Osland v Secretary to the Department of Justice

[2007] HCATrans 811

[2007] HCATrans 811

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M66 of 2007

B e t w e e n -

MARJORIE HEATHER OSLAND

Applicant

and

SECRETARY TO THE DEPARTMENT OF JUSTICE

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 14 DECEMBER 2007, AT 11.51 AM

Copyright in the High Court of Australia

MR R. MERKEL, QC:   If the Court pleases, I appear with my learned friends, MR R.H.M. ATTIWILL and MR J.D. PIZER for the applicant.  (instructed by Hunt & Hunt)

MS P.M. TATE, SC, Solicitor‑General for the State of Victoria:   May it please the Court, I appear with my learned friends, MS S.B. McNICOL and MS M.J. RICHARDS for the respondent.  (instructed by FOI Solutions)

KIRBY J:   Yes, Mr Merkel.  I think we should put on the record, though it would be well known to all the parties, that in this matter I had an association with the case at an earlier phase when the appeal by Mrs Osland came to the High Court of Australia in challenge of the decision of the Court of Appeal of Victoria.

HAYNE J:   In which I participated.

KIRBY J:   So I think the parties were notified of this fact in case they had forgotten, and they have indicated through the Registry that they have no objection to the Court as presently constituted dealing with the application, but is there anything you wish to add or say to that, Mr Merkel?

MR MERKEL:   No, your Honour.

KIRBY J:   You, Solicitor?

MS TATE:   No objection, your Honour.

KIRBY J:   Yes, well, it is now on the record.  Yes, Mr Merkel.

MR MERKEL: If your Honours please, there are two issues raised by the present application. The first is imputed waiver, and the second is a denial of natural justice. Can I go straight to the waiver question? The waiver question arises under section 32 of the Freedom of Information Act (Vic), which is in the same terms as the Commonwealth Act and both apply the common law test in respect of waiver.

KIRBY J:   This is waiver on the basis that the Attorney‑General effectively disclosed the substance of the advice by the press release which you ‑ ‑ ‑

MR MERKEL:   Yes, your Honour.

KIRBY J:   Well, that was not upheld either by the Tribunal or by the Court of Appeal, was it?

MR MERKEL:   That is correct, your Honour.

KIRBY J:   It is a bit difficult where you are here seeking to uphold the policy of the Freedom of Information Act where the Attorney‑General gives what he considers as much as can be stated without disclosing the legal professional privilege to be criticising the Attorney‑General or saying that by reason of the fact that he has been as open here as he felt he could be for having waived the privilege when he expressly did not reveal the entirety or even a great deal of what was in the report.

MR MERKEL:   Your Honour, with respect, that raises the question because what we say has now occurred is that as a result of the decision of the Full Court, the Court of Appeal, there now are two inconsistent lines of authority by intermediate appellate courts which cannot stand together.  The Bennett decision of the Full Federal Court was a decision which has been acted upon by single judges of the Federal Court and in the Supreme Court to the effect that the disclosure of the gist, substance or conclusion of a legal advice without disclosing the reasoning constitutes an imputed waiver because there is an inconsistency between the conduct and maintenance of the privilege.

HAYNE J:   That casts the proposition at a level of abstraction which masks the difficulty, does it not, Mr Merkel?  The moment you cast the principle at that level of abstraction, yes, of course, there is a division of the court.  The question is, is that the right level of abstraction at which to pitch the question or is it more fact specific than that?

MR MERKEL:   Well, I will be more precise, your Honour.  The way we say the question has arisen is – and we say Bennett would be authority for this proposition – that a voluntary disclosure by a client on a non‑confidential basis to a third party of the substance, gist or conclusion of legal advice, but not the reasoning, constitutes an imputed waiver.  That, your Honour, is what occurred in Bennett, in AWB, Rio Tinto and other cases.  That has been stated as the principle to be derived from Bennett.  We say that the essential elements are quite consistent with Mann v Carnell.

KIRBY J:   Now, can I ask you this?  What we have here is an extract from Bennett which appears to be the reasons of Justice Gyles.  You have been protective of the forest by only giving us two pages.  Is that a Full Court decision?

MR MERKEL:   Yes, your Honour, the whole of the case is in tab 4 of the respondent’s list of authorities.

KIRBY J:   I see.

MR MERKEL:   But even though President Maxwell dissected Bennett, and particularly Justice Tamberlin’s judgment, in a way that stated that criterion as a springboard for imputed waiver, in fact his Honour Justice Tamberlin agreed with Justice Gyles on the state of the test and its application in that case, which is accurately set out in the headnote, your Honours, at paragraph 2, which is a reference to paragraphs 1 and 65 of the judgments, and his Honour Justice Tamberlin agreed with that application of that principle in that case.

