Brown v Forestry Tasmania (No 3) - [2006] FCA 469

FEDERAL COURT OF AUSTRALIA
Brown v Forestry Tasmania (No 3) [2006] FCA 469
PRACTICE AND PROCEDURE – privilege – legal professional – documents referred to in evidence – call for production during cross-examination – documents not communication between a lawyer and client but between two witnesses to assist each other in preparation of their witness statements –whether privilege at common law or under the Evidence Act 1995 (Cth) – whether imputed waiver of privilege by reason of intentional disclosure of other like communications
PRIVILEGE – legal professional – documents referred to in evidence – call for production during cross-examination – documents not communication between a lawyer and client but between two witnesses to assist each other in preparation of their witness statements –whether privilege at common law or under the Evidence Act 1995 (Cth) – whether imputed waiver of privilege by reason of intentional disclosure of other like communications
EVIDENCE – privilege – legal professional – documents referred to in evidence – call for production during cross-examination – documents not communication between a lawyer and client but between two witnesses to assist each other in preparation of their witness statements –whether privilege at common law or under the Evidence Act 1995 (Cth) – whether imputed waiver of privilege by reason of intentional disclosure of other like communications
Environmental Protection and Biodiversity Conservation Act 1999 (Cth)
Evidence Act 1995 (Cth) ss 118 and 119
Federal Court of Australia Act 1976 (Cth) s 59
Federal Court Rules 1979 (Cth) O 33 rr 11(5) and 13
The Daniels Corporation International Pty Ltd and Another v Australian Competition and Consumer Commission (2002) 213 CLR 543, referred to
Mann v Carnell (1999) 201 CLR 1, referred to
Collins Debden Pty Ltd v Cumberland Stationery Co Pty Ltd [2005] FCA 1194, followed
Seven Network Ltd and Another v News Ltd and Others [2005] FCAFC 125; (2005) 144 FCR 379, applied
Temwell Pty Ltd v DKGR Holdings Pty Ltd [2003] FCA 985, followed
Ryder v Frohlich [2005] NSWSC 1342, followed
ROBERT BROWN v FORESTRY TASMANIA
TAD 17 OF 2005
MARSHALL J
1 MAY 2006
HOBART

IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY

TAD 17 OF 2005

BETWEEN:

ROBERT BROWN
APPLICANT

AND:

FORESTRY TASMANIA
RESPONDENT

AND:

COMMONWEALTH OF AUSTRALIA
FIRST INTERVENER

AND:

STATE OF TASMANIA
SECOND INTERVENER

JUDGE:

MARSHALL J

DATE OF ORDER:

1 MAY 2006

WHERE MADE:

HOBART

THE COURT ORDERS THAT:
1.The respondent’s claim for privilege in respect of the production of the documents called for during Mr Meggs’ evidence, but not produced by the respondent, is dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY

TAD 17 OF 2005

BETWEEN:

ROBERT BROWN
APPLICANT

AND:

FORESTRY TASMANIA
RESPONDENT

AND:

COMMONWEALTH OF AUSTRALIA
FIRST INTERVENER

AND:

STATE OF TASMANIA
SECOND INTERVENER

JUDGE:

MARSHALL J

DATE:

1 MAY 2006

PLACE:

HOBART

REASONS FOR JUDGMENT

The Court is currently hearing an application…

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

Case: [2006] FCA 469
Decision Date: 1 MAY 2006

CaseChat Overview and Summary

In the case of Brown v Forestry Tasmania (No 3), the Federal Court considered the issue of legal professional privilege in relation to documents referred to in evidence. The respondent, Forestry Tasmania, resisted the call for the production of certain documents during cross-examination, contending that they were privileged from production under both the common law and the Evidence Act 1995 (Cth). The court needed to determine whether the documents were protected by legal professional privilege and whether the privilege had been waived.

