Priceline Pty Ltd v JHY Nominees Pty Ltd
[2010] VSC 61
•11 March 2010
| IN THE SUPREME COURT OF VICTORIA AT MELBOURNE | Not Restricted | |
COMMERCIAL AND EQUITY DIVISION
COMMERCIAL COURT
No. 7933 of 2009
| PRICELINE PTY LTD (ACN 005 968 310) | Plaintiff |
| v | |
| JHY NOMINEES PTY LTD (ACN 005 215 163) | First Defendant |
| GORMAN AND KELLY COMMERCIAL REAL ESTATE PTY LTD (ACN 063 958 449) | Second Defendant |
| GORMAN & KELLY COMMERCIAL PROPERTY MANAGEMENT PTY LTD (ACN 085 622 975) | Third Defendant |
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JUDGE: | Croft J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 February 2010 | |
DATE OF JUDGMENT: | 11 March 2010 | |
CASE MAY BE CITED AS: | Priceline Pty Ltd v JHY Nominees Pty Ltd and ors | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 61 | |
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PRACTICE AND PROCEDURE – Evidence – Privilege - Inspection of documents alleged to be subject to client legal privilege – Waiver of privilege - s 117, s 118, s 122, s 126, s 131A, s 133 of the Evidence Act 2008 (Vic) - Osland v Secretary, Department of Justice (2008) 234 CLR 275, Bennett v Chief Executive Officer of the Australian Customs Service (2004) 140 FCR 101.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P. Almond QC with Mr J. B. Davis | Blake Dawson |
| For the First Defendant | Mr R. Peters | Minter Ellison |
| For the Second and Third Defendants | Mr D. Leggatt, Solicitor | DLA Phillips Fox |
HIS HONOUR:
Background
The present matter arises from an application made by the plaintiff on summons dated 1 February 2010 for the production for inspection of eight documents which are described in paragraphs 1 and 2 of that summons.
Production for inspection is sought of two documents from the first defendant and six documents from the second and third defendants.
Production of each of the documents was resisted by the defendants on the basis that they fell within one or other or both of the following classes:
(1)Documents recording, evidencing or otherwise referring to a confidential communication made between the first defendant and its legal advisers, or between the first defendant and another person, or between any of the legal advisers of the first defendant and another person, for the dominant purpose of:
(a)obtaining or giving legal advice to the first defendant or
(b)obtaining or providing to the first defendant legal services relating to any existing litigation (including this proceeding), or any anticipated, threatened, or pending litigation, in which the first defendant is or may be or was or might have been a party.
(2)Documents obtained, prepared, made, created or otherwise brought into existence (whether delivered or not) for the dominant purpose of:
(a)obtaining or giving legal advice to the first defendant, or documents referring to the contents of any such document; or
(b)obtaining or providing to the first defendant legal services relating to any existing litigation (including this proceeding), or any anticipated, threatened or pending litigation, in which the first defendant is or may be or was or might have been a party (or documents referring to the contents of any such document).
In other words, production was resisted on the basis of what might be generally described as legal advice privilege, which extends to documents prepared for the dominant purpose of obtaining legal advice or legal services.
It was conceded by the plaintiff that s 131A of the Evidence Act 2008 applies to the present application.
The plaintiff’s claim for production of the documents was on the basis that any privilege which may have existed in those documents was waived as a result of the contents of a letter dated 14 July 2008 from Gorman and Kelly Commercial Real Estate Pty Ltd, the second defendant, to the General Counsel and Company Secretary of Australian Pharmaceutical Industries Limited, the parent company of the plaintiff (“the 14 July 2008 letter”).
Issue in the proceedings
The issue in the proceedings to which this application relates is pleaded in paragraph nine of the further amended statement of claim dated and filed on 24 December 2009, pursuant to my orders on 18 December 2009, as follows:
On 14 July 2008, JHY Nominees and Gorman Kelly Real Estate, alternatively Gorman Kelly Property Management, represented to Priceline that the option had been exercised out of time, that the Original Lease had not therefore been renewed and that there was no lease or agreement for lease on foot between Priceline and JHY Nominees (the Representation).
