Asmar v Albanese (No 2)
[2021] VSC 324
•4 June 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICAL REVIEW AND APPEALS LIST
S ECI 2021 01465
| DIANA ASMAR IN HER CAPACITY AS SECRETARY OF THE HEALTH SERVICES UNION VICTORIA NO 1 BRANCH T/A THE HEALTH WORKERS UNION & ORS (according to the attached Schedule) | Plaintiffs |
| v | |
| THE HONOURABLE ANTHONY ALBANESE & ORS (according to the attached Schedule) | Defendants |
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JUDGE: | Matthews AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3 June 2021 |
DATE OF RULING: | 4 June 2021 |
CASE MAY BE CITED AS: | Asmar v Albanese (No 2) |
MEDIUM NEUTRAL CITATION: | [2021] VSC 324 |
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PRACTICE AND PROCEDURE – Legal professional privilege – Evidence Act 2008 (Vic), ss 118 and 119 – Defendants not required to produce the disputed documents for inspection, as to do so would be to disclose privileged communications, being legal advice.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr E Nekvapil | Robinson Gill |
| For the 1st-9th, 11th, 14th-21st, and 23rd Defendants | Mr J H Kirkwood with Mr G Jegatheesan | Holding Redlich |
HER HONOUR:
By order made by the Honourable Justice Ginnane on 2 June 2021, the hearing and determination of the dispute as to whether certain documents discovered by the defendants pursuant to orders made by his Honour on 27 May 2021 (‘Discovery Order’) are privileged was referred to me for hearing and determination (‘Privilege Dispute’).
The trial of the proceeding is currently being heard by his Honour, and as I apprehend it, the Privilege Dispute was referred to me as it was anticipated that the subject documents would likely need to be inspected in order to determine the Privilege Dispute.
I heard the Privilege Dispute in the afternoon of 3 June 2021 and indicated that I would deliver my ruling, and hopefully my reasons for that ruling, at 10.00 am the next morning. This is that ruling and my reasons for it. By necessity, these reasons are very brief, so as not to cause any delay in the continuation of the trial.
The principles in respect of legal professional privilege are well known and have been summarised in many decisions of this and other Courts. There is no need for me to set them out here, and in any event there was no real contest between the parties as to the principles. Rather, the contest was in respect of whether the particular documents were privileged.
The First to Ninth, Eleventh, Fourteenth to Twenty-first, and Twenty-Third Defendants (‘Relevant Defendants’) rely on the affidavit of Paul Eric Erickson affirmed 3 June 2021 and the affidavit of Evan Stanley Willis affirmed 3 June 2021. The Plaintiffs rely on the affidavit of Ali Besiroglu affirmed 3 June 2021.
The background to this proceeding is summarised in Asmar v Albanese [2021] VSC 263, along with the key claims and issues in the proceeding, and there is no need for me to repeat those details here. Suffice to say that the proceedings concern the validity of certain resolutions dated 4 May 2021 of the National Executive of the Australian Labor Party (‘ALP’) concerning the National Executive conducting the pre-selection of candidates for a federal election in respect of 22 federal House of Representative seats in Victoria (‘Pre-Selection Resolutions’). The proceeding also raises the validity of earlier resolutions of the National Executive to appoint administrators to the Victorian Branch of the ALP on 16 June 2020 (‘Intervention Resolutions’). There is a separate proceeding in this Court, being proceeding no. S ECI 2021 00247, which also concerns the Intervention Resolutions, amongst other things (‘Kairouz Proceeding’). As I understand it, both proceedings were listed for trial before his Honour at the same time, with this proceeding being heard before the Kairouz Proceeding.
By the Discovery Order, the defendants were ordered, inter alia, to make discovery of any documents (including electronic communications) which record communications regarding the Pre-Selection Resolutions.
