Attorney-general (NT) v Maurice

[1986] HCA 80

HIGH COURT OF AUSTRALIA

Gibbs C.J., Mason, Brennan, Deane and Dawson JJ.

ATTORNEY-GENERAL (N.T.) v. MAURICE

(1986) 161 CLR 475

16 December 1986

Practice

Practice—Discovery—Production of document for inspection—Privilege—Legal professional privilege—Waiver—When imputed from conduct—Aboriginal land claim—Claim book filed and distributed to other parties—Whether waiver of privileged source materials used in preparation of book.

Decisions

GIBBS C.J.: These appeals are from a judgment of the Full Court of the Federal Court of Australia. The appellant, the Attorney-General for the Northern Territory of Australia, had sought in that court to challenge, by the alternative means of an application for judicial review and an application for a writ of mandamus, a decision of Maurice J., sitting as Aboriginal Land Commissioner, that he should not require the production of certain documents sought by the appellant. Maurice J. held that the documents sought to be produced were the subject of legal professional privilege and that the privilege had not been waived. The Full Court, which agreed with these conclusions, dismissed the application for judicial review and discharged the order nisi for mandamus.

2. The proceedings relate to an application ("the Warumungu Land Claim") made in 1978 on behalf of Aboriginals claiming to be traditional Aboriginal owners of a number of areas of land near Tennant Creek. The application was made under s.50(1)(a) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), as amended ("the Act"). The Act does not deal in detail with the procedure to be followed by an applicant, but a procedure has developed under which an applicant lodges a claim book with the Commissioner and a practice direction, made by Toohey J. when Aboriginal Land Commissioner, in pursuance of power given by s.51 of the Act, provides that except in special circumstances no date will be fixed for the hearing of such an application until the claim book relating to that application has been lodged with the Commissioner's associate. The claim book not only gives particulars of the claim but may also go into considerable detail (historical, anthropological and ethnological) in support of the claim. In September 1982 a claim book ("the 1982 Claim Book") prepared on behalf of the claimants was lodged with the Aboriginal Land Commissioner (then Kearney J.) and copies were distributed to the lawyers representing other parties, including those representing the appellant. It is a substantial document, occupying 447 pages of the appeal book. When the inquiry commenced before Kearney J. later that year, counsel for the claimants tendered the claim book, but the tender was never formally accepted or rejected. Counsel also made one or two references to the claim book in the course of his opening address on behalf of the claimants.

3. The proceedings before Kearney J. were adjourned to enable a question of jurisdiction to be determined by this Court. After that question had been settled in favour of the claimants, the hearing resumed de novo before Maurice J. in March 1985. The claimants then did not rely on the 1982 Claim Book but instead used a document described as a "guide". Nevertheless there were some references to the 1982 Claim Book by counsel for the claimants in the course of his examination of two witnesses. Subsequently, at the instance of the appellant, Maurice J. made an order under s.54 of the Act requiring the production of documents some of which had been prepared for the purposes of the land claim and formed source material for the 1982 Claim Book. It was objected that those documents were protected by legal professional privilege and Maurice J. found that the documents now in question were so protected.

4. The documents in question are not specifically mentioned in the 1982 Claim Book, and no passages from them are set out in that book. They apparently comprised field notes and working records which were used in the compilation of the claim book. The appellant does not now challenge the finding that those documents were originally the subject of legal professional privilege but submits that the privilege was waived when the claim book of which they were the source was distributed and used. The matter was argued as though the question in issue was whether source material is waived by a waiver of the privilege in respect of a document derived from that source material. Although it does not matter, it does not seem to me right to suggest that the 1982 Claim Book was privileged. It was not a document which had been brought into existence for the sole purpose of being submitted to legal advisers for advice or use in legal proceedings: see Grant v. Downs (1976) 135 CLR 674. On the contrary the completed claim book (any drafts were no doubt in a different situation) was intended to be, and was, communicated to all the parties concerned and it was open to any party to make any proper use of it. However, if the claim book had been privileged, there can be no doubt that the distribution of the copies would have waived the privilege. On either view the question is whether the publication and use of the claim book constituted a waiver of the privilege in respect of the documents which formed some of its sources.

5. The rule which recognizes legal professional privilege goes back at least to the time of Elizabeth I (see Wigmore on Evidence, McNaughton rev., vol.VIII, par.2290) but that does not mean that it is archaic, technical or outmoded. Without the privilege, no one could safely consult a legal practitioner and the administration of justice in accordance with the adversary system which prevails at common law would be greatly impeded or even rendered impossible. This has been recognized in many cases: see, for example, Grant v. Downs, at p 685; Reg. v. Bell; Ex parte Lees (1980) 146 CLR 141, at p 152; Baker v. Campbell (1983) 153 CLR 52, at pp 66, 94, 114. In the last-mentioned case, the majority of the Court described the rule as fundamental or essential (see at pp.88, 95, 116-117, 131-132) and held that it was not confined to judicial or quasi-judicial proceedings. However like every privilege properly so called it can be waived, although only by the person entitled to claim it, that is the client, and not the client's legal representative.