KIRBY J:   What did the third judge in Bennett say?

MR MERKEL:   His Honour Justice Emmett did not really deal with it in that way, your Honour, so it really was the two bench ‑ ‑ ‑

KIRBY J:   Do you say Bennett has been – that the principle referred to in the second holding in the headnote has been applied in other cases?

MR MERKEL:   Yes, your Honour.  We have set out those other cases at application book 91 at footnote 14.  It has been applied in Rio Tinto by Justice Sundberg, in Switchcorp by Justice Whelan in the Supreme Court, Justice Sackville in Seven Network News, and Justice Young in AWB.  Particularly in AWB Justice Young, but other cases have analysed the distinction to be drawn between reference to a legal advice and disclosure of the substance or gist of it, so it would be quite permissible without waiver of privilege for the Attorney to have said, “I have taken the advice of three senior counsel.  After receiving that advice I have made the following decision”.  The reference to that advice is not a disclosure of the substance.

But the mischief that we say arises from the decision of the Court of Appeal is already evident in a decision which we have handed up to your Honours.  It is in tab 6 of our list of authorities - a recent decision of Justice Douglas in GMCG in the Supreme Court of Queensland.

KIRBY J:   What did his Honour do?

MR MERKEL:   There, your Honour, his Honour applied Osland in preference to Bennett, and this was again a disclosure case of the substance of legal advice which was then made in a public statement and filed with the ASX about the company not having liability.  Then at paragraph [10] the passages of Justice Gyles about the substance constituting a waiver are set out.  Then Justice Douglas correctly points out at paragraph [11] that:

That decision has been applied in a number of other authorities –

and his Honour sets the cases out and then goes to Osland, and in paragraph [12] notes correctly that Justice Maxwell in Osland had, in the second last line, introduced the concept of “the requisite inconsistency”, a word that is not to be found in Mann v Carnell, but his Honour then goes on and explains that in paragraphs [14] and [16] where, in [14] in the second line, his Honour refers to President Maxwell rejecting any view such as that enunciated by Justice Gyles in Bennett.  He says that it was derived from the application of section 122 of the Evidence Act, which ‑ ‑ ‑

KIRBY J:   But is not the approach that Justice Maxwell has taken rather similar to the one that was referred to in Bennett that I had expressed in Ampolex, namely, that a mere reference to the existence of legal advice would not amount to a waiver, but that at least in respect of the substance of the legal advice, if that is revealed, then that would be a waiver.  Now, why is that not similar to the approach Justice Maxwell has taken?

MR MERKEL:   Because what his Honour did is his Honour did not deny that what the Attorney had done is disclose the substance or conclusion of the legal advice because the Attorney’s press release referred to six grounds.  There were six grounds – the Attorney’s press release denied on all of the grounds based on the advice saying each of the grounds is to be refused.  The documents set out and articulate the grounds.  That was a disclosure in effect of the conclusion set out in the advice.  It was not a reference to the advice.  It was a statement of what the advice concluded.

But importantly, your Honours, at paragraph [15], Justice Douglas set out where we would say, with respect, the Court of Appeal has departed in significant ways from Mann v Carnell but certainly inconsistently with Bennett.  In paragraph a with references to Justice Maxwell’s judgment:

The task for the court is to determine whether this specific disclosure is so clear and inconsistent with the maintenance of the privilege as to be unfair –

reintroducing an unfairness test which Mann v Carnell had disavowed, but then introducing in b, c and d a purpose test.  What his Honour then said – and this is citing from Justice Maxwell:

the test of inconsistency is well capable of accommodating the notion that, in appropriate circumstances, the privilege‑holder should be able to disclose publicly that he is acting on advice and what the substance of the advice is, without being at risk of having to disclose the confidential content -

So there is an acceptance that the substance can be disclosed, and then in c ‑ ‑ ‑

KIRBY J:   Well, you have three fish to fry today, and I think you have fried that one on both sides now.  I think we have the point.  You say that there are points arising in intermediate and trial courts as to the diversity of approach and that whatever one might immediately think, that that is a matter that is important and should be examined.

MR MERKEL:   Yes, your Honour.

KIRBY J:   We understand that, we will hear what the respondent says on that, but what do you say on the second point, which is the override of public interest?