The Relevant Defendants made discovery pursuant to the Discovery Order on 31 May 2021, following which they provided a list of documents dated 2 June 2021 over which legal professional privilege was claimed (‘Privilege List’). The Privilege List claimed privilege over four documents in their entirety, and over portions of another three documents. In the Privilege List, the documents were described and the basis upon which privilege was claimed was set out. The three documents with the partial privilege claims were produced in a redacted form to the Plaintiffs: the portions said to be privileged were redacted. The Plaintiffs do not challenge the privilege claim in respect of the four wholly privileged documents, but do challenge the privilege claim in respect of the redactions made in the other three documents. The documents under challenge are documents 5, 6 and 7 in the Privilege List.
Redacted and unredacted copies of documents 5, 6 and 7 were provided to me for my inspection, and both parties urged that I inspect the unredacted documents. I too consider it necessary and I have inspected them.
Document 5 is described in the Privilege List as three confidential text messages between Senator Tim Ayres (who is the Second Defendant and a member of the National Executive and the National Executive Committee) and the Honourable Richard Marles MP sent on or around 1 May 2021, for the purpose of obtaining legal advice from Mr Tony Lang of counsel in relation to correspondence from the Honourable Anthony Albanese MP (who is the First Defendant) to the National Executive and for Mr Lang to provide legal services in respect of an anticipated proceeding. The anticipated proceeding is described in the Privilege List as the proceeding foreshadowed in an article published in The Australian Financial Review on Friday 30 April 2021 (‘AFR Article’) as attached to the list (‘Anticipated Proceeding’).
Document 6 is described in the Privilege List as a confidential text message from Mr Erickson, the National Secretary of the ALP, to Senator Ayres on 3 May 2021 at 12.45pm and a confidential reply message from Senator Ayres to Mr Erickson, for the purpose of Mr Lang providing legal advice in relation to a meeting of the National Executive Committee on 3 May 2021 and recording that advice, and further for Mr Lang providing legal services in relation to the Anticipated Proceeding. The National Executive Committee is responsible for the administration of the ALP between meetings of the National Executive and amongst other things, meets to prepare the agenda for the National Executive and make recommendations to the National Executive.
Document 7 is described in the Privilege List as a confidential text exchange on the evening of 3 May 2021 between Mr Erickson and Ms Linda White (who is the Twenty‑First Defendant and a member of the National Executive), for the purpose of Mr Lang providing legal advice in relation to the proposed resolution to be put to the National Executive on 4 May 2021 (ie the proposed Pre-Selection Resolutions) and recording that advice, further for Mr Lang providing legal services in relation to the Anticipated Proceeding.
Documents 5, 6 and 7 are each said (in the Privilege List) to be privileged on the grounds that they each fall within s 118(a) and/or (c) of the Evidence Act 2008 (Vic) (‘Evidence Act’) and further s 119 (a) and/or (b) of the Evidence Act. In other words, those documents are said to be privileged because they record communications made for the dominant purpose of obtaining/providing legal advice (‘Advice Limb’) (which is contained in s 118 of the Evidence Act) and/or they record communications or are documents made/prepared for the dominant purpose of obtaining/providing legal services in connection with an anticipated proceeding (‘Litigation Limb’) (which is contained in s 119 of the Evidence Act).
Mr Erickson deposes in his affidavit that for many years, he and his predecessors as National Secretary of the ALP have retained Mr Lang to provide legal advice to the National Secretary and through the National Secretary, to the National Executive and National Executive Committee from time to time. Mr Erickson is a non-voting member of the National Executive and is a member of the National Executive Committee. Mr Erickson deposes that ordinarily communications with Mr Lang occur through him, he might share those communications with particular members of the National Executive and National Executive Committee as needed, and from time to time he authorises individual members of those two bodies to communicate directly with Mr Lang on his behalf. Mr Erickson says that all communications he has with Mr Lang are confidential and his authorisation to others to communicate with Mr Lang is on the basis of those communications being confidential. When he shares communications involving Mr Lang with other members of the National Executive or the National Executive Committee, it is on the same basis.
