Bare v Small
[2011] VSC 639
•19 December 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2010 4583
| NASSIR BARE | Plaintiff |
| - and - | |
| RAI SMALL and Others | Defendants |
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JUDGE: | Mukhtar AsJ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 August 2011 | |
DATE OF JUDGMENT: | 19 December 2011 | |
CASE MAY BE CITED AS: | Bare v Small | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 639 | Revised 22 December 2011 |
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EVIDENCE ― Client legal privilege ― Legal advice privilege ― Loss of privilege where communication “was made or prepared in furtherance of a deliberate abuse of power” ― Advice sought from counsel by statutory decision maker ― Subsequent decision alleged to constitute an abuse of power ― Subpoena to produce legal advice ― Whether privilege lost ― “Deliberate abuse of power” requires knowledge of unlawful end ― No loss of privilege ― Evidence Act (No 47 of 2008), s 125(1)(b).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Pizer with Mr E Nekvapil | Maddocks |
| For the Second Defendant | Mr P R Gray SC with Ms K Evans | Victorian Government Solicitor |
HIS HONOUR:
In this proceeding, the plaintiff seeks judicial review and orders in the nature of certiorari and mandamus against the Director, Police Integrity (“the Director”) arising out of out the way his delegate dealt with a complaint lodged by the plaintiff about his alleged physical mistreatment at the hands of the police. In some unusual circumstances that I shall expose later, two successive decisions were made on how the complaint would be handled. The plaintiff seeks judicial review of both. The second decision, which in effect affirmed the first decision, was made after this proceeding had commenced and after the Director consulted lawyers, including counsel. This application before me arises out of a subpoena served on the office of the Director to produce “any document providing advice provided by a lawyer” within certain dates. The Director resists.
It is a rule of substantive law, and an important common law immunity that a client has the privilege of objecting to having to disclose confidential communications made with a lawyer, or having to disclose a confidential document prepared by the client or the lawyer or another person for the dominant purpose of the lawyer giving legal advice.[1] This is of course enshrined in s 118 of the Evidence Act. But, s 125(1)(b) of that Act says that privilege is lost if the lawyer or the client knew or reasonably ought to have known that the communication was made or the document was prepared ― and these are the critical words ― “in furtherance of a deliberate abuse of power”.
[1]Daniels Corp v ACCC (2002) 213 CLR 543 at [9] to [11].
The section says:
125 Loss of client legal privilege−misconduct
(1)This Division does not prevent the adducing of evidence of−
(a)a communication made or the contents of a document prepared by a client or lawyer (or both), or a party who is not represented in the proceeding by a lawyer, in furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty; or
(b)a communication or the contents of a document that the client or lawyer (or both), or the party, knew or ought reasonably to have known was made or prepared in furtherance of a deliberate abuse of a power.
(2)For the purposes of this section, if the commission of the fraud, offence or act, or the abuse of power, is a fact in issue and there are reasonable grounds for finding that−
(a)the fraud, offence or act, or the abuse of power, was committed; and
(b)a communication was made or document prepared in furtherance of the commission of the fraud, offence or act or the abuse of power−
the court may find that the communication was so made or the document so prepared.
(3) In this section, power means a power conferred by or under an Australian law.
The issue is this: does the expression “deliberate abuse of power” mean it has to be shown (to an evidentiary standard I shall consider later) that a person knew or intended that his act or decision would be an abuse of power? Or, is it enough that the person deliberately acted in a way which, objectively analysed, fell outside power even if he did not know or intend to act unlawfully?
In dealing with that issue of statutory construction, what needs to be kept firmly in mind is the procedural context of this application. It is concerned with the loss of client–lawyer privilege for a deliberate abuse of power, and not the ultimate administrative law remedy which may be available on judicial review to strike down administrative acts or decisions for fraud, bad faith or improper purposes, which would include abuse of power.[2] It may be acceptable to generalise that in administrative law a decision may be vitiated as an abuse of power regardless of knowledge or intent by the decision maker. And as in this case, the interlocutory claim that the privilege has been lost is being made in a proceeding where the perpetration of the abuse of power is itself a fact in issue. Despite that, the question here is: what does s 125(1)(a) mean when it says that privilege is lost or takes flight where the legal advice is sought or given in furtherance of a deliberate abuse of a power? The construction of that phrase has yet to be considered by a Victorian Court although it has been traversed in some interstate and federal court decisions but in a way which the plaintiff says is obiter dicta (not binding as a precedent).[3]
[2]As to which, see Aronson, Dyer and Groves Judicial Review of Administrative Action (4th ed) at [5.180].
[3]The operation of s 125(1)(a) was considered by Kyrou J in Amcor v Barnes [2011] VSC 341 at [38] to [70].
In this application, the Court has had the benefit of thorough and able arguments. For the reasons that follow I would hold that the expression “deliberate abuse of power” in the statute means that the decision maker must be aware that he is abusing power. I think there is no escaping the natural meaning of the language used: deliberate means deliberate. The primacy of the text is the first principle of statutory interpretation.
Secondly, that meaning also stands to reason on legal analysis. Every abuse of statutory power by a decision maker involves a deliberate act in the sense of someone having a cognition or consciousness of what they are doing. Whether it was done in the knowledge or in ignorance that the action would be an abuse of process may be, I venture to generalise, immaterial in administrative law because fraud, bad faith and improper purpose will usually vitiate the exercise of public power regardless of intent. But when it comes to the destruction of privilege that is a separate discourse. The rationale for the privilege disappears when client and lawyer set about to do something unlawful. That is what I think “deliberate” means naturally here. Otherwise the word deliberate is deprived of any real meaning.
Thirdly, I think that construction coheres with content of the common law as it had developed and shown itself by application in the High Court’s landmark decision of Attorney General (NT) v Kearney[4] which can be regarded as the progenitor of s 125 (1)(b) or at least the phraseology “deliberate abuse of a power”.
[4](1985) 158 CLR 500
Fourthly, although not definitively settled, that construction is faithful to interstate and federal authorities. I cannot say, as the plaintiff submits, that those decisions are wrong and ought not to be followed. To the contrary I would say the body of cases are all tethered correctly to the principle or reasoning in Kearney. The plaintiff’s reliance on the decision of Bergin J in Ziade v Randwick City Council[5] is I think an unwarranted extrapolation of what that case decided on some very strong facts. It was not a s 125 case. That case cannot support a broad principle, or a thesis, that the loss of privilege under s 125 is attracted if the effect of a decision is to neutralise or weaken pending legal proceedings. It might be a different matter if, as happened in Kearney, that was found to be the intent. To intend to defeat legal right is a “deliberate abuse of power”.