MR MERKEL:   Yes, on the second point, your Honour, can I take your Honours to the transcript where at the outset at pages 6 and 7 – sorry, at pages 109 to 10 of the application book, at the very commencement of the hearing, at page 109 at line 18, the President pointed out to my learned friend about the question of setting aside the order to grant access and remitting, and my learned friend said that all that was sought was a remitter on the basis that if the public interest argument that was being ‑ ‑ ‑

HAYNE J:   Where do I see that?

MR MERKEL:   It comes up ‑ ‑ ‑

HAYNE J:   Where are you reading from?

MR MERKEL:   At 18, your Honour, line 18 at page 109.  The President said:

I notice in the notice of appeal ‑ ‑ ‑

HAYNE J:   Yes, I read that.  You were quoting something else.  I thought you were quoting the Solicitor as saying something.  Where do I see it?

MR MERKEL:   Yes, at 23:

No, that relief was not sought, your Honour.  Perhaps I should also clarify, your Honour, that although we seek the appeal be allowed and the order of Morris J be set aside we do not seek costs in this appeal either, but we don’t seek to have this court make a substantive order in relation to the application for access to those documents.

His Honour then said:

Thank you for that.

Then over the page at 110 his Honour commented on the difficulty under subsection (4) of the Court of Appeal having to form the requisite opinion that the tribunal would have to form for the public interest ground to be made out, but then his Honour commented at lines 16 to 18 in view of what the Solicitor‑General – sorry, the Solicitor‑General then said that that will be left in a “state of uncertainty”, and the President said, “We can strike that off our list of issues, and the Solicitor‑General said “Yes”.

On that basis the matter was conducted on the basis that if there was error of law under section 50(4) the matter would be remitted to the tribunal which had inspected the documents and which would have to reinspect the documents to find out how the Court of Appeal’s criterion would be applied to the documents.

HAYNE J:   Now, the Court of Appeal concluded at a number of passages that there was no utility in remitting the matter because there was no basis upon which the public interest override could be engaged.

MR MERKEL:   Well, your Honour, we ‑ ‑ ‑

HAYNE J:   Was any argument advanced to the Court of Appeal which articulated a basis upon which the public interest override could be engaged?

MR MERKEL:   No, because, your Honour, the issue was never raised by our learned friends to the Court of Appeal on that basis.  But there is in the application book one such basis, your Honour, but with respect it could not be considered in any rational way without the documents inspected.  But at page 19, your Honours, Justice Morris who did inspect the documents in the usual course – this is done in the Tribunal – in paragraphs 52 and 53 implicitly raises the question of whether the joint advice was inconsistent with the earlier advice given by Mr Redlich, QC, and whether that may be a basis for the public interest to be attracted.

HAYNE J:   Why?  Why would the content of the particular advice, which by hypothesis has been held to be an exempt document because legal professional privilege trumps its exposure, why would the particular content of the legal advice bear upon section 50(4)?

MR MERKEL:   Your Honour, because it is not the content of the legal advice, but if the Attorney had misled the public by making reference – if, I do not say he had because it is in 52 and 53 that Justice Morris raised this possibility, we say ‑ ‑ ‑

HAYNE J:   Well, no, Mr Merkel, let us be quite blunt about this.  You are suggesting that this matter should have gone back to the tribunal, should have gone back to the tribunal for you to advance arguments.  Is one of the arguments that you would wish to put on the table the argument you have just announced?

MR MERKEL:   No.

HAYNE J:   If it is, be frank and say it.  If it is not, withdraw it.

MR MERKEL:   Your Honour, in a case such as this the tribunal inspects the documents and we are in the hands of the tribunal as to whether the public interest is attracted because we have not seen the documents.  At 52 and 53 Justice Morris set out what he said were powerful reasons why the conclusions reached “in the VGS advices and the Redlich advice should be made available to the public”.  These are all the documents.  His Honour had seen all of these documents and by the Full Court’s decision applied a wrong test.

The way this case was conducted was not on the basis that we could go back and put a submission to his Honour on the content of the documents because we cannot because we have never seen them, nor will we see them, unless they are released.  What was accepted by ‑ ‑ ‑

KIRBY J:   I do not think you could make submissions now on an assumption of what the Attorney‑General did without having seen the documents.

MR MERKEL:   No, your Honour ‑ ‑ ‑

KIRBY J:   So it would be quite improper for you to do that.

MR MERKEL:   ‑ ‑ ‑ that is why the matter was to go back, and we say that there was a fundamental denial of natural justice for the court to decide this issue without looking at the documents, but more importantly without putting the parties on notice, particularly the applicant ‑ ‑ ‑

HAYNE J:   Well, again, let me understand this, Mr Merkel, because the terms are bandied about and we are in circumstances where terms like this should not be bandied about.  You say there is a want of procedural fairness, that is to say you say that your client should have been heard?  Should have been heard to say what?