PARTICULARS
The Representation is in writing and is contained in a letter from Gorman Kelly Real Estate, alternatively Gorman Kelly Property Management, on behalf of JHY Nominees to Australian Pharmaceutical Industries Limited (the parent company of Priceline) dated 14 July 2008. A copy of the letter is available to be inspected at the offices of Priceline’s solicitors by appointment. Amongst other things, by that letter JHY Nominees (through Gorman Kelly) proposed a new agreement to lease, in substitution for the Original Lease and further proposed that the rent for that new agreement to lease would be fixed by a valuer agreed by both parties.
The responsive pleading is contained in paragraph nine of the second and third defendants’ amended defence dated 27 January 2010:
The second and third defendants deny the allegations contained in paragraph 9 and further say that the representation in the letter of 14 July 2008 was made as agent for the first defendant and, on its face, passed on information of the opinion of the first defendant based on the first defendant’s legal advice.
Particulars
On 14 July 2008, the third defendant sent a letter to Mr Peter Sanguinetti, General Counsel and Company Secretary of Australian Pharmaceutical Industries Limited (API) that expressed a statement of opinion based on legal advice that Priceline had exercised its option out of time, and the lease could not be renewed in any event. It follows that there was no agreement to renew the lease between Priceline and JHY Nominees.
The critical part of the 14 July 2008 letter is the second paragraph of that letter, as follows:
We have discussed the matter with the Lessor and sought advice from their solicitors. Putting the argument with respect to the notice regarding the response to the rent review to one side for the moment, the option was exercised out of time, and the Lease cannot be renewed in any event.
It is not necessary to canvass in any detail the consequential issues pleaded in this proceeding save to note that the plaintiff claims to have entered into a new agreement to lease in reliance upon the representation pleaded in paragraph nine of the further amended statement of claim, and by reason of mistake as to its rights.
Plaintiff-Applicant’s Submissions
The plaintiff relied upon the statement of general principle concerning the waiver privilege as stated by the High Court in Mann v Carnell:[1]
28. 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.
(Footnote references omitted)
[1](1999) 201 CLR 1 at 13.
On the basis of this general principle, it was submitted that any privilege which might have reposed in the legal advice underpinning the 14 July 2008 was waived. Further, it was submitted that to the extent that the privilege belongs to the second defendant it was waived by it, and to the extent that the privilege belongs to the first defendant it was waived through the acts of its agents.
The plaintiff also submitted that the dissemination of legal advice over which the defendants seek to maintain privilege, through the 14 July 2008 letter, was inconsistent with the maintenance of the confidentiality that attracts legal professional privilege.
In this respect, reliance was placed on judgments in the decision of the Full Court of the Federal Court of Australia in Bennett v Chief Executive Officer of the Australian Customs Service (‘Bennett’).[2] In that case, Giles J, with whom Tamberlin J agreed, observed:[3]
[2](2004) 140 FCR 101.
[3](2004) 140 FCR 101 at 119.
65. … The voluntary disclosure of the gist or conclusion of the legal advice amounts to waiver in respect of the whole of the advice to which reference is made including the reasons for the conclusion. …
Additionally, Giles J also observed:[4]
68. A decision as to whether privilege in a particular document is waived will normally be a question of fact. However, an error on a question of law may be bound up with the question of fact. That has occurred here. Each of the Tribunal and the primary judge correctly identified the decision in Mann v Carnell as providing appropriate guidance as to the law to be applied. However, in my respectful opinion, the test has been misunderstood at least in part. The test looks to inconsistency between the disclosure that has been made by the client on the one hand and the purpose of confidentiality that underpins legal professional privilege on the other. It is not a matter simply of applying general notions of fairness as assessed by the individual judge. The authorities to which I have referred show that it is well established that for a client to deploy the substance or effect of legal advice for forensic or commercial purposes is inconsistent with the maintenance of the confidentiality that attracts legal professional privilege.
[4](2004) 140 FCR 101 at 120.
The Plaintiff also made reference to the final sentences in paragraph six of Tamberlin J’s judgment in Bennett.[5] In my view it is helpful to place these sentences relied upon in the context they appear (the paragraph is extracted in full below, with the crucial sentences emphasised). The critical part of the advice given by the Australian Government Solicitor to which Tamberlin J was referring is set out in paragraph five of his Honour’s judgment, as follows:[6]
[5](2004) 140 FCR 101 at 104.
[6](2004) 140 FCR 101 at 103-4.
(2) AGS [Australian Government Solicitor] has now advised Customs that Public Service Regulation 7(13) does not prohibit all public comment by an officer on matters of public administration. Rather, the sub-regulation must be construed or `read down' so as not to apply to public comment on matters of administration which are not already on the public record ...
