SQMB v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 This is an application by the respondent to inspect documents produced to the Court by the applicants' former solicitor in answer to a subpoena issued by the respondent. 2 The applicants in these proceedings seek an extension of time to file and serve a notice of appeal from an order of a judge of this Court whereby he ordered that a previous application brought by the applicants be dismissed and that the applicants pay the respondent's costs fixed in the sum of $1500. 3 The applicants are husband and wife and are citizens of India. They arrived in Australia on 2 December 2001. On 17 December 2001 they lodged an application for protection (Class XA) visas with the Department of Immigration & Multicultural & Indigenous Affairs under the Migration Act 1958 (Cth) (the Act). 4 On 13 June 2002 a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs refused to grant protection visas. On 11 July 2002 the applicants applied for a review of that decision to the Refugee Review Tribunal (the RRT). On 23 May 2003 the RRT published its decision affirming the decision by the respondent's delegate to refuse the applicants protection visas. 5 On 18 June 2003 the applicants filed proceedings in this Court seeking a review of the decision of the RRT. 6 The applicants claimed the following relief: '1 A writ of prohibition directed to the Respondent, prohibiting him or his agents or delegates from acting upon, giving effect to, proceeding further upon, or enforcing the Decision. 2. A Writ of Certiorari directed to the respondent removing the decision to this Court to be quashed. 3. A Writ of Mandamus directed to the Respondent directing him to appoint a member of the Tribunal to redetermine the Applicants' application for protection visas according to law. 4. In the alternative to paragraph 3 herein an injunction against the Respondent requiring him to appoint a member of the Tribunal other than the Tribunal Member to rehear and redetermine the Applicants' application for Protection Visas according to law. 5. Costs of the Application.' 7 The applicants also sought interlocutory relief. 8 Broadly speaking the grounds of the application were that the RRT had breached the rules of natural justice in making its decision and the applicants had been denied procedural fairness in connection with that decision. 9 The application was simply accompanied by an affidavit of the applicants' solicitor exhibiting a copy of the decision of the RRT. No particulars were brought forward at that stage to particularise the complaints of the breach of the rules of natural justice or the denial of procedural fairness, nor any evidence. 10 On 8 September 2003 a judge of this Court made the following orders: '1. The applicant, by 3 October 2003: (a) If an extension of time within which to commence the proceedings is required, file and serve a notice of motion seeking an extension of time together with an affidavit by the applicant personally explaining the reasons for the delay in commencing the proceedings and deposing the reasons why an extension of time should be given. The notice of motion shall be made returnable for hearing at the next directions hearing. (b) File and serve an amended application specifying precisely the error or errors upon which the decision under review is challenged. (c) File and serve any further affidavit material to lay a foundation for the allegations made in the amended application. (d) File and serve outline of submissions. (e) File and serve a memorandum stating: · The State or Territory in which the applicant is residing; · Whether the applicant wishes to be present at the hearing of the application; · Whether the matter is one that could be transferred to the Federal Magistrates Court; · Whether the applicant objects to transfer to the Federal Magistrates Court and, if so, the grounds for objection. 2. In the event that an extension of time is sought, the respondent is at liberty, within 2 weeks of receiving the notice of motion, to file and serve an affidavit in opposition to the extension of time. 3. The respondent within 3 weeks of receiving the applicant's amended application and supporting material pursuant to Order 1 above: (a) file and serve any affidavits in reply. (b) file and serve submissions in reply. 4. The directions hearing is fixed for Friday, 17 October 2003 at 9.00 am. 5. In the event that Order 1 is not fully complied with, the applicant will be called upon at the adjourned directions hearing to show cause why the matter should not stand dismissed. 6. Liberty to apply.' 11 Clearly enough, the purpose of the orders, particularly those in pars 1(a) to 1(d), was to require the applicants to particularise the complaints and bring forward their evidence to support those complaints. The orders also obliged the respondent, if the applicants complied with those orders, to bring forward his evidence and submissions in opposition to the applicants' claims. Lastly, par 5 put the applicants on notice of the possible consequences if they failed to comply with the court orders. 12 On 17 October 2003 the matter again came before the same judge when he was advised by counsel for the applicants that 'the applicant (sic) has not complied with the court orders and does not wish the matter to proceed to a hearing'. 