6. 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."

7. 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. Oppenheim (1884) 26 ChD 724; Buttes Oil Co. v. Hammer (No. 3) (1981) QB 223, at pp 252, 268) or in an affidavit (Lyell v. Kennedy (1884) 27 ChD 1, at p 24; Infields, Ltd. v. P. Rosen &Son (1938) 3 All ER 591, at p 597; Tait &Lyell 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), at p 252. 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.

8. It is not difficult to see that where a document deals with a single subject-matter it would be unfair to allow a party to use part of the document and claim privilege as to the remainder. So it has been held that where cross-examining counsel asked a witness whether he had said certain things in a written statement, examining counsel was entitled to require the whole statement to be put into evidence: Burnell v. British Transport Commission (1956) 1 QB 187. Similarly, where a party disclosed a document which contained part only of a memorandum which dealt with a single subject-matter, and then read the document to the judge in the course of opening the case, it was held that privilege was waived as to the whole memorandum: Great Atlantic Insurance Co. v. Home Insurance Co. (1981) 1 WLR 529; 2 All ER 485. In that case Templeman L.J. said, at pp 538-539; p 492 of All ER:

"... the rule that privilege relating to a document which deals with one subject matter cannot be waived as to part and asserted as to the remainder is based on the possibility that any use of part of a document may be unfair or misleading, that the party who possesses the document is clearly not the person who can decide whether a partial disclosure is misleading or not, nor can the judge decide without hearing argument, nor can he hear argument unless the document is disclosed as a whole to the other side. Once disclosure has taken place by introducing part of the document into evidence or using it in court it cannot be erased."

9. The same test must be applied in deciding whether the use in legal proceedings of one document impliedly waives privilege in associated material. In Nea Karteria Maritime Co. Ltd. v. Atlantic &Great Lakes Steamship Corporation (No. 2) (1981) Com.LR 138 Mustill J. dealt with this question and, at p 139, suggested the following test:

"... where a party is deploying in court material which would otherwise be privileged, the opposite party and the court must have an opportunity of satisfying themselves that what the party has chosen to release from privilege represents the whole of the material relevant to the issue in question. To allow an individual item to be plucked out of context would be to risk injustice through its real weight or meaning being misunderstood."

In General Accident Corporation v. Tanter (1984) 1 WLR 100; 1 All ER 35, Hobhouse J. considered that in this passage Mustill J. used the words "deploying in court" in a strict sense, as referring to what is in evidence: see at p.113; p.46 of All E.R. After carefully reviewing the authorities, Hobhouse J. held that it was only where privileged material was adduced in evidence by the party to whom privilege attached that the waiver extended to related material. He said, at p.114; p.47 of All E.R., that "the underlying principle is one of fairness in the conduct of the trial and does not go further than that." In the United States it appears that so strict a view has not been taken. In United States v. Cote (1972) 456 F 2d 142 it was held that a taxpayer by filing income tax returns waived privilege in the working papers used in preparing the returns. In the United States, also, the principle that there is a waiver if fairness requires it appears to be well accepted: The Duplan Corporation v. Deering Milliken Inc. (1975) 397 Fed.Sup. 1146, at pp 1161-1162; Weil v. Investment/Indicators, Research and Management Inc. (1981) 647 F 2d 18, at p 24.

10. If Hobhouse J. was correct in saying that there is no waiver of associated material until that material is adduced in evidence it follows in the present case that privilege in the source material has not been waived. In my opinion however the rule is not so inflexible; the question is whether the disclosure or use of material that has been made renders it unfair to uphold the privilege in the associated material, and although the question whether the material that has been disclosed has been used in evidence is relevant, it is not decisive.

11. The Claim Book of 1982 was in some respects analogous to a pleading; it served to state the case which the claimants intended to present although it went into much more detail than would be expected of a formal pleading. So long as the claim book was not used in any other way, it is impossible to say that it was in any respect unfair or misleading to lodge it with the Commissioner and to distribute it to the parties without making available the sources from which it was derived.

12. The 1982 Claim Book was a document of a kind that would not be admissible in ordinary proceedings, but if it had been admissible in the proceedings before the Aboriginal Land Commissioner, and if it had in fact been admitted as evidence, the appellant would have been entitled to test its accuracy and weight, and since that could hardly be done unless it was known on what sources it was based, considerations of fairness might have required those sources to have been produced. However it was not unfair or misleading for the claimants to make some reference to the book during the opening of the case before Kearney J. and to put some questions in the course of the examination of two of the witnesses, without making the source materials available. The use of the book in examination was in the case of one witness (Dr Nash) for the purpose of showing that certain corrections made to the claim book were corrections to typing and matters of that kind and in the case of the other witness (Miss Lloyd) for the purpose of identifying the portions of the book for which she had been responsible, apparently with a view to showing the consistency of her evidence. The source materials in question were in the possession of another witness, Mr Reyburn, who was cross-examined by counsel for the appellant as to what documents specified in the notice given under s.54 of the Act he had taken into account in preparing the 1982 Claim Book or his proof of evidence which was tendered before Maurice J. The contents of the source materials were not revealed, and the 1982 Claim Book does not show how any particular source document was used. The case is not one in which the disclosure of a document, or the giving of evidence, without the disclosure of associated material, would give a partial or misleading picture, or would otherwise prejudice or embarrass the appellant in the conduct of the case.

