Johnston v Carroll (APM, Commissioner of the Queensland Police Service)
[2022] QSC 115
•6 June 2022
SUPREME COURT OF QUEENSLAND
CITATION:
Johnston & Ors v Carroll (APM, Commissioner of the Queensland Police Service) [2022] QSC 115
PARTIES:
DYLAN MARK JOHNSTON
(first applicant)
andBENJAMIN OWEN OAKLEY
(second applicant)
andKEVIN JOSEPH GHERINGER
(third applicant)
andTONY ADAM PAYNE
(fourth applicant)
andCONNAN KEITH BARRELL
(fifth applicant)
andBENJAMIN SHANAHAN
(sixth applicant)
andTONIA MARCELLE LANCE
(seventh applicant)
andv
KATARINA RUZH CARROLL APM, COMMISSIONER OF THE QUEENSLAND POLICE SERVICE(first respondent)
and
DR JOHN GERRARD, CHIEF HEALTH OFFICER
(third respondent)
and
ATTORNEY-GENERAL FOR THE STAET OF QUEENSLAND
(first intervenor)
and
QUEENSLAND HUMAN RIGHTS COMMISSIONER
(second intervenor)FILE NO/S:
BS 11254 of 2021
DIVISION:
Trial Division
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
Date of Order: 6 June 2022
Date of Publication of Reasons: 9 June 2022DELIVERED AT:
Brisbane
HEARING DATE:
3 June 2022
JUDGE:
Martin SJA
ORDER:
Date of Order: 6 June 2022
1. The applicants have established that privilege has been waived.
2. The Crown Law advice referred to in the Memorandum must be disclosed.
CATCHWORDS:
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – PRODUCTION AND INSPECTION OF DOCUMENTS – GROUNDS FOR RESISTING PRODUCTION – PRIVILEGE – CLIENT LEGAL PRIVILEGE – WAIVER OF PRIVILEGE – where Deputy Commissioner Smith provided a memorandum to Commissioner Carroll – where, in that memorandum, Deputy Commissioner Smith refers to seeking and receiving advice from Crown Law – where, in cross-examination, Deputy Commissioner Smith gave evidence that the Crown Law advice gave him sufficient comfort to recommend the Commissioner issue the direction – where, in cross-examination, Deputy Commissioner Smith gave evidence that the Crown Law advice gave him sufficient comfort in relation to the scope of the Commissioner’s powers under the Police Service Administration Act 1990 to issue the direction, and that the direction would be compatible with human rights and not an unlawful discrimination – whether there has been an express or implied waiver of privilege over the Crown Law advice
Human Rights Act 2019, s 58
Police Service Administration Act 1990, s 4.9GR Capital Group Pty Ltd v Xinfeng Australia International Investment Pty Ltd [2020] NSWCA 266
Mann v Carnell (1999) 201 CLR 1
The Queensland Local Government Superannuation Fund v Allen [2016] QCA 325COUNSEL:
DF Villa SC with PF Santucci and W Liu for the applicants
MR Hodge QC with SA McLeod QC, BI McMillan, RH Berry and PH Nevard for the first respondentSOLICITORS:
Alexander Law for the applicants
G R Cooper, Crown Solicitor for the first respondent
During the hearing of this matter, the applicants issued a subpoena directed to Commissioner Carroll requiring production of, among other things, legal advice given to Deputy Commissioner Smith or her by the Crown Solicitor. This followed a call, during the evidence of Deputy Commissioner Smith, for the advice to be produced. Commissioner Carroll resists production and asserts legal professional privilege.
It was not in dispute that the advice was subject to legal professional privilege. The basis for the pursuit of the subpoena is that the privilege has been waived expressly or by implication or both.
The matter was argued on 3 June. On 6 June I ruled that the privilege had been waived. These are my reasons for doing so.
The circumstances of the asserted waiver
Deputy Commissioner Smith provided a memorandum of 23 August 2021 (the Memorandum) to Commissioner Carroll entitled “Workforce risks and vaccination of our workforce”. In that memorandum, the following appears:
“Mandatory vaccination direction for all police personnel:
Following our discussions on the developing and growing risks to our workforce, their safety and to our capability to provide services to the community, I have sought and received advice from Crown Law [redaction]. This advice is attached, and I will not repeat it in this briefing.”
