(1) This Division does not prevent the adducing of evidence given with the consent of the client or party concerned.
(2) Subject to subsection (5), this Division does not prevent the adducing of evidence if a client or party has knowingly and voluntarily disclosed to another person the substance of the evidence and the disclosure was not made:
(a) in the course of making a confidential communication or preparing a confidential document, or
(b) as a result of duress or deception, or
(c) under compulsion of law, or
(d) if the client or party is a body established by, or a person holding an office under, an Australian law-to the Minister, or the Minister of the Commonwealth, the State or Territory, administering the law, or the part of the law, under which the body is established or the office is held.
(3) Subsection (2) does not apply to a disclosure by a person who was, at the time, an employee or agent of a client or party or of a lawyer unless the employee or agent was authorised to make the disclosure.
(4) Subject to subsection (5), this Division does not prevent the adducing of evidence if the substance of the evidence has been disclosed with the express or implied consent of the client or party to another person other than:
(a) a lawyer acting for the client or party, or
(b) if the client or party is a body established by, or a person holding an office under, an Australian law-the Minister, or the Minister of the Commonwealth, the State or Territory, administering the law, or the part of the law, under which the body is established or the office is held.
(5) Subsections (2) and (4) do not apply to:
(a) a disclosure by a client to another person if the disclosure concerns a matter in relation to which the same lawyer is providing, or is to provide, professional legal services to both the client and the other person, or
(b) a disclosure to a person with whom the client or party had, at the time of the disclosure, a common interest relating to a proceeding or an anticipated or pending proceeding in an Australian court or a foreign court.
(6) This Division does not prevent the adducing of evidence of a document that a witness has used to try to revive the witness's memory about a fact or opinion or has used as mentioned in section 32 (Attempts to revive memory in court) or 33 (Evidence by police officers).
7 There was no dispute that the advice given by Mr Callanan was privileged. The only dispute was whether or not the Court would imply or impute a waiver of the privilege in accordance with the well-known common law principles. Those principles have been the subject of appellate court consideration, most recently by the Full Court of the Federal Court of Australia in Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86, 151 FCR 341. That judgment discusses in some detail the history of the common law doctrine of waiver and a number of earlier decisions. I shall not attempt to canvass the various principles or the course of litigation that has led to what should now be regarded as an established approach to their application. As the Full Court said in Rio Tinto, "….waiver comes about because the privilege holder's conduct is inconsistent with the continued confidentiality of the communication because he or she has put in issue the character or contents of the communication in pursuing a right or claim, or has created a situation where another party must reasonably do so by way of a defence." (At FCR 357).
8 The Full Court also made clear that "A mere reference to legal advice will not amount to disclosure". (At FCR 357)
9 At [61] of the judgment in Rio Tinto, the Court said, in part,
"….the governing principle required a fact-based inquiry as to whether, in effect, the privilege holder had directly or indirectly put the contents of an otherwise privileged communication in issue in litigation, either in making a claim or by way of defence. In DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499 at [58], Allsop J put the matter somewhat more descriptively, saying waiver arises when,
'the party entitled to the privilege makes an assertion (express or implied), or brings a case, which is either about the contents of the confidential communication or which necessarily lays open the confidential communication to scrutiny and, by such conduct, an inconsistency arises between the act and the maintenance of the confidence, informed partly by the forensic unfairness of allowing the claim to proceed without disclosure of the communication.'
(Emphasis in original)."
10 Given the principles that I have outlined above, albeit briefly, it is necessary to examine what was said by Mr Roberts in his affidavit in the context of the proceedings.
11 The applicant asserted that all that Mr Roberts has done has drawn attention to the fact that he obtained legal advice prior to the applicant entering into the distributor agreement. It was emphasised that the affidavit makes no reference to the impact that the advice had on Mr Roberts' state of mind.
12 Difficulties will always arise in considering whether the appropriate circumstances exist in which it is appropriate to apply the common law principles of waiver. This difficulty is compounded where application is made for the waiver of privilege at an early stage in the proceedings before all of the issues have been necessarily clarified. I adverted to this in Tynan Motors Pty Ltd v Mazda Australia Pty Ltd [2003] NSWIRComm 146 when discussing the decision of the Full Court of the Supreme Court of South Australia in Southern Equities Corporation Ltd (in liquidation) v Arthur Andersen and Co (1997) SASC 6373. At [19] and following I discussed the contrary views expressed by Bleby and Matheson JJ on the one hand and that of Doyle CJ in dissent on the other occasioned in part by concerns about the then state of the proceedings.
13 Contrary to the position asserted by the applicant, I read the reference by Mr Roberts that he "was heavily reliant" upon the legal advice that he obtained as enabling me to conclude that that advice had impacted upon his state of mind at the time that he ultimately agreed, on behalf of the applicant, to enter into the written distributor agreement. Furthermore, I agree with the respondent's submission that the amended summons, having sought to declare the contract unfair in part because of the respondent's dominant bargaining position with respect to its terms and any variation, the fact that the applicant had sought legal advice in relation to the contract is arguably a significant matter when considering the nature and extent of any dominant bargaining position, and its consequences.