13. Clearly the claimants had no intention to waive privilege in the source materials. In the circumstances, having regard to the principles which I have endeavoured to state, a waiver could not be implied.

14. I would dismiss the appeals.

MASON AND BRENNAN JJ.: The issue in these appeals is whether a litigant waives legal professional privilege attaching to research materials accumulated in the preparation of a "claim book" setting out the basis of an Aboriginal land claim when that claim book has been circulated as required by Practice Directions. The Aboriginal Land Commissioner (Maurice J.) hearing the claim held that the Aboriginal claimants had not waived the privilege to the underlying research materials. On appeal the Full Court of the Federal Court found no error in the Commissioner's decision and dismissed the appeals. The Attorney-General for the Northern Territory now appeals, pursuant to the grant of special leave from the decision of the Full Court of the Federal Court (Bowen C.J., Woodward and Toohey JJ.).

2. This case arises out of the Warumungu Land Claim. Pursuant to the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ("the Act"), certain Aboriginals claimed to be the traditional Aboriginal owners of unalienated Crown land around Tennant Creek in the Northern Territory. The land claim was first brought on behalf of the Aboriginal claimants by the Central Land Council and came before the then Aboriginal Land Commissioner (Kearney J.) in November 1982.

3. Section 50(1) of the Act describes the functions of the Commissioner and requires him, upon application by or on behalf of Aboriginals making a land claim, to ascertain whether the Aboriginals are "the traditional Aboriginal owners of the land" and to make a report of his findings to the Minister for Aboriginal Affairs and to the Administrator of the Northern Territory. Applications must, inter alia, identify the individuals making the land claim, and describe the claimed land.

4. Section 51 of the Act provides that the Aboriginal Land Commissioner "may do all things necessary or convenient to be done for or in connexion with the performance of his functions". Under the authority conferred by that provision, the first Aboriginal Land Commissioner, Toohey J., promulgated Practice Directions to govern the procedure of land claims under the Act. The current version is to be found in the Aboriginal Land Commissioner Report for year ended 30 June 1979, (1980) pp.9-13. These Practice Directions govern proceedings in land claims including the proceedings before Kearney J.

5. With the aim of "assist(ing) in the orderly presentation and hearing of applications", the Practice Directions require that a "claim book relating to that application" be lodged with the Commissioner's Associate. The Practice Directions do not make clear what the claim book is to contain or its specific purpose, but the practice that has developed in these land claims seems to be that the claim book sets forth the basis of the claim. This conclusion is supported by the Practice Directions' request that:

"Those appearing on the hearing of an application are asked as far as is practicable to prepare and exchange statements of their intended evidence and any material of a technical nature proposed to be used as evidence and to give a copy of those statements and that material to the Commissioner's Associate before the hearing."

The Practice Directions also provide that, although the hearings are to be conducted "broadly along the lines of conventional court proceedings", they are to be less formal. Moreover, they provide that there is to be "no strict adherence" to the normal rules of evidence.

6. Section 21 of the Act provides for the establishment of Land Councils whose functions include "assist(ing) Aboriginals claiming to have a traditional land claim ... in pursuing the claim, in particular, by arranging for legal assistance for them at the expense of the Land Council" (s.23(f)). The Central Land Council, established under s.21, in performance of its statutory function carried out an investigation of the Warumungu land claim. Several anthropologists and linguists conducted field work and the Land Council made use of this research in bringing into existence a claim book ("the 1982 Claim Book").

7. At the hearing before Kearney J., counsel for the Land Council tendered the 1982 Claim Book in evidence. After counsel for the Attorney-General objected, the Commissioner did not admit the 1982 Claim Book as evidence. Counsel for the Land Council did, however, make general references to the 1982 Claim Book during the hearing. On 4 November 1982, Kearney J. adjourned the proceedings, believing that he had been deprived of jurisdiction to deal with the land claim by reason of the Northern Territory Minister for Lands having granted leases over part of the claimed area on 29 October 1982. Subsequently, this Court made an order absolute for mandamus requiring the Land Commissioner to proceed with the hearing of the land claim on the ground that the grant of the leases over part of the land did not deprive the Commissioner of jurisdiction to deal with the claim.