...
(9) AGS has advised Customs that your client is not correct in asserting that he is not subject to the Act and Regulations if he makes public statements about Customs-related matters in his capacity as President of COA [Customs Officers' Association]. It is a matter for your client, in the light (perhaps) of legal advice provided by you, whether he adheres to or moderates his position on this question ..."
(Emphasis removed)
Justice Tamberlin continued:[7]
6. The above extracts express the substance of the advice that was given by the Australian Government Solicitor in each of the paragraphs. In my view, it would be inconsistent and unfair, having disclosed and used the substance of the advice in this way, to now seek to maintain privilege in respect of the relevant parts of that advice which pertain to the expressed conclusion. It may perhaps have been different if it had been simply asserted that the client has taken legal advice and that the position which was adopted having considered the advice, is that certain action will be taken or not taken. In those circumstances, the substance of the advice is not disclosed but merely the fact that there was some advice and that it was considered. However, once the conclusion in the advice is stated, together with the effect of it, then in my view, there is imputed waiver of the privilege. The whole point of an advice is the final conclusion. This is the situation in this case.
(Emphasis added)
[7](2004) 140 FCR 101 at 104.
The plaintiff also relied upon the decision of Branson J in the Federal Court of Australia in Rich v Harrington.[8] Branson J found that the respondent, Price Waterhouse Coopers (‘PwC’), had waived privilege by stating in correspondence that it had acted “with the benefit” of external advice that it had not engaged in improper conduct. In this respect, her Honour said:[9]
31. The critical question concerning the letter dated 19 April 2005 is thus its proper construction. For this reason only limited assistance is provided by consideration of the facts of other cases. It is necessary for me to form a view, after consideration of the whole of the letter of 19 April 2005, as to whether the respondents by that letter deployed the substance or effect of their external legal advice for forensic purposes. Assuming for present purposes the correctness of the proposition tentatively advanced by Tamberlin J,[10] there would have been no waiver if the letter simply asserted, in effect, that PwC had taken legal advice and thereafter acted from 2 July 2004 in the way complained of by Ms Rich.
32. In my view, a fair reading of the letter of 19 April 2005 leads to the conclusion that it was calculated to convey the message that the conduct of PwC from 2 July 2004 was undertaken on external advice and in accordance with that advice, and, for that reason, PwC did not believe that there had been any victimisation or other conduct for which compensation could properly be sought. This conclusion can, it seems to me, be tested by asking whether, were it the case that PwC had acted in disregard of its external advice, or were it the case that its belief that there had not been any victimisation or other conduct for which compensation could properly be sought was inconsistent with its external advice, the letter would have been misleading. In my view, it is plain that it would have been. The statement that PwC had “acted at all times with the benefit of external advice” was apparently made for the purpose of fortifying the claim that it had not engaged in victimisation, or in other conduct for which compensation could properly be sought. Implicit in the calling-in-aid of the external legal advice for this purpose was the claim that the external legal advice supported the conduct of PwC.
[8](2007) 245 ALR 106.
[9]Rich v Harrington (2007) 245 ALR 106 at 113.
[10]See paragraph 14, above.
The plaintiff submitted that the 14 July 2008 letter states that the second defendant had sought legal advice then outlined the gist of the legal advice obtained, namely, that “the option was exercised out of time and that the lease cannot be renewed in any event”. Consequently, it was submitted, the second defendant had deployed the reference to that advice for forensic or commercial purposes, namely to persuade the plaintiff that the existing lease could not be renewed and that there was no binding lease or agreement to lease between the parties at that time. It was further submitted that the gist of the legal advice over which privilege is sought to be maintained is also deployed in paragraph nine and accompanying particulars of the second and third defendants’ amended defence.[11]
[11]Set out in paragraph 7, above.
The plaintiff submitted that the 14 July 2008 letter suggests, by its terms, in the critical second paragraph[12] that the second or, alternatively, the third defendant was seeking legal advice in its own right and that its assertion of the claim of privilege in the List of Documents is consistent with the second or third defendant being the holder of the privilege in its or their own right. Consequently, it would follow, that they were in a position to waive privilege in their own right and without regard to the position of the first defendant.
[12]Set out at paragraph 8, above.
