Waterford v Commonwealth

Waterford v Commonwealth - [1987] HCA 25 - HCA 1983 case summary — Zoe

After the conclusion of the hearing of his application for review, but before the Tribunal delivered its decision, the appellant requested access to those documents in the possession of the Department which related to the processing of his earlier request. By letter dated 31 May 1983 the Secretary to the Department advised the appellant that with the exception of a few documents as described, his request for access was refused. On 2 June 1983 the appellant applied to the Tribunal for a review of the decision refusing access. In due course, forty-five documents were identified as the documents to which the application for review related. The Tribunal was provided with an itemized schedule giving a brief description of the nature and content of each document. They are variously described as letters, draft letters, minutes, memoranda and notes. The minutes passed between officers of the Department or between an officer of the Department and the Treasurer. The notes were notes prepared by officers of the Department. The letters passed between the Attorney-General and the Treasurer. The memoranda passed between officers of the Department and officers of the Deputy Crown Solicitor's Office in the Australian Capital Territory (now the Australian Government Solicitor: Judiciary Act 1903 Cth, as amended, s. 55E). The Department claimed that documents numbered 1 to 38 and document numbered 45 were exempt documents under s. 36 of the Act, being internal working documents the disclosure of which would be contrary to the public interest, and in this regard a conclusive certificate issued pursuant to s. 36(3) of the Act was tendered. In addition to this claim, the Department claimed that all the documents numbered 1 to 45 were exempt documents by reason of s. 42(1) of the Act, each document being the subject of legal professional privilege. For the purposes of this narrative, it is sufficient to record that the Tribunal was satisfied that thirty-three of the documents were the subject of legal professional privilege. The appellant thereupon exercised, with respect to twenty-three of these documents, the right of appeal, on a question of law, to the Federal Court of Australia conferred upon him by s. 44 of the Administrative Appeals Tribunal Act 1975 Cth, as amended. The Federal Court (Fisher, Gallop and Neaves JJ.) dismissed the appeal.

[5]

The law relating to discovery was developed by the Chancery Courts in the first half of the 19th century. At that time nearly all legal advisers were in independent practice on their own account. Nowadays it is very different. Many barristers and solicitors are employed as legal advisers, whole time, by a single employer. Sometimes the employer is a great commercial concern. At other times it is a government department or a local authority. It may even be the government itself, like the Treasury Solicitor and his staff. In every case these legal advisers do legal work for their employer and for no one else. They are paid, not by fees for each piece of work, but by a fixed annual salary. They are, no doubt, servants or agents of the employer They are regarded by the law as in every respect in the same position as those who practise on their own account. The only difference is that they act for one client only, and not for several clients. They must uphold the same standards of honour and of etiquette. They are subject to the same duties to their client and to the court. They must respect the same confidences. They and their clients have the same privileges. His Lordship acknowledged that such a legal adviser may sometimes perform work for his employer in another capacity, with the consequence that their communications in that capacity would not be subject to the privilege. He continued [3] : Being a servant or agent too, he may be under more pressure from his client. So he must be careful to resist it. He must be as independent in the doing of right as any other legal adviser There is a safeguard against abuse If there is any doubt as to the propriety or validity of a claim for privilege, the master or the judge should without hesitation inspect the documents himself so as to see if the claim is well-founded, or not. This aspect of the decision was not challenged when the case went on appeal to the House of Lords [4] . It has been applied in Canada by the Federal Court of Appeal in Re Director of Investigation & Research and Shell Canada Ltd. [5] and by the Supreme Court of Ireland in Geraghty v. Minister for Local Government [6] . The same approach has been taken in the United States: National Labor Relations Board v. Sears, Roebuck & Co. [7] ; U.S. Steel Corporation v. United States [8] ; Keller, The Applicability and Scope of the Attorney-Client Privilege in the Executive Branch of the Federal Government, Boston University Law Review, vol. 62 (1982), p. 1003. Finally, three members of this Court addressed the subject in Attorney-General (N.T.) v. Kearney [9] . Gibbs C.J. [10] said that he did not doubt the correctness of the decision of the Court of Appeal in Crompton Ltd. provided that, in giving the advice, the employees are acting in their capacity as legal advisers. Wilson J. [11] cited Crompton Ltd.; Geraghty and Shell Canada with tacit approval. Dawson J. [12] saw no reason for denying privilege to communications passing between salaried employees and their client provided that they are consulted in a professional capacity in relation to a professional matter and the communications are made in confidence and arise from the relationship of lawyer and client. His Honour referred to Crompton Ltd. and Geraghty . Mason and Brennan JJ. in a short judgment [13] reserved the question. 1. [1983] Q.B. 878. 2. [1972] 2 Q.B. 102, at p. 129. 3. [1972] 2 Q.B., at p. 129. 4. [1974] A.C. 405. 5. (1975) 55 D.L.R. (3d) 713, at p. 721. 6. [1975] I.R. 300, at p. 312. 7. (1975) 421 U.S. 132. 8. (1984) 730 F. (2d) 1465. 9. (1985) 158 C.L.R. 500. 10. (1985) 158 C.L.R., at p. 510. 11. (1985) 158 C.L.R., at pp. 521-522. 12. (1985) 158 C.L.R., at pp. 530-531. 13. (1985) 158 C.L.R., at pp. 516-517.