13 The judge then gave these short reasons: 'This is an application commenced on 18 June 2003, it seems, to quash a decision of the Refugee Review Tribunal given on 1 May 2003. On 8 September 2003 the Court gave directions to the intent that the matter would be able to be listed for hearing today and that directions could be further given as necessary to secure the hearing. The directions given on 8 September 2003 have not been complied with. Counsel for the applicants has indicated that the applicants have given instructions that they do not wish to proceed with the application. In those circumstances I dismiss it. I order that the applicants pay to the respondent the costs of the application, which I fix at $1500 including disbursements.' 14 On 19 November 2003 the applicants lodged their application for an extension of time to file and serve a notice of appeal. 15 That notice was accompanied by an affidavit sworn by the first applicant in which he explained the delay in bringing the application and filing the notice of appeal. 16 The notice of appeal was filed on the same day. The grounds of appeal are: '2. My solicitor failed to inform me the Court orders to comply. 3. The Court did not give me an opportunity to present my case.' 17 Neither party has asked me to rule whether the decision of 17 October dismissing the application was interlocutory or otherwise. If it were an interlocutory order then, of course, not only would the applicants need an extension of time but also leave to appeal. 18 The applicants have not filed any affidavits in support of the grounds of appeal. Nor have they sought to adduce evidence in any other way in support of those grounds of appeal. 19 In response to the applicants' application for an extension of time in which to appeal, the respondent filed an affidavit of a solicitor employed by the respondent's solicitors who has deposed to the course of the previous proceedings and these proceedings. At the same time the respondent issued a subpoena directed to Mr Mark Clisby, the applicants' previous solicitor, seeking production of 'all files and documents relating to [SQMB] and [SQNB] in relation to Federal Court Proceedings No S 557 of 2003'. 20 On the return of that subpoena, the applicants, who were unrepresented, appeared by telephone. 21 Mr Clisby attended in answer to the subpoena and produced a file containing documents which I ordered to be sealed. 22 The respondent's counsel made an application for leave to inspect the documents. The applicants made no formal application or submission that the documents were the subject of legal professional privilege. Because they were unrepresented, the respondent's counsel agreed that I should proceed on the basis that such a claim had been made. 23 I offered the applicants the opportunity of first inspecting the documents which had been produced by their former solicitor. They declined that offer indicating they would leave it to the Court to decide this question. 24 Without looking at the file, I can safely assume that it would contain a record of communications between the applicants and their former solicitor. Those communications, again it may be assumed, were for the purpose of obtaining legal advice in relation to the applicants' proceedings for review. Those communications would ordinarily be subject to legal professional privilege and the documents evidencing those communications would not be available for inspection by any party. However, a party (not the party's lawyer) may waive the benefit of legal professional privilege. Waiver may be express or implied. 25 It was the respondent's contention that the proposed grounds of appeal put in issue the advice given by the applicants' former solicitor to the applicants and any instructions given by the applicants to the solicitor. In those circumstances the respondent argued there had been an implied waiver of the privilege which would have protected those communications. 26 This application is made in relation to documents returned on subpoena. The question of legal and professional privilege is not regulated by the Evidence Act 1995 (Cth) but by the common law: Esso Australian Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49. 27 Whether there has been an implied waiver of the legal professional privilege attaching to the communications between the applicants and the applicants' former solicitor will therefore be governed by the common law. 28 Waiver occurs when a party does something inconsistent with the confidentiality otherwise contained in the communication. Waiver does not make the privileged communication unprivileged, but requires the party to submit the communications which would otherwise be privileged to the ordinary requirements of disclosure. 29 As the respondent's argument acknowledges, there has been no express waiver of privilege. The question in this case is whether or not by raising the particular grounds of appeal to which I have referred the applicants have impliedly waived privilege in respect of the communications between themselves and their former solicitor. 30 In Mann v Carnell (1999) 201 CLR 1 at [28], Gleeson CJ, Gaudron, Gummow and Callinan JJ said: 'It is inconsistency between the conduct of the client and the maintenance of the confidentiality which effects a waiver of the privilege. Examples include disclosure by a client of the client's version of a communication with a lawyer, which entitles the lawyer to give his or her account of the communication, or the institution of proceedings for professional negligence against a lawyer, in which the lawyer's evidence as to advice given to the client would be received.' (footnotes omitted) 31 This is not a case where the applicants have brought proceedings against their lawyers. However, central to the applicants' grounds of appeal are the communications which passed between them and their lawyers. The first ground of appeal, although not yet supported by evidence, relies upon the failure of the applicants' lawyers to advise the applicants of the court orders. It may be assumed that the orders referred to are the orders of 8 September 2003. 