[5](2001) 51 NSWLR 342 esp at 370
Fifthly, it may have been conceded, but it is just as well I hold that that no reasonable grounds have been shown to reach a finding that the decision‑maker and the lawyer knew or ought to have known that the communication was made for the furtherance of a deliberate abuse of power. That is, the objective evidence does not disclose reasonable grounds for a finding that client and lawyer deliberately set out to defeat the plaintiff’s rights. The plaintiff’s suspicion (and that is all it is) is that the Director and his lawyers “hatched a plan” to undermine his rights. He wants production of the otherwise privileged documents to see if he is right. The closer I have looked and reflected on the inferences relied on by the plaintiff, I think what happened is equally consistent with an apparent recognition by a decision‑maker that a decision adverse to the plaintiff had to be revisited to ensure that it was properly made.
Sixthly, I resist the urging of the plaintiff to look at the documents for myself under s 133 of the Evidence Act which gives the Court a discretion to do so “if a question arises…relating to a document”. It really was an appeal to clear the air. The Director did not oppose it. I suppose there are cases where the Court acting on a real scent or disquiet might, despite the limited evidence, look at documents to be satisfied that privilege was not being used as a cloak to hide a fraud on power. But otherwise, as a matter of principle, to which I would adhere, if no grounds are shown to displace the privilege, then that fundamental right prevails and I do not think a Court should come halfway as an inspectorate and look at privileged documents to quell the suspicion. Otherwise, it would be enough for an applicant to simply make the allegation and arouse suspicion and not a lot more.
Accordingly, in my view, the objection to the subpoena is valid. The Director applies to be relieved of having to produce the documents sought. I think the more apposite and conventional order is to set aside the subpoena.
Before exposing the facts, and to understand how they are to be assessed, it needs to be said at the outset that at common law, those seeking to displace the client legal privilege did not have to prove that the communication was in for the furtherance of a crime or fraud or for an ulterior or improper or illegal purpose. But something more than an allegation or vague or generalised contentions are needed so as to give “colour to the charge” and make a prima facie case: see Commissioner of Australian Federal Police v Propend Finance.[6] The degree of evidence depends on the special facts of each case, but much care is required by a Court because client legal privilege is a substantive legal right and once overridden it is difficult if not impossible to restore the status quo ante. As was said in Propend, the law makes a compromise in the public interest by reducing the threshold for the displacement of the privilege to something short of proof of the fraud or wrongdoing “because it is in the public interest that the law should not countenance even the possibility of legal professional privilege being used as a cloak to hide criminal or fraudulent activities”.[7]But at base, the allegation of fraud had to be in clear and definite terms and there had to be prima facie evidence that the allegation had a foundation in fact.
[6](1996) 188 CLR 501 at 514, 521-2, 523-4, 546-7, 556, 575 and 591-2 .
[7](1996) 188 CLR 501 at 521-2 per Dawson J.
A tricky question of construction arises under s 125(2) about the evidentiary standard of satisfaction for the substantive provisions of s 125(1). Where, as here, the abuse of power is a fact in issue, does the “reasonable grounds for finding” mean a finding on the balance of probabilities and maybe a positiveness of persuasion
on the Briginshaw [8] standard? Or, does it require no more than reasonable grounds to be shown? Given my conclusion on the principal question, there is no need to reach a view on this for even on the lower standard of satisfaction, the plaintiff cannot show grounds of deliberate (that is, knowing) conduct, and he accepts that. I think a purposive construction favours the latter construction. It is also convenient. An interlocutory “finding” on the balance of probabilities on the privilege question that there was or was not an abuse of power then raises problems about the Judge being disqualified for bias on the fact in issue on the judicial review in the proceeding. For my part, I think the statute calls for the common law approach as in Propend and require prima facie evidence that the allegation has a foundation in fact. I think that equates with “reasonable grounds” in s 125(2).
[8]Briginshaw v Briginshaw (1938) 60 CLR 336.
So what are the special facts here?
The facts
The originating motion says the plaintiff, Nassir Bare, is an 18 year old man of African ethnic origin and Ethiopian National origin. With the assistance of the Young Peoples’ Legal Rights Centre Inc, on 3 February 2010, he made a written complaint to the Office of Police Integrity (“OPI”) that officers of Victoria Police had mistreated him in an incident on 16 February 2009. He said that one or more police officers had used force against him; pushed him against a car; handcuffed him; kicked his legs from under him so bringing him to his knees; pushed repeatedly his head to the ground so that his chin struck a gutter and damaged his chin and chipped several teeth; said to him “you black people think you can come to this country and steal cars”; kicked him in the ribs; and sprayed his face with oleoresin capsicum (OC) spray whilst he was handcuffed. They were the allegations. It is no part of this application for the Court to look into the merits of the complaint. For completeness only, I add that the plaintiff was charged in the Children’s Court with theft of a motor vehicle. He was recommended for a diversionary program and charges were adjourned.
The letter of complaint to the OPI made strenuously a point of saying that the matter should not go to Victoria Police Ethical Standards because it warranted independent examination by the OPI. There were two contentions put to justify that position. First, it was in the public interest to investigate a complaint involving allegations of racial discrimination. Secondly, the Charter of Human Rights required an independent investigation. The letter said that the right to freedom from cruel, inhuman and degrading treatment as recognised in s 10(b) of the Charter placed an obligation on the State to not only refrain from such treatment but to effectively investigate complaints of such treatment. An effective investigation means an independent investigation, so the letter asserted. The complaint asserted the OPI would be acting unlawfully under s 38 of the Charter if it decided to refer the complaint to the Police Commissioner.
The first step is to consider the relevant legislation. Under s 86L(1) of the Police Regulation Act, a complaint about the conduct of a member of the police force may be made to another member of the force, or to the Director. Section 40 of the Police Integrity Act says what the Director may do, and when he must do something, after receiving a complaint. In essence the regime says that if the complaint warrants investigation, then the Director must refer it to the Chief Commissioner (presumably to be conducted by the Victoria Police Ethical Standards Department). But the statute says the Director may decide to “keep” the investigation if it is considered to be in the public interest or the Director considers that police practices or procedures should be reviewed. The section states:
40 Dealing with complaints
(1)The Director may determine that a complaint does not warrant investigation –
(a)if in the Director’s opinion –
(i)the subject-matter of the complaint is trivial; or
(ii)the complaint is frivolous or vexatious or is not made in good faith; or
(b)if the complainant had had knowledge for more than a year of the conduct complained of and fails to give a satisfactory explanation for the delay in making the complaint.
(2)Subject to subsection (4), the Director must refer a complaint warranting investigation to the Chief Commissioner.
(3)If the Director refers a complaint to the Chief Commissioner under subsection (2), the Chief Commissioner must investigate the complaint under Division 2 of Part IVA of the Police Regulation Act 1958.