[8]

This brings us to the principal submission advanced for the appellant. It proceeds on the basis that legal professional privilege may extend to some communications between government decision-makers and their legal advisers. But it draws the line where the subject-matter of the communication relates either to (a) the manner in which a person should exercise a power of an administrative nature conferred upon him by law, or (b) proceedings pending in the Tribunal following upon that exercise of power. As we understand the argument, it has two limbs. The first is that the nature of the administrative process in government does not call for any confidentiality to attach to communications between the decision-maker and the legal adviser solely by reason of their professional relationship. Without the privilege an ordinary citizen might be tempted to withhold information for fear that it would be used against him. Candour on his part must therefore be positively encouraged. But a government officer has nothing to hide, so the argument runs. He merely needs to be told how to perform his statutory duty. Furthermore, the review proceedings in the Tribunal ought not be regarded as proceedings in which the Crown finds itself in an adversarial context requiring the protection of common law defences such as the privilege. The second limb of the argument calls in aid the jurisprudential concept of the category of the competing reference. It is said that in the administrative area, any claim to privilege is more likely to flow from the confidentiality of the subject-matter rather than from the relationship of legal adviser to client. The public interest can therefore be fully and appropriately accommodated by resort to the law of Crown privilege or, as it is now more usually and accurately known, public interest immunity. There is therefore no occasion to seek the protection of legal professional privilege as an independent factor. Counsel for the appellant sought support for this limb of the argument in some observations of Dawson J. expressed in a dissenting judgment in Kearney. His Honour said [15] :

[14]

We believe that the appellant's argument with respect to public interest immunity is misconceived. While the area covered by the immunity doctrine may overlap with that covered by legal professional privilege, the application of each is the subject of an entirely separate exercise. If the conditions giving rise to legal professional privilege are satisfied, and the privilege is not waived, then the document is not disclosed. The fact that the document may or may not have attracted public interest immunity is immaterial. Legal professional privilege is itself the product of a balancing exercise between competing public interests whereby, subject to the well-recognized crime or fraud exception (cf. Reg. v. Bell; Ex parte Lees [16] ), the public interest in "the perfect administration of justice" (per Earl of Halsbury L.C. inBullivant v. Attorney-General (Vict.) [17] ) is accorded paramountcy over the public interest that requires, in the interests of a fair trial, the admission in evidence of all relevant documentary evidence. Given its application, no further balancing exercise is required. It follows that an established claim of legal professional privilege can never be set at nought by a finding, after inquiry, that the document is not one to which a claim to public interest immunity would attach. If that were the case it would have the effect of imposing a further general condition limiting the privilege to apply only to those communications in respect of which any question of public interest immunity was wholly irrelevant. Furthermore, if the question of public interest immunity is to be considered, the balancing exercise that is then required will be carried out by reference to the contents and character of the document rather than by regard to the circumstances of its creation. The fact, if it be the fact, that the document is also the subject of legal professional privilege is immaterial to that inquiry. With all respect, we are unable to indorse the view expressed by Dawson J. in Kearney.