32 Although the grounds of appeal do not expressly claim that the applicants did not instruct their former solicitor to advise the Court that the applicants did not wish the matter to proceed, I think that complaint is implicit in the second ground. At the very least, it must be understood that, if those instructions were given, they were given by the applicants without knowledge of the orders and their failure to have complied with those orders. One would not think that an appeal would be brought relying on the two grounds referred to if the applicants, with full knowledge of the orders, had given the instructions not to proceed to a hearing. 33 It is not to the point that the client may not subjectively intend to waive the privilege: Benecke v National Australia Bank (1993) 35 NSWLR 110. The question which must be determined is whether the party's conduct is inconsistent with the maintenance of the privilege and, in those circumstances, whether fairness dictates a conclusion that the party has waived the privilege. In Mann v Carnell (supra), the majority said at [29]: ' Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is "imputed by operation of law". This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege. Thus, in Benecke v National Australia Bank, the client was held to have waived privilege by giving evidence, in legal proceedings concerning her instructions to a barrister in related proceedings, even though she apparently believed she could prevent the barrister from giving the barrister's version of those instructions. She did not subjectively intend to abandon the privilege. She may not even have turned her mind to the question. However, her intentional act was inconsistent with the maintenance of the confidentiality of the communication. 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.' (footnotes omitted) Later, the majority said at [34]: 'Disclosure by a client of confidential legal advice received by the client, which may be for the purpose of explaining or justifying the client's actions, or for some other purpose, will waive privilege if such disclosure is inconsistent with the confidentiality which the privilege serves to protect. Depending upon the circumstances of the case, considerations of fairness may be relevant to a determination of whether there is such inconsistency. The reasoning of the majority in Goldberg illustrates this.' (footnotes omitted) 34 Attorney-General for the Northern Territory v Maurice and Others (1986) 161 CLR 475 was concerned with a claim by Aboriginal people claiming to be the traditional owners of land near Tennant Creek. The claimants lodged a claim book with the Aboriginal Land Commissioner who was to hear the application. The claim book was distributed to the other parties to the claim. When the inquiry commenced counsel for the claimants tendered the claim book. Documents referred to in the claim book were protected by legal professional privilege. A party claimed that the publication of the claim book amounted to a waiver of privilege in respect of the privileged documents referred to in that claim book. Gibbs CJ said at 481: ' There was of course no express waiver in the present case and there is nothing to suggest that the claimants had any actual intention to waive privilege in the source documents. The principle applicable in these circumstances seems to me to be well stated in Wigmore, op. cit., par. 2327: "In deciding it, regard must be had to the double elements that are predicated in every waiver, i.e., not only the element of implied intention, but also the element of fairness and consistency. A privileged person would seldom be found to waive, if his intention not to abandon could alone control the situation. There is always also the objective consideration that when 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. He may elect to withhold or to disclose, but after a certain point his election must remain final." The decisions in which this question has been considered seem to me to be particular applications of the rule that in a case where there is no intentional waiver the question whether a waiver should be implied depends on whether it would be unfair or misleading to allow a party to refer to or use material and yet assert that that material, or material associated with it, is privileged from production. Thus it has been held that the privilege in respect of a document is not waived by the mere reference to that document in pleadings (Roberts v. Oppenhemi; Buttes Oil Co. v. Hammer [No. 3]) or in an affidavit (Lyell v. Kennedy; Infields, Ltd. v. P. Rosen & Son; Tate & Lyle "International Co. Ltd. v. Government Trading Corporation", The Times, 24 October 1984), although the position will be different if the document is reproduced in full in the pleading or affidavit: Buttes Oil Co. v. Hammer [No 3]. These cases may be explained by saying that it is not unfair or misleading to refer to a document in a pleading or affidavit which is not put into evidence but that if the document is set out in full the privilege is waived. A fortiori, of course, privilege in respect of materials used in drawing a pleading or an affidavit and not referred to therein, would not lose their privilege because they had been used in that way.' (footnotes omitted) Mason and Brennan JJ said at 487-488: 'A litigant can of course waive his privilege directly through intentionally disclosing 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. 