Mr Erickson describes the AFR Article as foreshadowing legal action by a group of trade unions in relation to the Intervention Resolutions. In addition, he describes it as indicating that the legal action would challenge the decision by the National Executive, as part of that intervention, to conduct the pre-selection of candidates for the next federal election. An objection to the latter part of Mr Erickson’s description was taken by the Plaintiffs, but it ended up being common ground that Mr Erickson’s description of the AFR Article should be read as no more than what Mr Erickson thought the AFR Article said.
Mr Erickson deposes that he thought it possible that the parties to this foreshadowed litigation might include the members of the National Executive and himself, because the members of the National Executive were at that time already defendants in the Kairouz Proceeding and the National Secretary has often been joined to litigation involving the ALP, the ALP being an unincorporated association and so not itself a legal person. He says that he knew he was going to be substantially unavailable over the weekend and so after the AFR Article was published, he spoke with Senator Ayres and Mr Lang, and authorised Senator Ayres to communicate directly with Mr Lang on his behalf to seek Mr Lang’s legal advice and professional legal services in relation to this matter, including in relation to correspondence that he understood the Leader of the Federal Parliamentary Labor Party, Mr Albanese, proposed to send requesting the National Executive to commence pre-selections for the next federal election.
Mr Erickson, who was not part of the communications contained in Document 5, says that the legal advice and services referred to in that document were within the authority that he had given to Senator Ayres to obtain from Mr Lang. He says that M Marles is the Deputy Leader of the Federal Parliamentary Labor Party and it is necessary for members of the National Executive and members of the Leadership of the Federal Parliamentary Labor Party to work together on issues coming before the National Executive.
Mr Erickson says that during the course of 3 May 2021, a number of issues arose in relation to the National Executive Committee meeting which were related to the Anticipated Proceeding, and that it became necessary to seek Mr Lang’s legal advice and services in relation to these issues. He says that he spoke to Mr Lang by telephone and obtained his oral legal advice and that he then received an email from Mr Lang confirming his legal advice on the issues. Mr Erickson says that Document 6 records the legal advice provided to him by Mr Lang, which he copied and pasted from that email into the text message.
Mr Erickson deposes that on the evening of 3 May 2021, it became necessary for him to seek legal advice and services from Mr Lang in relation to issues which had arisen in relation to the proposed Pre-Selection Resolution and which were related to the Anticipated Proceeding. He says he had several telephone conversations with Mr Lang in the course of the evening in which Mr Lang provided him with legal advice regarding those issues. He also says that Ms White had raised issues with him relating to the proposed resolution that required him to seek Mr Lang’s legal advice and services. Mr Erickson says that in the text message exchanges contained in Document 7, he recorded and discussed confidentially with Ms White the legal advice he had received from Mr Lang.
There is no need for me to summarise the submissions made by the parties at the hearing of the Privilege Dispute. Suffice to say that I have taken them all into account. I will mention aspects of the submissions where necessary.
Mr Nekvapil indicated that having read Mr Erickson’s affidavit, it was accepted that Mr Erickson had engaged Mr Lang to provide legal advice and legal services, such that a client/lawyer relationship existed between them. Mr Nekvapil also accepted that for the weekend of 30 April 2021, Senator Ayres was Mr Erickson’s agent and so also fell within the definition of client for the purposes of s 117 of the Evidence Act.
In respect of Document 5, I am satisfied that the Relevant Defendants’ claim to legal professional privilege over the redacted portions is made out. They record communications between Senator Ayres and M Marles which are clearly on their face for the purposes of obtaining legal advice from Mr Lang in relation to, as Mr Erickson describes it in his affidavit, correspondence from Mr Albanese to the National Executive. Senator Ayres is clearly the ‘client’ in this regard, having been authorised to obtain legal advice from Mr Lang. The Plaintiffs say that Document 5 is not communications between the client (ie Senator Ayres) and the lawyer (ie Mr Lang), and that the Advice Limb does not apply to communications between the client and a third party (ie Mr Marles). So much can be accepted. However, I accept the Relevant Defendants’ submission that the Advice Limb does not apply just to communications/documents between the client and the lawyer, but also to other documents or communications which, if disclosed, would disclose a communication/document between a lawyer and their client.[1] I am satisfied that the redacted portions of Document 5, if disclosed, would disclose privileged communications between lawyer and client. The communications between Senator Ayres and Mr Marles concern legal advice to be obtained by or given to Senator Ayres. They are confidential communications, Mr Erickson has explained why members of the Leadership of the Federal Parliamentary Labor Party may be involved confidentially in matters to come before National Executive, and there is no suggestion that privilege has been waived by the involvement of Mr Marles.
