GLEESON CJ, GAUDRON, McHUGH, GUMMOW, KIRBY AND CALLINAN JJ
ARNOLD MANN APPELLANT
AND
ANNE KATHERINE CARNELL RESPONDENT
Mann v Carnell [1999] HCA 66 21 December 1999 C10/1999
ORDER
Appeal dismissed with costs.
On appeal from the Federal Court of Australia
Representation:
S J Odgers with J R Clarke for the appellant (instructed by the appellant in person)
R R S Tracey QC with C M Erskine for the respondent (instructed by ACT Government Solicitor)
Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Mann v Carnell
Practice and procedure – Preliminary discovery – Legal professional privilege – Loss of privilege – Waiver by disclosure to third party.
Australian Capital Territory – Separation of powers – Representative government – Nature of relationship between the ACT Legislative Assembly and the ACT Executive.
GLEESON CJ, GAUDRON, GUMMOW AND CALLINAN JJ. The principal question in this appeal is whether legal professional privilege which attached to certain communications was lost by a subsequent disclosure of those communications.
The question arose in the context of an application made by the appellant, to the Supreme Court of the Australian Capital Territory, for pre-trial discovery of documents. The application was made pursuant to O 34A r 5 of the Supreme Court Rules. Order 34A is headed "Preliminary Discovery". Rule 5 provides:
"If –
(a)it is reasonable to believe that the applicant has, or may have, the right to obtain relief from a person whose description has been ascertained;
(b)having made reasonable inquiries, the applicant has not gained sufficient information to enable a decision to be made whether to institute a proceeding to obtain the relief;
(c) it is reasonable to believe that the person –
(i) has, or is likely or have; or
(ii) has had, or is likely to have had;
possession of a document relating to the question whether the applicant has the right to obtain the relief; and
(d)inspection of the document by the applicant would assist in making the decision;
the Court may order the person to produce the document to the applicant."
Rule 2 of O 34A provides:
"An order made under this Order does not operate to require the person against whom the order is made to produce any document that, on the ground of privilege, the person could not be required to produce –
(a)in the case of an order under rule 3 or 5 – if the applicant had commenced a proceeding against the person; or
(b)in the case of an order under subrule 6(1) or (2) – if the applicant had made the person a party to the proceeding."
The appellant, Dr Mann, believed that he had, or may have had, a right to damages against the respondent for defamation.…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Mann v Carnell [1999] HCA 66
Case
[1999] HCA 66
Decision Date
CaseChat Overview and Summary
The case of *Mann v Carnell* involved an appeal to the High Court of Australia concerning the application of legal professional privilege in the context of preliminary discovery. The dispute centred on whether the Australian Capital Territory, through its Chief Minister, had waived its legal professional privilege over certain documents by disclosing them to a third party.
The primary legal issue before the High Court was whether the disclosure of documents, which were otherwise protected by legal professional privilege, to a member of the Australian Capital Territory Legislative Assembly constituted a waiver of that privilege. This required the Court to consider the nature of the relationship between the ACT government and its legislators, and whether such disclosure amounted to communication with a "third party" in the context of privilege.
The High Court determined that the *Evidence Act 1995* (Cth) did not apply to the obligations arising in the ancillary proceedings before it, meaning the common law principles of legal professional privilege were to be applied. The Court reasoned that disclosure of privileged communications to a legislator performing their functions as such, in the context of the Australian Capital Territory's governmental structure, did not amount to disclosure to a third party or stranger. Consequently, there was no waiver of the privilege by the client, the Australian Capital Territory.
The High Court dismissed the appeal, upholding the decision of the Full Court of the Federal Court of Australia that legal professional privilege had not been lost through waiver in the circumstances of the case.
Orders
Orders of the court
Appeal dismissed with costs.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
In Northern Territory of Australia v GPAO[99], I reserved my opinion on the ambit of the Evidence Act 1995 (Cth) ("the Act") in its application to obligations arising in ancillary proceedings in a court in which the Act applies. In that case what was in question was a response to a subpoena to produce documents, issued by the Family Court of Australia. By its terms, where the Act applies, it applies to interlocutory proceedings[100]. [99](1999) 73 ALJR 470 at 520; 161 ALR 318 at 387; cf Nygh, "Case Notes: Northern Territory of Australia v GPAO", (1999) 13 Australian Journal of Family Law 170 at 171-172.[100]The Act, s 4(1)(b). The Evidence Act does not apply The verb "adduce", used in the Act, means nothing more than to bring forward for consideration. A great deal of inconvenience would be avoided if the bringing forward of evidence for use in a later trial (as by responding to an order for discovery, a subpoena or some other ancillary process) were held to fall within the Act. This may not have been what the Australian Law Reform Commission subjectively intended because of its limited terms of reference. But the ultimate question for a court is what the Parliament meant by the words which it enacted[101]. A host of undesirable and even irrational distinctions between the law applicable to the ancillary and the substantive parts of the same proceedings would be avoided if a broad view were taken of the phrase "adducing of evidence". That is why, in GPAO, I preferred to reserve my opinion on the point. Upon my analysis in that case, the question did not arise for decision.[101]Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518. However, all the other members of this Court held in GPAO that the Act did not apply to the obligations of a person to whom a subpoena had been addressed[102]. That holding must be taken as settling the question of statutory construction notwithstanding the arguments that, in my view, exist for a wider operation of the Act and for its application to ancillary proceedings intimately connected with the adducing of evidence for use in a later court hearing[103]. [102]Northern Territory of Australia v GPAO (1999) 73 ALJR 470 at 474 per Gleeson CJ and Gummow J (with whom Hayne J agreed), 495 per Gaudron J, 508 per McHugh and Callinan JJ; 161 ALR 318 at 323-324, 352, 371.[103]cf Adelaide Steamship Co Ltd v Spalvins (1998) 81 FCR 360 at 364; Akins v Abigroup Ltd (1998) 43 NSWLR 539 at 547, 553.The common law of legal professional privilege applies Once this position is arrived at, it is necessary to resolve the present appeal not in accordance with the Act (which does not apply) but in accordance with the principles of the common law (which do apply). The principles concerned are primarily those relating to the client's privilege ("legal professional privilege") which attaches in the pre-trial discovery of documents comprising communications protected by that privilege. The communications in question in this case were undoubtedly protected by that privilege unless the client (the Australian Capital Territory), through the agency of the Chief Minister (the respondent), lost the privilege, as by waiver, by reason of the disclosure of the communications to a third party.
The provision of the documents to Mr Moore might also have been protected by public interest immunity or under a legislative privilege derived from the ancient privileges of parliament, enjoyed in this case by a member of the Assembly of the Australian Capital Territory, such as Mr Moore. For whatever reason these points were not argued. Accordingly, it is unnecessary (and it would be inappropriate) to explore their application. However, legal professional privilege was invoked. It is too late to contend that, of its nature, it does not apply to government and governmental persons and institutions. Thus the issue remaining concerns its ambit. Where the client is the Australian Capital Territory, I would hold that disclosure to a legislator of the Territory performing his functions as such is not disclosure to a third party or stranger. There was therefore no waiver of the privilege by disclosure of the privileged communications to Mr Moore.Conclusion and order It follows that I agree with Gleeson CJ, Gaudron, Gummow and Callinan JJ that the Full Court of the Federal Court of Australia was correct in its conclusion that there had been no loss of legal professional privilege through waiver by the client in the circumstances disclosed in this case. I also agree with the order which their Honours propose to dispose of this appeal.
Ratio Decidendi
Legal Principle Established
Established by:
GLEESON CJ, GAUDRON, GUMMOW AND CALLINAN JJ,
KIRBY J