8, 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. Home Insurance Co. Hence, the implied waiver inquiry is at bottom focused on the fairness of imputing such a waiver. On this principle, an American court refused to imply a waiver when the person entitled to the privilege, who had been subjected by court order to an exceptional accelerated discovery process, accidentally disclosed some protected communications: Transamerica Computer Co. Inc. v. I.B.M. Corp. Likewise, a waiver was not implied beyond actually disclosed material when the person entitled to the privilege, in a spirit of co-operation, disclosed some confidential communications to opposing counsel, not to the court, and the partial disclosure did not prejudice the opposing litigant: Weil v. Investment/Indicators, Research & Management. As the court in Champion International Corp. v. International Paper Co. asked rhetorically, "Can the disclosure of a very slight amount of privileged material, produced in a spirit of openness in discovery, be the basis for a waiver of a large amount of other privileged material?"' (footnotes omitted) Deane J said at 492-493: 'Waiver of legal professional privilege by imputation or implication of law is based on notions of fairness. It occurs in circumstances where a person has used privileged material in such a way that it would be unfair for him to assert that legal professional privilege rendered him immune from procedures pursuant to which he would otherwise be compellable to produce or allow access to the material which he has elected to use to his own advantage. Thus, ordinary notions of fairness require that an assertion of the effect of privileged material or disclosure of part of its contents in the course of proceedings before a court or quasi-judicial tribunal be treated as a waiver of any right to resist scrutiny of the propriety of the use he has made of the material by reliance upon legal professional privilege. There are, however, no considerations of fairness which require that compliance by a party with a procedural requirement that he prepare and make available a document setting forth the case which he proposes to make before a court or quasi-judicial tribunal should be treated as a waiver of his right to claim legal professional privilege in respect of all the material upon which he has relied in the preparation of that document. If, in such a document, a party sets forth part of the contents of a particular identified document or communication or asserts the effect of or his reliance upon a particular identified document or communication, it may be that considerations of fairness might require that he be treated as having waived any legal professional privilege in relation to the whole document or communication: cf. Buttes Gas and Oil Co. v. Hammer [No 3]. Where, however, he does no more than make use of privileged material (e.g. legal advice, expert opinion or statements of potential witnesses) for the purpose of formulating the statement in such a document of the details of the case which he proposes to make, it would be an affront to ordinary notions of fairness to hold that the effect of his compliance with that procedural requirement was that he has waived his legal professional privilege in relation to such material.' (footnotes omitted) 35 Of course, the test formulated in Attorney-General (NT) v Maurice (supra) must be understood having regard to what the majority said in Mann v Carnell (supra), that the question to be determined is whether the maintenance of the privilege 'is inconsistent with the confidentiality which the privilege seeks to protect'. 36 The authors of Cross on Evidence (Service 78, January 2004) write at [25010], p 25,008: ' The principle has been reformulated thus: if a party, by pleadings or evidence, expressly or impliedly makes an assertion about the content of confidential communications between that party and a legal adviser, fairness to the other party may mean this assertion is a waiver of privilege. Another formulation is that waiver takes place where parties, whether in a pleading, an opening or evidence, have exposed to scrutiny their states of mind, "being states of mind to which their legal advice is likely to have contributed". Another is that "the law implies a consent to the use of the privileged material, or, what is in reality the same thing, a waiver of privilege, if by reason of some conduct of the party otherwise entitled to the privilege it would be unfair to the other party, in a way which goes to the integrity of the legal process, for the privilege to be maintained.' (footnotes omitted) 37 In Standard Chartered Bank of Australia Ltd v Antico (1993) 36 NSWLR 87, Hodgson J at 94-95 said after referring to Attorney-General (NT) v Maurice: 'In Thomason's case (at 358-359; 111), Sir Frederick Jordan appears to suggest that if one of the issues in a case is what advice, if any, a client has received from his or her legal advisers, the client cannot claim legal professional privilege; and he gives as an example of this situation a suit in equity to set aside a transaction on the ground of undue