[1] Fenwick v Wambo Coal Pty Ltd (No 2) [2011] NSWSC 353, [30].
In respect of Document 6, I am satisfied that the Relevant Defendants’ claim to legal professional privilege over the redacted portion is made out. It is, as Mr Erickson describes it, a ‘cut and paste’ of an email to him from Mr Lang, which contains Mr Lang’s legal advice in respect of a matter to be dealt with by the National Executive Committee. I am satisfied that to disclose the redacted portion of Document 6 would be to disclose legal advice given by Mr Lang to Mr Erickson. I am also satisfied that Mr Erickson sharing that legal advice with Senator Ayres does not affect the privileged status of that advice. The text message exchange between Senator Ayres and Mr Erickson is confidential, Mr Erickson has explained the basis upon which he shares legal advice from Mr Lang with individual members of the National Executive and the National Executive Committee and there is no suggestion that privilege has been waived. That Mr Erickson shared Mr Lang’s advice with Senator Ayres on this occasion is particularly unsurprising, given Senator Ayres’ role as his agent over the weekend.
In respect of Document 7, I am satisfied that the Relevant Defendants’ claim to legal professional privilege over the redacted portions is made out. Mr Erickson’s description of the redacted portions as recording legal advice sought or obtained from Mr Lang or discussing that advice is correct. I am satisfied that to disclose the redacted portions of Document 7 would be to disclose the privileged advice. The communications between Mr Erickson and Ms White are confidential, Ms White is a member of the National Executive and Mr Erickson has explained the basis upon which he shares advice from Mr Lang with individual members of the National Executive, and there is no suggestion that privilege has been waived.
In summary, therefore, I am satisfied that the redacted portions of each of Documents 5, 6 and 7 are privileged on the grounds of the Advice Limb, specifically, on the grounds of s 118(a) of the Evidence Act, because they contain material which, if disclosed, would disclose material which is privileged by virtue of that section.
One of the main points of contention between the parties concerns the Anticipated Proceeding. The Plaintiffs contend that all that the AFR Article referred to was a possible challenge by some unions to the Intervention Resolution, which resolution included the National Executive taking over pre-selections in Victoria, and that there was likely to be a letter of demand from those unions to the National Executive that the Victorian Branch of the ALP conduct the pre-selections. The Plaintiffs contend that what is important about the AFR Article as the purported foundation for the Anticipated Proceeding is the timing: it was published prior to the letter dated 2 May 2021 from Mr Albanese to the National Executive requesting that the National Executive conduct the pre-selections. It was also published prior to the Pre-Selection Resolution being passed. So, it was said, the Anticipated Proceeding could not have been this proceeding. In response to a question from me, Mr Nekvapil accepted that this issue arises only in respect of the privilege claim based on the Litigation Limb. The Relevant Defendants submit that the Plaintiffs’ interpretation of the AFR Article is untenable, as it refers not only to previous steps taken by the National Executive (ie the Intervention Resolution) but forward steps in terms of the letter of demand. The Relevant Defendants say that the article cannot be read in the limited way suggested by the Plaintiffs.
