Fagan v State of New South Wales

[2004] NSWCA 182

CITATION:	FAGAN v. STATE OF NEW SOUTH WALES [2004] NSWCA 182 revised - 2/08/2004
HEARING DATE(S):	26/02/2004
JUDGMENT DATE:	10 June 2004
JUDGMENT OF:	Spigelman CJ at 1; Beazley JA at 2; Santow JA at 95
DECISION:	1. Appeal allowed; 2. Declare that the directions given by Commander Reith, Detective Inspector Wright and Chief Inspector Lapham, if complied with by any officer to whom they were given, would breach the appellant's entitlement to legal professional privilege in respect of communication between his legal representatives and such officers; 3. The respondent is to pay the appellant's costs of the appeal and of the hearing at first instance.
CATCHWORDS:	PRIVILEGE - Legal professional privilege - Nature of privilege - Rule of substantive law - Rule is not to be outweighed by principle that there is no property in a witness - Rule is to be applied strictly and not limited to judicial or quasi-judicial proceedings. - STATUTORY INTERPRETATION - Statue not to be construed as abrogating a fundamental principle of the common law in the absence of clearly expressed intention to do so.
LEGISLATION CITED:	Police Act 1990 (NSW) Supreme Court Act (1970) (NSW)
CASES CITED:	Attorney-General (NT) v. Maurice (1986) 161 CLR 475 Daniels Corp International Pty. Limited v. Australian Competition and Consumer Commission (2002) 192 ALR 561 Harmony Shipping Co v. Saudi Europe Line (C.A.) [1979] 1 WLR 1380 J. Corp Pty. Limited v. BLF (1992) 110 ALR 510 Mann v. Carnell (1999) 201 CLR 1 Thompson v Mastertouch TV Service Pty Ltd (No 3) (1978) 19 ALR 547 at 560
PARTIES :	Geoffrey Fagan (Appellant) State of New South Wales (Respondent)
FILE NUMBER(S):	CA 40171/03
COUNSEL:	P. Blackett SC/M. Cahill/A. Naylor (Appellant) P. Menzies QC/C. Hodgson (Respondent)
SOLICITORS:	Oates & Smith (Appellant) Crown Solicitor's Office (H. Allison) (Respondent)

LOWER COURTJURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S):	CLD 11875/02
LOWER COURT JUDICIAL OFFICER :	Cooper AJ

CA 40171/03
CLD 11875/02

Spigelman CJ
Beazley JA
Santow JA

10 June 2004

FAGAN v. STATE OF NEW SOUTH WALES

The appellant, a serving member of the New South Wales Police Service, brought proceedings against the respondent claiming damages for the respondent’s negligence in failing to provide a safe system of work.

In the course of preparing his damages claim, the appellant’s solicitor attempted to interview serving police officers. Prior to the scheduled interviews, the appellant’s solicitor was informed that senior police officers had placed restrictions upon their attendance including a requirement to report after attending the interview.

The appellant appealed on the ground that the directions given to certain police officers by their superiors, if complied with, would involve a breach of legal professional privilege.

HELD per Beazley JA (Spigelman CJ and Santow JA agreeing):

1 Legal professional privilege is a rule of substantive law: Attorney-General (NT) v. Maurice (1986) 161 CLR 475. The specific purpose of the privilege is to enable a client properly to prepare a case for litigation untrammelled by a fear that his/her case will be disclosed to the opposing party, other than in accordance with the relevant rules of Court: Mann v. Carnell (1999) 201 CLR 1.

2 Legal professional privilege is to be applied strictly and is not to be confined to judicial or quasi-judicial processes: Daniels Corp International Pty Limited v. Australian Competition and Consumer Commission (2002) 192 ALR 561.

3 That there is no property in a witness remains a time honoured principle: Harmony Shipping Co v. Saudi Europe Line (C.A.) [1979] 1 WLR 1380. However, the principle must operate in conjunction with other principles, including the principle of legal professional privilege. That is, a party to litigation may, at the stage of preparation for trial, ask any potential witness about the claim made by the other party. That is different however, from requiring a report of precisely what was said by that person to the other party.

4 The directions given by the senior officers, if complied with, would involve a breach of legal professional privilege.

5 In the absence of express qualification, the directions given by the senior officers were not made on the basis that any requirement to report was subject to legal professional privilege.

6 A statute will not be construed as abrogating a fundamental principle of the common law unless an intention to do so is clearly expressed: Thompson v Mastertouch TV Service Pty Ltd (No 3) (1978) 19 ALR 547. The application of this principle to this case is that the officers will not be guilty of an offence for failure to comply with the directions. That is different from saying that the directions, in whatever form they were given, were subject to an implication that the giver of the direction did not require the recipient of the direction to breach legal professional privilege.

ORDERS

1. Appeal allowed.

2. Declare that the directions given by Commander Reith, Detective Inspector Wright and Chief Inspector Lapham, if complied with by any officer to whom they were given, would breach the appellant’s entitlement to legal professional privilege in respect of communication between his legal representatives and such officers.

3. The respondent is to pay the appellant’s costs of the appeal and of the hearing at first instance.

CA 40171/03
CLD 11875/02

Spigelman CJ
Beazley JA
Santow JA

10 June 2004

FAGAN v. STATE OF NEW SOUTH WALES

Judgment

7 SPIGELMAN CJ: I agree with Beazley JA.

8 BEAZLEY JA: This is an appeal from a decision of Cooper AJ dismissing the appellant’s claim for relief in its summons filed in the Supreme Court on 9 July 2002. The principal issue on the appeal involves the question whether directions given to certain police officers by their superior officers, if complied with, would involve a breach of legal professional privilege.

9 As there has been a significant evolution in the nature of the claim and the relief sought by the appellant since the commencement of proceedings, it is necessary to review the background to and the history of the proceedings in some detail.

10 The appellant is a serving member of the New South Wales Police Service. By Statement of Claim dated 1 October 1999 filed in the District Court of New South Wales, the appellant claimed that the respondent failed to provide him with a safe work environment due to the nature and extent of corruption within the Police Service and that he was exposed to harassment and intimidation for reporting other members of the Police Service involved in such activities. He alleged that the respondent was negligent in that treatment of him. The appellant alleged that he suffered anxiety, stress, post-traumatic stress disorder and psychiatric and/or psychological injury as a consequence of the respondent’s negligence (AB 40). He claimed damages.

