Macdonald v Queensland Building Services Authority
[2013] QCAT 363
•11 July 2013
| CITATION: | Macdonald v Queensland Building Services Authority [2013] QCAT 363 |
| PARTIES: | Jamie Christopher Rory Macdonald (Applicant) |
| V | |
| Queensland Building Services Authority (Respondent) |
| APPLICATION NUMBER: | OCR317-12 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member |
| DELIVERED ON: | 11 July 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Application for Miscellaneous Matter filed 12 June 2013 is dismissed |
| CATCHWORDS: | Legal Professional Privilege – where contents of letter of advice from applicant’s solicitor disclosed to the respondent – whether disclosure inadvertent – whether legal professional privilege lost applies once the letter is disclosed – whether the legal professional privilege waived. Queensland Civil and Administrative Tribunal Act 2009 s 28. Armstrong Strategic Management and Marketing Pty Ltd v Expense Reduction Analysis Group Pty Ltd (2012) 295 ALR 345 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Mr McDonald is the holder of a Queensland Building Services Authority licence. In May 2012 he was a 50% shareholder in Ozmac Concrete Constructions Pty Ltd when liquidators were appointed to the Company. As consequence of liquidators being appointed the Authority notified Mr McDonald that it had made a decision to categorise him as an excluded individual under section 56AC(4) of the Queensland Building Services Authority Act. That section provides that if an individual is an influential person for a company to which a liquidator is appointed, then that person is an excluded person for that relevant company event. An excluded individual cannot hold a Queensland Building Services Authority licence.
The Authority says that because Mr McDonald was a 50% shareholder, he was influential person in the company Ozmac Concrete Constructions.
As a result of that decision Mr McDonald filed an application in the Tribunal to review the Authority’s decision to categorise him as an excluded individual because he says, at the time of the appointment of the liquidator, he was not a director, took no part in the operation of the business and therefore was not an influential person.
In support of his application for review, a statement from his estranged wife Mrs Selina McDonald was filed. Attached to it was a letter from solicitors engaged by Mrs McDonald to provide legal advice about the circumstances of the liquidation of Ozmac Constructions insofar as it impacted on Mr McDonald’s QBSA licence. It is contended this letter was included with and attached to her statement in error.
An application has been filed seeking an order that it be removed from the statement and not form part of the evidence before the Tribunal. The application is opposed.
Background
After Mr McDonald’s resignation as a director on 1 April 2011 the sole remaining director of the company was Selina McDonald. The statement she has provided in the review application explains the circumstances of the company going into liquidation and Mr McDonald’s limited role in the operation of the company after his resignation as a director. The effect of this evidence is to contend that he was not influential in the operation of the company or decisions made about putting it into liquidation.
Annexed to her statement of evidence is a letter from Lawyers Queensland, to both Mr and Mrs McDonald dated 20 September 2012. It is marked as exhibit “SM6”. It is a letter of advice setting out the consequences of Ozmac Concrete Constructions Pty Ltd going into liquidation, the impact it would have on Mr McDonald’s license, advice about the effect of section 56AC of the Queensland Building Services Authority Act 1991, Mr McDonald’s rights of review if he is considered an excluded individual, and his ability to apply to become a permitted individual to preserve his license. There is also advice about how the decisions of the Queensland Building Services Authority can be reviewed in QCAT. It is thorough and seems to address all of the considerations associated with the application of section 56AC and what Mr McDonald has to do to be categorised as a permitted individual both before the Authority, and this Tribunal if he reviews any decision by the Authority.
It is contended by the applicant that the letter “SM6” has been included in the material by mistake. It is a document which attracts legal professional privilege because it is a letter of advice from his solicitor to himself and Selina McDonald. Because it is privileged the Authority should not have regard to it and it should be excluded from the material to be put before the Tribunal.
Submissions have been filed by Mr McDonald’s lawyers, Gadens Lawyers, in support of the application. The Queensland Building Services Authority have also filed submissions opposing the application essentially contending that once documents have been produced to another party any legal professional privilege that may have attached to those documents is lost.
I have read the statement of evidence of Ms McDonald and in that statement there is no specific reference to the letter “SM6”. In paragraph 35 of the statement there is a reference to advice sought from a financial consultant which advice is annexed to the statement in annexure “SM5”. In paragraph 37 there is a reference to advice sought from Karen Schwede, solicitor, of Lawyers Queensland in relation to Ozmac’s position, using another person’s licence, payment of building work, BSA infringements, Mr McDonald’s licence and other BSA experiences. There is no reference to annexure “SM6” in that paragraph, despite the document being attached to the statement. Then in paragraph 39 there is reference to emails passing between Ms McDonald and her accountant and those emails are annexed as “SM7”.