8. The further hearing of the land claim took place before Maurice J. who had been appointed an Aboriginal Land Commissioner in the meantime. The further hearing was treated as a hearing de novo. For the fresh proceedings the claimants prepared and filed a "Guide Book" which was a shorter version of the 1982 Claim Book. The 1982 Claim Book was neither filed nor tendered in those proceedings, save for the limited purposes of the dispute now under consideration.

9. The Attorney-General sought disclosure of some of the documents that provided source material for the 1982 Claim Book. Maurice J. held that the claimants had waived any legal professional privilege attaching to the 1982 Claim Book itself, when they filed, exchanged and tendered it in the first proceeding. His Honour, however, rejected the submission that, by distributing the 1982 Claim Book and tendering it in evidence in the first proceeding the Aboriginal claimants had manifested an intention to waive any privilege adhering to the source materials for the 1982 Claim Book. His Honour explained that in view of:

"... the novelty (in the land claim context) of the requirement that source materials be produced, the lack of prescribed procedures for the investigation of traditional land claims, and the fact that it has not been the practice in the past to produce all materials of this sort upon request or otherwise, I am not satisfied that the applicants or their legal advisers did harbour any such intention. Indeed, such has been the lack of discussion in the past about practice and procedures for the investigation of traditional land claims that I doubt if the applicants' advisers gave much consideration at all to what might be the consequences of the proposed tender."

His Honour went on to say:

"... the 1982 claim book has not been deployed in the evidence before me. The tender was not accepted by Kearney J. in 1982 and, in any event, mine is a fresh and independent inquiry. Accepting, as I do, that there is a distinction to be made between pre-trial disclosures and those which occur in the course of evidence, I am of the opinion that considerations of fairness in the conduct of my inquiry do not require that the privilege adhering to the source materials upon which the authors of the 1982 claim book drew be treated as having been waived."

Maurice J. thus held that the waiver of privilege attaching to the 1982 Claim Book did not extend to the background materials such as the field notes and reports of the anthropologists and linguists.

10. Legal professional privilege is an ancient doctrine which has assumed a life of its own. Succinctly stated, the privilege protects from disclosure "communications made confidentially between a client and his legal adviser for the purpose of obtaining or giving legal advice or assistance": Reg. v. Bell; Ex parte Lees (1980) 146 CLR 141, at p 144 (per Gibbs J.). The raison d'etre of legal professional privilege is the furtherance of the administration of justice through the fostering of trust and candour in the relationship between lawyer and client. The privilege is based on:

"... the need of laymen for professional assistance in the protection, enforcement or creation of their legal rights. They should have the benefit of that assistance, free of any restraint which fear of the disclosure of their communications with those advisers would impose."

(Reg. v. Bell, at p 152, per Stephen J.). When the privilege applies, it enables the client to keep the communication from disclosure and interferes with the public's "right to every man's evidence": Cobbett's Parliamentary History (1812) vol.12, at p.675. Because of this conflict between the public interest in ensuring the availability of all relevant evidence in a particular case and the public interest in the administration of justice through effective legal representation, the privilege is confined within strict limits: Grant v. Downs (1976) 135 CLR 674, at p 685, per Stephen, Mason and Murphy JJ.

11. The limiting effect of legal professional privilege on the availability of evidence otherwise relevant is confined, inter alia, by the doctrine of waiver. 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, 2327, at 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 v. Home Insurance (1981) 1 WLR 529; (1981) 2 All ER 485.

12. 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 v. International Business Machines (1978) 573 F 2d 646. 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 (1981) 647 F 2d 18. As the court in Champion International Corp. v. International Paper Co. (1980) 486 F Supp 1328, at p 1333 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?"

13. In this case the appellant argues that the respondent Aboriginal claimants waived legal professional privilege in the source materials of the 1982 Claim Book by tendering it in evidence and referring to it during the hearing before Kearney J. We cannot agree.

14. Aboriginal land claims are unique proceedings. In proving that they are the "traditional Aboriginal owners", Aboriginal claimants must show that they are of a local descent group that has "common spiritual affiliations" to the claimed land and, by "Aboriginal tradition", have a right to forage over that land (ss.3 and 50 of the Act). Because proof of these matters requires unusual evidence such as descriptions of traditions, observances, customs and beliefs of Aboriginals, the procedures of the Commission are less formal than those of ordinary judicial proceedings. The 1982 Claim Book is a product of these unique proceedings and does not fit neatly within established categories. A claim book's closest analogy is with a pleading. There is a requirement that the claim book be filed. It specifies the claimants and the claimed land, and sets forth the basis of the claim (see Toohey J., "Aboriginal Land" (1985) 15 Federal Law Review 159, at p.173). It is well settled that a litigant of course does not waive his legal professional privilege to research materials, directly or by implication, by merely submitting a pleading. See Buttes Oil Co. v. Hammer (No. 3) (1981) QB 223, at p 252; Roberts v. Oppenheim (1884) 26 ChD 724.