11 By an amended summons dated 9 July 2002 filed in the Supreme Court of New South Wales, the appellant sought an order that the proceedings be transferred to that Court. An order transferring the proceedings was made. The appellant also sought:

“2 A direction that the plaintiff be given access to witnesses that are employees of the defendant and it be directed not to interfere with the plaintiff’s witnesses.”

12 That part of the summons was heard by Cooper AJ on 17 and 31 October 2002. In the course of the hearing, the appellant further amended the summons so as to seek declaratory relief pursuant to s.75 of the Supreme Court Act (1970) (NSW) and/or a direction pursuant to Part 26 r 1 of the Supreme Court Rules. His Honour recorded the declaration sought as being to the effect: “The directions given to the police officers are not lawful orders” (J 37).

13 The background to the appellant seeking the relief claimed in Order 2 in the summons related to the preparation of his damages claim which was set down for hearing to commence in the District Court on 23 July 2002. In preparation for the hearing the appellant’s solicitor, Ms. Smith, sent letters to three serving police officers, Messrs. Anderson, Graham and Kramer, requesting them to attend a conference with counsel for the plaintiff on 20 June 2002. Before the date of the proposed conferences, Ms. Smith was contacted separately by Detective Senior Constable Anderson and Sergeant Graham advising her of conversations each had had with a superior officer in relation to his attendance at such conference. Following these communications, Ms. Smith spoke to the solicitor for the respondent on 18 June and advised that she had been informed by a number of the witnesses that “they had been given permission to attend a conference with the [appellant’s] counsel but restrictions had been placed on that attendance”. She confirmed her telephone conversation in a letter dated 19 June. In that letter she asserted that the restrictions placed upon the attendance of these witnesses:

“Is a gross violation of legal professional privilege and in fact amounts to improper behaviour by those purporting to act for the [respondent] as it is exerting pressure on potential witnesses and could well amount to contempt of court.”

14 On 4 July, the appellant’s solicitors again wrote to the respondent’s solicitors referring to the earlier letter and advising that as there had been no response from the respondent, the appellant would be making application to the District Court for directions that the appellant’s legal advisers be given “free access” to the witnesses in question. The application was subsequently made by the summons in the Supreme Court seeking the orders to which I have referred. It was supported by an affidavit of Ms. Smith in which she deposed to the matters set out above.

15 In response to Ms. Smith’s affidavit evidence the respondent, after the first day of the hearing of the summons, filed affidavit evidence from:

Detective Inspector Wright dated 22 October 2002
Commander Reith dated 30 October 2002
Chief Inspector Lapham dated 30 October 2002
Senior Constable Wilkinson dated 30 October 2002
Sergeant Graham dated 31 October 2002

16 Ms. Smith and Senior Constable Wilkinson were cross-examined.

17 The cross-examination of Ms. Smith was directed to establishing the hearsay nature of part of her affidavit evidence, following the admission of that evidence over objection as to its admissibility by the respondent. Ms. Smith was not cross-examined to the effect that the statement was not made to her. Although the respondent protested in its written submissions to this Court about the admission of this evidence, it has not cross-appealed.

18 The evidence given on behalf of the respondent can be divided into two categories: first, that of the senior officers who gave directions, namely Detective Chief Inspector Wright, to whom reference was made in Ms. Smith’s evidence, Commander Reith and Chief Inspector Lapham; and secondly, that of the officers to whom the directions were given: Messrs. Anderson, Graham and Wilkinson. I will refer collectively to these officers as the junior officers. Senior Constable Wilkinson was another police officer whom the appellant’s solicitor had requested to attend for a conference. There was no evidence from or further mention of Mr. Kramer in the course of the hearing of the summons, other than in the orders sought. This is not a matter of any moment, and is only mentioned to explain the reference to Senior Constable Wilkinson’s evidence, and the absence of any further reference to Mr. Kramer.

Directions given by the senior officers

Chief Inspector Wright

19 It is convenient first to deal with the evidence of Detective Chief Inspector Wright. He said that in about December 2001 he gave a direction to Senior Constable Wilkinson that

“… there was no restriction on his attending the conference but he was to report his intention to attend and report after attending the conference.” [WB 83]

He could not recall whether he gave the direction directly or through another senior officer. Late in June 2001, he gave a further direction by way of a written notation on an “ internal issue document ” (a document used when an officer seeks formal advice on some matter) in terms:

“S/C Wilkinson appears obliged to attend in this matter and should report at the conclusion.”

20 Detective Chief Inspector Wright said this direction meant that if Senior Constable Wilkinson attended a conference with the appellant’s legal advisers, he should

“5. … report at the conclusion of any conference in accordance with the provisions of the New South Wales Police Handbook.”

He added:

“6. In my view the requirements of any such report would be for the [police officer] to:
(a) provide a copy of any statement signed or adopted by him; and
(b) disclose the nature of the evidence he intended to give at any hearing in a written report.”

Commander Reith

21 Detective Senior Constable Anderson also formally sought advice by way of an issue document in relation to the request that he attend a conference with the appellant’s legal representatives. The issue document was dealt with by Chief Inspector Burn and Commander Reith. There are two comments noted on the document in these terms:

“… please provide a … report of the exact nature of the evidence to be given.”

and

“… attend conference and report subsequent to that meeting.”

It seems Commander Reith wrote the second of these notations.

22 Senior Constable Wilkinson’s issue document was also forwarded to Commander Reith who said that he made a similar comment on it as he had in the case of Detective Senior Constable Anderson. Commander Reith’s comment was not specifically identified but, as is apparent from the notations themselves, they were in virtually identical terms. The notations read: “Report to be provided after attending the conference” and “Agree. S/C Wilkinson appears obliged to attend [?] in this matter and should report at the conclusion”. The second author was not identified in the evidence.