While this was a matter of great contention between the parties, in the end it is not significant given my finding that the redacted portions of Documents 5, 6 and 7 are privileged on the basis of the Advice Limb. That the documents may also be privileged on account of the Litigation Limb therefore does not matter. I accept that the documents are said to be privileged on the Advice Limb and further on the Litigation Limb. It is not entirely clear to me what ‘further’ means in this context. I suppose it may be said that if the dominant purpose of the communication is for legal advice, how can it also be said to have the dominant purpose of legal services in connection with an anticipated proceeding. That proposition pre-supposes that the legal advice does not fall within the legal services for an anticipated proceeding. Where there are said to be two dominant purposes, there is authority for the proposition that neither purpose can be dominant. But that question usually arises where one purpose is a privileged purpose and the other is not. Here, it could only be said that the second is not a privileged purpose if it can be said that the legal services in connection with the Anticipated Proceeding do not fall within the Litigation Limb, presumably on the basis that the Anticipated Proceeding was not reasonably anticipated at the relevant time, presumably because it is said that the AFR Article did not reasonably raise this proceeding. That is where the interpretation of the AFR Article comes into play.
I have read the AFR Article. It does not matter whether the Anticipated Proceeding described therein is this proceeding. What matters is whether there it is reasonably anticipated that there may be a legal proceeding commenced, including by the matters referred to in the AFR Article. In my view, it is tolerably clear on a plain reading of that article that it is foreshadowing legal action by certain trade unions (it says as much) if the National Executive does not accede to their foreshadowed letter of demand that control of pre-selections revert to the Victorian Branch of the ALP. That the events did not quite pan out in this sequence is neither here nor there: as it turns out, it appears that the National Executive ‘got in first’ by passing the Pre-Selection Resolutions before it received the foreshadowed letter of demand. It is hardly a stretch, in light of the AFR Article, for Mr Erickson to anticipate that the Pre-Selection Resolution was likely to lead to a proceeding being commenced. I accept that he reasonably anticipated that there may be such a proceeding.
That said, based on my reading of Documents 5, 6 and 7, I consider that the subject communications with Mr Lang, including the preparatory communications between Senator Ayres and Mr Marles in Document 5, were for the dominant purpose of obtaining/giving legal advice in connection with the matters deposed to in each respect by Mr Erickson as I have summarised above. That those matters ended up becoming part of the subject matter of this proceeding, such that it could be said that they were for the purposes of legal services in connection with an anticipated proceeding (ie in the end, this proceeding), does not add anything to the analysis.
For the sake of completeness, I should also indicate that I do not consider that the ‘technical point’ mentioned by Mr Nekvapil in respect of s 131A of the Evidence Act arises, for the reasons advanced by Mr Kirkwood. In any event, it is of little consequence: if the Evidence Act does not apply, then the common law principles in respect of privilege would apply,[2] and an assessment of the evidence and the three documents based on those principles would lead to the same conclusion.
[2]Cargill Aust Ltd & Ors v Viterra Malt Pty Ltd & Ors (No 8) [2018] VSC 193, [42]; Alphington Developments Pty Ltd v Amcor Limited (No 2) [2018] VSC 293, [22]-[27].
At the conclusion of the hearing, I also heard submissions from Counsel as to the orders which should be made in respect of costs, depending on which way the decision on the Privilege Dispute went. In my view, the timing of the discovery made, including the provision of the Privilege List, of Mr Erickson’s affidavit, and of the hearing, meant that there was very little time for the parties to fully explore their dispute via correspondence with a view to avoiding the hearing. I also accept Mr Nekvapil’s submission that if it had not been necessary to inspect the disputed documents, the Privilege Dispute would likely have been dealt with in the course of the trial by his Honour, such that the costs of it would likely have been costs in the proceeding. Therefore, I consider the appropriate order in respect of costs to be that the Plaintiffs’ and Relevant Defendants’ costs of and incidental to the Privilege Dispute be their costs in the proceeding.
Orders will now be made to give effect to this ruling.