Alternatively, it was submitted that if the second and third defendants were acting as agents of the first defendant the claim for waiver of privilege is not precluded where that waiver occurs by the conduct of it or them as agents. Reliance was placed on a passage in the judgment of Clarke JA Goldberg v Ng[13] (which follows immediately below). The decision of the Court of Appeal was appealed to the High Court in Goldberg v Ng (1995) 185 CLR 83, which confirmed the majority view in the Court of Appeal in relation to the applicable test for determining whether privilege had been waived. However, the High Court made no adverse observation in relation to this statement of Clarke JA with respect to agency. The following passage in the judgment of Clarke JA, to the effect that an agent is capable of waiving the privilege of a principal, was quoted with approval in various subsequent decisions.[14] Clarke JA said:[15]
In my opinion, as a general rule, a party should be found to have waived his or her privilege if:
(1)the party has expressly waived the privilege; or
(2)the party has so conducted himself or herself that the law imputes to that party an intention to waive the privilege and such imputation will occur when the party (or his or her agent) intentionally performs a deliberate act which renders it unfair to another party that the privilege be maintained.
[13](1994) 33 NSWLR 639 (CA).
[14]The relevant passage is at (1994) 33 NSWLR 639 at 674, cited with approval in Pioneer Concrete (NSW) Pty v Webb (1995) 18 ACSR 418 at 425 (Simos J) and also in Network 10 Ltd v Capital Television Holdings Ltd (1995) 36 NSWLR 275 at 285 (Giles J).
[15](1994) 33 NSWLR 639 at 674.
The plaintiff also submitted that to the extent there might be any doubt as to the actual authority of the second defendant, it should be inferred that it had implied actual authority to obtain the legal advice and to make reference to it in the 14 July 2008 letter. It was said that authority of this kind should be inferred from the fact that such authority is incidental to the role of a commercial real estate agent charged with negotiating the renewal or creation of a lease, in circumstances where there is an issue about the exercise of a lease option or its renewal.[16]
[16]Referring also to the particulars subjoined to paragraph 8 of the further amended statement of claim. Cf the affidavit of Michelle Shannon Power dated 18 February 2010. In paragraph 7 Ms Power denies the proposition put by the plaintiff, that any actual authority was granted to the second defendant or the third defendant to act as agent for the first defendant. Ms Power further states at paragraph 8 that she had never received a request from the second or third defendants that the first defendant consent to them referring to or relying on the claimed privileged communications in their defence, and, further, that no consent was given on the first defendant’s behalf.
Further, with respect to agency the plaintiff submitted that there would, in any event, be ostensible authority in the second or third defendant. It was put by analogy that similarly to the position of a solicitor, a real estate agent managing a tenancy is the agent of its client, the landlord, in all matters that may reasonably be expected to arise for decision with regard to leasing premises, including negotiation of the renewal of a lease. It was submitted that this includes the taking of legal advice if an issue regarding the lease arises and deploying that legal advice in those negotiations. Reliance was placed upon the judgment of Goldberg J in Meltend Pty Ltd v Restoration Clinics of Australia Pty Ltd:[17]
Although legal professional privilege is the privilege of the client which cannot be waived without the clients’ consent, I consider that there are circumstances where it is within the ostensible authority of a solicitor to waive privilege in respect of a document on the client’s behalf. Such ostensible authority exists in relation to the preparation of a case for trial and the conduct of the trial. In Great Atlantic Insurance Co v Home Insurance Co [1981] 1 WLR 529; [1981] 2 All ER 485 at 539; 492-493 Templeman LJ said:
The general principle is that ‘a solicitor is the agent of his client in all matters that may reasonably be expected to arise for decision in the cause’: per Denning LJ in Griffiths v Evans [1953] 1 WLR 1424 at 1431; [1953] 2 All ER 1365 at 1371.
[17](1997) 75 FCR 511 at 523.
Defendants’-Respondents’ Submissions
The respondents focussed their submissions on the provisions of the Evidence Act2008 (Vic), referring particularly to sections 117, 118, 122, 126 and 133. For present purposes, it is helpful to set out the critical parts of these provisions, as follows:
117.Definitions
(1)In this Division-
client includes the following-
(a)a person or body who engages a lawyer to provide legal services or who employs a lawyer (including under a contract of service):
(b)an employee or agent of a client;
…
118. Legal advice
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of-
(a)a confidential communication made between the client and a lawyer; or
…
(c)the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person-
for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.
