Duncan v The Honourable David Andrew Ipp Ao QC
[2013] NSWSC 247
•14 March 2013
Supreme Court
New South Wales
Medium Neutral Citation: Duncan v The Honourable David Andrew Ipp AO QC [2013] NSWSC 247 Hearing dates: 14/03/2013 Decision date: 14 March 2013 Jurisdiction: Common Law Before: Garling J Decision: (1) The Notice to Produce dated 12 March 2013 and addressed to the second defendant, the Independent Commission Against Corruption, be set aside.
(2) Order that the plaintiff pay the second defendant's costs of and occasioned by the application.
Catchwords: PRACTICE AND PROCEDURE - Notice to Produce - Notice of Motion to set aside a Notice to Produce on relevance grounds. CLIENT LEGAL PRIVILEGE - Is there an implied waiver of privilege by reference to the privileged document in, publicly available, preceding correspondence. Cases Cited: National Employers Mutual General Insurance Association Limited v Waind & Hill (1978) 1 NSWLR 372 Category: Procedural and other rulings Parties: Travers William Duncan (P)
The Honourable David Andrew Ipp AO QC (D1)
Independent Commission Against Corruption (D2)Representation: Counsel:
Mr Ng (P)
Submitting Appearance (D1)
Mr Free (D2 - ICAC)
Solicitors:
Yeldham Price O'Brien Lusk (P)
NSW Crown Solicitor (D1 & 2)
File Number(s): 2013/68363
EX TEMPORE JUDGMENT ON MOTION
On 12 March 2013, the solicitors for the plaintiff, Travers William Duncan, served a Notice to Produce for a single identified document on the second defendant, the Independent Commission Against Corruption. The notice to produce required production of the document before this Court this morning.
The document was described in the Notice to Produce in this way:
"A copy of the letter from Roy Waldron (solicitor for the Commission) to Bret Walker SC dated 20 December 2012 together with all attachments. Such letter being the letter referred to in the letter from Mr Waldron to Mr Walker SC dated 5 February 2013 titled 'Re Operation Jasper'."
By a notice of motion filed in court on 14 March 2013, the Commission moved the Court to set aside the Notice to Produce. The bases enunciated by the Commission in support of its motion are first, that the letter was of no relevance to the issues in the proceedings or to any fact in issue and, secondly, that it was subject to client legal privilege which had not been waived.
Procedure
The Court having received submissions from the parties was then invited by the Commission to inspect the letter, the subject of the Notice to Produce, and did so without objection from counsel for Mr Duncan.
In accordance with the procedure identified as appropriate in National Employers' Mutual General Insurance Association Ltd v Waind& Hill (1978) 1 NSWLR 372, when the Court inspects the document or documents which are subject to a subpoena or notice to produce, the document or documents are not made available to any party other than the party producing the document until a determination has been made and then only if the Court decides that it requires the document to be produced and that access should be given to any other party.
Relevance
Counsel for Mr Duncan submitted that the relevant issue in the proceedings to which this document related was the extent to which the Commissioner may have interacted with other officers of the executive government, which interaction may be seen by a reasonably informed observer to have demonstrated apparent bias on the part of the Commissioner because he was aligning himself to a government which itself had publicly expressed views which were contrary to the interests of Mr Duncan or interests associated with him.
In support of this submission, the Court's attention was drawn to a briefing note dated 15 January 2013 provided by the General Counsel of the Department of Premier and Cabinet, Mr Paul Miller, to the Premier, via the Director General of that Department.
The briefing note was dated 15 January 2013. The subject of it was entitled "ICAC Investigation Into Mining Exploration Licences - Operations Jasper and Acacia". Paragraphs 3.4 and 4.3 of that briefing note were pointed to as indicating that at a point in time prior to the receipt by the Commissioner of a letter from the Premier of New South Wales dated 30 January 2013, there had been a meeting between the Commissioner and the Director General of the Department of Premier and Cabinet.
The precise date of that meeting is not established in the evidence and I am told from the bar table that there are no documents which assist in establishing the precise date of that meeting. However, it clearly took place either on, or else prior to, 15 January 2013.
It is submitted by counsel for Mr Duncan that given that the sequence of events which commenced with this meeting and was followed by a letter of request from the Premier to the Commissioner of 30 January followed by the briefing of Senior Counsel by the solicitor for the Commission on 5 February 2013, and then the provision by the Commissioner to the Premier on 20 February 2013, of a letter annexing the advice of Senior Counsel, I ought be persuaded that an earlier letter which is the one sought by the Notice to Produce dated 20 December 2012 is relevant.