MR MERKEL:   What we are saying, your Honour, is that the parties put the case before the Court of Appeal on the basis that if the State succeeded on the public interest override there was to be a remission for redetermination of that question by the tribunal.  It is important in the administration of justice that an intermediate appellate court not determine a case on a basis disavowed by the parties without putting the parties on clear notice it was proposing to do so.  It never did so.  It is that that we say is offended.

KIRBY J:   Well, what do you say about the argument that is raised against you, that having received the decision of the Court of Appeal, you should have hurried back before the orders of the Court of Appeal were perfected and sought the reopening?  I have reopened cases where that has been called to my notice in Court of Appeal days and I am sure I have sat here and seen that done by the Court of Appeal of Victoria.

MR MERKEL:   Your Honour, that is the counsel of perfection.  The point was not appreciated until the order had been perfected.

HAYNE J:   No, the point was not appreciated until you were retained, is that not the position, Mr Merkel?  See page 230 of the application book.

MR MERKEL:   Which was after the order had been perfected?

HAYNE J:   So the want of natural justice of which you complain is one that was not apparent to those who appeared below, is that right?

MR MERKEL:   It had not appeared to them prior to myself coming into the case, your Honour.  But, with respect, that does not change the underlying fact that there was an injustice because they were not put on notice.

KIRBY J:   Yes, all right.  Well, that is the second fish.  Now, what about the third or have you dealt with both of the other two?

MR MERKEL:   I think the third is encapsulated within the second, your Honour.

KIRBY J:   Would you remind me again of the public interest override?  Does that assume that the department in question has succeeded in raising and relying on the legal professional privilege, but notwithstanding that, gives the power to the tribunal to override the legal professional privilege?  Is that how it operates?

MR MERKEL:   Yes, it is the power of the tribunal to override exemption if it is of opinion the public interest requires that access should be granted.

KIRBY J:   Where do we find the actual language of the override?

MR MERKEL:   At section 50(4), your Honour, which should be behind tab 3 of our list of authorities in our book.  Really, that is the point that we make, that the court cannot determine that issue without looking at the documents and having decided that that opinion is not open, it is not within its power to do so.

KIRBY J:   Now, it is in strong language, it has to be of the opinion in the tribunal that the public interest requires that access to the documents should be granted under the Act.

MR MERKEL:   This is the whole line of documents, not just the joint advice.  It is the whole series of documents that Justice Morris had found should be overridden.

KIRBY J:   Now, at the time of this application your client had completed the service of the non‑parole period of her sentence, is that correct?

MR MERKEL:   Correct.  Sorry, I ‑ ‑ ‑

KIRBY J:   So she ‑ ‑ ‑

MR MERKEL:   ‑ ‑ ‑ I think she was still in gaol at the time of the application, but has since ‑ ‑ ‑

KIRBY J:   I see.  But she was released during the course of this litigation?

MR MERKEL:   Yes, your Honour.

KIRBY J:   Therefore, what is the practical benefit?  I can imagine if you have made an application to the Governor for the exercise of a prerogative of mercy and the Attorney is considering that, that there is still a practical benefit from the point of view of the applicant.  What is the practical benefit?

MR MERKEL:   I think it goes to the underlying issues that were the subject of the advice in the whole process, your Honour.  It is not a practical benefit in terms that it could affect the applicant’s status as such.

KIRBY J:   I think she is still within the balance of her sentence.

MR MERKEL:   Yes, she is still within three years parole, so it could have a practical application in that sense, your Honour, but I do not want to put it higher than that.

KIRBY J:   Yes, all right.  Well, I see your time is up and I think you have dealt with the three issues.

MR MERKEL:   Thank you, your Honour.

KIRBY J:   Yes, Solicitor.

MS TATE:   May it please the Court.  Might I refer your Honours immediately to page 14 of the application book and to paragraph 37.  At the bottom of paragraph 37 his Honour Justice Morris makes a positive finding that the press release was not misleading.  He says:

The press release (accurately) disclosed the fact and the conclusions of the joint advice; but it did not disclose the reasoning process.  Importantly the disclosure of the conclusions of the joint advice did not operate unfairly, in the sense that it distorted the advice or created a misleading impression.