…
122. Loss of client legal privilege- consent and related matters
…
(2) Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120.
(3) Without limiting subsection (2), a client or party is taken to have so acted if-
(a)the client or party knowingly and voluntarily disclosed the substance of the evidence to another person; or
(b)the substance of the evidence has been disclosed with the express or implied consent of the client or party.
(4) The reference in subsection (3)(a) to a knowing and voluntary disclosure does not include a reference to a disclosure by a person who was, at the time of the disclosure, an employee or agent of the client or party or of a lawyer of the client or party unless the employee or agent was authorised by the client, party or lawyer to make the disclosure.
(5) A client or party is not taken to have acted in a manner inconsistent with the client or party objecting to the adducing of the evidence merely because—
(a)the substance of the evidence has been disclosed—
(i)in the course of making a confidential communication or preparing a confidential document; or
(ii)as a result of duress or deception; or
…
(b)of a disclosure by a client to another person if the disclosure concerns a matter in relation to which the same lawyer is providing, or is to provide, professional legal services to both the client and the other person; or
…
126. Loss of client legal privilege—related communications and documents
If, because of the application of section 121, 122, 123, 124 or 125, this Division does not prevent the adducing of evidence of a communication or the contents of a document, those sections do not prevent the adducing of evidence of another communication or document if it is reasonably necessary to enable a proper understanding of the communication or document.
…
133. Court may inspect etc. documents
If a question arises under this Part relating to a document, the court may order that the document be produced to it and may inspect the document for the purpose of determining the question.
Reference was also made to the provisions of s 142 of the Evidence Act in relation to the necessity for some finding of fact.
The first defendant submitted that there was no question on the evidence that the first defendant was the “client” for the purposes of sub‑s 122(2) of the Evidence Act. Further, it was submitted that sub‑s 122(2) must be read with sub‑s 122(3). This provides that the client or party objecting to adduce evidence is taken to have acted inconsistently if it has “knowingly and voluntarily disclosed the substance of the evidence to another person”. It was submitted that there is a further “carve out” in relation to the operation of these provisions by reason of sub‑s 122(4) which excludes a reference to a disclosure by a person who was at the time of the disclosure an agent of the client or party “unless the … agent was authorised by the client, party … to make the disclosure”.
Reference was also made to the provisions of paragraph 122(3)(b) which has the effect of providing that a client or party is taken to have behaved inconsistently with objecting to the adducing of evidence for the purposes of sub‑s 122(2) where “the substance of the evidence has been disclosed with the express or implied consent of the client or party”. It is noted that these provisions are not subject to the further “carve out” of the provisions of sub‑s 122(4).
The first defendant submitted that the evidence establishes that the real estate agent was not the agent of the first defendant for the purposes of making any disclosure in paragraph nine of the defence and, further, that at no time did the real estate agents, the first or second defendants, seek and obtain permission from the first defendant to make any disclosure. Consequently, the first defendant submitted that there was no knowing or voluntary disclosure for the purposes of sub‑s 122(3), nor was there any relevant authority for the purposes of sub‑s 122(4) of the Evidence Act.
In relation to the 14 July 2008 letter, it was conceded by the first defendant that this letter was sent with, at the very least, the implied consent of the first defendant. However, it was submitted that the letter did not amount to a disclosure of the “substance” of the document for the purposes of sub‑s 122(3) of the Evidence Act. Reference was made to the decision of the Full Federal Court of Australia in Adelaide Steamship Co Ltd v Spalvins[18] where the following statement was made by the Court:[19]
12.Secondly, subject to the particular exceptions listed, s 122(2) and (4) inquire whether there has been a knowing and voluntary, or a consensual, disclosure of the "substance of the evidence", that evidence containing the confidential communication or the contents of the confidential document of which ss 118 and 119 speak. The test is a quantitative one, which asks whether there has been sufficient disclosure to warrant loss of the privilege. If what is disclosed falls short of the test posed by the section, there is no waiver. Importantly, the subsections are not concerned with any principle of "fairness" such as that developed by the common law and by which waiver may be imputed. …
[18](1998) 81 FCR 360.
[19](1998) 81 FCR at 371 (Olney, Kiefel and Finn JJ).