On 5 February 2013, by letter of that date, Mr Roy Waldren, the solicitor for the Commission retained Mr Walker SC to provide an Opinion. His letter which has been provided by the Commission to the Premier and which has been made public, commences with this paragraph:
"I refer to my letter of 20 December 2012. The Commission seeks your advice on two matters connected with the issue of whether the Government or the relevant minister can take action to refuse to grant a mining lease for the Mount Penny tenement."
The letter then goes on to nominate two specific questions which can be summarised in this way:
(a) whether, the relevant minister can declare the Mount Penny tenement, a development of state significance, and
(b) whether, in considering the public interest, the relevant minister is entitled to take into account the circumstances in which the tenement was created and the exploration licence was granted.
I am not satisfied having listened carefully to the submissions put by counsel for Mr Duncan that the letter of 20 December 2012, has any relevance whatsoever to the issues which are sought to be litigated in this Court.
I accept that the starting point for consideration of its relevance is that there was a reason why the solicitor for the Commission in his letter to Senior Counsel of 5 February 2013, referred to the earlier letter. As counsel for the Commission conceded, it meant that it must have been on the same, or else a closely related, subject or topic. However, that fact and that fact alone is plainly insufficient to indicate that the letter in fact had, or may have had, any relevance whatsoever to the conduct of the Commissioner and his interactions with other members of the executive government.
The submission that such a letter may be likely to reveal some, so far unrevealed, interaction between the Commissioner and the Government is nothing more than mere speculation. There is nothing available to compel a conclusion that such a letter, written as it was from one lawyer to a Senior Counsel asking for advice on legal questions, would reveal details of a meeting involving the Commissioner. Hence, it is not a proper basis for concluding that the letter is relevant to the issues.
Accordingly, on that basis alone, I would not be prepared to require the production of the letter to the Court. It would also be a basis for declining to grant access to the letter, if it were otherwise produced.
Client Legal Privilege
Secondly, an issue of client legal privilege is raised. It is conceded by counsel for Mr Duncan that a letter from the solicitor for the Commission to Senior Counsel is, on its face and by that description, a privileged communication. However, counsel seeks to argue that there has been an implied waiver of that privilege by reason of the reference to the letter in the document, namely the letter of 5 February 2013, which has been made public with the result that there is remaining unfairness to his client, in his client being denied access to the letter.
It is submitted that the waiver can be implied from the reference to the existence of the letter, and from the contents of the Opinion provided by Mr Walker SC.
A careful comparison of the content of the Opinion of Senior Counsel which has been made public, in my assessment, demonstrates that all Senior Counsel was doing was providing an Opinion which he answered only the two questions posed in the letter of instructions dated 5 February 2013.
Whilst, of course, the Opinion deals with other background facts and matters relevant to be considered, so that an understanding of the basis upon which the Opinion has been reached can be readily gleaned from the content of the Opinion, there is no rationally available inference that the material preceding the paragraphs in which Senior Counsel provides the answers to the questions upon which his opinion was sought, demonstrate that his opinion was answering something more than two questions he was asked in the letter of 5 February 2013.
I detect no inconsistency in the conduct of the Commission in making available its letter to Senior Counsel of 5 February 2013 and the Opinion in response to that letter with its conduct in claiming privilege with respect to the letter of 20 December 2012. I can see no unfairness to Mr Duncan in that claim for privilege and I am not persuaded that privilege has been waived.
These conclusions I have reached by reference to the primary material put before the Court, both in support of the motion brought by the Commission and in opposition to it.
Contents of the Document
As I have earlier indicated, I inspected the letter which has been marked as a confidential exhibit. It is entirely inappropriate to reveal any of the contents of the letter.
However, having carefully read the letter and attended to all of the matters contained within it, I am additionally satisfied that the content of the letter has no relevance whatsoever to any fact in issue in these proceedings and does not, and would not, enable any relevant fact to be established which might assist in any argument designed to demonstrate the extent to which the Commissioner may have by his interactions with other members of the executive government, be seen by a reasonably informed observer to be in a position where he is biased in favour of the Government and against the interests of Mr Duncan or his associated interests. There is simply nothing in that letter which would assist in advancing that proposition.
As well, the contents of the letter, I am satisfied, do not relate to, or cast light upon, the contents of the Opinion which has been made public nor any reference to the request for the Opinion which was made in the letter of 5 February 2013.
I am well satisfied that there is no unfairness to Mr Duncan or his associated interests in being denied a copy of the letter and I am well satisfied that there is no inconsistency in the conduct of the Commission in not revealing this document.
Conclusion
In those circumstances it is appropriate that the order sought in the Notice of Motion filed 14 March 2013 be made.
Orders
I make the following orders:
(1) The Notice to Produce dated 12 March 2013 and addressed to the second defendant, the Independent Commission Against Corruption, be set aside.
(2) I order that the plaintiff pay the second defendant's costs of and occasioned by the application.
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Decision last updated: 11 April 2013
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