The court found that the documents in question were not communications between a lawyer and a client but were instead communications between two witnesses assisting each other in the preparation of their witness statements. Consequently, the court held that the documents did not fall within the scope of s 118 of the Evidence Act, which applies to confidential communications made for the dominant purpose of providing legal advice. The court further determined that s 119 of the Evidence Act, which provides for imputed waiver of privilege, did not apply because the documents were not communications between a lawyer and a client. The court concluded that Forestry Tasmania's claim for privilege was not valid.

The Federal Court dismissed Forestry Tasmania's claim for privilege in respect of the production of the documents called for during the cross-examination of Mr Meggs, but not produced by Forestry Tasmania. This decision underscores the importance of understanding the scope of legal professional privilege and its application to documents exchanged between non-client parties in the context of litigation.

Orders

Orders of the court

1. The respondent’s claim for privilege in respect of the production of the documents called for during Mr Meggs’ evidence, but not produced by the respondent, is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Dr Read’s emails request Mr Meggs to provide “feedback” on a draft affidavit prepared by Dr Read. The files attached to the 31 October 2005 email include Dr Read’s notes or commentary on the affidavit of a witness called by Senator Brown dealing with the PVA.Privilege at common law or under the Evidence Act? Forestry Tasmania resists the call for the production of documents. It contended that they are privileged from production under the common law and under ss 118 and 119 of the Evidence Act 1995 (Cth). Forestry Tasmania relied upon the common law concept of legal professional privilege as referred to in The Daniels Corporation International Pty Ltd and Another v Australian Competition and Consumer Commission (2002) 213 CLR 543 at 552 to 553. It contended that the emails and attachments are “communications” prepared for the purpose of obtaining legal advice or form part of its lawyer’s investigations for the purpose of this proceeding. Counsel for Forestry Tasmania submitted that the Evidence Act does not apply to its objections to produce the documents called for by Senator Brown. They referred to Mann v Carnell (1999) 201 CLR 1, where the High Court observed that the statutory privilege was confined to the adducing of evidence during the course of a hearing. They say that at common law, legal professional privilege extends beyond the course of the hearing to pre-trial issues such as discovery disputes. In any event, counsel for Forestry Tasmania contended that “the common law and the statutory tests yield the same conclusion in relation to the protection of the documents called for from production.” The Evidence Act applies to this proceeding; see s 4(1). Order 33 rule 11(5) of the Rules of Court extends the operation of ss 118 and 119 of the Evidence Act to orders for the production of documents in circumstances where the call for production is made in the course of evidence being adduced before the Court; see Collins Debden Pty Ltd v Cumberland Stationery Co Pty Ltd [2005] FCA 1194 at [6], per Lindgren J.Does s 118 apply? Section 118(a) of the Evidence Act, when read together with O 33 r 11(5) of the Rules of the Court, prevents the production of documents if the production would result in disclosure of a confidential communication made between the client and a lawyer, for the dominant purpose of the lawyer providing legal advice to the client. The documents, the subject of the current call for production, have been described by Mr McDonald (the in-house lawyer for Forestry Tasmania) as being prepared for the purpose of communication between Dr Read and Mr Meggs, to have Mr Meggs critically review affidavits of two witnesses called by Senator Brown, as well as Dr Read’s affidavit. The documents are not communications between a lawyer and a client but between two witnesses for the purpose of assisting each other to prepare their affidavits for use in the proceeding. Accordingly, s 118 does not apply to give the documents privileged status.Does s 119 apply?

Decision

Reasons for decision

MARSHALL J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: MARSHALL J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY	TAD 17 OF 2005

BETWEEN:	ROBERT BROWN APPLICANT
AND:	FORESTRY TASMANIA RESPONDENT
AND:	COMMONWEALTH OF AUSTRALIA FIRST INTERVENER
AND:	STATE OF TASMANIA SECOND INTERVENER
JUDGE:	MARSHALL J
DATE OF ORDER:	1 MAY 2006
WHERE MADE:	HOBART

JUDGE:	MARSHALL J
DATE:	1 MAY 2006
PLACE:	HOBART