(4)The Director –
(a)must investigate a complaint if the conduct complained of is conduct of the Chief Commissioner or of a Deputy or Assistant Commissioner; and
(b)may investigate a complaint if the conduct complained of -
(i)is of such a nature that the Director considers that investigation of the complaint by the Director is in the public interest; or
(ii)is in accordance with established practices or procedures of Victoria Police and the Director considers that those practices or procedures should be reviewed.
The OPI responded to the complaint by letter dated 21 June 2010 from an Acting Manager to the plaintiff’s representative at the Young People’s Legal Rights Centre. The letter said that the complaint raised allegations that would warrant investigation, but that the complaint was to be “most appropriately” investigated by Victoria Police. The letter said where relevant –
Thank you for your correspondence … concerning an incident involving Mr Nassir Bare on 16 February 2009.
As discussed on 14 May 2010, this office has assessed the information you have provided and after carefully considering the issues you have raised, I have determined that Mr Bare’s complaint appears to relate to allegations warranting investigation.
The Police Integrity Act 2008 (the Act) governs the manner in which complaints to the Office of Police Integrity (OPI) are managed. The legislation emphasis the role of Victoria Police in investigating the majority of complaints against police members.
…
The Director and his delegates prioritise matters relating to systemic issues where OPI considers it can make long-term impact. An assessment committee has evaluated your client’s matter against a priority matrix and has determined that your client’s complaint is most appropriately investigated by Victoria Police. I acknowledge receipt of the further material that you provided, your reference to human rights issues associated with your client’s complaint and your concerns about the independence of police investigators. However, the investigation of other matters before OPI has greater public interest justification.For all matters referred to Victoria Police for investigation, Victoria Police provides this office with a written report and a complete investigation file at the completion of the investigation. OPI independently reviews the investigation of the complaint and advises the complainant of the results of the investigation, any further investigation proposed, and of the action taken (or proposed to be taken) following the investigation of the complaint.
That letter was signed by the first defendant, Rai Small, carrying the designation “Acting Manager Professional Standards Assurance Unit”. In evidence before me is an instrument of delegation given by the Director, Michael John Strong, under the Police Integrity Act in which there is delegated to Pavle Jetvokic all the powers of the Director with certain irrelevant exceptions. That delegation was dated 12 January 2010, that is, before the letter from Rai Small.
The next event was the filing of the originating motion in this proceeding. That occurred on 20 August 2010. The defendants were Rai Small, the Director and the State of Victoria. Before the motion came on before the Court for the hearing of directions on a summons, it was amended to put a case having two limbs. The first limb sought certiorari to quash the decision made by Rai Small, and mandamus to compel Rai Small or the Director to make a decision “about the appropriate course for the investigation of the plaintiff’s complaint according to law.”
The jurisdictional error said to impugn the decision was an absence of procedural fairness in not giving the plaintiff notice about the “priority matrix” by which his claim would be evaluated, and not being given an opportunity to be heard about such an evaluation. Secondly, it was said the decision was beyond power because it was made by an assessment committee which had no power to make it, or, if purportedly made by the first defendant, it was done under the dictation of the assessment committee. Thirdly, both the committee and Rai Small failed to have regard to a relevant consideration, namely the plaintiff’s right under s 10(b) of the Charter to an effective investigation of a complaint of cruel, inhuman or degrading treatment.
The second limb to the plaintiff’s case was based on Charter of Human Rights. The plaintiff looks to s 10(b) of the Charter in which the Parliament has seen fit to specifically protect and promote a human right not to be “treated or punished in a cruel, inhuman or degrading way”. The case as initially composed was that the Director, acting contrary to s 38 of the Charter, acted in a way that was incompatible with that human right which, he says, brings with it a right to an effective ― and therefore ― an independent investigation. That amounts to saying the Director was bound under the enabling statute to investigate the complaint himself. His case was:
(a)the Police at the scene treated him in a cruel, inhuman or degrading way;
(b)he has a right under s 10(b) to an effective investigation by the State of a complaint of that kind;
(c)an effective investigation means something independent from the Victoria Police;
(d)by sending the complaint to the Victoria Police the State has failed to provide an effective investigation of the complaint.
Pausing there, it is assumed for present purposes that a breach of s 38 of the Charter does not give rise to a cause of action.[9] Section 39 envisages the human rights provisions of the Charter influencing the reasoning and outcome in pre-existing forms of action which in this case was the jurisdictional error challenge. Thus if the judicial review disappears, so does the Charter argument, or at least that is the apprehension and the basis for the plaintiff’s grievance.
[9]See Evans and Evans, Australian Bill of Rights at [4.23]ff.
Shortly before the matter came before the Court for procedural directions, on 16 September 2010 the OPI notified the plaintiff’s representatives by letter that the Director would be seeking an adjournment. This letter contained an admission of sorts saying that an adjournment was sought:
… so that OPI’s Deputy Director can reconsider Mr Nassir Bare’s complaint regarding an incident on 16 February 2009.
I will be requesting an adjournment for four weeks for reconsideration of the complaint. If the parties cannot reach agreement in the matter within this period and without prejudice, the matter is to be returned to the Court.
By this time, the plaintiff had come to be represented by Messrs Maddocks, lawyers. The solicitor at that firm having the care and conduct of the case, Stephanie Claire Tonkin, filed an affidavit [10] saying she had a telephone conversation on 17 September 2010 with a solicitor at the OPI who “told me that the second defendant [the Director] had decided to reconsider the first decision and that this was based on legal advice received by its Counsel, Fiona McKenzie.” She produced a file note recording the conversation which says: “Reconsidering… deputy director, following their barrister’s advice on parts of OM [originating motion] … counsel’s advice & briefed … now want to reconsider.” The plaintiff says it was here shown that a plan was hatched to weaken, I said sterilise, the plaintiff’s case.
[10]12 August 2011.
Ms Tonkin was cross‑examined by Mr Gray, counsel for the Director. She gave the evidence that the file note was in shorthand form for a 12 minute conversation. She could not been a hundred per cent sure but she maintained that the note accurately recorded the conversation. The cross‑examination focussed on the word “following” in the expression “deputy director, following their barrister’s advice”. Ms Tonkin could not be one hundred per cent sure that the word “following” was used in the conversation. But Mr Gray sought to expose a difference between the Director deciding to reconsider the matter “following” in the sense of adhering to or adopting her barrister’s advice to do just that, or “following” in the sense of doing something afterwards. Ms Tonkin said she could not see the difference between the two. I think in the end Ms Tonkin was content to say that “following” was to her synonymous with “based on”. This application will not turn on this nuance but I sense that care was being taken by Mr Gray to remove an insinuation (and the ghost of this was present in the plaintiff’s submissions) that a member of counsel was telling a decision maker what to do in hatching a plan in a case now put as involving a deliberate abuse of power.
What can be found as a matter of fact, for this application, is that the Director took legal advice from counsel; the Director decided subsequently to reconsider the decision; he told the plaintiffs lawyers of his intention; they did not contend that the Director should not or legally could not reconsider and therefore should not have an adjournment to do so.
