Person 4's cross-examination as to his knowledge of the terms of the undertaking. He was cross-examined on communications he had with his solicitor, over which I was informed he has waived privilege, at least in respect to aspects of that in relation to the undertaking. That is a different legal relationship than that to which this notice to produce is directed. It might be thought that Person 4's state of knowledge in respect to what was communicated by his solicitor can be sought by processes directed to the solicitor.
44 The submissions relied on by the applicant suffer from failing to focus on and grapple with the relevant question of inconsistency of conduct.
45 In my view no relevant inconsistency of conduct has been established by the applicant.
46 This matter was referred to me for determination in the context where the applicant submitted that there was a possibility that the documents in the objection schedule may need to be examined to resolve the issue. The respondent submitted that the focus of the inquiry is on their conduct and whether it is inconsistent with the maintenance of the privilege. However, if I formed the view that having regard to the documents was relevant, there was no objection to compelling the respondents to provide them to enable that to occur.
47 This matter involved the application of legal professional privilege at common law. The Court has the power to examine documents with the essential purpose of doing so "to determine whether, on its face, the nature and content of the document supports the claim for legal professional privilege": AWB (No 5) at [44(12)]. "[I]n many instances the character of documents the subject of the claim will illuminate the purpose for which they were brought into existence": Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 at 689. I note that in respect to the position of inspection of the documents to determine if waiver is established, in JHW at [81], the Supreme Court of South Australia (Court of Criminal Appeal), in obiter comment, observed:
We commented earlier that we had not been referred to any decision in which, on a question of waiver, the Judge had inspected the material in which in respect of which privilege was asserted. We doubt whether the Judge had power to do so. But even if the Judge did, we do not agree that relevant unfairness could be identified by the Judge finding material within the privileged material that might assist an attack on the statement in question.
48 And see also JHW at [60] and [75].
49 At [5] of that judgment, the Court identified the "two main issues" on that appeal, as the competence of the appeal and the correctness of the judge's order. Whether the judge inspected the documents is ultimately not an issue that goes to the "correctness" of the order. Prior to the passage recited above, the Court at [65] concluded that "the Judge has erred in not focussing on the question of whether there was an inconsistency between releasing the statements, in the circumstances of the release, and the maintenance of a claim of privilege over documents created in the course of preparing the statements, bearing in mind any considerations of fairness that might arise". The Court was concerned about how the material was used, with the primary judge there having examined the material in detail to consider whether or not it would be "useful" for the party to have the privileged material (see for example, the last sentence at [81]). As noted in [81], no authority in relation to inspection on a question of waiver was cited to the Court, and nor did the Court cite any authority for the proposition. The Court's reasoning appears to be based on the nature of the focus of the inquiry to determine if privilege has been waived. However, with respect to the Court, it is not readily apparent why an examination of the documents may not, depending on the circumstances of the case, illuminate whether there is an inconsistency of conduct. Although the common law applies in this application (noting that South Australia also applies the common law in respect to legal professional privilege), I note that s 133 of the Evidence Act provides that the Court can inspect a document to determine any question which arises under Pt 3.10 of that Act (which relates to privileges). It follows that, generally speaking, it is recognised that the circumstances in which it may be of assistance to inspect the documents the subject of a privilege claim are very broad.
50 Until TerraCom Ltd v Australian Securities and Investments Commission [2022] FCA 208 (TerraCom), which was delivered today, JHW had not subsequently been considered in any relevant way (noting that it was applied in the first instance decision of Verde Terra Pty Ltd v Central Coast Council (No 2) [2020] NSWLEC 10 at [87] without any analysis and in circumstances where a party had requested the Court not to inspect the documents). Suffice to say I agree with the views of Stewart J expressed in TerraCom.
51 If waiver over associated material has been established, there can be no issue that a document can be examined to determine if, in fact, it falls within the scope of the waiver.
52 There was no issue raised by the parties on my power to inspect the documents. Indeed, there was no objection from either party to me inspecting the documents, if I considered it appropriate to take that course. In that context, I have inspected the documents which has only served to confirm my conclusion that there is no relevant inconsistency in conduct established by the applicant, so as to imply waiver in any associated documents.