23 Commander Reith said that the requests for advice by Messrs. Wilkinson and Anderson were -

“not remarkable and, as I understand the position, they are covered by the requirements of the New South Wales Police Handbook specifically at p. W-30. The requirement to report simply requires the relevant officer to provide a copy of any statement which he or she has either signed or adopted and provide a summary of the nature of the evidence he or she expects to give at the relevant proceedings”.

24 Senior counsel for the respondent submitted that the words “unless covered by legal professional privilege” should be inferred in this comment after the reference to any “statement … signed or adopted”.

Chief Inspector Lapham

25 Sergeant Graham, after having been requested to attend a conference, sought formal advice by way of an issue document from Chief Inspector Lapham. She advised in a notation made on the document that attendance at the conference was the officer’s own decision, but that if he did attend then:

“2. I require a full briefing note from you detailing what information is likely to be discussed.
3. At the completion of such conference I require a comprehensive briefing note on the matters that were discussed.”
Position of the junior officers

26 Each of the junior officers sought formal advice through the issue document process in the belief that they were required to do so by cl.46 of the Police Regulations 2000. That belief is not in issue in the proceedings and the terms of Reg.46 are not otherwise relevant. However, to the extent it may be relevant reference should be made to the understanding each of the proposed attendees had of the directions and/or recommendations they had been given.

Detective Senior Constable Anderson

27 According to Ms. Smith’s evidence, Detective Senior Constable Anderson informed her that he had been advised to provide a report of the evidence he intended to give and “report back to [Commander Reith] after the meeting as to the nature and the extent of the matters discussed.” This was the evidence admitted over objection to which I referred earlier. Detective Senior Constable Anderson did not give evidence in the proceedings, so that subject to its admissibility being in issue, Ms. Smith’s evidence on this was unchallenged. (WB 146)

Senior Constable Wilkinson

28 Senior Constable Wilkinson, whose affidavit was read in the proceedings and who was cross-examined, said he was informed by Detective Senior Constable Anderson that he was required to comply with the Regulations and the Police Handbook. He said that he understood this to mean that he had “to report back briefly on the nature of the evidence” and “to give a copy of any statement”. He provided an example of the type of report he understood he was to give. It is apparently known within the Service as a Richmond report. This document was in the same format as the issue document to which I have already referred. It contained four headings: “ISSUE”; “BACKGROUND”; “COMMENT”; “RECOMMENDATION”. The particular document he annexed by way of example related to the subpoena served upon him in this matter. In the “COMMENT” section Senior Constable Wilkinson had written:

“I have received a subpoena to attend the above court on the stated date. I will be attending as per the subpoena as failure to do so would constitute a contempt of court. A copy of he subpoena is attached for information.”


This “ example ” does not relate to and in my opinion is not analogous to the matters with which the Court is presently concerned and does not assist in an understanding of what matters the officer considered he might have to report on following a conference with the appellant’s legal representatives.

Sergeant Graham

29 In his affidavit Sergeant Graham said that he advised the appellant’s legal representatives that he had approval to attend the conference “depending upon my ascertaining what information is likely to be discussed, and providing [his superior officer, Chief Inspector Lapham] with that information”. After the conference he was “to submit a report to the Crown Solicitor’s office for their information”.

30 Sergeant Graham also said that he understood that the requirements to report in relation to any conference were contained in the Police Handbook. He said:

“… I would notify my manager of my attendance, discuss any relevant issues , and make a file note and attach it and any documentation given to me at the conference, to the relevant case file.” (emphasis added)

31 There was no greater specification in the evidence of what Sergeant Graham understood by “discuss relevant issues” or what he understood was to be contained in his report to the Crown Solicitor.

The Police Handbook and Commissioner’s Instructions

32 As various of the police witnesses gave evidence that either or both the Police Handbook and the Commissioner’s Instructions governed a police officer’s actions in the circumstances here, it is convenient to deal with their provisions at this point.

33 The Police Handbook is expressly structured as a guide to assist police officers in knowing how to conduct themselves in a changing police force and social environment. As the Commissioner states in the Foreword to the Handbook:

“As you are well aware it is difficult, if not impossible, to develop a book of policing rules to cover every type of situation or predicament in which you might find yourself.
Therefore to assist you to carry out your work in a constantly changing workplace, a set of guidelines, rather than a book of rules has been developed for you to follow.”

34 The provisions of the Handbook relating to the giving of evidence in a private capacity are in the following terms:

“If you are to give evidence in a private capacity which does not relate to your official duties, attend in your own time. Do not wear uniform and tell the court you are giving evidence in a private capacity. This may be done when you are requested to state your occupation.
Where you are to give evidence …

· which is not compatible with the interests of the Service

report it to your Commander.
Include in your report your knowledge of the case, your relationship to the party you are to give evidence for, the evidence you can give and the person’s antecedents (where relevant).
Evidence for party other than Police Service
Report the receipt of a summons/subpoena … . Set out your knowledge of the case and the person’s antecedents.”

35 According to Commander Reith, the Commissioner’s Instruction 91.13 also applied to the circumstances under consideration. That instruction was in the same terms as the statement in the Police Handbook and accordingly it is convenient to refer to both as if they are the same provision.

36 There was no evidence or any argument as to why it was considered that the provision applied to the circumstances here. In particular there was nothing before the Court as to why it was “not compatible with the interests of the Service” for police officers to be witnesses in the civil proceedings brought by the appellant. Although the appellant did not address this question I can see no basis upon which it could be said that evidence of the junior officers would be “incompatible with the interests of the Police Service”. The appellant has brought a claim against the State, arising out of his conditions of employment with the Police Service. It is a negligence claim based on an unsafe system of work. True it is that the appellant has raised allegations of corruption within the Service as the factual basis of his claim, but that does not make the evidence of potential witnesses who are police officers incompatible with the interests of the Police Service. Indeed, in an open society, the contrary might be thought to be the case. If this question had been in issue, I would have found that the provision in the Handbook and the comparable Instruction 91.13 did not have any application to the present situation. However, given the way the matter before the Court has been argued, it is necessary to proceed on the basis that both the senior and junior officers accepted that the provision did apply and was to be complied with.