Then came what has been called the second decision. It came in a letter dated 19 October 2010 under the hand of Paul Jetvokic, the Deputy Director. The letter said where relevant:
As a result of proceedings brought … I determined that it was appropriate to conduct a reconsideration of your client’s complaint. This was notified to you by letter of 16 September 2010.
In doing so I divided my review into two categories. The first being the complaint itself, and the second being the issue of who should investigate.
None of the matters in s 40(1) of the Police Integrity Act 2008 persuaded me that the complaint did not warrant investigation; therefore the complaint must be investigated.
As part of my considerations I intentionally focussed on identifying all available evidence that would warrant consideration for deviating from our established legislative process. That is, I must refer a complaint warranting investigation to the Chief Commissioner subject to s 40(4).
…
I have also considered the interpretation by the complainant of OPI’s obligations in the context of Human Rights Charter. Whilst not qualified to make judgment on the merits of that interpretation/argument, I have made the observation that the complainant appears to have arrived at a point which reflects a predisposition that Victoria Police Ethical Standards Department (ESD) will not investigate this matter effectively and with integrity. It was therefore prudent in my view to focus my review on identifying what, if any, evidence existed to support the merits of the position the complainant appears to have taken.
It should be noted that given the nature of the review and concerns raised by the complainant, I did not believe that it was necessary for me to refer to OPI’s Priority Model [I take that to refer to the priority matrix] and therefore did not do so in any manner. There were no OPI policies or procedures which raised any other issues for my consideration of this matter.
Conclusion
Having conducted the review I can confirm that I have not discovered nor has any evidence supporting the complainant’s position been made available to me, other than of course the complainant’s position as it relates to their interpretation of OPI’s obligations under the Human Rights Charter.
In light of the above matters I have concluded the following:
First Issue I reaffirm OPI’s original conclusion that the matter warranted investigation; and
Second Issue I do not consider that investigation by the Director is in the public interest, and I am satisfied that referral under s 40(2) of the Police Integrity Act is adequate for the investigation of this complaint.
I would however like to extend to the complainant (given the circumstances of this complaint and the position taken by the complainant) that OPI could appropriately undertake a more active oversight of the ESD investigation should the complainant be agreeable to that course of action.
It is apparent the Director had concerns about the first decision at least as it was communicated to the plaintiff. The reference in the letter of 21 June 2010 to an “assessment committee” raises questions about the identity of the decision‑maker acting pursuant to a delegation. A committee is not a “relevant person” under s 21 of the Act. There might also be the question whether the committee dictated the outcome to a delegate. Further, the reference in the letter to an “evaluation” against a “priority matrix” raises a question about the relevance of such a matrix and whether or not the principles of natural justice required the plaintiff to be given an opportunity to be heard about it. It is apparent that the second decision was not made by or at the instigation of an assessment committee nor did it involve an evaluation against a priority matrix.
The plaintiff then amended his case to seek judicial review of that second decision on the grounds that the Director was functus officio (spent his authority) after the first decision, and more pertinently for present purposes, and as a stand alone ground, that the second decision was made for an improper purpose, that is, to weaken the prospects of success in the proceeding. The plaintiff is not saying there was prejudgment, for that would not overcome the privilege. But he does say a plan was hatched to re-exercise the power for an improper purpose, that is, to weaken the plaintiff’s legal; proceedings rather than to exercise the power for proper statutory purposes. Really it amounts to saying the process was rigged so as to take away the judicial review ground to which the Charter argument attached under section 39. There is also an iteration of the Charter argument for the second decision.
Then, on 29 November the OPI wrote to the plaintiff’s lawyers inviting a discontinuance of the case. It is necessary to recite the entirety of the letter because the plaintiff contends this letter adds more fuel to the speculation that a plan had been hatched. Omitting footnotes and irrelevant parts the letter says (with the plaintiff’s emphasis shown) :
I am writing in relation to the further amended originating motion which was filed on 12 November 2010.
The defendants contend that the originating motion is liable to be struck out or summarily dismissed. The particular concerns are summarised below. We request that you withdraw the originating motion. Alternatively, if you propose to amend the originating motion, we request that you do so on or before Thursday 2 December 2010. Upon receipt of any further amended originating motion we expect nevertheless to apply for that originating motion to be dismissed.
A summary of the issues is set out below.
First, it is not possible to contend that the first decision is unlawful at the same time as contending that there was no power to make the second decision.
If, as your client contends, the first decision was unlawful, then the decision‑maker was legally obliged to make a decision (the second decision). The most your client could have obtained upon judicial review of the first decision was an order that a (fresh) decision be made in accordance with law. In the circumstances, it is nonsensical to argue in this application that the second decision was ‘functus officio’.
In the alternative, if your client persists with this claim, the defendants would not oppose a declaration that the first decision was “of no force and effect” on the basis that it may have been attended by jurisdictional error. While the defendants do not concede that there was such an error, they would not oppose such an order.
The improper purpose alleged in relation to the second decision, i.e. “to weaken the plaintiff’s prospects of success in this proceeding” has no basis, and, again, is not sustainable in the light of your client’s allegations that the first decision was unlawful. If your client is to persist with this ground please provide immediate particulars and evidence of such.
We would, in any event, contend that the first decision has been effectively replaced by the second decision. Therefore, irrespective of the other matters, there is no utility in obtaining a review of the first decision.
Despite your client’s assertion that the second decision cannot be made in the light of the first decision having been made … the statute does not prevent reconsideration of the matter even if the first decision were held to be lawful. This is particularly when the plaintiff has brought proceedings ultimately for the purpose of seeking such a reconsideration. … In this case, reconsideration was available under the statute, particularly where your client was effectively seeking reconsideration, and where the matter had not yet been referred to the Chief Commissioner.
…
Given the above, the allegations of jurisdictional error in relation to the second decision are not made out.
The allegations as to s 38 of the Charter cannot form the basis of an originating motion without other grounds of unlawfulness: s 39 Charter of Human Rights and Responsibilities Act 2006.
We look forward to notice that your client will discontinue the proceedings, or that a substantially altered originating motion will be filed and served … We expect at that stage to seek that the matter be heard and determined as a strike out application or other preliminary hearing.
As the plaintiff did not discontinue the proceedings, the defendants then filed a summons on 13 May 2011 to have the proceeding summarily dismissed. The plaintiff asserts that such a step, of itself, together with the content of the written submissions in support of that application is further evidence of the abuse of power. I shall not recite the written submissions (15 pages) filed 2 June 2011 but what is it about those submissions that shows deliberate abuse of power for present purposes? On what is relevant on this application, the filed submissions said in essence
(a) The decision making power could be exercised more than once. Whether a decision maker’s power to decide is spent depends on the statute. Here there was nothing in the legislation to prevent reconsideration. Where there is no impediment in the legislation, it is in the interests of good public administration that a fresh decision is made without first having to consider whether the first decision was infected with jurisdictional error.