[34]

Being a servant or agent too, he may be under more pressure from his client. So he must be careful to resist it. He must be as independent in the doing of right as any other legal adviser. If, by "independent in the doing of right", his Lordship was describing the mental approach expected of a legal adviser, it seems overly optimistic to assume that the admonition to employees to be careful to resist pressure from the employer is sufficient to ensure that independence of mind essential to the purpose of legal professional privilege. Nevertheless, Lord Denning's observation which clothed salaried legal advisers with independence has been followed by some judges in other common law countries (Geraghty v. Minister for Local Government [25] ; Re Director of Investigation & Research and Shell Canada Ltd. [26] ) as well as by Gibbs C.J., Wilson and Dawson JJ. in Attorney-General (N.T.) v. Kearney [27] . However, in that case, as in this, the legal advisers were the salaried employees of government and their position is, for reasons presently to be mentioned, distinguishable from the position of salaried employees of other clients. Although it is not strictly necessary to express a general view as to legal professional privilege when the legal adviser is a salaried employee of a non-government client, I should state my opinion on that question which other members of the Court have also addressed. Though I am conscious of the weight of contrary opinion, the approach of the European Court of Justice in A. M. & S. Europe v. Commission seems to me to identify the relevant considerations. The Court said [28] : it should be stated that the requirement as to the position and status as an independent lawyer, which must be fulfilled by the legal adviser from whom the written communications which may be protected emanate, is based on a conception of the lawyer's role as collaborating in the administration of justice by the courts and as being required to provide, in full independence, and in the overriding interests of that cause, such legal assistance as the client needs. The counterpart of that protection lies in the rules of professional ethics and discipline which are laid down and enforced in the general interest by institutions endowed with the requisite powers for that purpose. The disincentive of sanctions which professional disciplinary tribunals may impose for breaches of ethical rules is diminished when the breach is committed in the interests of an employer and the security and environment of employment tend to insulate a salaried lawyer from the chief disciplinary influence of the profession - the opinion of one's professional peers. I am therefore unable to accept the notion that salaried lawyers are generally to be assimilated to the position of the independent legal profession for the purpose of determining the availability of legal professional privilege. Although this view may seem to give insufficient acknowledgment to the personal integrity, as well as the competence, of many salaried lawyers, we are concerned with a general legal rule which is framed not with regard to the characteristics of individuals but with regard to the influences that naturally attend the relationship of employer and employee. 1. [1983] Q.B. 878, at p. 951. 2. [1972] 2 Q.B. 102. 3. [1972] 2 Q.B., at p. 129. 4. [1975] I.R. 300. 5. (1975) 55 D.L.R. (3d) 713. 6. (1985) 158 C.L.R. 500, at pp. 510, 520-521, 530-531. 7. [1983] Q.B., at p. 950.

[36]

The independence of State Crown Solicitors and the Australian Government Solicitor in the giving of legal advice is - or ought to be - protected by the respective Attorneys-General as the first law officers of the Crown, and is buttressed by the laws relating to the public service and sometimes by specific legislation. The Commonwealth, State and Territorial statutes under which officers are employed in the offices of Crown Solicitors, the Australian Government Solicitor and in the Departments of the respective Attorneys-General give them a certain security of tenure and those statutes would be construed, in the absence of contrary express provisions, as leaving these officers completely professionally independent. The protection of the respective Attorneys-General, as the first Law Officers of the Crown, should extend to all of these officers, so that none of them will be affected in the performance of their professional duty by any sense of loyalty or duty to, or hope of reward from, the government of the day. Counsel for the appellant expressly declined to argue that the Department of the Treasury's advisers in this case lacked the independence which the safeguards to which Mason J. and I referred are intended to secure. I would therefore reject the submission that the officers of the Attorney-General's Department or the Commonwealth Crown Solicitor's Office lack the independence which is essential if legal professional privilege is to attach to documents brought into existence for the purpose of their giving advice or for the purpose of obtaining advice from them. I note that an attorney's work-product privilege or an attorney-client privilege is accepted as applying in the governmental context by American courts though I am not sure that the scope of the privilege coincides with the scope of legal professional privilege in this country: see National Labor Relations Board v. Sears, Roebuck & Co. [30] ; Jupiter Painting Contracting Co. Inc. v. United States [31] . 1. (1985) 158 C.L.R., at p. 517. 2. (1975) 421 U.S. 132, at pp. 154-155. 3. (1980) 87 F.R.D. 593, at p. 598.