Trial Judge’s Reasons

37 In his judgment, delivered on 15 November 2002, his Honour at [31] found that the directions given to the police officers who were potential witnesses in the appellant’s case were as follows:

“1. Upon receipt of a request to give evidence or to attend a conference with the plaintiff’s legal representatives to notify his/her commander of its receipt.
2. The officer may at his option attend as requested at a conference. Of course he must comply with a subpoena to attend court.
3. If he attends a conference with the legal representatives of the plaintiff he is then required to:
a. provide a copy of any statement signed or adopted by him;
b. report in writing as to the nature of the evidence he is intending or likely to give.
4. ……
5. ……” (emphasis added)

38 Subject to the matters to which I refer at [42], senior counsel for the respondent submitted that the directions so found by his Honour correctly captured the substance of the directions given by Chief Inspector Wright and Commander Reith. He also pointed out that, at the hearing before Cooper AJ, the respondent did not seek to rely upon the directions given by Chief Inspector Lapham if her directions went beyond those given by Commander Reith and Chief Inspector Wright. Cooper AJ found however that her directions were “substantially the same” albeit more detailed than those given by Commander Reith and Detective Chief Inspector Wright and that it would be preferable for there to be “uniformity” in the directions given. I agree with this sentiment, but it does not go far enough. The directions given by Chief Inspector Lapham, if complied with, would unquestionably involve a breach of legal privilege, a matter almost conceded by senior counsel on the appeal and which may have been realised by counsel at trial, thus explaining the retreat from full reliance on it. I will return to this issue later in these reasons

39 At the forefront of the argument before his Honour was an acceptance by the appellant that a potential witness could voluntarily disclose the contents of any statement given to the legal representatives of one party to the opposing party: J. Corp Pty. Limited v. BLF (1992) 110 ALR 510 at 515. Given this concession his Honour asked:

“What then is the difference if [the witness] is compelled by direction having the force of law so to disclose it?” (emphasis added)

His Honour’s reference to directions “ having the force of law ” was a reference to the operation of s.201 of the Police Act 1990 (NSW) to which I refer shortly.

40 His Honour reiterated that the direction that he found had been given merely required the witnesses to do something they could do voluntarily and which could not be the subject of complaint by the appellant. Against that background, his Honour stated at [44] that there were three questions he needed to consider to determine whether the appellant was entitled to the relief sought. They were:

“1. Does the conduct of the [respondent] in giving the directions stated above amount to a contempt of court?
2. Does the conduct in giving the directions stated above amount to an obstruction of the course of justice?
3. Did the directions require the witness to do something that is not lawful.”

41 His Honour answered each of these questions in the negative. In relation to the first two, his Honour noted at [45] that the directions given did not in any way impede the appellant in the preparation of his case, breach any rule of court, impede the potential witness from giving a truthful statement or constitute a threat of reprisal. He found therefore that the direction did not:

“.. amount to an interference in the plaintiff’s proper presentation and preparation of his case.”

42 His Honour also held at [50] that the directions did not involve a contempt of court or an obstruction of justice. Accordingly, the directions did not require the witness to do something that was unlawful.

43 His Honour then went on to consider whether the plaintiff had made out a case for the declaratory relief sought. That raised the question of the effect and operation of s.201 of the Police Act. Section 201 provides:

“A police officer who neglects or refuses to obey any lawful order or carry out any lawful duty as a police officer is guilty of an offence.”

44 Section 201 itself must be considered, in the context of this case, in conjunction with Clause 9 of the Police Regulation 2000 (NSW) provides, relevantly that:

“Police officers are … promptly to comply with all lawful orders from those in authority over them.”

45 His Honour earlier in his judgment at [15] had found that the effect of the directions given to the officers had the force of law, presumably because of the operation of cl.9, and s.201 imposed a sanction if they were not obeyed. His Honour observed that s.201 did not operate unless the direction was lawful but that realistically no officer would become involved in a dispute with a superior officer as to the lawfulness of any order. As he said:

“From this viewpoint any order unless manifestly unlawful would be obeyed.”

46 In the result His Honour at [53] refused the appellant’s application as he was:

“[N]ot satisfied that the directions issued do not constitute a lawful order or a lawful duty for the purposes of s.201 of the Police Act.”

Arguments on the appeal

47 The issues raised on the appeal were defined differently from the way the matter was argued on the hearing of the Summons before his Honour. In particular, no case was made on the appeal that the directions constituted a contempt of court or, subject to what I say in a moment, that there was an obstruction of justice. The case argued by the appellant was essentially that the directions given to the police officers breached legal professional privilege and in that sense there was an interference with the course of justice.

48 The appellant submitted that the effect of the directions was that the junior officers either were obliged, or at least felt compelled, to obtain and hand over to the respondent, a copy of any statement produced as a result of having a conference with the appellant’s legal advisers. The consequence for the appellant was that he would either be forced to forego his entitlement to have privileged communications with those officers as part of the preparation of his claim against the respondent or not to interview them at all.

49 The respondent said that there was no sustainable evidentiary basis for the appellant’s stance, which it contended flowed from the appellant’s erroneous and unnecessarily pedantic interpretation of the directions as found by his Honour. According to the respondent, the effect of the directions as found by his Honour was that “potential witnesses have only been given a direction to do something which they could do voluntarily”. Senior counsel for the respondent submitted that in compliance with the directions, properly understood, the junior officers were only required to provide a copy of a signed or adopted statement if that document was not subject to legal professional privilege. Put another way, the police officers were only obliged to provide a copy of such a statement to the Police Service in circumstances where the appellant had expressly or impliedly waived privilege. That would occur, on the respondent’s argument, where a statement was handed to the police officers by the appellant or his legal representatives without informing the officer that the appellant maintained privilege. The respondent pointed out that “if the witnesses are not given a copy of the statement which they signed, they cannot provide it to the respondent”.

50 It followed, on the respondent’s submission, that the directions that Cooper AJ found had been given were also qualified so as to operate only if legal professional privilege had not been maintained. The respondent also submitted that the direction found by his Honour in [31.3(b)] only came into operation if the appellant had not waived legal professional privilege in relation to the statement referred to in [31.3(a)]. Further, the direction in [3(b)] was to be understood as being no wider than [3(a)] in the sense that all that it required was that the police officer inform the respondent of the evidence he could give. Senior counsel submitted that that requirement did not offend the privilege even though the appellant had maintained privilege in respect of a statement containing the same material, obtained under [(a)]. The respondent also submitted that the trial judge, by the use of the mandatory language of “requirement” had framed the direction more strictly than the directions actually given by the senior officers which it contended were merely a guide to what was required of the junior officers. To that extent also, the respondent did not seek to support his Honour’s formulation of the direction in [31.3(a) and (b)].