(b) If the plaintiff is right in saying that the first decision was attended with jurisdictional error, then at law the first decision was no decision at all. That would mean the decision maker was bound to reconsider the decision and perform the statutory duty anyway.
(c) The grounds for judicial review could not be made out. That means the proceeding cannot continue merely on the basis of the Charter allegations, under s 39.
The plaintiff then subpoenaed the Director to produce “any document recording advice provided by a lawyer, between 20 August [the date the originating motion was filed] and 17 October 2010 [the day of the telephone conversation with Ms Tonkin] in relation to whether the first decision should be reconsidered”. This is directed to flush out any documents showing the conception of the plan. The Director by summons seeks to be relieved from having to produce the documents on the ground of client legal privilege in the legal advice recorded in the documents. To overcome that, the plaintiff says the privilege takes flight under s 125 of the Evidence Act because there are reasonable grounds for suspecting that the Director’s decision to reconsider and make a second decision, apparently on legal advice, was part of a strategy to weaken the plaintiff’s prospect of succeeding in the case and, or, to prevent him from using s 39 of the Charter. And that, the plaintiff says was a “deliberate abuse of power.”
“Deliberate abuse of a power”
On the face of it, this application appears to impugn seriously the Director’s lawyers including counsel all of whom Mr Gray of counsel for the Director, emphasized have their obligations under the Model Litigant Guidelines. The law also presumes that Australian lawyers observe their legal and ethical duties: see Kennedy v Wallace.[11] In a measured submission, worth rehearsing I think, Mr Pizer of counsel for the plaintiff mollified the situation by announcing that it was no part of the plaintiff’s case that the Director’s counsel or anyone in the Director’s camp did anything unethical or unlawful. He says that privilege can be lost under s 125 despite that.
[11](2004) 208 ALR 424 at [65]-[66]
Also, the plaintiff does not say that the second decision was infected by a prejudgment. As I see it, he is bound to say so because prejudgment is not a ground to overcome privilege. But it is perplexing because if there was no prejudgment it is difficult logically to see how a Court might conclude the decision maker’s conduct as involving a deliberate abuse of power. .
Whatever the disclaimers, the plaintiff says pointedly that “a plan was hatched” to decide to reconsider, and then make a second decision which would have the effect of weakening the plaintiff’s case for judicial review. That he says is the exercise of power for an extraneous purpose. And that, he says, demonstrates at a prima facie level that the advice was sought and obtained “in furtherance of a deliberate abuse of a power”.
What are the reasonable grounds to make that allegation? The plaintiff portrays his grounds as: (i) the letter of 16 September followed by the telephone conversation on 17 September 2010; (ii) the gestation of the plan leading up to the second decision itself; and (iii) then the strike out application to effectuate the plan. All those actions were done deliberately and therefore, so the argument goes, there was a deliberate abuse of power without having to show the Director knew it or intended that to be so. And it need not be the only purpose. The plaintiff relies on this passage in the Court of Appeal decision of East Melbourne Group Inc v Minister for Planning[12] (which was not a privileged case but a judicial review case) –
Where multiple purposes for an impugned decision can be discerned, some of them sound and one or more of them illegitimate, the authors of Judicial Review of Administrative Action [namely, Aronsen Dyer and Groves] suggest that the test whether an improper purpose will vitiate a decision is whether the decision‑maker was “materially influenced” thereby in which case it can be said that it was a substantial purpose for the decision made.[13]
[12](2008) 254 ALR 112 at 189 [333].
[13]At p 298.
To put it plainly, he is saying the second decision was rigged against him; and made without regard to statutory objectives and just for the purpose of putting an end to the Court case and preventing him under s 39 of the Charter from running his human rights arguments under the Charter. The proper course the plaintiff says was for the Director to agree to a quashing of the first decision and then have it remitted.
“Deliberate abuse of power”
The question of construction is approached of course on the presumption (more recently designated as the principle of legality) that unless an intention is clearly manifested by unambiguous language, the legislature does not intend to alter or curtail established common law rights and freedoms.[14] In that regard it is just as well to remember that “Legal professional privilege is an ancient doctrine which has assumed a life of its own”.[15] It is much more than a rule of evidence; it is a firmly entrenched substantive legal right or immunity. Its rationale is the enhancement of the administration of justice which it serves by keeping secret that which passes confidentially between client and lawyer to encourage full and frank disclosure in the seeking of advice. To the extent to which it is accorded or not lost, that benefit prevails over a more general public interest which requires that litigation should be conducted on the footing that all relevant documentary evidence is available.[16]
[14]Coco v R (1994) 179 CLR 562 and Al–Kateb v Godwin (2004) 219 CLR 562. See generally Pearce & Geddes, Statutory Interpretation in Australia (7th ed) at [5.2].
[15]Attorney –General (NT) v Maurice (1986) 161 CLR 475 at 48 per Mason and Brennan JJ).
[16]Grant v Downs (1976) 135 CLR 674 at 685
But the common law recognised the exception that no privilege attached to communications between client and lawyer in furtherance of an illegal purpose, known as the crime or fraud exception. In 1985 Kearney[17] decided that privilege would also be denied to communications made for the purposes of frustrating the processes of the law even though no fraud or crime is contemplated. It would shake public confidence in the administration of justice, it was said, to allow privilege to be used to protect communications made to further a deliberate abuse of statutory power and by that abuse to prevent others from exercising their right under the law.[18] That case is the provenance of the statutory language in s 125(1)(b). Therefore, the construction of this expression unavoidably involves visiting the reasoning in Kearney. As I understand the plaintiff’s submissions, those cases which are relied upon by the Director to support the view that ”deliberate” in s 125 means knowingly are wrong and ought not be followed as the majority reasoning in Kearney makes no such prescription.
[17]Attorney –General v Kearney (1985) 158 CLR 500.
[18]Per Gibbs CJ in Kearney at 515 as adopted by Mason and Brennan JJ at 517.
The facts and arguments in Kearney are very important to an understanding for what the case stands.The Administrator of the Northern Territory made regulations in exercise of powers under a planning ordinance that prescribed that certain areas be treated as parts of the township of Darwin and Katherine. The specified areas included land which formed part of areas over which the Northern Land Council had made claims under Aboriginal land rights legislation. The Council challenged the validity of the regulations on the ground that they were made for the purpose of defeating aboriginal land claims. The Aboriginal Land Commission Commissioner ordered the government and the Administrator to deliver documents relating to or incidental to the making or bringing into force of the regulations including confidential communications between Ministers or government officers and lawyers. An objection was taken on the ground of privilege. The Commissioner, having inspected the documents, concluded prima facie they had come into existence in furtherance of a scheme to defeat the land claims and so to evade the operation of the land rights legislation through an abuse of the power to make regulations conferred under by the Northern Territory’s planning legislation. That is a most significant finding. The Commissioner held that a prima facie showing of such an abuse of power fell within the recognised exception to legal professional privilege that did not extend to communications and preparation of documents in furtherance of a crime or fraud. Accordingly the documents were ordered to be produced.
