It is the practice of this Court in matters which are of significant public interest to make a brief explanatory statement when delivering judgment.
The statement I now make describes the main issues in the proceedings and the conclusions I have reached. As it is a summary statement only, it is necessarily incomplete. The only authoritative pronouncement of the Court’s reasons and conclusions is that contained in the published reasons for judgment.
The case concerns a document entitled ‘Cole Inquiry – Draft Statement of Contrition – Andrew Lindberg.’ The document became Exhibit 665 in the Commission of Inquiry which is being conducted by Commissioner Cole (‘the Inquiry’) under the Royal Commissions Act 1902 (‘RCA’).
The document was inadvertently produced by AWB Limited (‘AWB’) to the Inquiry in response to a notice to produce documents. In these proceedings it was common ground that any legal professional privilege attaching to the document had not been waived by its inadvertent production.
After hearing evidence and submissions concerning Exhibit 665 on 24 and 27 March 2006, the Commissioner said that the RCA confers an ancillary or incidental power on him to determine whether the claim of legal professional privilege had been established in respect of Exhibit 665. On the evidence before him, the Commissioner ruled that Exhibit 665 was not privileged.
I have not undertaken a judicial review of the Commissioner’s rulings. In accordance with the submissions made by AWB and the Commonwealth and pursuant to the jurisdiction conferred upon me by s 39B of the Judiciary Act 1903 (Cth), I have independently considered the questions that arise in this case, including the question whether Exhibit 665 attracts legal professional privilege having regard to the more extensive evidence adduced in this Court.
The major impetus for the creation of Exhibit 665 was advice that AWB obtained from Dr Peter Sandman, a crisis management expert and public relations consultant, to the effect that AWB should ‘over-apologise’, sooner rather than later and via a statement by its managing director, so as to deal with the reputational damage AWB had sustained and was likely to sustain in future in connection with the Inquiry. Exhibit 665 was drafted by Mr Lindberg, who was then the chief executive officer of AWB, following a telephone conference that took place on 21 December 2005. The participants in the telephone conference were Mr Lindberg, Dr Sandman, Mr Zwier from Arnold Bloch Leibler (the solicitors for AWB) and a number of employees of AWB. After the telephone conference, Mr Zwier provided written advice to AWB in an email dated 23 December 2005. Mr Lindberg based his draft very closely on the advice he had received from Mr Zwier.
After preparing the draft statement of contrition, Mr Lindberg gave instructions for it to be circulated by email to the persons who had participated in the telephone conference of 21 December 2005. The draft was circulated in anticipation…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
AWB Ltd v Cole [2006] FCA 571
Case
[2006] FCA 571
Decision Date
CaseChat Overview and Summary
AWB Ltd was involved in a dispute with Cole, where the central issue was the legal professional privilege claim on a document referred to as Exhibit 665. The case was heard in the Federal Court of Australia. The primary concern was whether the document, allegedly privileged, should be disclosed to Cole. AWB argued that Exhibit 665 was privileged, and it had provided extensive evidence to support this claim, including affidavits from key individuals and documentary materials.
The legal issues before the court involved the nature and extent of the privilege that could be claimed over Exhibit 665. AWB needed to establish that the document was indeed privileged, considering the circumstances of its creation, the nature of the document, and the communication involved. The court needed to assess whether the evidence provided by AWB was sufficient to establish the privilege. The court referenced previous cases such as Grant v Downs and FCT v Pratt Holdings to determine the adequacy of the evidence presented.
The court found that AWB had not sufficiently discharged the onus of proving that Exhibit 665 was privileged. Despite the extensive evidence provided, the court was not convinced that the document was protected by legal professional privilege. Consequently, the application by AWB to maintain the privilege over Exhibit 665 was dismissed. Additionally, the court ordered AWB to pay the costs of the proceedings to the second respondent.
Orders
Orders of the court
1. The application be dismissed.
2. The applicant pay the second respondent’s costs of the proceedings.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
AWB carries the onus of establishing that Exhibit 665 attracts legal professional privilege. In this Court, AWB has sought to discharge the onus by adducing evidence as to the circumstances in which the document was brought into existence and then communicated to others, by reference to the nature of the document itself, and by argument and submission. It has gone beyond, as it must, formulaic claims of the kind contained in Ms Peavey’s affidavit: see Grant v Downs at 689 per Stephen, Mason and Murphy J; and Federal Commissioner of Taxation v Pratt Holdings Pty Ltd (2005) 225 ALR 266 (‘FCT v Pratt Holdings’) at 477 [30].THE EVIDENCE CONCERNING EXHIBIT 665 The evidence before me is much more extensive than that which was before the Commissioner when he considered the status of Exhibit 665. It consists of affidavit evidence from Ms Peavey, Mr Lindberg and Mr Zwier, certain documentary materials primarily concerning the retainer of Dr Peter Sandman, and oral evidence given both in chief and under cross-examination by Mr Lindberg and Mr Zwier. Dr Peter Sandman is a crisis management expert and public relations consultant. He holds the degrees of BA, Princeton University, 1967 (Psychology); MA, Stanford University, 1968 (Communication); and PhD, Stanford University, 1971 (Communication). He holds, or has held, various professorial appointments at universities in the United States. He has published extensively in the fields of communications, public relations and crisis management. He carries on his practice from Princeton, New Jersey, in the United States of America. Dr Sandman was recommended to AWB by one of its board members, Mr Peter Polson. Dr Sandman was retained by AWB on 8 December 2005 to provide crisis management and public relations advice to AWB in connection with AWB’s involvement in the Inquiry. The retainer was arranged through an exchange of emails between Ms Jill Gillingham, a group general manager employed by AWB, and Dr Sandman on 7 and 8 December 2005. In her email to Dr Sandman of 7 December 2005, Ms Gillingham said that the Inquiry had raised legal, reputational, public relations and a range of other issues for AWB and its staff. In her email to Dr Sandman of 8 December 2005, Ms Gillingham asked Dr Sandman to spend some time with AWB prior to Christmas assisting AWB to develop its position. In his affidavit of 13 April 2006, Mr Lindberg said that AWB retained Dr Sandman in early December 2005 to provide strategic advice in connection with the Inquiry. Under cross-examination, Mr Lindberg said that his concern in going to Dr Sandman was to obtain advice in relation to public relations matters. He added that he was seeking Dr Sandman’s advice because he was concerned with the effect that the Inquiry would have on the public view of AWB and the allegations against it. These concerns extended to AWB’s share price and the effect that the Inquiry might have on politicians in relation to AWB’s control of wheat exports from Australia (which was referred to as the ‘single desk’).