It seems odd that there would be a summary of what is contained in the letter in paragraph 37, but the letter to support of the statement made was not annexed to the statement as occurred in paragraph 35 and 39 with respect to “SM5” and “SM7”. It is submitted by the applicant that support for the contention that the disclosure was inadvertent was on the basis that the statement jumps from “SM-5” to “SM-7” and there is no specific wording to the effect that “a copy of the advice is attached”. If that was the case one would think that the exhibit referred to in paragraph 37 would be “SM6”.
It seems to me that once there was reliance on the content on the fact that legal advice was obtained and there is a summary of what the advice was in relation to, and providing that it is relevant to an issue in the proceeding then there is a good argument that the document would have to be disclosed or alternatively, paragraph 37 would have to be removed from the statement.
In the end, I am not satisfied that the inclusion of the document was inadvertent because of the summary of the contents of the letter contained in paragraph 37.
The respondent contends that once the privileged document has been delivered up as part of a statement filed, the principles about legal and professional privilege do not apply. A claim of legal professional privilege applies to prevent disclosure or production of a document if it is truly a privileged document, that much is certain. This point was considered in Armstrong Strategic Management and Marketing Pty Ltd v Expense Reduction Analysis Group Pty Ltd.[1] in Armstrong, similar to this case, documents were disclosed over which privilege was claimed subsequent to their, it was said, inadvertent disclosure. An application was brought, by way of injunction, for an order that the documents be returned to the applicant. In that case Campbell JA said:-
“Even if the disputed documents were privileged, the common law concerning legal professional privilege would not provide a foundation for making any such order. All the common law concerning legal professional privilege does is to provide a ground on which a person with the benefit of the privilege is entitled to resist what would otherwise be a legal demand for the disclosure of privileged material.”
[1] (2012) 295 ALR 345.
This comment also has support from the High Court in Baker v Campbell[2] where Gibbs CJ said that if a privileged document has been obtained by an opposing party, even if it is by theft or trickery or accident, it may be used in evidence even though its production could not be compelled.
[2] (1983) 153 CLR 52 at 67.
On the basis of these authorities, it is open to conclude that even though the communication is a privileged document, and the applicant could have claimed that privilege to prevent this production in the first place, now that it has been produced, albeit by mistake, it does not automatically follow that privilege can now be claimed resulting in its removal from the material under consideration.
Another consideration is whether privilege has been waived. The issue in the review application is whether the applicant is an influential person for the relevant company event. The statement of Selina McDonald relates the factual background of what occurred prior to the liquidation of the company to establish that Mr McDonald was not an influential person at the time the decision was made to put the company into liquidation. These steps include consultation with her accountant and advice from her solicitor as well as discussions with the ATO. It seems to me to that Mr McDonald, through Selina McDonald’s evidence, relies on the content of the legal advice to address the issue of his position in the company.
The statement was prepared by Mr McDonald’s solicitors. It is reasonable to assume that he gave the instructions for its preparation and is aware of its content. He has not, in support of the application, given evidence by statement or affidavit that he claims privilege or that he has not waived the privilege. In the absence of evidence of this kind, and given that the reference to the legal advice goes to a specific issue[3] in the proceeding I have come to the view that privilege has been waived.
[3] Hongkong Bank of Australia Ltd v Murphy [1993] 2 VR 419 at 434.
Conclusion
In Armstrong Securities the relief claimed for the return of the privilege documents was by way of an injunction to which, the Court concluded, the law of confidential information applied. QCAT does not have inherent equitable jurisdiction but section 28 of the QCAT Act sets out how proceedings are to be conducted. Generally, as distinct from the Courts, the section provides that the Tribunal is not bound by the rules of evidence or practices and procedures adopted in the Courts, may inform itself any way it considers appropriate, must observe the rules of natural justice and in all proceedings must act fairly and according to the substantial merits of the case. It also must act with little informality and technicality.
There is an obligation on the Tribunal to ensure that all relevant material is disclosed to the Tribunal to enable it to decide the proceeding with all relevant facts. The admissibility or otherwise of confidential information is discretionary and is a matter that would be considered under section 28 of the Act. If I had allowed the application the evidence could have been excluded under this section.
I should make one other point. If either Mr McDonald or Selina McDonald was cross examined on the content of paragraph 37 and reliance was placed on the solicitors letter the document would be admissible under the normal rules of evidence. Paragraph 37 has not sought to be excluded.
In summary I am not satisfied that the letter was disclosed inadvertently. The explanation is that the statement in paragraph 37 was to show what steps were taken by Selina McDonald to establish Mr McDonald was not influential in the affairs of the company. To that extent it is relevant to an issue in the proceeding and any privilege attaching to the letter has been waived. Therefore the application is dismissed.
0