SCHEDULE OF PARTIES
| S ECI 2021 01465 | |
| BETWEEN: | |
| DIANA ASMAR in her capacity as secretary of the Health Workers Union Victoria No 1 Branch | First Plaintiff |
| HIBA SALEM in her capacity as delegate of the Victoria Branch of the Australian Labor Party’s Administrative Committee | Second Plaintiff |
| [NONE] | Third Plaintiff |
| MICK MYLES, on behalf of himself as a member of the party and as a member of the Victorian Divisional Branch of the Construction and General Division of the Construction, Forestry, Maritime, Mining And Energy Union (“CFMMEU Construction And General Division Victoria”), and in a representative capacity on behalf of CFMMEU Construction and General Division Victoria and its members | Fourth Plaintiff |
| BEN DAVIS, on behalf of himself as a member of the Party and as a member of the Victorian Branch of the Australian Workers’ Union (“AWU Victoria”), and in a representative capacity on behalf of AWU Victoria and its members | Fifth Plaintiff |
| PAUL HEALEY, on behalf of himself as a member of the Party and as a member of the Victoria No. 2 Branch of the Health Services Union (“HSU Victoria 2”), and in a representative capacity on behalf of HSU Victoria 2 and its members | Sixth Plaintiff |
| EARL SETCHES, on behalf of himself as a member of the Party and as a member of the Victorian Branch of the Plumbing Division of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“CEPU Plumbing Division Victoria”), and in a representative capacity on behalf of CEPU Plumbing Division Victoria and its members | Seventh Plaintiff |
| [NONE] | Eighth Plaintiff |
| PETER MARSHALL, on behalf of himself as a member of the Party and as a member of the Victorian Branch of the United Firefighters Union (“UFU Victoria”), and in a representative capacity on behalf of UFU Victoria and its members | Ninth Plaintiff |
| PAUL CONWAY, on behalf of himself as a member of the Party and as a member of the Victorian Branch of the Australasian Meat Industry Employees Union (“AMIEU Victoria”), and in a representative capacity on behalf of AMIEU Victoria and its members | Tenth Plaintiff |
| SHANE STEVENS, on behalf of himself as a member of the Party and as a member of the Victorian Divisional Branch of the Maritime Union of Australia Division of the Construction, Forestry, Maritime, Mining and Energy Union (“CFMMEU Maritime Victoria”), and in a representative capacity on behalf of CFMMEU Maritime Victoria and its members | Eleventh Plaintiff |
| LUBA GRIGOROVITCH, as a member of the Party and as a member of the Victorian Branch of the Australian Rail, Tram and Bus Industry Union (“RTBU Victoria”), and in a representative capacity on behalf of RTBU Victoria and its members | Twelfth Plaintiff |
| UNITED FIREFIGHTERS’ UNION OF AUSTRALIA | Thirteenth Plaintiff |
| - v - | |
| THE HONOURABLE ANTHONY ALBANESE | First Defendant |
| SENATOR TIM AYRES | Second Defendant |
| STEVEN BAKER | Third Defendant |
| NICK CHAMPION | Fourth Defendant |
| KATE DOUST | Fifth Defendant |
| GERARD DWYER | Sixth Defendant |
| DAVID GRAY | Seventh Defendant |
| ROSE JACKSON | Eighth Defendant |
| TIM JACOBSON | Ninth Defendant |
| GRAEME KELLY | Tenth Defendant |
| SENATOR SUE LINES | Eleventh Defendant |
| TARA MORIARTY | Twelfth Defendant |
| BOB NANVA | Thirteenth Defendant |
| MICHAEL O’CONNOR | Fourteenth Defendant |
| MICHAEL RAVBAR | Fifteenth Defendant |
| AMANDA RISHWORTH | Sixteenth Defendant |
| WENDY STREETS | Seventeenth Defendant |
| SHANNON THRELFALL-CLARKE | Eighteenth Defendant |
| SENATOR RAFF CICCONE | Nineteenth Defendant |
| SUSIE BYERS | Twentieth Defendant |
| LINDA WHITE | Twenty-first Defendant |
| [NONE] | Twenty-second Defendant |
| MICHAEL DONOVAN | Twenty-third Defendant |
| LLOYD WILLIAMS | Twenty-fourth Defendant |
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