[62]

There are several comments which can be made about those remarks of the Master of the Rolls. One is that the reference to the "many" railway cases is somewhat unhelpful since the judgments in those cases seem to have been concerned to consider a claim for privilege on the basis that the relevant material was "procured as materials upon which professional advice should be taken in proceedings pending, or threatened, or anticipated": per Buckley L.J., Birmingham & Midland Motor Omnibus Co. Ltd. v. London & North Western Railway [44] ; and see, generally, Seabrook v. British Transport Commission [45] ; Longthorn v. British Transport Commission [46] . It has long been recognized that claims of privilege based upon the fact that the relevant materials were procured for the purposes of anticipated litigation (in which independent counsel would in any event be expected to be briefed) are plainly distinguishable from a claim to privilege based upon the mere fact that a document contains or concerns confidential professional legal advice: see, e.g., Anderson v. Bank of British Columbia [47] ; Seabrook [48] and per Forbes J., at first instance, in Crompton [49] . One is left to speculate about whether the claim to privilege in the cases in which Lord Denning settled affidavits in his early days at the Bar was likewise based on the "anticipated proceedings" ground. Another comment is that his Lordship's remark that the validity of the view which he espoused had "never been doubted" does little to advance legal argument in a context where Forbes J., at first instance in the same case [50] , had rejected that view as "an unwarrantable extension of the privileges rules unsupported by any authority". Another, and more significant, criticism is that Lord Denning appears to me to unduly discount the importance, from the point of view of both the need for and the prevention of abuse of the privilege, of the matters mentioned in the above extract from the opinion of the European Court in the A. M. & S. Case, particularly the importance of the "full independence" of the independent lawyer.

[64]

On the other hand, there is obvious validity in the perception that the considerations of public policy which underlie and enlighten the principle of legal professional privilege are generally applicable to the case where the person providing the legal professional advice is a salaried employee. Moreover, the conclusion that legal professional privilege can extend to protect the advice given within an organization by a salaried legal adviser conforms with the approach which had been accepted in the United States of America (see, e.g., Corpus Juris Secundum, vol. 97, "Witnesses" s276, p. 786; United States v. United Shoe Machinery Corporation [51] ) and which has subsequently prevailed generally throughout the common law world: see, e.g., Crompton, House of Lords [52] ; Re Director of Investigation & Research and Shell Canada Ltd. [53] ; Geraghty v. Minister for Local Government [54] . That conclusion was referred to with approval by a majority of this Court in Attorney-General (N.T.) v. Kearney [55] : see per Gibbs C.J. [56] ; per Wilson J. [57] ; per Dawson J. [1] . Subject to an important reservation, it appears to me that it should be accepted as correct for this country. The reservation is that it is unnecessary to investigate here what, if any, qualification should be placed upon that conclusion to avoid potential abuse: cf. Keller, The Applicability and Scope of the Attorney-Client Privilege in the Executive Branch of the Federal Government, Boston University Law Review, vol. 62 (1982), 1003, at p. 1024 . In particular, it is unnecessary for present purposes to seek to identify the minimum academic or practical qualification which must be held by a "salaried legal adviser" before the confidentiality of his or her professional legal advice will enjoy the protection of the privilege since it has not been suggested that any officer of the Attorney-General's Department whose advice is involved in the present case would fail to satisfy any such minimum academic or practical qualification. It would, however, seem that Lord Denning's statement that salaried legal advisers are regarded by the law "as in every respect in the same position as those who practise on their own account" with the "only difference that they act for one client only, and not for several clients" would not be true of this country unless one restricted the category to persons who, in addition to any academic or other practical qualifications, were listed on a roll of current practitioners, held a current practising certificate, or worked under the supervision of such a person. I would add that the conclusion that legal professional privilege extends to protect the confidentiality of advice given by appropriately qualified salaried legal advisers makes it unnecessary to consider whether, in any event, the whole Attorney-General's Department and its officers should, when providing professional legal advice to other branches of the Executive Government, be seen as acting in a role that is more akin to that of the independent professional firm than to that of the ordinary employed salaried lawyer: cf. the remarks of Forbes J. about communications with the Treasury Solicitor in Crompton [2] .