Thus, there was a positive finding by the tribunal below that the Attorney’s press release had not misled.  I must say ‑ ‑ ‑

KIRBY J:   Is that the test though?  Is that the matter on which the other courts in Bennett and now in GMCG have been dealing with the problem of the so‑called public interest override?

MS TATE:   No, indeed, your Honour, this complaint has not been raised by the applicant before in any of the recent material.  It is a novel complaint that my learned friend has made orally.  It is not ‑ ‑ ‑

KIRBY J:   But that does not matter, it is before us now, and we do have, at least on the face of things, a divergency of approach to this question in the Federal Court and in the State courts.

MS TATE:   Yes, your Honour.  Well, perhaps if I could turn first of all to the question, the procedural fairness question, with which my learned friend made submissions?  It is an essential step in the applicant’s case that at no stage before judgment did the court inform the parties that it was considering dealing with both of the matters itself, that is, the section 50(4) point, the public interest override and the waiver point.  Now, it is our submission ‑ ‑ ‑

KIRBY J:   It is the disposition that Mr Merkel complains of.  He assumed, as one would often do when you are on an application to the intermediate court against a tribunal of that status on a point of law, that the intermediate court corrects the point of law and then sends the matter back to the tribunal to deal with in accordance with the court’s directions.  Now, would that not be the normal way the Court of Appeal would deal with such questions?

MS TATE:   It depends, your Honour.  There are occasions, of course, when the matter is remitted back to the tribunal, especially if there is a need for any further evidence to be led or any further findings of fact to be made.  But in this instance, your Honour, regardless of what was urged upon the court at the beginning as to whether or not the court itself would deal with the substantive issues, by the end of the hearing it was palpably clear, in our submission, that the court was considering dealing with both matters itself and not remitting the matter to the tribunal.  In that sense the court did indicate to the applicant that indeed there may be no remittal.

Now, evidence for this can be found, your Honour, at page 104 of the transcript, which is page 212 of the application book, where there are some short exchanges which begin at line 21 where the President asks about the question of waiver, and there is a discussion as to whether the question of waiver being at least in part a question of fact ought to be remitted for consideration by the tribunal.

KIRBY J:   Had the applicant asked that it be remitted?

MS TATE:   The applicant did not ask that it be remitted, your Honour.  Justice Ashley on page 213 at line 15 then takes up the issue of waiver and he says to the effect, well, look, the matter of waiver was fully explored on the evidence, and I responded by saying, yes, indeed, it was.

KIRBY J:   Well, he asked the question directly:

Why should it be remitted for determination on the evidence if there was some fault?  There’s undoubtedly power in this court to make any order that the tribunal could have made.  It’s not a matter of opinion.  No-one has thus far suggested there is any more factual material that would bear upon the subject.

Did the applicant ever respond to that?

MS TATE:   The applicant did respond, your Honour.  The applicant responded at pages 216 to 217 of the application book by embracing the approach that had been proposed by Justice Ashley where she said that:

we would adopt Ashley J’s position, that this court should decide the matters and the waiver point and I ask the court to bear in mind that this matter was first heard by Judge Higgins and then Morris J so it’s a long time in the running, as it were, through no fault of anyone’s, but it would be fairer, I think, if this court being seized of all the matters justice is still done.  There is no issue of credit or natural justice arising and the court is seized of all the relevant facts.

Now, we take that statement that “the court is seized of all the relevant facts” to be a reference back to line 27 of page 105 of the transcript, 213 of the application book, where, as your Honour has already noted, Justice Ashley queried whether there was any more factual material that bore on the subject.

KIRBY J:   Now, Ms McMillan was appearing in the interests of the present applicant?

MS TATE:   Yes, she was, your Honour.  Yes, your Honour.  Further, your Honour, it is our submission that in any event there is a logical tension in the applicant’s submission because the submission was put on the basis that it was a fundamental premise of the hearing that the public interest question would be remitted to the tribunal.  Now, it is our submission that if that was a fundamental premise, then immediately upon the delivery of the judgment it would be apparent that that premise had been contravened.

We submit that it would not require any fine combing through the reasons of the Court of Appeal, that it was simply on the face of the order apparent that the court had made an order which on the applicant’s case was contrary to the fundamental premise in which the hearing was conducted.  Now, we say given that there was no approach to the Court of Appeal before the order was vacated, and indeed no, it appears ‑ ‑ ‑

KIRBY J:   Can it be said that that is to expect a higher degree of efficiency in cases of where people are very well funded and very well represented and may not be a reasonable imposition in a case where a person has to look to the bar or pro bono assistance or some other form of help?  I mean, we can expect it in the case of government litigants and well‑funded litigants, but is it not understandable that sometimes things are missed until senior counsel gets to look at it?