On this basis, the first defendant submitted:[20]
If one goes to the letter itself. Your Honour will see that nowhere does the letter say our advice is that the option was exercised out of time and the lease cannot be renewed in any event. It does not say this is our position and our lawyer's advice confirms it. It does not quote any legal advice. It merely says we have discussed the matter with the lessor, the first defendant in this proceeding, and sought advice from their solicitors. There it says:
“Putting aside a dispute, the option was exercised out of time and the lease cannot be renewed in any event. “
It goes on to propose a compromise.
[20]Transcript 19 February 2010, page 21 (Mr Peters).
The terms of the letter were contrasted with the extracts from the letter referred to by Tamberlin J in Bennett.[21] The point was made that the letter considered in Bennett actually stated the substance or conclusion of the advice which had been received from the Australian Government Solicitor with respect to a Public Service Regulation, and also went further by adding that the Australian Government Solicitor had advised the Australian Customs Service that the client of the recipient of the letter was “not correct in asserting that he is not subject to the Act and Regulations … “.
[21](2004) 140 FCR 101 at 103-4, [5] and [6].
Reference was also made to the judgment of the High Court in Osland v Secretary, Department of Justice[22] where the question was whether legal professional privilege in joint advice from three Queen’s Counsel had been waived in a press release by the Victorian Attorney‑General which was in the following terms:[23]
On July 5, 1999, Mrs Osland submitted a petition for mercy to the then Attorney-General Jan Wade. That petition set out six grounds on which the petition should be granted.
Following consultation with the State Opposition, I appointed a panel of three senior counsel, Susan Crennan QC, Jack Rush QC and Paul Holdenson QC, to consider Mrs Osland's petition.
This week I received a memorandum of joint advice from the panel in relation to the petition. The joint advice recommends on every ground that the petition should be denied.
After carefully considering the joint advice, I have recommended to the Premier that the Governor be advised to deny the petition.
The Governor has accepted this advice and denied the petition.
[22](2008) 234 CLR 275.
[23](2008) 234 CLR 275 at 286.
In relation to the question of waiver the High Court said:[24]
48. The evident purpose of what was said in the press release was to satisfy the public that due process had been followed in the consideration of the petition, and that the decision was not based on political considerations. The three eminent lawyers who gave the advice were appointed following consultation with the State Opposition. They were external to the Department. Their advice covered all the grounds upon which the petition was based. They recommended denial of the petition. Their advice was carefully considered, and the petition was denied. The Attorney-General was seeking to give the fullest information as to the process that had been followed, no doubt in order to deflect any criticism, while at the same time following the long-standing practice of not giving the reasons for the decision. This did not involve inconsistency; and it involved no unfairness to the appellant. If she had a legal right to reasons for the decision, then she still has it. If she had no such right, the press release did not deprive her of anything to which she was entitled. What the Attorney-General said did not prevent the appellant from making public her petition, or any part of it, as and when she desired.
49. Whether, in a given context, a limited disclosure of the existence, and the effect, of legal advice is inconsistent with maintaining confidentiality in the terms of advice will depend upon the circumstances of the case. As Tamberlin J said in Nine Films and Television Pty Ltd v Ninox Television Ltd[25], questions of waiver are matters of fact and degree. It should be added that we are here concerned with the common law principle of waiver, not with the application of s 122 of the Evidence Act 1995 (Cth) which, as was said in Mann v Carnell[26], has the effect that privilege may be lost in circumstances which are not identical to the circumstances in which privilege may be lost at common law.[27]
[24](2008) 234 CLR 275 at 286 (Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Kiefel JJ).
[25](2005) 65 IPR 442 at 447 [26].
[26](1999) 201 CLR 1 at 11 [23].
[27]See also Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49.
On this basis, the first defendant submitted:[28]
Not even a confirmation that advice exists and a statement about what the advisor recommends was held by the High Court in the facts of that case [that is, Osland v Secretary, Department of Justice] to amount to the common law inconsistency required by Mann v Carnell and Osland itself which restates Mann v Carnell. In our submission, what is required to act inconsistently as s 122(2) requires involves no concept of fairness. One just asks whether there has been sufficient disclosure of the advice.
Well, in circumstances where the letter itself says advice has been sought and does not say advice has been received, what the advice is, does not use the advice to support propositions such as saying, "our legal advice supports this position". …
[28]Transcript 19 February 2010, pages 23 and 24 (Mr Peters).