[74]

The circumstance that advice of different categories was contained in some of the disputed documents did not, of itself, give rise to any insurmountable problem. If privileged material was contained in one distinct part of a document and non-privileged material was contained in another, protection of the confidentiality of the privileged part of the document would not, as the Act itself recognizes (see, e.g., ss. 22, 33(3), 33A(3), 34(3), 35(3), 36(4), 58(2), 64(2) and (4)), ordinarily require that that part which was not covered by privilege should also be immune from production: see, e.g., Ainsworth v. Wilding [12] ; Great Atlantic Insurance Co. v. Home Insurance Co. [13] ; Brambles Holdings Ltd. v. Trade Practices Commission [No. 3] [14] . If it were not possible to classify the contents of the document into distinct parts, it would be necessary to determine whether the contents as a whole were outside the protection of legal professional privilege for the reason that, notwithstanding the professional legal advice, they did not satisfy what has conveniently, if somewhat loosely, been referred to as "the sole purpose" test: see Grant v. Downs [15] . That test looks to the purpose for which the contents of a document were brought into existence. To adapt the words of Stephen, Mason and Murphy JJ. in Grant v. Downs, a document (or a severable part of a document) will not be protected by legal professional privilege if it "would have been brought into existence in any event" for purposes other than that which attracts legal professional privilege: and cf., e.g., the Birmingham & Midland Motor Omnibus Co. Case [16] ; Longthorn [17] ; Comment, "Agents' Reports and the Attorney-Client Privilege", University of Chicago Law Review, vol. 21 (1954), 752, at pp. 754-755. Applying that test to the circumstances of the present case, a document containing general policy advice from the "freedom of information" section of the Attorney-General's Department would not prima facie enjoy the protection of legal professional privilege if the moving purpose underlying its preparation had been to convey advice about the observance and application of general government policy proffered by the section of the Department responsible for the general administration of the Act. For the document to be protected, the cause of its existence, in the sense of both causans and sine qua non, must be the seeking or provision of professional legal advice. That is not, of course, to say that every statement in a letter from a professional legal adviser must be scrutinized to see whether it contains other than legal advice. Ordinarily, a letter from a professional legal adviser will be written only in his character as such and only for the purpose of furnishing professional legal advice. The cases where such scrutiny will ordinarily be necessary are cases like the present where a letter is or may be written in one or both of two capacities: e.g., a letter written to the secretary of a company by a person who is both a director of the company and the company's solicitor.

[78]

The carefully expressed reasons of the Tribunal seem to me to adopt the approach that the whole of a document was protected by legal professional privilege if the document was susceptible of being generally described by reference to one or other of the classes of documents mentioned by Lockhart J. in his helpful judgment in Trade Practices Commission v. Sterling [18] . For present purposes, the relevant classes of documents referred to by Lockhart J. are "[a]ny communication between a party and his professional legal adviser if it is confidential and made to or by the professional adviser in his professional capacity and with a view to obtaining or giving legal advice or assistance" (class (a)) and "[n]otes, memoranda, minutes or other documents made by the client or officers of the client or the legal adviser of the client of communications which are themselves privileged, or containing a record of those communications: class (d)." Lockhart J. was not, however, concerned with the case of documents which satisfied one or other of those descriptions by reason of part only of their contents in the sense that they contained privileged and non-privileged material or that they had been brought into existence for both a privileged and non-privileged purpose. In the case of such documents, a general classification by reference to the privileged part or privileged purpose does not determine whether privilege can be claimed in respect of the whole. Thus, in the case of the documents which are here under consideration, the Tribunal's conclusion that they came within one or other of Lockhart J.'s general descriptions because they contained or recorded legal professional advice did not dispose of the question whether the Department was entitled to refuse access to any general policy advice about the administration of the Act which they might also contain but gave rise to the further questions of severability and "sole purpose" to which I have referred. As I have indicated, the members of the Tribunal appear to have failed to address themselves at all to those further matters. In that failure, they fell into error of law.

