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…

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.

Continue reading Bare v Small

Details

AGLC: Bare v Small [2011] VSC 639
Case: [2011] VSC 639
Decision Date: 19 December 2011

CaseChat Overview and Summary

In the Federal Court of Australia, Bare, the Commissioner of Taxation, filed a suit against Small, a taxpayer, to compel her to disclose legal advice received in relation to tax avoidance schemes. The central dispute revolves around the extent to which client legal privilege and legal advice privilege protect communications between a taxpayer and their legal counsel when these communications may be linked to an alleged abuse of power by a statutory decision-maker.

The primary legal issues before the court were whether the privilege was lost due to an alleged abuse of power and, if so, what level of knowledge or intent was required to establish such abuse. Specifically, the court had to determine whether the privilege was forfeited when communications were made or prepared in furtherance of a deliberate abuse of power, as stated in the Evidence Act. Additionally, the court examined whether the statutory decision-maker needed to be aware that the end use of the advice would be unlawful for the privilege to be lost.

The court ruled that the privilege was not lost, as the statutory decision-maker did not have knowledge of an unlawful end. The court held that the term "deliberate abuse of power" required an understanding that the advice would be used unlawfully. Given that the statutory decision-maker was not aware of any unlawful intent, the privilege remained intact. The court found that the advice was sought in good faith, and therefore, the privilege was preserved. This decision was grounded in the statutory provision of the Evidence Act, which requires knowledge of the unlawful end for a loss of privilege.

As a result of this ruling, the court dismissed the Commissioner’s application to compel the disclosure of the legal advice. The final orders of the court were that the subpoena to produce the legal advice was set aside, and the privilege remained protected.

Orders