Later in the memorandum there is a summary which, so far as is relevant, contains the following:
“…
3. A mandatory direction by the Commissioner of Police with exceptions for contraindications and genuine religious objections would not amount to unlawful discrimination.
4. A mandatory direction by the Commissioner of Police would fall within the scope of powers under the Police Service Administration Act.
5. A mandatory direction by the Commissioner of Police would be compatible with human rights under the Human Rights Act.”
On 7 September 2021, the Commissioner issued “Instrument of Commissioner’s Direction No. 12” pursuant to s 4.9 of the Police Service Administration Act 1990.
On 7 October 2021, the Commissioner issued a “Statement of Reasons” in relation to the decision to issue Direction No. 12. In that statement she said that, in arriving at her decision, she considered, among other material, the Memorandum.
In that statement, the Commissioner also set out a number of paragraphs relating to the requirement under s 58 of the Human Rights Act to give proper consideration to human rights. The Commissioner referred to the Human Rights Compatibility Assessment which was attached to her reasons and stated that it reflected her consideration of the human rights she considered relevant to her decision to issue the direction.
Deputy Commissioner Smith was cross-examined about the Memorandum. He said that the documents provided to the Commissioner included the Memorandum, a draft direction, and the Human Rights Compatibility Assessment. He was taken to the last page of the Memorandum on which is set out the summary referred to above. He was referred to items 3, 4 and 5 of that summary and asked:
“And I take it those are matters that you assert on the basis of advice that had been given you from Crown Law? --- Not entirely. In fact, I had not achieved the – the Crown Law opinion at that time with respect to a direction. They were – they were my assertions.
…
You’ll see at the bottom of page 5, you say that you sought and received advice from Crown Law? --- Yes, sir.
Are you telling his Honour that that advice related to something other than what is asserted in paragraphs 3, 4 and 5? --- I had – I had received Crown Law advice on some aspects.”
At that point, an objection was taken on the basis of privilege.
He was later asked these questions:
“…
MR VILLA: The question I asked was that – let’s go back. I think you told his Honour a moment ago that the advice that you refer to at the bottom of page 5 wasn’t advise in relation to certain aspects of what was being done?‑‑‑Yes, sir.
And did that advice – I’ll do it step by step. Did that advice that you had received by the 23rd of August address the question of whether or not a mandatory direction with exceptions to contraindications and genuine religious objections would not amount to unlawful discrimination?‑‑‑So the advice that I’d been receiving up until that point of time gave an indication that it would be a lawful direction and within the scope of the Commissioner’s powers. But further advice was sought with respect to the actual wording of a direction to be given.
And so should his Honour take it from that answer that the advice that you had received by the 23rd of August had at least addressed the issue referred to in paragraph 4 of your summary?‑‑‑It would give me sufficient comfort to make that recommendation to the Commissioner.
All right. And is that sufficient comfort in relation to the scope of the powers under the Act, correct?‑‑‑Yes, sir.
And sufficient comfort that it would not amount to unlawful discrimination?‑‑‑Yes, sir.
And sufficient comfort that it would be compatible with human rights?‑‑‑Subject to a final direction being drafted up for the Commissioner’s consideration. It wasn’t a point in time process. It was a continuing process.
All right. Well, your Honour, I do call for that legal advice because in my submission, those answers not objected to and in conjunction with the reliance that the Commissioner must be placing on the fact of having obtained legal advice consistent with her – with the summary and with the human rights assessment that had been conducted must, in terms of the Mann v Carnell inconsistency rationale, amount to a waiver of privilege over that advice.
…”
The Commissioner was cross-examined about the Crown Law advice. She could not recall whether she had read it or not but accepted that it was likely that she had read it.
She was asked these questions:
“…
All right. Now, is it at least fair to say this: you were aware of what the Crown Law advice that you Deputy Commissioner Smith is referring to at the bottom of page 5?‑‑‑I know that he received advice and he may have even briefed me on it, but due to the amount of things that were happening, I cannot recall.