Issues on the appeal

51 From these various submissions, the issues on the appeal may be distilled into the following categories:

· First, the nature and extent of the directions given.

This category raises the following questions:
(i) What directions were given to the officers?
(ii) Whether his Honour’s formulation of those directions at [31.3], correctly reflects the directions which were in fact given.
(iii) Whether the directions as given, or as found, are to be understood as containing the implication that compliance with them was subject to legal professional privilege.
(iv) Whether the direction constituted a mandatory direction; see s.201 of the Police Act.

· Secondly, whether the directions either as given or as found breached legal professional privilege.

· Thirdly, whether the understanding of those who gave the directions and of the police officers to whom the directions were given of the nature and extent of the directions, is relevant to how the direction should be construed or to the relief sought.

· Fourthly, the relief, if any, to which the appellant is entitled.

52 Before dealing with each of these issues, it should be noted that both parties sought to maintain their respective positions in relation to the directions given on a principled basis: the appellant on the basis that his legal advisers were entitled to prepare his case without fear of its disclosure to his opponent and so as to protect him in appropriate forensic ways; the respondent, on the basis that both parties have an interest in having a fair trial and that, from its perspective, that entitled it to have made available to it, at the least, the nature of the evidence likely to be given against it.

The nature and extent of the directions given

53 An understanding of the nature and extent of the directions given to the junior officers is fundamental to the determination of the substantive issue in the appeal. In this regard the appellant submitted that his Honour’s formulation of the directions did not accord with the evidence. He argued that the directions in fact given were wider than his Honour’s formulation, even if there was no reliance on the direction given by Chief Inspector Lapham. It is convenient, in the first instance, therefore, to consider the status of Chief Inspector Lapham’s direction. There is some confusion on this issue.

54 On the hearing of the Summons before Cooper AJ, the respondent’s counsel said that on one view, Inspector Lapham’s direction was wider than the direction given by Chief Inspector Wright and Commander Reith and that reliance was only placed on a direction in the terms given by them. In its written submissions on the appeal, the respondent appeared to continue to rely on Chief Inspector Lapham’s direction on the basis of his Honour’s finding that it did not differ in substance from the directions given by the other two officers. However, during the course of oral argument on the appeal, senior counsel for the respondent appeared to accept that the concession made at trial amounted to non-reliance on Chief Inspector Lapham’s direction and also made a partial concession that the direction “could give rise to a breach of privilege”. As I have already stated, I consider the direction, if complied with, would involve a breach of privilege. However, nowhere in the appeal does the respondent unequivocally withdraw its reliance on the direction. It is obvious that his Honour did not consider that Chief Inspector Lapham’s direction was withdrawn otherwise there was no point in his finding at [32] that the directions given by each of the superior officers were ”substantially the same”. Nor was there was any evidence that Chief Inspector Lapham had withdrawn her direction. This was a matter of importance to the appellant who wished to be able to interview the junior officer who was subject of the direction.

55 Accordingly, if the Court determines that the appellant is entitled to relief, I am of the opinion that it should include relief in relation to that direction.

56 There are then the directions given by Commander Reith and Detective Inspector Wright. I have already set out the evidence in relation to the directions given by those two officers. The following observations should be made about them.

57 The extent of the direction given by Detective Inspector Wright is uncertain. Both his oral and written direction was to “report after attending the conference”, with no specification of or limits to the matters upon which that report was to be made. In particular there was no qualification that Senior Constable Wilkinson should not hand over a copy of any statement of evidence which was privileged. Further it is not apparent that Detective Chief Inspector Wright brought the contents of the Police Handbook to Senior Constable Wilkinson’s attention or that he advised him that he meant by the direction that the officer was to provide a copy of statement he signed or adopted and was to “disclose the nature of the evidence he intended to give at the hearing”.

58 Commander Reith’s written direction is also unclear. Read on its own, it was a direction to “report” subsequent to the meeting, without qualification or limitation. Read in conjunction with the recommendation of Chief Inspector Burn, it might be able to be read as a direction to provide a report of the “exact nature of the evidence to be given”. If that was the content of the direction it appears not to have been conveyed to Senior Constable Wilkinson who relied upon information from Detective Senior Constable Anderson that he was to follow the Police Handbook. He understood this to mean that he was to report on “the nature” of the evidence he could give and was to provide a copy of any statement he had.

59 There were thus at least three different express directions given by the superior officers. In summary they were:

(1) to report after attending the conference: (Inspector Wright; and possibly Commander Reith);

(2) to report on the exact nature of the evidence to be given (the combined effect of the direction given by Commander Reith and Chief Inspector Burn);

(3) to provide a comprehensive briefing note before and after the conference detailing respectively the information likely to be discussed and the matters that were in fact discussed (Chief Inspector Lapham).

60 Further, both Detective Inspector Wright and Commander Reith considered that the directions they gave went no further than what was contained in the Police Handbook. On their view, this included a requirement to provide a copy of any statement the officer had signed or accepted. Two of the junior police officers also understood they were to follow the provision in the Police Handbook. There was also the Commissioner’s Instruction 91-13 which was in the same terms as the Police Handbook. The requirement to comply with this provision probably amounts to a fourth direction. There was no evidence and only limited argument as to the meaning of the provision in the Police Handbook. It is at least arguable, and perhaps indisputable in the absence of any express qualification of the provision, that the requirement to “report your knowledge of the case” included a requirement to report on matters that became known as a result of attending a conference with the legal representatives of the person in question, in this case, the appellant, and not only on the evidence the attendee proposed to give if called in the case.

61 His Honour found, however, that there was a single direction, albeit a direction which had two components. In my opinion, the directions given varied in respects which were not insignificant so that it was not possible to compress them into a single bipartite direction as his Honour did. To that extent I consider his Honour erred. Given the differences in the directions that were in fact given, it was incumbent upon his Honour to deal with each to determine whether the specific direction, on the case as it was run before his Honour, constituted a contempt or was an obstruction of justice.