influence. I am inclined to think that statement is a little too broad. If a party claims to set aside a transaction, on which the party has had legal advice, for undue influence, but makes no assertion whatsoever that there was any inadequacy in the legal advice about the transaction or in the party's relevant legal understanding of the transaction, it seems to me that the mere fact that some other element of undue influence is alleged would not necessarily mean that legal professional privilege is waived. Indeed, the case of Wentworth v Lloyd itself was a case in which W C Wentworth sought to set aside the sale of property on the ground of unfairness, and the successful claim of privilege related to communications between Mr Wentworth and his solicitor concerning this transaction. I think it would be consistent with Attorney-General for the Northern Territory v Maurice to formulate the principle in Thomason in this way. If a party, by pleadings or evidence, expressly or impliedly makes an assertion about the content of confidential communications between that party and a legal adviser, then fairness to the other party may mean that this assertion has to be taken as a waiver of any privilege attaching to the communication. In considering the question of fairness, it is relevant to take into account the principle in Wentworth v Lloyd that no adverse inference can be drawn from a claim of privilege. However, as foreshadowed at the end of my discussion of Wentworth v Lloyd, it seems to me that a claim of privilege may clarify issues or lead to a clarification of issues. If the pleadings and the evidence up to the time when the claim is made do not make it 100 per cent clear whether a party is or is not making some assertion about the content of confidential communications, then it seems to me that the party cannot pursue the claim of privilege without making it completely clear whether or not such an assertion is made.' 38 Hodgson J's formulation was applied in Bayliss v Cassidy (No 2) (2000) 1 Qd R 464 without the court needing to consider whether the 'principle may be stated more broadly than this' at 468 per Davies JA: see also Queensland Law Society Incorporated v Albietz (2000) 1 Qd R 621. Hodgson J's decision and these two Queensland cases were decided before Mann v Carnell (supra). 39 For that reason, Hodgson J's formulation would need to be understood as providing that the waiver of privilege is imputed because the party who would otherwise be entitled to the privilege, has conducted himself or herself inconsistently with the maintenance of the privilege. 40 Having regard to what was said in Attorney-General (NT) v Maurice (supra), it cannot be said that the mere pleading of a privileged communication necessarily means that the privilege is lost in relation to that communication and any other associated communication. The dicta to which I have referred indicate a general approval of the decision of the Court of Appeal in Buttes Gas and Oil Co and Another v Hammer and Another (No 3) [1981] Q.B. 223. That case decided that a reference to a pleaded document does not necessarily waive privilege in relation to that document. 41 Whether a reference in a pleading to a privileged communication waives privilege in that communication, and whether indeed such a reference means that privilege in other communications is waived, must depend upon whether the pleading indicates that the party who has the benefit of the privilege has by the pleading acted inconsistently with the maintenance of the privilege. That I think is consistent with Torcasia Development Pty Ltd v County Park Developments Pty Ltd and CC Brown (unreported, Supreme Court of Victoria, Byrne J, 3 September 1991). In that case, His Honour said, '… it is only where the client directly or indirectly puts in issue the substance of the privileged communication that the privilege is lost and then only insofar as it is necessary to do justice between the parties': see also Hongkong Bank of Australia Ltd v Murphy [1992] 2 VR 419; Pickering and Ors v Edmunds and Ors (1994) 63 SASR 357 and Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1995) 37 NSWLR 405. 42 Where a party pleads the substance of an otherwise privileged communication or where the party's case depends upon the substance of an otherwise privileged communication and the party manifests an intention to persist with that case, ordinarily that will indicate that the party is acting inconsistently with the party maintaining privilege in that communication. 43 In Hongkong Bank of Australia Ltd v Murphy, Smith J rejected the proposition that no decision as to whether privilege has been waived can be decided on the pleadings. He also rejected the further proposition that no decision on that point can be made until the party goes to evidence (at 437-438). 44 It may be possible to determine on the pleadings, whether a party has acted inconsistently with the maintenance of privilege and whether, in the circumstances, the party should be taken to have waived the privilege in the communication and other communications associated with the pleaded communication. Where the party's case may depend upon proof of the communication and the party pleads the communication it will be relatively easy to determine whether the party has acted inconsistently with maintaining the privilege. Where, however, the party's pleading does not identify the substance of the communication or where the plea is not central to the party's case, it may be more difficult to