15. The 1982 Claim Book differs from a pleading in that it contains a substantial amount of historical and anthropological information tracing the history of the Warumungu over the past one hundred years. The inclusion of this material should not undermine the protection of the privilege. A claim book is not treated as evidence of the facts alleged in it. While there is, as Maurice J. noted, a dearth of procedures in land claims to guide claimants, the Practice Directions request that "Those appearing on the hearing of an application ... as far as is practicable to prepare and exchange statements of their intended evidence". Source materials have not usually been required to be produced in land claims, and it would be unfair to impute to the respondents a waiver of the privilege attaching to source materials merely because the respondents, in complying with Practice Directions without clear procedures to follow, provided information tracing the basis of their claim.

16. More importantly, the appellant has not been prejudiced by a partial disclosure - i.e., the disclosure of the 1982 Claim Book and non-disclosure of the source materials. Although the Central Land Council tendered the 1982 Claim Book in the first proceeding the book never found its way into evidence. The respondents have not sought to reveal beneficial parts while keeping injurious parts hidden, and although the Central Land Council referred to the 1982 Claim Book in the first proceeding before Kearney J., those references were very general and were not prejudicial. For example, early in that first proceeding, counsel for the respondents made the following reference:

"Historically, the extent of Warumungu influence is well documented and quite a considerable section of the claim book is devoted to references from the works of early explorers and others which indicate the extent of that influence."

This statement does not seek to use partially disclosed privileged communications as evidence and the appellant can hardly argue that it is prejudiced by this passing reference to non-privileged material.

17. In the result Maurice J. was correct in refusing to require disclosure of the source material of the 1982 Claim Book.

18. The appeals should be dismissed with costs.

DEANE J.: It is a substantive general principle of the common law and not a mere rule of evidence that, subject to defined qualifications and exceptions, a person is entitled to preserve the confidentiality of confidential statements and other materials which have been made or brought into existence for the sole purpose of his or her seeking or being furnished with legal advice by a practising lawyer or for the sole purpose of preparing for existing or contemplated judicial or quasi-judicial proceedings (see, generally, Baker v. Campbell (1983) 153 CLR 52). That general principle is of great importance to the protection and preservation of the rights, dignity and freedom of the ordinary citizen under the law and to the administration of justice and law in that it advances and safeguards the availability of full and unreserved communication between the citizen and his or her lawyer and in that it is a precondition of the informed and competent representation of the interests of the ordinary person before the courts and tribunals of the land. Its efficacy as a bulwark against tyranny and oppression depends upon the confidence of the community that it will in fact be enforced. That being so, it is not to be sacrificed even to promote the search for justice or truth in the individual case or matter and extends to protect the citizen from compulsory disclosure of protected communications or materials to any court or to any tribunal or person with authority to require the giving of information or the production of documents or other materials (see Pearse v. Pearse (1846) 1 De G. &Sm. 12, at pp 28-29 (63 ER 950, at p 957); Baker v. Campbell, at pp 115-116). The right of confidentiality which the principle enshrines has recently, and correctly, been described in the European Court of Justice as a "practical guarantee" and "a necessary corollary" of "fundamental, constitutional or human rights" (see A.M. &S. Europe Ltd. v. Commission of The European Communities (1983) 1 QB 878, at pp 941, 947; Baker v. Campbell, at p 85). Indeed, the plain basis of the decision of the majority of this Court in Baker v. Campbell was the acceptance of the principle as a fundamental principle of our judicial system (see Murphy J., at p 88; Wilson J., at pp 95-96; Deane J., at pp 116-117; Dawson J., at pp.131-132). Like other traditional common law rights, it is not to be abolished or cut down otherwise than by clear statutory provision. Nor should it be narrowly construed or artificially confined.

2. It would seem to be common ground that the materials, to which the appellant Attorney-General for the Northern Territory seeks access through the present appeal and which I shall call the "source materials", are of a kind which prima facie brings them within the protection of the "legal professional privilege" of the Aboriginal claimants in the quasi-judicial proceedings before the Aboriginal Land Commissioner under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ("the Act") in relation to the Warumungu Land Claim. It is not suggested that there is anything in the nature of the source materials or the circumstances of their preparation which deprives them of that prima facie protection. What is submitted on behalf of the appellant Attorney-General is that the Aboriginal claimants have waived the right to rely upon the privilege to resist disclosure of the source materials in relation to the current proceedings before an Aboriginal Land Commissioner (Maurice J.) by reason of the publication to other parties of the 1982 claim book and the subsequent tender of and reference to that book in the course of the earlier and discontinued hearing before a different Aboriginal Land Commissioner (Kearney J.). In that regard, it should be mentioned that the tender of the book was not accepted and that any subsequent references to it were not on the basis that it constituted evidence of the truth of its contents. For their part, the Aboriginal claimants do not now dispute that that publication, tender of and reference to the 1982 claim book involved a waiver by them of any right to assert legal professional privilege in relation either to the documents actually constituting the book or to the documents expressly referred to in it. The only issue in the present appeal is whether that publication and tender of the claim book waived the right of the Aboriginal claimants to rely on legal professional privilege in relation to some or all of the source materials, which were not specifically mentioned in the book, by reason of the fact that they constituted the basis or source of allegations or statements contained in it. Plainly enough, there was no actual waiver of the right to assert legal professional privilege in relation to such materials as a matter of subjective intent (see Craine v. Colonial Mutual Fire Insurance Co. Ltd. (1920) 28 CLR 305, at p 326). If the right to assert the privilege has been waived, it must be by imputation of law in the circumstances of the case.