MS TATE:   Well, indeed, your Honour.  If there was a very difficult conceptual point that was expressed in the course ‑ ‑ ‑

KIRBY J:   Anyway, I think we have that issue ‑ ‑ ‑

MS TATE:   Yes, your Honour.

KIRBY J:   ‑ ‑ ‑ so you had better come – you did not seem to want to deal with the substantive issue.

MS TATE:   No, I do want to deal with the substantive ‑ ‑ ‑

KIRBY J:   You were happier in that issue.

MS TATE:   I do want to deal with the substantive issue.

KIRBY J:   Now, come back to the first two issues.

MS TATE:   Sorry, your Honour.  I do want to deal with the substantive issue.  Might I refer your Honours to page 43 of the application book?  This addresses the question as to whether the Court of Appeal departed from the test in Mann v Carnell.  We say that indeed the Court of Appeal simply applied established principle and that there is no error in the reasoning of the Court of Appeal that would warrant the intervention of this Court.

Now, at page 43 and paragraph also 43 the learned President, President Maxwell, sets out the test from Mann v Carnell and he quotes an extract which includes a relevance to be given to the fairness of the proceedings, and I think my learned friend suggested that not only is fairness no longer a test in itself but rather that it is irrelevant to the test.  But the learned President sets out the test of inconsistency and he does that for two purposes:  one to support the proposition that the question of whether there is any imputed waiver in any case where there has been a disclosure of a conclusion of legal advice will depend upon the circumstances of the case.  He also extracts the quote from Mann v Carnell for the purpose of contradicting the proposition that there is any invariable rule that simply because the conclusion of a legal advice has been disclosed, therefore the reasoning that supports that conclusion is also no longer protected by legal professional privilege.

HAYNE J:   Well, what was said in Mann v Carnell as recorded at paragraph 43 page 43 of this application book is that:

Disclosure . . . which may be for the purpose of explaining or justifying the client’s actions –

which presumably is what Mr Merkel’s side of the record engages –

will waive privilege -

He wants to stop reading there, but the sentence goes on:

if such disclosure is inconsistent with the confidentiality which the privilege serves to protect.

MS TATE:   Yes, indeed, your Honour, that the test is a test of inconsistency.  It is not a test which concerns itself only with the degree of disclosure.  The test of inconsistency is a test which has to be applied to the facts and circumstances of the case.  Now, your Honour, President Maxwell also referred to and endorsed the reasoning of Justice Tamberlin in Bennett, and I refer your Honours to this to demonstrate that in Bennett it is not the case that there is a majority judgment which supports the invariable rule, as my learned friend would suggest.  Rather, Justice Tamberlin in Bennett at page 44 makes it clear halfway down the extract that:

the disclosure of the conclusion –

of an advice –

can amount to waiver of privilege in respect of the premises relating to the opinion which has been disclosed, notwithstanding that this reasoning is not disclosed . . . the reasoning and content of the advice may be waived -

Now, in expressing the reasoning in that form, Justice Tamberlin has accepted that it will depend upon the particular circumstances of the case as to whether disclosure of a conclusion waives privilege with respect to the reasoning that supports the conclusion, but there is not there any invariable rule.  It is our submission, your Honour, that the Court of Appeal’s judgment does no more than reinforce and apply the test of inconsistency in Mann v Carnell.

KIRBY J:   Well, Justice Douglas in Queensland seems to have thought that there was a distinction between the two, yes.

MS TATE:   Justice Douglas, we would say again, does no more than contrast some of the propositions that have been expressed by single judges, principally of the Federal Court - Justice Gyles in Bennett, but that is the only judgment in which it is expressed as an invariable rule, perhaps Justice Young in AWB, although it is not expressed as forcefully, and perhaps by Justice Whelan in a first instance decision in the Supreme Court.

KIRBY J:   But is that not something which the High Court should look at, given that there is this diversity of opinion?  You see, the word you left out from the Federal Court test is the “gist” or “conclusion”.  In other words, if you are trying to have it both ways, if you are revealing the gist of the conclusion but not allowing the public to see the nuanced support for it, that you cannot really have it both ways.  That is, as I understand, what Bennett says.

MS TATE:   Well, that is what Justice Gyles says in Bennett, your Honour.  It is not what Justice Tamberlin says in Bennett.

KIRBY J:   Well, Mr Merkel now says that the six points that were raised were the subject of the press release, and that the Attorney by perhaps understandably trying to support the decision in effect revealed “the gist or conclusion of legal advice”.