It is important to see, as Mr Gray emphasised, the case put by the Attorney‑General as appellant in the High Court. The argument was refined in the following way. The enactment of delegated legislation for a purpose outside the enabling Act is not an evasion of the law and is not within the crime or fraud exception to legal professional privilege. A public body that makes regulations for an extraneous purpose does not commit a crime or fraud. As ulterior purpose involves no necessary element of dishonesty or fraud or even deliberate wrongdoing, it would be wrong to bring improper purposes within the crime or fraud exception. That was the argument.
Gibbs CJ, with whom Mason and Brennan JJ agreed, and Wilson J held that privilege will be denied to a communication which is made for the purpose of frustrating the processes of the law itself, even if no crime or fraud is contemplated. But there has to be an illegal purpose; that is the communication must be, to adopt the language of Lord Lindley in Bullivant v Attorney-General [19],“to help to evade the law by illegal conduct” . The Chief Justice used the expression “deliberate abuse of power” in this passage[20] (with my emphasis)
In my opinion the present case comes within the principle which forms the basis of the rule that denies privilege to communications made to further and illegal purpose. It would be contrary to the public interest which the privilege is designed to secure − the better administration of justice − to allow it to be used to protect communications made to further a deliberate abuse of statutory power and by that abuse to prevent others from exercising their rights under the law. It would shake public confidence in the law if there was reasonable ground for believing that a regulation had been enacted for an unauthorised purpose and with the intent of frustrating legitimate claims, and yet the law protected from disclosure the communications made to seek and give advice in carrying out that purpose.
[19][1901] AC 196 at 201.
[20]At 515
As the Director submitted, that passage when speaking of deliberate abuse of statutory power is explicitly based on intention and purpose. It is plain from the Chief Justice’s reasoning that in so stating the principle and applying it to the facts of that case, there had to be reasonable grounds for believing that the regulations had been enacted for an unauthorised purpose and with the intent of frustrating legitimate claims. In Kearney there was prima facie evidence that the communications with the lawyers came into being as part of a plan to pass regulations to defeat aboriginal land claims. The allegation that the power was used for an ulterior purpose was clearly made and had sufficient colour to lead the Commissioner to look at the documents in question and then make determine that the privilege was displaced.
Mason and Brennan JJ agreed with the Chief Justice in adopting the “deliberate abuse of power” criterion. Their Honours said:
… We agree with the Chief Justice … We would dismiss the appeals for the reasons which his Honour gives, namely, that it “would be contrary to the public interest which the privilege is designed to secure − the better administration of justice − to allow [legal professional privilege] to be used to protect communications made to further a deliberate abuse of statutory power and by that abuse to prevent others from exercising their rights under the law”. That principle is applicable in this case because there is a prima facie finding that “the communications with the legal advisers came into being as part of a plan to defeat the land claims”.
True it is, there is no reference explicitly to intent and purpose in that passage but I do not think that can be seized upon for an opening. Their Honours adopted the Chief Justice’s reasons, including the conception of deliberate abuse of power and that evidence in that case revealed a plan to defeat ― intentionally ― the land claims.
The judgment of Wilson J deals explicitly with the element of knowledge and intent in, I would respectfully say, an explicative way to intensify the significance of “deliberate” and the need to show an evasion of the law. His Honour said (with my emphasis):
In my view, the implications for the privilege would be serious if an allegation of ultra vires, based on a genuine but mistake view of the scope of the power, was sufficient to expose a government to discovery of confidential professional communication. … Conversely, if the advice is sought in the deliberate pursuit of a purpose which is known to be beyond power, then in those circumstances the public interest cannot concede to a government any right to withhold relevant material from scrutiny in the courts. The distinction between a deliberate and a mistaken misuse of power is to my mind of crucial significance.
… The appellant does not challenge the Commissioner’s prima facie finding that “there is a bona fide and reasonably tenable charge that the law was being evaded by the making of regulations not contemplated by the Act. He spoke of the communications coming into being “as part of a scheme to defeat the land claim”. With some hesitation, I conclude that the prima facie finding is that the communications were undertaken with the knowledge that the planning legislation was being resorted to otherwise than for a bona fide planning purpose. … I think it wholly inconsistent with the reason for the privilege that it should protect a government’s deliberate abuse of its statutory power. In this regard, the exception for fraud should be understood in the broad manner described by Goff J in Crescent Farm [citation omitted]. It includes all forms of dishonesty, including “trickery and sham contrivances”.
I should say here that I cannot accept the plaintiff’s submission that the reasoning of Wilson J differed from the other members of the Court and should be quarantined despite the concurrence in the result. It was not reasoning “out on a limb” as was suggested. To the contrary, all judgments that dismissed the appeal in Kearney did so on the basis of a concurrence in the view that the rationale for the privilege would be lost where there was, as the evidence showed, an intent to evade the law. That gives meaning to “deliberate”.
That view comes out also from the final report[21] of the Australian Law Reform Commission (“ALRC”) that preceded the Commonwealth Evidence Act. The ALRC regarded Kearney as possibly standing for a wider proposition, that is extending the scope of the exception to conduct that might be described as a fraud on justice, including a frustration of the processes of the law. The Commission said (with my emphasis):
The commonly held assumption, that only communications in furtherance of a crime or fraud would not be protected, no longer holds true. It is clear since the decision in Attorney‑General for the Northern Territory v Kearney that communications made to further a deliberate abuse of statutory power, or to prevent others from exercising their rights under the law, will not be protected by client legal privilege. This is the narrow interpretation of that case. Statements in the case suggest that the scope of the exception to the privilege may in fact be much wider. The law is left in an uncertain state. The rationale of client legal privilege is, broadly, to assist in the due operation of the legal system. It would be inconsistent with that rationale to protect communications between lawyer and client where the communication was to aid deliberate conduct which is contrary to the law – whether crime, fraud, breach of contract or tort.
[21]ALRC Report 38.
The Commission went further and said (with my emphasis) :
It cannot be regarded as in the public interest that legal advice be obtained to further the commission of unlawful activity. Nonetheless, it is important that clients be able to approach a lawyer (with a view to acting lawfully) to ascertain whether their plans are appropriate or would be within the law, without being constrained by fears that their words may later be used against them. One way to draw the appropriate line is to focus on the intention of the client at the time of the communication. Consideration was give to a proposal that the Privilege should not protect a communication or document that the client knew or ought reasonably to have known was made or prepared for an unlawful purpose. Such a proposal can be supported in principle. If the consultation is, objectively viewed, in furtherance of ‘unlawful activity’ and it is deliberately so, at that stage legal professional privilege should ‘take flight’. The difficulty with such an exception, however, is that it could be raised in respect of all communications passing between the client and the lawyer. It would create a situation where the lawyer and client could have no certainty about whether their communications were protected or not. A narrower formula needs to be found. It would be consistent with principle to extend the exceptions to communications in furtherance of deliberate abuse of statutory power. Such conduct can be said to be a fraud on the power. It is recommended that this be included.