62 The next question is whether the directions, either as given, or as found by his Honour, were subject to an implication of legal professional privilege. Legal professional privilege, whilst a time honoured legal principle, as I discuss later, is unlikely to be understood or at least completely understood by police officers. Its operation is sometimes misunderstood by lawyers as some of the submissions made in this case demonstrate. The principle was certainly misunderstood at least by Chief Inspector Lapham. In my opinion, in an organisation based on an hierarchical command system with highly, and in this case statutorily, regulated disciplinary procedures, there is no room for directions given by a superior officer to a junior officer to carry an implied provision or qualification as the respondent contends. None of the police officers gave evidence that they understood the direction to be subject to the privilege and no submission to that effect was made before the trial judge (although it is recognised that the issues were differently framed at that point). Accordingly, in the absence of an express qualification, I am of the opinion that the directions given by the senior officers were not made on the basis that any requirement to report was subject to legal professional privilege.

63 I also reject the argument that his Honour’s finding as to the terms of the direction was subject to such an implication. Again, I have a real doubt whether his Honour would have left such an important qualification to be a matter of implication. But in any event, it is apparent from his judgment, read as a whole, and [40]-[42] in particular, that his Honour did not intend that his formulation of the direction was subject to any such qualification. In [40] his Honour quoted from J. Corp Pty. Ltd v. BLF (1992) 110 ALR 510 at 515 per French J where it was held that a potential witness was entitled to give a statement to the opposing party. That statement was made by French J in the course of a consideration as to whether legal professional privilege attached to statements taken from potential witnesses. French J observed:

“The confidentiality which attends [the] the taking [of such statements] is of a limited character. There is nothing to stop a prospective witness who has given a statement to a solicitor from announcing that fact and the content of his statement to the world at large. In the ordinary course, neither the solicitor nor his client could do anything to prevent such disclosure”.

Cooper AJ’s conclusion at [41]-[42], that the directions as found by him, did no more than require the officer to do what he was entitled to do in any event, viz provide the statement to the respondent, was drawn against the background of those observations by French J. On that approach, legal professional privilege did not apply, so that there could be no question of its implication.

64 This view, that his Honour did not intend the direction to be subject to an implied qualification as to legal professional privilege, is reinforced by his Honour’s finding that the directions carried the force of a lawful order: cf cl. 9, Police Regulations; in respect of which compliance was necessary: cf. s.201 of the Police Act. His Honour would not, in my view, have left a police officer in the invidious position of working out, in a context in which s.201 operated, whether he/she was required to hand over a statement or otherwise report to a superior officer.

65 These observations lead directly to the next point – whether any direction given was in fact one with which the police officer was obliged to comply.

66 There are two aspects of this particular issue: first, the question whether the effect of the direction(s) was that the officer may only attend on condition that a copy of any statement that he signed or adopted be obtained from the party’s legal representatives; secondly, whether, if the officer was given a copy of the statement, he was thereby required to hand over a copy to his superior officers and/or the respondent.

67 Both these questions involve questions of legal professional privilege and are best dealt with as part of the discussion on that issue. However, reference should be made at this point to one submission made by the respondent. Senior counsel for the respondent submitted that the Handbook is a guideline only and that it is made “absolutely plain that there can be circumstances where they do not have to be followed”. He contended, that the trial judge had therefore, erred in his finding as to the content of the direction in [31(b)] because of his Honour’s use of the word “required”. That finding, he submitted, failed to take into account the concession by junior counsel at trial that all that the direction required was “necessary compliance with the guidelines”. Senior counsel added however that “it would be naïve if I was to put there was not an expectation of compliance”.

68 Three comments should be made about this submission. First, his Honour found that the effect of the directions given by the senior officers involved a requirement that the officers do one or other of two things specified in his Honour’s formulation in [31(a) and (b)]. The respondent has not sought to challenge that finding by an appropriately formulated Notice of Cross-Appeal. Such challenge as there was to His Honour formulation, only came by way of a sidewind in the course of the appellant’s oral argument. Secondly, the directions given by each of the senior officers used the mandatory language of “requirement”, “attend and report” and “requirement to report” (Commander Reith), “should report” (Detective Chief Inspector Wright); “I require” (Chief Inspector Lapham). In my opinion, it is artificial to suggest that the directions given to the police officers involved other than a direction with which they were required to comply. Thirdly, the provisions of s.201 of the Police Act and Clause 9 of the Regulations indicate and may even dictate that compliance with the directions was necessary assuming, as is the respondent’s case, that the directions were lawful.

Section 201 as I have already discussed, then provides a criminal sanction for non-compliance.

Whether the directions breached legal professional privilege

69 As I have stated earlier, in the matter as argued before Cooper AJ, the issues were very different from those which are before us. The issue with which this Court is concerned is whether compliance with the directions would involve a breach of legal professional privilege.

70 The trial judge stated that the junior officers were entitled to hand over their statements to the respondent and this proposition was embraced by the respondent in its submissions to this Court. As senior counsel for the respondent said “there is no property in a witness”. This, like legal professional privilege is a time honoured principle. As Lord Denning said in Harmony Shipping Co v. Saudi Europe Line (C.A.) [1979] 1 WLR 1380 at p.1384:

“So far as witnesses of fact are concerned, the law is as plain as can be. There is no property in a witness. The reason is because the court has a right to every man’s evidence. Its primary duty is to ascertain the truth. Neither one side nor the other can debar the court from ascertaining the truth either by seeing a witness beforehand or by purchasing his evidence or by making communication to him. In no way can one side prohibit the other side from seeing a witness of fact, from getting the facts from him and from calling him to give evidence or from issuing him with a subpoena.”

However, that principle has to operate in conjunction with other principles, including the principle of legal professional privilege.

71 Legal professional privilege is a rule of substantive law: Attorney-General (NT) v. Maurice (1986) 161 CLR 475 at 490 per Deane J. The rationale for the privilege was explained by Mason and Brennan JJ in Maurice’s case at p.487:

“The raison d’etre of legal professional privilege is the furtherance of the administration of justice through the fostering of trust and candour in the relationship between lawyer and client”.