MS TATE:   That may be so, your Honour, but it is our submission that even if the gist or conclusion of a legal advice is disclosed it will depend upon the particular circumstances in which there has been that disclosure as to whether or not the inconsistency test has been satisfied.  Now, we would say here, your Honour, that it is not the case that there are two intermediate appellate courts with divergent views.  There are a handful of ‑ ‑ ‑

KIRBY J:   There do seem to be divergences.

MS TATE:   Well, there are a handful of single instance judgments, your Honour.

KIRBY J:   All right, well, that is the second fish.  Now, what about the public interest override?

MS TATE:   Well, your Honour, might I just say on this that even if there is a divergence of views it is not a divergence that has been caused by the decision in Osland.  The decision in Osland is simply an orthodox application of Mann v Carnell.

KIRBY J:   Well, that is not the way Justice Douglas in Queensland seems to have approached it.  He seems to have thought it applies a different test that criticises the Bennett test.

MS TATE:   We would say this, your Honour, that even if there was a point of principle this case would not be an appropriate vehicle for that principle to be ventilated.

KIRBY J:   Just as well Justice Callinan is not here to hear that expression.

MS TATE:   We say that here, your Honour, because the legal advice that was given here was given in the context of a sui generis context in relation to the exercise of an unreviewable prerogative power in relation to the petition of mercy.

KIRBY J:   I do understand that, but I think you should deal with the third question which interests me, that is the public interest override.

MS TATE:   Your Honour, the public interest override point was really put on two bases today.  It was put on the basis that there was a need for that issue to be remitted, or that it was a fundamental understanding that that issue would be remitted, but it was also put on the basis that there was a necessity for inspection of the documents.  It is our submission on that, your Honour, that ‑ ‑ ‑

KIRBY J:   Is that not how the scheme of the Act works, that the decision‑maker in the tribunal has an advantage which the parties or the applicant does not have and which the appellate court may not have but goes back and looks at – not again, but applying the correct legal principle.

MS TATE:   We would submit, your Honour, that it is not necessary for a court in reviewing a decision of a tribunal to itself inspect the documents, and we would say that that is made plain by the decision in the Commonwealth v Northern Land Council (1993) 176 CLR 604, and that is at tab 1 of the respondent’s folders. There the Court distinguished between class claims and content claims. Class claims, of course, are those claims in which the protection that is to be afforded to the document is not dependent upon the individual contents of that specific document.

Just as here all of the documents were, as Justice Hayne said, it was accepted that they were afforded the protection of legal professional privilege, so all of the documents were afforded precisely the same form of protection for the same reason, that they satisfied the test of legal professional privilege.  There was nothing specific to any particular document which would have been relevant to the question of the public interest.  Your Honours can see at page 617 of the Commonwealth v Northern ‑ ‑ ‑

KIRBY J:   We are at a disadvantage over this because we do not have the documents, we do not see the documents, and the tribunal is the proper place where that question of the so-called public interest override should be determined but with the benefit of the member reading the documents.  Now, Justice Morris’ decision is set aside.

MS TATE:   Yes, your Honour.

KIRBY J:   So the question is whether or not it ought not to be decided on the public interest issue by the proper place, namely, the tribunal, without the error that Justice Morris made in the course of his decision.  Did the Court of Appeal have all the documents?

MS TATE:   The documents were available for the Court of Appeal.

KIRBY J:   No, but did they have them for the purpose of – did they use them?

MS TATE:   They did not inspect the documents, no, your Honour.

KIRBY J:   Well, normally you would not do so.

MS TATE:   No, your Honour.

KIRBY J:   Well, that creates a problem, does it not, Solicitor, that then Justice Morris’ decision is set aside, but nobody with the authority under law to decide the public interest override makes that decision lawfully.

MS TATE:   But, your Honour, in the context of public interest immunity, which we would say is analogous, sufficiently analogous, it is with respect to the application of that doctrine, it is considered that it is not always necessary for a court to inspect the documents.  It is not simply a matter of course, and this can be found at page 617 of the Northern Land Council Case in the first major paragraph, and also at page 619 ‑ ‑ ‑

HAYNE J:   But the point if there is a point, Solicitor, is surely deeper than that.  The point is that if legal professional privilege is validly engaged and that is the only hypothesis on which the public interest override can be considered, the hypothesis therefore is that the balance has been struck in favour of confidentiality of that communication.

MS TATE:   Yes, your Honour.

KIRBY J:   But does that mean that the public interest override can never operate where there has been a finding in favour of the department on the legal professional privilege?