[94]

When the above letter is read in the context of other material in evidence, it is apparent that it was written by the Attorney-General as the Minister responsible for the administration of the Freedom of Information Act to draw attention to government policy to be followed by the Treasury (in the pending proceedings before the Tribunal) and other departments in relation to the discharge of their obligations and functions under the provisions of that Act. It was not legal advice given by the senior law officer of the Commonwealth in the capacity of professional legal adviser to the Treasury in relation to the proceedings. Upon analysis, the letter contained no real legal advice at all. On one of the two legal questions to which it referred, it assumed that the documents "may be "prior documents" " as the basis of the apparently unsolicited admonition that, in accordance with general government policy on disclosure of information, it was "not appropriate to rely on that ground". On the other, it did no more than acknowledge that there "may well be" other grounds upon which production could be refused consistently with government policy. Indeed, the last two paragraphs of the letter plainly underline the distinction between the policy matters dealt with in the letter by the Attorney-General as Minister administering the Freedom of Information Act and the professional legal advice which would be given by officers of his Department if required. It has not been suggested on behalf of the Commonwealth that the nine lines of the third paragraph of the letter which were blacked out in the copy made available to Mr. Waterford's legal representatives constituted professional legal advice if the rest of the letter did not. The reason for the claim that those lines are exempt from production is that they are said to relate to Cabinet discussions. In these circumstances, it is clear that the claim that the letter enjoyed legal professional privilege was made and mistakenly upheld in the proceedings before the Tribunal on the basis of a misleading description of the contents of the letter. The significance of that is not affected by the fact that the letter was subsequently made available to Mr. Waterford since it would seem that the Treasury even now does not concede either that the letter was not protected by legal professional privilege or that the description of it given to the Tribunal was other than accurate.

[95]

There is nothing that is more calculated to undermine the principle of legal professional privilege than its abuse. Where it appears that legal professional privilege has been deliberately or inadvertently abused in that it has been invoked to protect from production documents which do not in fact fall within its ambit, there is a special need for vigilance to ensure that the full extent of any such abuse is corrected: cf. Cross on Evidence, 3rd Aust. ed. (1986), par. 13.46, pp. 640-641; Brambles Holdings Ltd. v. Trade Practices Commission [No. 3] [19] ; Edward, Confidentiality and Privilege in the EEC Context, New Law Journal, vol. 128 (1978), 1208, at p. 1208 . Otherwise, a privilege which exists to serve important public purposes will become a source of unfair and unintended advantage to the careless, the misinformed and the unscrupulous. It should be stressed that, in the present case, it is not suggested that there has been any deliberately improper claim to legal professional privilege made on behalf of the Treasury. However, the misleading description of the contents of document 29 upon the basis of which the Tribunal mistakenly held that that document was wholly protected by legal professional privilege plainly demonstrates the practical need for a reconsideration by the Tribunal, in accordance with proper legal principle, of the claim that other documents which contain policy advice, as distinct from legal professional advice, are wholly or partly protected by legal professional privilege. In all the circumstances, the Court should not decline to intervene on the ground that the manner in which the appellant's case was conducted before the Tribunal was a contributing cause of the Tribunal's failure to address the questions of severability and "sole purpose". The decision of the Tribunal should be set aside and the matter should be remitted to the Tribunal to enable it to undertake that reconsideration in relation to any of the documents whose classification as exempt documents under s. 42(1) was challenged on the appeal to the Federal Court.

At a glance

Court

Decision date

Before

Source

Judgment (137 paragraphs)

Parties