That passage was preceded by a reference to Wigmore on Evidence (a treatise to which Gibbs CJ had made a reference in Kearney[22]) where the practical rule for disclosure to be settled upon was to ask: “Must not the advice be sought for a knowingly unlawful end?” Gibbs CJ expressed it as “communications made to further an illegal purpose”. But the conception is to my mind the same. It involves intent and purpose.
[22](McNaughton rev, 1961) at (1985) 158 CLR 500 at 511 ,512.
In my view, an analysis of Kearney supports the conclusion as contended by the Director, that to do something deliberately is to do something knowingly. Moreover, that is how other Courts have seen it before the enactment of the Victorian Evidence Act.
Interstate and federal decisions
In John Fairfax Publications Pty Ltd v Abernethy[23] a Deputy State Coroner took the step of reopening an inquest after making an open finding into the cause of a death. It was established prima facie that was done to enable him to make an order preventing publication of certain material supplied by the police. In the reopened proceeding the defendant intimated he had sought and obtained legal advice on the step taken. A subpoena was issued to produce the written communications between the defendant and the Crown solicitor. The Judge was asked by consent to look at the documents. But said he was able to reach a conclusion without regard to their content. Adams J applying Kearney quashed the subpoena saying it was obvious that “deliberate” attracts questions of intent and purpose. His Honour said because:
In this case, insofar as any prima facie is established, I am satisfied that it demonstrates that the Magistrate wished to ascertain what his powers were, not so that he might avoid or evade them but, on the contrary, that he might appropriately apply them. It may well be that he suspected that the question was a controversial one but this is the reason that any client might and indeed should obtain legal advice to ensure, not that the law can be evaded but rather that it can be obeyed.
Even if, in the result, and it is not necessary for me to decide this point at this stage, the defendant erred in law in thinking, after receiving legal advice, that he had the power to reopen the inquest despite his previous open finding, and further to make the order complained of, this could not by itself amount to a deliberate abuse of power. Such a motive requires consideration, as seems to me obvious, of intent or purpose. It follows that it will never or almost never be capable of determination by the mere objective circumstances of illegality.
[23][1999] NSWSC 826 at [10].
Idoport Pty Ltd v National Australia Bank Ltd,[24] was a case, avoiding details, where it was argued that proceedings were improperly commenced to put pressure on a third party (a bank). That was aid to be a “fraud” for the purposes of the equivalent of s 125(1)(a) of the Victorian Act. Hodgson CJ in Eq rejected that case on the facts saying in passing that in any event the statutory fraud requires an element of dishonesty which was absent. His Honour then said this of s 125(1)(b) :
In my opinion, s 125(1)(b) is referring to a power to affect more directly the rights of other people. Furthermore, I think the word “deliberate” requires that the client know that the acts in question are an abuse of power, not merely that the client deliberately do acts which, unknown to the client, are in fact an abuse of power.
[24][2001] NSWSC 222 at [64].
In Kang v Kwan,[25] Santow J instructively set out the principles governing s 125 of the New South Wales Evidence Act and in a passage squarely against the plaintiff in this case, his Honour said:
9. I would follow the view, though expressed as tentative, that “fraud”, as used in s 125, requires an element of dishonesty; per Hodgson CJ in Eq in Idoport para [63]. … I would also agree that an “abuse of power” which is dishonest would be caught by s 125(1)(b) as is clear from the requirement that there be a “deliberate” abuse of power. It is difficult to imagine a deliberate abuse of power that does not involve some element of dishonesty but I leave open that possibility for future decision.
10. It follows that the use of the word “deliberate” in s 125(1)(b) requires that the client know that the acts in question are an abuse of power, not merely that the client unknowingly but deliberately commit acts that constitute an abuse of power: per Hodgson CJ in Idoport.
[25][2001] NSWSC 698 at [37] proposition 9 and 10. This was set aside on appeal , but the Court of Appeal agreed with the statement of principle at first instance: see [2003] NSWCA 336.
In Van Der Lee v New South Wales,[26] an attempt was made to adduce evidence of without prejudice discussions to show that the predominant purpose of legal proceedings was not to recover damages but to compel another party to contribute to settlement of claims. Hodgson JA said (Mason P and Santow J agreeing[27] ):
I am inclined to adhere to views expressed in Idoport to the effect that… “deliberate” in para (k) requires that the person concerned must be aware that he or she is abusing power. (The decision in Idoport did not in fact relate to those paragraphs, but rather to similar provisions concerning loss of client legal privilege in s 125 of the Evidence Act; but in my opinion the provisions must mean the same in both places.)
…However it is not necessary to determine that question in this case.
[26][2002] NSWCA 286 at [61].
[27]At [24] and [68]
In the Federal Court, Finkelstein J at first instance in Freeman v Health Insurance Commission:[28] analysed Kearney on this point, and came to a conclusion (as contemplated by Wilson J in Kearney) that the crime or fraud exception did not capture inadvertent abuse of statutory power. That is another way of saying deliberate means knowingly. His Honour said (omitting references)
In Attorney‑General (NT) v Kearney .. the High Court held that the exception was not confined to crime or fraud in the sense just explained but includes a communication made to further an abuse of statutory power where that power is being employed to prevent others enjoying their rights under the law: Further, in Kearney the court made it clear that it was only when there was a deliberate abuse of statutory power that the privilege would be lost: None of the justices suggested that it would be lost if there was a genuine but mistaken view of the scope of the power that was being exercised although Gibbs CJ appears to have left the point open.
Notwithstanding the submissions made by the applicant, I do not believe that the exception should be extended so that the privilege is lost if there is an inadvertent abuse of statutory power. In the first place, much of the reasoning of the High Court in Kearney is against such an extension. In the second place, there is no basis in principle for extending the exception in that way. Legal professional privilege is an important right and the public interest does not require it to be lost except by conduct which is morally reprehensible. Finally, if the exception was now to be extended to cover inadvertent conduct it might endanger the basis of the privilege.
[28](1997) 78 FCR 91 at 94-95.