3. If the claim book had been actually used as evidence on the prior hearing, a real question would have arisen about whether, by so using it, the Aboriginal claimants had waived any right to assert legal professional privilege in the source materials upon which it was based. It was not, however, prepared for use, or accepted or used, as evidence. It was prepared in accordance with the procedural practice adopted by the Aboriginal Land Commissioner pursuant to s.51 of the Act that, "(e)xcept in special circumstances no date will be fixed for the hearing of an application until the claim book relating to that application has been lodged with the Commissioner's Associate" (see Aboriginal Land Commissioner's Report for year ended 30 June 1979, p.10, proposed revision of practice directions No. 10 and Toohey J., "Aboriginal Land", Federal Law Review, vol. 15 (1985), 159, at p.173). The purpose for which the book was prepared and the function for which it was sought to be used and was used (on the earlier hearing) would appear to be accurately indicated by the names used to identify it: it was a "claim" or "guide" book describing or outlining the case which it would be sought, in due course, to establish on the hearing before the Commissioner. To borrow and adjust the words used by counsel for the claimants (Mr. Howie) in referring to the subsequent (1983) claim book in the course of the current hearing before Maurice J.: it served the purpose and function of a guide to the Commissioner and to others involved in the claim "as to the basic outline of the claim"; "what really matters is the evidence of the Aboriginal claimants and the claim book is intended to be a guide to that, but not proof of it". Notwithstanding the anthropological detail and expertise which it exhibited, its essential function can be equated with that of a detailed pleading which the claimants were required to prepare and make available before their claim was heard.

4. In these circumstances, there is simply no basis in law for a finding that the effect of the preparation, publication, tender of and limited reference to the 1982 claim book was that there was to be imputed to the Aboriginal claimants a waiver of their right to rely upon legal professional privilege in relation to documents which neither formed part of nor were expressly referred to in the book. 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) (1981) 1 QB 223, at pp 251-252). 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.

5. The appeals should be dismissed with costs.

DAWSON J.: These are appeals from the Full Court of the Federal Court before which the appellant, the Attorney-General for the Northern Territory, unsuccessfully contested a ruling given by Maurice J., an Aboriginal Land Commissioner. The latter was hearing an application pursuant to the provisions of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) by a group of Aboriginals claiming to be the traditional owners of land in the area of Tennant Creek. The claim has become known as the Warumungu Land Claim. The ruling given by the Commissioner was that there had been no waiver by the claimants of legal professional privilege in relation to certain documents which had been brought into existence for the sole purpose of the preparation of the claim before the Commissioner. The claim was being presented on behalf of the claimants by the Central Land Council through which the claimants were legally represented. Under s.23(1)(f) of the Aboriginal Land Rights (Northern Territory) Act, the functions of a Land Council include the assistance of Aboriginals claiming to have a traditional land claim to an area of land within the area of the Land Council, in particular, by arranging for legal assistance for them at its expense.

2. The provisions of the Aboriginal Land Rights (Northern Territory) Act give little guidance in the procedure to be followed in the hearing of an Aboriginal land rights claim. Section 49 provides that there shall be an Aboriginal Land Commissioner and s.50 provides that upon application being made by or on behalf of Aboriginals claiming to have a traditional land claim to an area of land, his functions include, amongst other things, ascertaining whether those Aboriginals or any other Aboriginals are the traditional Aboriginal owners of the land. Section 51 provides that the Commissioner may do all things necessary or convenient to be done for or in connexion with the performance of his duties. Under s.54 he may issue notices to persons whom he believes to have information relating to a land claim to appear before him and answer questions or to produce specified documents or both.

3. This particular land claim came before the then Commissioner, Kearney J., in 1982. A book referred to as the "1982 Claim Book" was produced on behalf of the claimants and distributed to the parties to the claim. In opening the claimants' case counsel referred to it. The Central Land Council sought to tender the claim book as evidence but objection was taken to it. Kearney J. did not rule upon the objection then, but simply marked the book for identification.

