Civil procedure

Q1: Privilege

There are exceptions where discovery can be restricted. One such exception isvia claiming a privilege, such as through legal professional privilege, frommaking discovery.

Legal professional privilege covers communications between a lawyer and aclient in order to promote frank and complete disclosure between legalpractitioners and clients.

It is a principle of substantive law that can be invoked to preventdisclosure of communication that is made for the purpose of giving or obtaininglegal advice or providing legal services, where the intention for disclosurewould be to obtain confidential information.

It is arguable that the communications between the Chief Minister and thelegal practitioners from which he has received advice are of a confidentialcharacter, thus it would be possible for the him to claim legal professionalprivilege. However, this privilege may be waived by the minister's subsequentactions because at common law, anyone who has the benefit of legal professionalprivilege may waive it.

If it has in fact been waived, it would mean that the confidentialcommunications, documents or interrogatory answers are no longer protected andwould need to be disclosed in connection with legal proceedings.

Legal professional privilege can be waived via express waiver, failure toclaim the right to the privilege or waiver by implication. The manners in whichwaiver can be effected expressly or impliedly include voluntary (intentional)and inadvertent (unintentional) disclosure of privileged material.

However, there is no rule in regards to whether a statement which purports todisclose the contents of legal advice has the effect of waiving privilege. Anexample of this would be by disclosing the contents of legal advice received ina statement by a party declaring that it has legal advice supporting itsposition.

Waiver In Case Law

In Goldberg v Ng, there was disclosure of a privileged communicationto a third party, for a limited and specific purpose, and upon terms that thethird party would treat the information disclosed as confidential.

In normal circumstances, any voluntary disclosure waives legal professionalprivilege. However, in this instance the Court was divided upon whether this waswaived. It was generally held that the fact that a person chooses to discloseadvice which they have received indicates no intention on their part to waivetheir right to refuse to disclose this advice on other occasions.

Ultimately, it was held that where two or more distinct proceedings orprocedures are related, conduct in relation to one proceeding or procedure,whether anticipated or already commenced, can constitute waiver for the purposesof all proceedings and procedures.

This finding was subsequently applied and elaborated upon in Mann vCarnell where it was held that disclosure by a party of legal advicereceived by that party will waive privilege if such disclosure is inconsistentwith the confidentiality which the privilege aims to protect.

However, privilege can be still retained via the means of a limited waiver.This occurs where the holder of the privilege has disclosed the relevantcommunication upon the condition that privilege and confidentiality bemaintained and that condition has been accepted.

A number of recent cases are also relevant to the situation at hand,particularly because they concern parties that have disclosed legal advice,resulting in the loss of the ability to claim privilege over that advice so asto protect it from disclosure.

In Bennett v The Chief Executive Officer of the Australian CustomsService, the defendant who was the recipient of legal advicedisclosed the conclusions, but not the reasoning, of legal advice that it hadreceived, in order to emphasise the strength of its position. It was held thatthis disclosure meant that a claim for privilege could not be maintained in theunderlying advice.

The reason for this was that it would have been inconsistent and unfair, forthe defendant having disclosed and used the substance of the advice in this way,to now seek to maintain privilege in respect of the relevant parts of thatadvice which pertain to the expressed conclusion.

In Switchcorp Pty Ltd v Multiemedia Ltd there was an application by plaintiffs for inspection ofdocuments recording legal advice to the defendant company. The documentsconstituting legal advice were referred to in defendant's announcement toAustralian Stock Exchange. The resultant issue was whether defendant hadimpliedly waived their right to legal professional privilege.

Privilege had been impliedly waived when the defendant disclosed the gist,substance or conclusion of legal advice received by defendant via stating that‘the Board's lawyers have been instructed to vigorously defend the claim andhave advised that the plaintiffs' claim will not succeed'.

The reasoning in this case was that this was because there was aninconsistency between this statement and the confidentiality of the legal advicereceived by the defendant. As such, it was held that by making a statement tothe world at large to justify or explain its legal position, the defendantwaived the privilege.

In Nine Films & Television Pty Ltd v Ninox TelevisionLimited, Ninox Television Limited hadmade a statement to the media declaring that they had engaged the services of aQueen's Counsel who had reviewed the issues in contention and that they wouldthen ‘move forward based on his recommendations'.

It was contended by Nine & Television Pty Ltd that by doing so, NinoxTelevision Limited had waived the right to privilege over the legal advice thatit had received.

However, it was held that this statement was not a waiver of privilege. Thereason for this was that it was found that a mere announcement that advice hasbeen sought and the subsequent action taken on that advice will not besufficient to amount to a waiver. Although if there was a clear link between thestatement regarding the advice and the subsequent action taken, it could beargued that there had been a waiver.

In AWB Limited v Honourable Terence Rhoderic Hudson Cole, AWBLimited had disclosed legal advice it had received to the Independent InquiryCommittee of the United Nations, the Cole Royal Commission and the FederalGovernment. Some of these disclosures were made to the public at large.

The disclosures were found to have been made voluntarily. Therefore, it wasfound that AWB Limited's attempt to voluntarily disclose the legal advice but toseek to claim legal professional privilege over that advice wasunsuccessful.

As per its common law derived rights, AWB Limited had been entitled tomaintain legal professional privilege, but was under no compulsion to reveal theconclusions of the legal advice it had received. It did so as it considered itto be beneficial for its commercial interests.