The facts of that case are complicated and it is unnecessary to say anything about them. What is significant is that on appeal[29] his Honour’s decision to remove the privilege was overturned because of the absence of any prima facie evidence of a deliberate abuse of power.[30] There was second issue concerning the validity of a search warrant as part of an investigation into a doctor activities by the Health Insurance Commission. The officer issuing the warrant had acted on advice from the Commonwealth Director of Public Prosecutions. There was a question whether the DPP was empowered to give legal advice if and when sought by any Commonwealth authority merely because there was a possible commission of offences under Commonwealth law. The primary judge found on a prima facie basis that the Commission’s investigative power to obtain the use of a search warrant was not a legitimate use of powers under the enabling act; that an officer of the Commission was aware of those matters; and accordingly a case of deliberate abuse of statutory power had been made out.
[29](1998) 88 FCR 544
[30]At 588, 589
What matters for the construction exercise here is that the Full Court of the Federal Court in Freeman allowed that appeal on the basis that there was no grounds for the Judge at first instance concluding that the officer knew or was aware that the DPP was not empowered to give the advice. That is, it was reasonable to infer that the officer had the belief that the DPP had the power to advice. The point is this: the Court was looking to the belief of the decision maker, his awareness of wrongdoing, to see if there was a deliberate act.
The plaintiff’s submission
I am asked by the plaintiff to not follow the numerous cases I have referred to because putting aside the judgment of Wilson J, it was submitted that Kearney requires no more than an intent to do something which by effect frustrates some process of law available to the plaintiff or undermines some legal right. It was submitted the judgment of Gibbs CJ in Kearney shows that the focus was on intention and purpose rather than knowledge of illegality, and nothing in that judgment requires it to be shown there must be knowing unlawfulness. The plaintiff submitted there was a dichotomy to be discerned in Kearney between intention and purpose on the one hand and knowledge of unlawfulness on the other hand. It was submitted a decision maker can form an intention (is it partial, or sole, or dominant, or material intention?) to exercise a power which could frustrate a Court proceeding without realising or knowing it was an abuse of process. It is enough, the plaintiff says on a privilege question, that the decision maker knew what he or she was doing, and that is what deliberate means. It was on that basis that I was invited to not follow the interstate and federal cases.
This is a courageous submission, but I cannot accept it. As I said at the outset, there must be a focus on the primacy of the statutory text: “deliberate abuse of a power”. There is a danger I think of getting into a philological or philosophical debate about what is “deliberate” human conduct. The phrase naturally conveys cognition that a decision maker is setting out to evade the law by misusing a power. As I have said, in Kearney the argument was that even though the decision maker knew that his conduct was improper, that is not fraud with the common law exception and privilege is not lost by that knowledge. Thus the court was proceeding on the basis that the decision maker knew that the exercise of power was unlawful.
Further I cannot accept the plaintiff’s dichotomy between intention and knowingly abusing a power. It does violence to the language of the statute, is not supported by Kearney and is fraught with difficulties. A person intending to do something or having an evident or avowed purpose is behaving knowingly. Moreover I think the dichotomy is incompatible with the underlying policy objectives that have informed the development of the law of privilege. The proper functioning of the legal system depends on a freedom of communication between lawyers and clients, in the knowledge they can speak candidly and without a fear of subsequent revelation in Court. The Director was correct to submit that if, as the plaintiff would have it, deliberate does not mean knowingly, then decision makers in the public domain who consult their lawyers before exercising a power will forever be looking over their shoulders because, unless they actually know that what they are doing is infringing the limits or purposes of power there will be a fear that objectively viewed there is some unlawfulness about this and therefore there cannot be candid communications. That defeats the purpose of the privilege in the first place. And that is why, I think, it makes sense for the statute to require the abuse of a power to be deliberate in the sense of knowing. But when there are grounds to show that client or the lawyer have set about with the subjective purpose of subverting the law in some way, then the privilege takes flight― a “knowingly unlawful end”.
The plaintiff also relied on a decision of Bergin J in Ziade v Randwick City Council. [31] The first thing to be said about Zaide is that it is not a s 125 case or a privilege case. It was a case of a challenge to the validity of resolutions passed by a municipal Council relating to parking arrangements around a property development. The council’s resolution was attacked on the basis that it was made for an improper purpose and that was based upon legal advice. There was no question of privilege over certain documents because it had been held beforehand to have been waived.[32]
[31](2001) NSWLR 342.
[32][2000] NSWSC 1198
The plaintiff here looks to in Ziade because in that case the challenge to the decision was on the basis of an exercise of power for the improper purpose of acting upon tactical considerations relating to the court proceedings rather than upon relevant parking considerations. Her Honour found –
I am satisfied quite comfortably that the purpose of the [council’s] August resolution was a tactical one to revive a resolution which the defendant [council] no longer believed was an appropriate one. It had nothing to do with appropriate and relevant considerations of the parking needs of the constituents, but was an attempt to obtain a forensic advantage in these proceedings irrespective of parking considerations.
I think reliance on Zaide is misplaced. I think the case is no more than an instance where a court vitiated a decision on the grounds that a decision‑maker acted on an improper purpose, and as I read the extraordinary case, calculatingly or deliberately so.
Accordingly I see no basis to depart from the body of judicial thinking about the meaning of deliberate abuse of process. The cases could only be thought to be wrong if they misunderstood the principle in Kearney but in my view they do not and therefore should be followed: see Australian Securities Commission v Marlborough Gold Mines Ltd[33]
[33](1993) 177 CLR 485 at 492 (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ).
All roads lead back to Kearney. The plaintiff here was looking to equate his case factually with the case as put by the Northern Land Council in Kearney by saying the communications with lawyers here was part of a plan to defeat the plaintiff’s case and that constitutes a deliberate abuse of statutory power. That is the assertion, and it seems to me more conceptual or abstract rather than actually shown on a prima facie or reasonable grounds basis. By looking to the effect of the decision to reconsider and then the effect of the second decision, the plaintiff then seeks to therefore ascribe an intention to the Director that he set about to defeat the plaintiff’s basis to mount a case based on the Charter. It is suspected, the plaintiff said, that a technique was used here, which might be used again, that whenever someone challenges the exercise of a decision by the Director concerning an investigable matter, the Director as decision maker can just concede the error of the primary decision and then “fly the flag” of s 39 of the Charter and take away the opportunity to argue a Charter point.
On the objective facts as I have exposed them, there are no grounds for an allegation that the Director knew that his conduct in reconsidering the first decision and making the second decision was a deliberate abuse of power. I think the facts do not show sufficient grounds to allege that a plan was hatched. The most the plaintiff can do is to point to the effect of what has happened and then ascribe on a prima facie basis an intention that the Director intended to undermine the ability of the plaintiff to run a Charter argument. That is I think drawing too long a bow. As I said at the outset, the facts are just as objectively consistent with a desire to repair diligently the way the first decision was made to ensure it was properly made rather than run the course of legal proceedings.
As the plaintiff has not shown any grounds for alleging that the legal communications were made in furtherance of a deliberate abuse of a power, I shall
abstain from examining the documents, and I would order that the subpoena be set aside.
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