You know that he receives advice ‑ ‑ ‑?‑‑‑I expect ‑ ‑ ‑
‑ ‑ ‑ don’t you?‑‑‑Yes. I expect ‑ ‑ ‑
And you know that he gave it to you; correct?‑‑‑I normally always receive – not always, often receive advice ‑ ‑ ‑
Commissioner, you know that he gave you ‑ ‑ ‑?‑‑‑I’m trying to answer ‑ ‑ ‑
‑ ‑ ‑ Crown Law ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ advice about your proposed direction?‑‑‑Yes. Somewhere, yes.
And ‑ ‑ ‑?‑‑‑Yeah.
‑ ‑ ‑ if you didn’t read it, will you at least accept that Deputy Commissioner Smith briefed you on what that Crown Law advice said?‑‑‑Yes, I expect him to have briefed me.
And he briefed you, didn’t he, to the effect that your mandatory direction, with exceptions for contraindications and genuine religious objections, would not amount to unlawful discrimination; correct?‑‑‑Yes.
And he also told you that the Crown Law advice was to the effect that a mandatory direction by you would fall within ‑ ‑ ‑
MR McLEOD: Sorry ‑ ‑ ‑
MR VILLA: ‑ ‑ ‑ the scope of powers ‑ ‑ ‑
MR McLEOD: Sorry, I ‑ ‑ ‑
HIS HONOUR: Yes.
MR McLEOD: No, I object.
…”
The Commissioner was later asked:
“…
Deputy Commissioner Smith briefed you to the effect that a mandatory direction by you would fall within the scope of powers under the Police Service Administration Act; correct?‑‑‑Yes.
And he also briefed you to the effect that a mandatory direction by you would be compatibility with human rights under the Human Rights Act; correct?‑‑‑Yes.
And you relied upon each of those three matters in making your decision to issue Direction No. 12; correct?‑‑‑Yes.
And you understood, didn’t you, that that briefing from Deputy Commissioner Smith was based upon advice received from Crown Law; correct?
MR McLEOD: I object to that.
…”
Has privilege been waived?
The evidence satisfies me that the advice was sought by Deputy Commissioner Smith for his purposes and so that he might be able to properly brief the Commissioner. The Commissioner did not seek the advice. But, for the purposes of this application, the identity of the person who sought the advice is not of great moment. The waiver is said to arise from a failure to object by counsel for the Commissioner and by the explicit reliance of the Commissioner on that advice being inconsistent with the privilege.
Deputy Commissioner Smith said that he had not obtained the Crown Law opinion at the time of giving his advice to the Commissioner in the Memorandum. He is mistaken in that because, as is noted above, the Memorandum refers to a Crown Law opinion. It may be that he was referring to the further advice sought specifically with respect to the appropriate wording for such a direction.
In any event, the questions and answers set out above are sufficient for me to conclude that there was a waiver of the privilege. He refers to the advice he had been receiving to the effect that: the proposed direction would be a lawful direction and within the scope of the Commissioner’s power; that the advice he had received with respect to Item 4 in his summary gave him sufficient comfort to make that recommendation; and that he was comforted by the advice about the scope of powers, unlawful discrimination, and compatibility with human rights.
Some objections were taken to other questions but no objection was taken to any of the questions in that part of his cross-examination. That is sufficient to establish waiver.
It was also argued that there had been an implied waiver in terms of the inconsistency rationale referred to in the High Court decision of Mann v Carnell[1] where Gleeson CJ, Gaudron, Gummow and Callinan JJ said:
“At common law, a person who would otherwise be entitled to the benefit of legal professional privilege may waive the privilege. It has been observed that "waiver" is a vague term, used in many senses, and that it often requires further definition according to the context. Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege. Examples include disclosure by a client of the client's version of a communication with a lawyer, which entitles the lawyer to give his or her account of the communication, or the institution of proceedings for professional negligence against a lawyer, in which the lawyer's evidence as to advice given to the client will be received (citations omitted).”[2]
[1](1999) 201 CLR 1.
[2]At [28].
The joint judgment in Mann v Carnell emphasises that the touchstone for determining whether there has been waiver is “not some overriding principle of fairness operating at large” but “the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality …”.[3]
[3]At [29].