The privilege and its underlying rationale extends to communications by third parties to a person’s legal advisers. In the case of third party communications, the specific purpose of the privilege is to enable the person to prepare properly a case for litigation untrammelled by a fear that her/his case will be disclosed to the opposing party, other than in accordance with the relevant rules of Court. As Mason and Brennan JJ further observed in Maurice at p. 487, when the privilege applies it “interferes with the public’s “right to everyman’s evidence: Cobbett’s Parliamentary History (1812) vol 12 p 675 ” (cf. Harmony Shipping Co. v. Saudi Europe Line (CA)) .

72 This aspect of legal professional privilege was further considered by McHugh J in Mann v. Carnell (1999) 201 CLR 1 at [112] and [114]:

“… the common law has adjudged that the search for truth, which usually has primacy in curial proceedings, must give way to the considerations inherent in legal professional privilege. Even though the privilege admittedly ‘frustrates access to communications which would otherwise help courts to determine, with accuracy and efficiency, where the truth lies in disputed matters’, other aims of the system of administration of justice outweigh the general undesirability of the truth being obscured.
…
The rationale for the head of legal professional privilege which protects communication from a third party to the client or the lawyer made in connection with the litigation is related to, but distinct from, that discussed in Grant . … arises from the need to maintain, in an adversary system of litigation, the freedom of the lawyer and client to make such investigations and inquiries and to engage in such preparation as they think fit in order to further their case. A party to litigation should not be forced to prepare his or her case knowing that statements, advices and other documents, which have been created, may be required to be disclosed to the other party who can then make use of the documents for his or her own advantage.”

73 Thus the privilege:

“may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of obtaining legal advice or the provision of legal services, including representation in legal proceedings”:

Daniels Corp International Pty. Limited v. Australian Competition and Consumer Commission (2002) HCA 2049; (2002) 192 ALR 561 per Gleeson CJ, Gaudron, Gummow and Hayne JJ.

74 In Daniels, their Honours in the joint judgment at [10] confirmed that legal professional privilege, being a rule of substantive law, was not confined to judicial or quasi judicial processes. Their Honours at [11] further confirmed the well-settled principle that “statutory provisions are not to be construed as abrogating important common law rights, privileges and immunities in the absence of clear words or a necessary implication to that effect”. Their Honours stated that the rule, subject to a possible exception which is not relevant here, is to be applied strictly.

75 In dealing with this issue it is important to note the position taken by each party. In the first instance it is convenient to do so by reference to the direction as found by his Honour at [31] on the basis that his Honour did not qualify his finding as to the direction given by impliedly holding that it was subject to legal professional privilege.

76 The respondent did not dispute that if the appellant’s legal representatives took a statement of evidence in conference, the statement was privileged. It acknowledged that the appellant was entitled to protect that privilege and could do so by not handing over a copy of the statement to the officer. The respondent also accepted that the appellant could maintain the privileged status of a statement which was handed over to the officer by advising that the document was privileged. There may of course be circumstances in which the privilege is maintained even if the party entitled to it does not use express words or conduct to do so. However, the question of when that might be the case does not arise here and it is not necessary to consider it.

77 In my opinion, once the respondent recognised that privilege could be maintained by, for example, handing over the document subject to the express maintenance of the privilege, a collision between the direction found at [31.3(a)] that required the officer to provide a copy of any statement and the appellants’ right to maintain privilege in the document, is inevitable. An unqualified direction, given in the terms of [31.3(a)], commanding compliance, would give rise to a breach of the privilege if and when complied with.

78 That then leaves the second part of the direction. The respondent submitted that the direction as formulated in [31.3(b)] was an alternative to that in [31.3(a)], so that if the appellant had sought to protect his position by not providing a copy of the statement then the officer was required to provide a report in writing of the nature of the evidence he was “intending or likely to give”. In my opinion, a direction in those terms effectively requires the potential witness to rewrite his statement and has the same result as handing over the privileged document. I should add that the appellant’s argument in relation to the application of the direction in para (b) also extended, as I understand it, to the case where a police officer had been given a copy of a statement in circumstances where privilege had been expressly maintained and for that reason did not hand it over to the respondent

79 It is not an answer to the requirement of either part of the direction, as the respondent suggests, to say that the police officer would only be providing to the senior officers what the respondent was entitled to in any event. I have already referred to the statements of Mason and Brennan JJ in Maurice, and of McHugh J in Mann v. Carnell. The principle enunciated in those statements does not impinge upon the entitlement of a party to litigation, at the stage of preparation for trial, to ask any potential witness about the claim made by the other party. That is different from requiring a report of precisely what was said by that person to the other party. It also needs to be recognised that the statement taken by the other party’s legal representative might contain matters that are not intended to be, or cannot be, used in evidence but which provide e.g. contextual information, or information that assists the legal representatives to pursue other avenues of inquiry. Accordingly, if the directions formulated in [31.3(a)] and [31.3(b)] are to be read as being effectively co-extensive, then the collision with the appellant’s entitlement to legal professional privilege arises in relation to [31.3(b)] in the same way as it does with [31.3(a)]. It follows that the second part of the direction imposes a requirement, which, if complied with, would involve a breach of legal professional privilege. The respondent’s reliance, therefore, on the appellant’s ability to control the situation by not handing over a copy of any statement taken or by expressly maintaining the privilege if a statement was handed over, to deflect the argument that its directions do not have the effect contended for, does not assist it.

80 That then leaves a consideration of the express directions given by each of the senior officers. I have already found that the direction given by Chief Inspector Lapham, if complied with, would involve a breach of legal professional privilege. This was effectively conceded by the respondent and does not require further discussion.

81 There were then the directions to “report after attending the conference” and “report on the exact nature of the evidence to be given”. Although on the evidence the content of the direction “to report” remained unspecified, I infer it would encompass more than a direction to report on the fact of attendance and would involve a requirement to state what transpired at the meeting with the appellant’s legal representatives, otherwise the direction would be unnecessary and probably meaningless. Individual officers might put varying degrees of detail in any such report. But regardless of the detail, what is relevant is the subject matter of the report, which, as I have inferred would include what was said at the meeting. That subject matter is privileged.