Therefore, the actions of AWB Limited were held to be inconsistent with themaintenance of the confidentiality of the legal advice and as such, constituteda waiver of the right to privilege.

The most recent case dealing with issues relating to waiveris Osland v Secretary to theDepartment of Justice. In this instance, the plaintiff applied to access documents from the Department of Justice as well as theVictorian Civil and Administrative Tribunal, but was refused on the basis oflegal professional privilege.

On subsequent appeal, the plaintiff argued that privilege had been waived inrelation to the received legal advice, when the Attorney General published apress release which referred to the fact that the legal advice had stated thatit 'recommends on every ground that the petition should be denied.' It wascontended by the plaintiff that the voluntary disclosure of the gist, substanceor conclusion of the legal advice amounted to implied waiver over the wholeadvice.

The finding by the Court in Osland is in contrast to the findings inthe other above-mentioned recent cases. This is because the Court held that insome circumstances public disclosure (e.g. a press/media release or statement)of the gist, substance or conclusion of legal advice may not constitute a waiver.

The reasoning for this finds similarity with theother recent cases. The Court asserted it was consistent with the maintenance ofconfidentiality to disclose the conclusion of legal advice for the purpose of toexplaining and/or justifying the decision to deny the petition.

As such, the purpose of the disclosure was not todisadvantage the other party and it did not operate unfairly so as to distortthe advice or create a misleading impression.

Therefore, it was held that a statement such as one where a party refers to legal advice by stating that they believe in acertain point of view based on that legal advice, will not likely result in awaiver of the right, regardless of whether that advice is associated with abelief held by the party, or any actions undertaken by that party.

This decision confirms that there are circumstances where parties with aright to legal professional privilege will be able to disclose to the publicthat they are acting on particular legal advice and what the gist, substance orconclusion of that advice is, without being at risk of having to disclose thewhole advice by waiving the right to privilege.

However, caution should be exercised when making a decision to do so, in thatthe purpose of the disclosure will be highly relevant, as will considerations offairness. In other words, voluntary disclosure of the gist, substance orconclusion of legal advice to the public will usually amount to a waiver of theright where the purpose for such disclosure is for a party to promoting thestrength of its position or case in order to seek some advantage.

Waiver In The Current Situation

In this instance it would seem that the Chief Minister would want to utilizehis right of legal professional privilege to keep the legal advice pertaining tothe deal that was negotiated with the Independent member confidential.

However, during the course of the interview on the 7.30 Report, the ChiefMinister stated that he had received legal advice pertaining to the situation inquestion. He has also discussed the details of what that advice entailed.

If it is found that discussing such details in the course of the interview isinconsistent with the confidentiality which the privilege aims to protect, theChief Minister would have waived the right to legal professional privilege.

In this instance, the details discussed in the interview did not refer to anyreasoning, but rather the conclusion of the reasoning by stating that he wasinformed that the process undertaken by him was in accordance with the law andthat as such, the challenge by the Leader of the Opposition would beunsuccessful.

Such a statement can constitute a waiver if it has been disclosed for thepurpose of emphasising the strength of the Chief Minister's position (or becauseit is beneficial for his commercial interests).

However, if it is a mere announcement that advice had been sought, it willnot constitute a waiver if the subsequent action taken upon disclosure of theadvice had no clear link with the statement itself.

The advice was received due to the Leader of the Opposition's assertions thatthe Chief Minister acted unlawfully and unconstitutionally. It would not appearthat there would be any subsequent action in the form of litigation undertakenon the part of the Chief Minister because it would be more logical to assumethat the advice was received to determine the Chief Minister's position inregards to the assertion.

Therefore, the Chief Minister's statement disclosing this advice would seemto be for the purpose of emphasising the strength of his position. This wouldmean that he has waived the right to this privilege as the purpose would beinconsistent with the confidentiality which the privilege aims to protect.

However, the recent Osland v Secretary to the Department of Justice case holds that public disclosures of the gist, substance or conclusions oflegal advice can be consistent with the maintenance of confidentiality if thepurpose of the disclosure was not to disadvantage the other party and that itdid not operate unfairly so as to distort the advice or create a misleadingimpression.

Although this finding allowed for the ability to disclose legal advice to thepublic that parties intend to act on, as well as the substance that advice,without waiving the right to privilege; the right to privilege would still bewaived if the purpose for such disclosure is to gain advantage through promotingthe strength of a parties position or case.

Therefore, it would not seem that the recent findings in Osland would have any bearing on the Chief Minister's situation, for it has alreadybeen concluded that the disclosure of this advice would seem to be for thepurpose of emphasising the strength of the Chief Minister's position.

Additionally, it would not seem that the interview has been subject to anycondition that privilege and confidentiality be maintained and that thatcondition has been accepted because the nature of the interview itself wouldmake it impermissible that confidentiality is maintained due to it beingbroadcast on television. As such, there would appear to be no scope forprivilege to be retained via a limited waiver.

Conclusion

The Chief Minister's statement in the 7.30 Report interview has waived hisright to claim legal professional privilege. As such, he would not be able tooppose the Leader of the Opposition's application for discovery on thesegrounds.

Applications for discovery that are upheld by an Order of the Court for discovery must be complied with if there are no groundsfor opposition. As a result, the Chief Minister would have to disclose thedetails of the legal advice he has received, even if it was adverse to hissituation.