It was argued that the advice formed a fundamental part of the recommendation made by Deputy Commissioner Smith which led to the making of Direction No. 12. That much can be accepted. His evidence was consistent – he relied upon the advice in creating the Memorandum.
The effect of that type of concession was considered by Burns J (with whom McMurdo P and Philippides JA agreed) in The Queensland Local Government Superannuation Fund v Allen where he said:[4]
“… if the privilege holder has sought to justify its position (or state of mind) by reference to the substance or effect of legal advice it has received, such conduct will be inconsistent with the maintenance of confidentiality in the advice. In any such case, the privilege holder has put the legal advice in issue in the proceeding as something supporting the claim or defence. In those circumstances it would accordingly be unfair in the sense explained by the majority in Mann v Carnell to permit reliance on the advice for forensic advantage while, at the same time, preventing the opposing party from having access to it (citations omitted).”
[4][2016] QCA 325, at [73].
In GR Capital Group Pty Ltd v Xinfeng Australia International Investment Pty Ltd,[5] Macfarlan JA (with whom McCallum JA and Simpson AJA agreed) examined the authorities which had followed the decision in Mann v Carnell and arrived at the following propositions which, with respect, I adopt:
[5][2020] NSWCA 266.
“…
57.I draw from these authorities the following propositions of present relevance:
(1)The test is one of inconsistency between the privilege holder’s conduct and its maintenance of the privilege, not one of general fairness or of relevance to an issue in the proceedings.
(2)Enquiring whether the privilege holder has made express or implied assertions about the contents of the confidential communications, and whether its conduct has therefore “laid open the communications to scrutiny”, assists in ensuring that the court’s focus is on inconsistency rather than simply relevance. If the privilege holder is understood to be asserting something about the contents of the communications, it is but a short step to conclude that it would be inconsistent for it to prevent those contents being scrutinised.
(3)On the other hand mere relevance of the content of the privileged communications to an issue raised in the proceedings by the privilege holder does not equate to inconsistency – something more is needed. It is of the essence of legal professional privilege that, if maintainable, it entitles a party to withhold potentially relevant documents from inspection by the other party.
(4)The determination of whether there has been an express or implied assertion about the contents of privileged communications giving rise to a relevant inconsistency is an evaluative decision to be made after consideration of the whole of the circumstances of the case. No hard and fast rules can be formulated. Those circumstances will include the degree of relevance of any advice to the issues in the proceedings, the centrality of the relevant issues in the proceedings and the likelihood of advice having been given, informed, as the High Court said in Mann v Carnell, by considerations of fairness.
(5)Having considered all those circumstances, the court must decide whether it would be inconsistent with the privilege holder’s conduct for it to maintain privilege. The line between relevance to an issue and inconsistency in this context may be very fine and therefore one on which views might well differ.”
Part of the material relied upon by the Commissioner included the Human Rights Compatibility Assessment which was created by Crown Law. It, of course, is not subject to privilege, but there was evidence that there had been some discussion between the Deputy Commissioner and representatives of Crown Law about the various drafts of the directions and the compatibility statement. I do not doubt that the advice given by Crown Law would be relevant to those issues. It is inconsistent for the holder of the privilege to assert privilege whilst relying upon documents such as the compatibility assessment and its inclusion in the statement of reasons.
Deputy Commissioner Smith alluded to the contents of the advice and, in cross-examination, accepted that he had relied upon it (he was comforted by it) in formulating specific parts of his recommendation. By doing that he “laid open the communications to scrutiny”.
I have concluded that privilege was waived through Deputy Commissioner Smith giving the answers to questions which were not the subject of objection.
If I am wrong in that then I am satisfied that privilege was waived implicitly (by reference to the test in Mann v Carnell) and that that waiver came about through the operation of the statement of reasons and the Memorandum. The Memorandum (and the other conversations with Deputy Commissioner Smith) informed, to a palpable extent, the decision made by the Commissioner to issue Direction No. 12. It is inconsistent (and it would work a fundamental unfairness) for the Commissioner to seek to justify her position by reference to material which includes the advice from Crown Law and to attempt to maintain privilege for that advice.
The applicants have established that privilege has been waived. The Crown Law advice referred to in the Memorandum must be disclosed.
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