82 The direction to report on the “exact nature of the evidence to be given” is almost identical to Cooper AJ’s formulation of the direction in [31.3(b)], the only difference being in the use of the word “exact”. The requirement of exactitude does not make it different in concept to the direction in [31.3(b)] and for the same reasons, compliance with it would breach privilege.

83 That leaves only the possible fourth direction – a requirement to comply with the Police Handbook and Instruction 91.13. If that provision involves a requirement to provide a copy of any statement provided by the appellant’s legal representatives then the same considerations as are referred to above in relation to the direction in [31.3(a)] apply.

84 The requirement to provide a report of “your knowledge of the case, your relationship to the party you are to give evidence for, [and] the evidence you can give,” requires separate consideration. If this direction, assuming it was to be used in a proper context, was read on its own, it might not involve a breach of legal professional privilege. In other words, it might be able to be construed as a direction that facilitated the respondent obtaining its own witness statements. But the direction must be read in context. It was apparent from the respondent’s submissions that the respondent considered it had the right to obtain a report from potential witnesses so as to ascertain what was said between the appellant’s legal representatives and the officer. That is not permissible and is quite different from a party obtaining its own statement from witnesses having regard to the claim made against it. Accordingly, in the context in which this part of the provision in the Handbook was to operate in this case, compliance with it would breach legal professional privilege.

Relevance of understanding of the police officers

85 The next question is whether the understanding either of the senior officers who gave the directions or the junior officers to whom the directions were given, is relevant. In my view, their opinions are not relevant. There could be as many interpretations of the directions as the number of persons who give and receive them as was effectively demonstrated in this case. The real and only question is whether compliance with the directions which in fact were given would involve a breach of legal professional privilege. A subjective understanding of the directions does not affect that question.

Clause 9 of the Police Regulations and Section 201 of the Police Act

86 There is one final matter with which I should deal before turning to the relief to which the appellant is entitled. Cooper AJ found that the directions given by the senior officers had the force of law and there was an obligation on the junior officers to comply with them. As I have defined the issue in the proceedings at the commencement of these reasons, it is not whether the various directions are lawful, but whether compliance with them would involve a breach of legal professional privilege. I have determined that compliance would involve such a breach.

87 However, that formulation of the issue in the case leaves outstanding the status of the directions. The appellant says that, in circumstances where the respondent has not withdrawn the directions and there is a finding that they have the force of law, then, unless the Court declares or directs that the directions do not constitute lawful orders, he will either effectively have to waive his privilege or alternatively forego his right to interview these potential witnesses.

88 Whilst, in my opinion, it does not follow that because compliance with an order or direction would breach some right, in this case legal professional privilege, the direction is itself unlawful, it seems to me that the answer to the appellant’s conundrum is to be found in the principle that a statute will not be construed as abrogating a fundamental principle of the common law unless an intention to do so is clearly expressed: Thompson v Mastertouch TV Service Pty Ltd (No 3) (1978) 19 ALR 547 at 560; Daniels at [10] and [39]. See also Pearce & Geddes: Statutory Interpretation in Australia 5th Ed at [5.12]. Legal professional privilege is such a fundamental principle. The application of the principle of statutory construction in this case is that the officers will not be guilty of an offence for failure to comply with the directions. That is different from saying, as the respondent sought to argue, that the directions, in whatever form they were given, were subject to an implication that the giver of the direction did not require the recipient of the direction to breach legal professional privilege. For the reasons already given, the directions were not subject to any such implication and despite that aspect of the respondent’s argument the substance of its case was that the directions, in whatever form they took, operated according to their terms, regardless of whether the appellant sought to expressly maintain the privilege.

89 For these reasons, I would decline to make a direction or declaration in relation to the lawfulness of the directions

Relief to which appellant is entitled

90 Having regard to the conclusion to which I have come in relation to the nature and effect of the directions given, I consider that the appellant is entitled to relief. The appellant’s claim for relief in its Notice of Appeal has, to some extent, been overtaken by the manner in which the appeal has been argued, so that it becomes necessary to determine what is the appropriate relief.

91 Having regard to the confusion as to the nature and extent of the directions given, the various interpretations of those directions, His Honour’s finding that the directions were lawful, his Honour’s wrong finding as to the content of the directions and the respondent’s case that the directions are subject to an implication as to legal professional privilege, I am of the view that it is appropriate to make a declaration that the directions given are such that compliance would involve a breach of legal professional privilege.

92 The respondent argued however, that the appellant is not entitled to declaratory relief because the appellant has “no right enforceable against any of the proposed witnesses”. This submission was made in a context where part of the relief sought by the appellant in its Notice of Grounds of Appeal could have been interpreted as being directed to the police officers to whom the directions were given. Those officers, of course, are not parties.

93 The Court will not normally grant a declaration unless there is a legal issue in existence between the parties. This was once considered a discretionary restraint on the making of a declaration but is now more properly viewed as a jurisdictional limitation: Meagher Gummow & Lehane’s Equity Doctrines and Remedies; Meagher Heydon and Leeming (4th ed) [105]; Declaratory Orders P.W. Young (2nd ed) [202] [210]-[211]. However, given the way the case evolved in argument, that principle is not relevant. The respondent is the defendant in the claim for damages brought by the appellant and thus has a real interest in the proceedings. The relief is sought against it, and not against the individual officers. The respondent has, in these proceedings, sought to support the directions given by the senior police officers. I have concluded that its defence of those directions has failed. There is ongoing litigation between the parties and the directions, if obeyed, will have the effect of interfering with the appellant’s legitimate preparation of its case. In those circumstances, declaratory relief, in my opinion, is clearly warranted.

94 Accordingly I make the following Orders and Declaration:

1. Appeal allowed.

2. Declare that the directions given by Commander Reith, Detective Inspector Wright and Chief Inspector Lapham, if complied with by any officer to whom they were given, would breach the appellant’s entitlement to legal professional privilege in respect of communication between his legal representatives and such officers.

3. The respondent is to pay the appellant’s costs of the appeal and of the hearing at first instance.

95 SANTOW JA: I agree with Beazley JA.

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Last Modified: 08/03/2004