MS TATE:   No, indeed, your Honour.

KIRBY J:   On the contrary, the assumption is that legal professional privilege stands in the way, but then the question is, is it knocked over by the public interest override?

MS TATE:   Yes, your Honour, but the public ‑ ‑ ‑

HAYNE J:   So you accept legal professional privilege could be knocked over by public interest override, do you?

MS TATE:   Yes, your Honour. Section 32 is not one of the exceptions from section 50(4).

HAYNE J:   There are circumstances in which public interest override could knock over legal professional privilege, is that your position?

MS TATE:   Yes, your Honour, and DPP v Smith from the Victorian Supreme Court supports that, your Honour.

HAYNE J:   Very well.

KIRBY J:   Well, if that is the case, how could it be decided here by the Court of Appeal which did not look at all of the documents?

MS TATE:   But, your Honour, it is our submission that the inspection of the documents is not necessary for an assessment of the public interest, even if ‑ ‑ ‑

HAYNE J:   The moment you accept that legal professional privilege can be overridden by public interest override, Solicitor, how can any decision‑maker form a view on that without looking at the documents?  Have you not dug a hole, Solicitor, with that concession?

MS TATE:   Well, your Honour, it is a concession based upon the terms of the statute. Section 32 does not exist as an exception to section 50(4). But, of course, there may be other considerations as to why the public interest factors supporting legal professional privilege, namely, the frankness that is required for the obtaining of legal advice, will be in certain circumstances overridden by other public interest considerations more generally.

KIRBY J:   Yes, I hate to do this to you, Solicitor, but your time is up.

MS TATE:   May it please the Court.

KIRBY J:   Mr Merkel, any reply?

MR MERKEL:   Your Honours, on the question of the ‑ ‑ ‑

KIRBY J:   If you were to be granted leave, just assume for a moment, on the public interest question, and possibly on the waiver question, you do not really then need to get into the issue of procedural fairness, do you, because you are in our Court and we can deal with what is required in the disposition of the matter?

MR MERKEL:   That is so, your Honours.

KIRBY J:   So therefore the only issues you would need would be the other two?

MR MERKEL:   As long as it was not put against us that there was some kind of estoppel, but we cannot see how that could happen, but we would say the two critical issues are the waiver issue, and if legal privilege applies then public interest would be raised directly, your Honour.

KIRBY J:   Yes, very well.  All right, anything in reply, briefly?

MR MERKEL:   Your Honour, Justice Douglas at paragraph [16] points out the mischief that will arise from Osland by treating the Osland situation that the Attorney‑General’s release is analogous to what happened in Mann v Carnell, and the two critical features in Mann v Carnell was a confidential disclosure to a Member of Parliament who was not treated as a third party.  What Justice Maxwell’s judgment has opened up is any legitimate purpose under that umbrella, and we say it is a very significant departure from what has occurred in Bennett, which has been consistently applied as a Full Court decision, and correctly so.

KIRBY J:   Well, whether the Solicitor is right or wrong on the interpretation of what Justice Douglas says and your suggestion that there is a disparity of view, the position is that if you were granted special leave on one issue, not a lot would be added once the Court has to look at the case by adding both issues.

MR MERKEL:   Yes, your Honour.

KIRBY J:   Yes, very well, thank you.

HAYNE J:   Mr Merkel, would you go to your draft notice of appeal, page 81?  In light of the discussion that has been had, grounds 3 and 4 would be inapposite, would they not, if you were to otherwise be granted leave?  What you would need would be a substituted ground, the content of which would seem to be that the Court of Appeal erred in law in concluding that – and whether you took up a variant on what appears in paragraph 103 of the Court of Appeal’s reasons, namely:

the circumstances of the present case give rise to no public interest consideration which would be capable of satisfying the test in s 50(4) –

or some variant on that, that would be your third ground of appeal, would it not?

MR MERKEL:   Yes, your Honour.

KIRBY J:   Do you have any comments on that, Solicitor?

MS TATE:   No, your Honour.

KIRBY J:   Well, this Court grants special leave to appeal on grounds 1 and 2, does not grant special leave on grounds 3 and 4 as presently appearing, but it will require the applicant within 14 days to file an amended additional ground 3 in terms that were foreshadowed, and I assume that this is a matter that would last a day in the High Court.  Is that correct?

MS TATE:   Yes, that would be my estimate, your Honour.

MR MERKEL:   Yes, your Honour.

KIRBY J:   Yes, very well.  The Court will note that.

AT 12.39 PM THE MATTER WAS CONCLUDED