4. Questions of jurisdiction arose and, after proceedings in this Court, the hearing of the land claim was resumed in 1985 before Maurice J., who by that time had been appointed an Aboriginal Land Commissioner. The hearing before Maurice J. was treated as a hearing de novo and no reliance was placed upon the 1982 Claim Book. Instead, another document called a Guide Book was produced. However, in the course of cross-examination of one of the authors of the 1982 Claim Book, parts of it were put to him and the book was then tendered in evidence for the purpose of testing questions of legal professional privilege relating to it.

5. It was contended by the Attorney-General that any privilege in the 1982 Claim Book had been waived by reason of what had happened before Kearney J. Not only that, but, so it was contended, privilege was also waived in those documents which were prepared in the course of research for the compilation of the claim book. Maurice J. ruled that privilege in respect of the claim book had been waived but held that there was no waiver of any privilege in the documents which lay behind it. It is only this latter ruling which was contested in the Federal Court and is contested before us.

6. I should say at the outset that I regard it as inappropriate to speak in terms of waiver of privilege in relation to the claim book. Whilst it may be difficult to describe with any precision its true nature, the purpose of the claim book was to give notice of the claim made by the claimants, not only in relation to the area of land over which the claim was made, but also in relation to the basis of the claim, that is to say, the basis upon which it was said that the claimants were the traditional owners of the land. The practice of lodging a claim book had developed previously and its function was recognized in the revised Practice Directions issued by the Commissioner in 1979. The Practice Directions also require those appearing on the hearing of an application, as far as is practicable, to prepare and exchange statements of their intended evidence and any material of a technical nature proposed to be used as evidence and to give a copy of those statements and that material to the Commissioner's Associate before the hearing. See Aboriginal Land Commissioner Report for year ended 30 June 1979 (1980), at pp.9-13. The development and the nature of a claim book is described by a former Commissioner, Toohey J., in an article entitled "Aboriginal Land", (1985) 15 Federal Law Review 159, at p.173, as follows:

"Claimants are required to lodge particulars of their claim, the primary purpose of which is to identify the land claimed and those said to be the traditional Aboriginal owners. The practice has developed of lodging a claim book some weeks before the hearing. Usually this book is prepared by one or more of the anthropologists whom the claimants propose to call in support of their claim. The claim book has become a substantial and sophisticated document which not only identifies the land and the traditional owners. It plots sites of significance on a map, formulates the principle of local traditional land holding and, with the use of genealogies, identifies the traditional owners, gives some history of the claim area since white contact, and generally canvasses the advantages to the claimants and the disadvantages to others if the claim is acceded to."

No doubt a claim book ordinarily - and certainly in the case of the 1982 Claim Book - goes somewhat further than a Statement of Claim. But its initial purpose is to make known the case which the claimants seek to put. It may subsequently be accepted as evidence on the basis that the author or authors are available for cross-examination if required: Toohey, supra, at p.173. Until it is placed in evidence, which never occurred with the 1982 Claim Book, it remains no more than a statement of the claimants' case for use in the relevant proceedings by all parties. It is a document which is intended to be communicated to the Commissioner and other participants in the hearing. It is not in any sense a confidential communication nor is it intended to be. In those circumstances I am unable to see how it is a document to which legal professional privilege attaches.

7. Before it emerges in its final form, successive drafts of a claim book may be privileged but this is not because of any privilege attaching to the final product. Draft pleadings in an action may be privileged, but I have never heard it suggested that a Statement of Claim or a Defence or a Reply is privileged so that the privilege is waived when it is filed or delivered to the other side. The reason why the draft may be privileged before the document is completed was early explained in Walsham v. Stainton (1863) 2 H. &M. 1, at p 4 (71 ER 357, at p 358), upon the basis that, although after a pleading has been filed it becomes publici juris, the drafts "might disclose the precise character of confidential communications with the solicitor, by showing the alterations made from time to time". In the same way a letter to the other side in litigation which is drafted in a solicitor's office may be privileged before it is sent because it may reveal confidential communications between the solicitor and his client. Once it is sent, however, it ceases to be confidential and there is no privilege in it, not because privilege in the document is waived, but because no privilege attaches to it.

8. When the claim book in this case reached final form or, at all events, when it was put to the use for which it was intended, it was not a confidential communication and not a privileged document. Legal professional privilege exists to secure confidentiality in communications between a legal adviser and his client but it can have no application in relation to a document the purpose of which is to communicate information to others. Of course, what is contained in such a document may reveal some confidential communication between a legal adviser and his client, but if it does do so and so waives privilege, the waiver is of the privilege in the anterior communication and not in the document itself.

9. Thus, if in a pleading the contents of a privileged communication are set out then the privilege attaching to that communication may be waived by the pleading. But for this to happen the content of the communication itself must be revealed. The mere reference to the occasion, such as a conversation or a letter, without reference to its content will not constitute a waiver of the privilege: Buttes Oil Co. v. Hammer (No.3) (1981) QB 223, at p 252; Roberts v. Oppenheim (1884) 26 ChD 724.

10. The 1982 Claim Book did not, however, contain any apparent reference to those documents which were brought into existence for the purpose of its compilation, let alone reveal their contents. Even assuming those documents to be, as the Commissioner found, the subject of legal professional privilege, no question of waiver of privilege with respect to them can, as I see it, arise.

11. Nor do I think that there would have been any waiver of privilege with respect to the documents which were said to have been brought into existence as preparation for the claim book even if, as was not the case, the claim book had been put in evidence in the proceedings before Kearney J. The basis upon which the claim book would have become evidence is not entirely clear, but the proceedings were informal and no doubt such a course was permissible. It is plain, however, that if what was alleged in the claim book did not give rise to any waiver of privilege with respect to the documents which lay behind it, then the conversion of the allegations into evidence would not have done so. The waiver could not, of course, have been direct because the claim book does not disclose the contents or, indeed, the apparent existence of any of the documents used in its compilation. The waiver would have to have been waiver by implication or, as it has been called, associative waiver, whereby documents mentioned in or connected with a document for which privilege has been waived themselves become liable to disclosure. See Phipson on Evidence, 13th ed., 1st suppl., (1984), par.15-20.

12. This is a difficult area of the law, but it is clear enough that an implied waiver may be required by fairness notwithstanding that it was not intended. It would not be fair to allow privilege to be waived with respect to a portion of a document or a conversation without requiring disclosure of the rest of it, at least if the document or conversation dealt with the one subject matter. See Burnell v. British Transport Commission (1956) 1 QB 187 and Great Atlantic Insurance Co. v. Home Insurance Co. (1981) 1 WLR 529, at p 536; (1981) 2 All ER 485, at p 490. So much may be obvious, but legal professional privilege is concerned with protecting the confidentiality of a relationship and if that confidentiality is abandoned by a particular disclosure it may be necessary in fairness, whether further disclosure was intended or not, to require disclosure extending beyond the particular communication. See Wigmore on Evidence, vol.VIII (McNaughton rev. 1961), par.2327. The cases are not entirely consistent and perhaps what is fair by way of disclosure must ultimately depend upon the relevant circumstances.

13. In Geo. Doland Ltd. v. Blackburn &Co. (1972) 1 WLR 1338; (1972) 3 All ER 959 waiver of privilege with respect to a conversation between solicitor and client, which took place before litigation was contemplated, was held to extend to any other communications in relation to the subject matters of the conversation, although the implied waiver was held not to cover similar documents which came into existence for the purpose of prosecuting the litigation. This decision was not followed in General Accident Corporation Ltd. v. Tanter (1984) 1 WLR 100; (1984) 1 All ER 35 where a distinction was drawn between the waiver of privilege before a trial and the further waiver of privilege by calling evidence in a trial. In the latter situation the waiver was held to extend to the transaction constituted by the privileged communication but not to the subject matter of that communication arising upon other privileged occasions. General Accident Corporation Ltd. v. Tanter has been criticized for the distinction which it draws between waiver by the tender of evidence of a privileged communication and waiver by the disclosure of the communication in some other way and for the restriction which it places upon the extent of associative waiver. See Phipson on Evidence, par.15-20. In Nea Karteria Maritime Co. Ltd. v. Atlantic &Great Lakes Steamship Corporation (No.2) (1981) Com. LR 138, at p 139, a broader view was taken by Mustill J. that "... where a party chooses to deploy evidence which would otherwise be privileged the court and the opposition must, in relation to the issue in question, be given the opportunity to satisfy themselves that they have the whole of the material and not merely a fragment". This view was approved by the Court of Appeal in Great Atlantic Insurance Co. v. Home Insurance Co. In the United States it has been widely held that voluntary disclosure of the content of a privileged attorney communication constitutes waiver of the privilege with respect to all other such communications upon the same subject matter: Weil v. Investment/Indicators, Research and Management (1981) 647 F 2d 18 at p 24 and the cases there cited; Diotima Shipping Corp. v. Chase, Leavitt &Co. (1984) 102 FRD 532; United States v. Aronoff (1979) 466 FSupp 855; In re Sealed Case (1982) 676 F 2d 793.

14. However in this case there is no basis for the application of any doctrine of waiver by implication or association for there was no waiver of privilege in respect of a privileged communication in the first place. The 1982 Claim Book was not admitted in evidence before Kearney J. but that, in my view, is immaterial. The fact that the claim book may have drawn upon information contained in communications which were themselves privileged, being made solely in contemplation of litigation, involves no violation of the confidence in which those communications were made. That is obvious. There would be little point in communications made in contemplation of litigation if they could not be used for the purposes of the litigation. What is important is that the 1982 Claim Book, while its source may be information imparted upon a privileged occasion, does not disclose the content of any privileged communication and so does not abandon the element of confidentiality which the privilege protects. There was, therefore, no waiver of privilege.

15. I would dismiss the appeals.

Orders

Appeals dismissed with costs.