With respect to any related documents the first defendant submitted that following the operation of the Evidence Act, the proper approach is not what used to be called an ‘issue waiver’ or ‘related document waiver’. The first defendant submitted that under the Act the first step is to identify the advice concerned where privilege has been lost by virtue of s 122 of that Act, and simply ask whether any related documents are reasonably necessary for a proper understanding of that advice. The first defendant further submitted that if the advice makes sense without reference to any other documents, that is the end of the enquiry.
The second and third defendants adopted and endorsed the submissions made by the first defendant and submitted, further, that there was no inconsistency in relation to the 14 July 2008 letter or paragraph nine of the defence in relation to maintaining confidence in the legal advice provided to the first defendant.
In relation to the pleadings it was submitted that the statement of claim raises two allegations of fact, namely that Priceline, the plaintiff, stated it believed the original lease had not been renewed and, secondly, was unaware of its right under cl 6.7 of the original lease relating to the capping of any rent increase. It was submitted that the defence was responsive to those pleadings and simply states on its face that the letter of 14 July 2008 does not make any representation of fact. Further, it was submitted that the letter makes a representation about the legal position of the landlord and that is simply the position. Consequently, it was said, that there is nothing inconsistent with that defence in maintaining confidentiality in the nature of the legal advice.
Conclusions
In accordance with the prior usual practice, and now under the provisions of s 133 of the Evidence Act, I ordered that the documents which the plaintiff was seeking to inspect which are the subject of the summons be produced to and inspected by the Court. The documents were duly produced and inspected.
The present application must be resolved on the basis of the provisions of the Evidence Act, which commenced on 1 January 2010. The operation of these provisions may in certain circumstances be informed by the common law with respect to legal professional privilege but, as the High Court indicated very clearly in Osland,[29] the primacy of the provisions of the Act, and s 122 in particular, is clear. On this basis, I turn to the issues raised in the submissions of the parties which are, in my opinion, relevant to the determination of this application.
[29](2008) 234 CLR 275.
In relation to the question whether the second or third defendants were at material times acting as the agent or agents for the first defendant, I am inclined to accept the submissions of the plaintiff that I ought to infer on the available evidence that the second and third defendants were acting as agents of the first defendant and, consequently, were within the definition of “client” contained in s 117 of the Evidence Act. Consequently, their conduct attracted the operation of sub‑ss 122(2) and (3) of the Act, with the consequence that if the legal advice privilege claimed were that of the first defendant then it could have been waived by the conduct of the second defendant or the third defendant as its agent or agents. If, on the other hand, the position is that the privilege is that of the second defendant or the third defendant, then questions of agency do not arise.
The position with respect to agency must, however, be viewed having regard to the evidence of Michelle Shannon Power. In her affidavit of 18 February 2010 she deposes, in summary, to the absence of any express agency relationship or authority in that context given by the first defendant. This issue was not, however, the subject of evidence which was examined in great detail or tested during the course of the hearing of this application. For these reasons, and because of my findings which follow in relation to the claim of privilege, it is not necessary to take this matter further at this stage.
In relation to the primary question, I am of the opinion that neither the 14 July 2008 letter nor the pleading contained in paragraph nine of the amended defence of the second and third defendants, constitutes acting in a way that is inconsistent with a relevant client or party objecting to the adducing of the evidence because it would result in disclosure of a kind referred to in s 118 (whether paragraph (a) or (c)) that is contemplated by the provisions of sub‑s 122 (2) or (3) of the Evidence Act.
In relation to the 14 July 2008 letter, I am of the opinion that a careful reading of paragraph two,[30] indicates that it does not approach the extent of the disclosure contained in the critical correspondence referred to by Tamberlin J in Bennett.[31] Rather, the critical paragraph in the 14 July 2008 letter is analogous to the contents of the Attorney‑General’s press release which was considered in Osland. Nonetheless, the critical paragraph of the 14 July 2008 letter does not even go so far as the extent of the disclosure in Osland, because a conclusion with respect to the legal advice is never stated. Again, this is in marked contrast to the critical nature of the “conclusion” expressed in the correspondence referred to by Tamberlin J in Bennett.
[30]The critical part of the letter, set out above at paragraph 8.
[31]Bennett v Chief Executive Officer of the Australian Customs Service (2004) 140 FCR 101 at 119.
In relation to the documents which I have inspected consequent upon my order for the production to the Court in accordance with s 133 of the Evidence Act, I am of the opinion that they fall within the ambit of s 118 of the Act. These documents are of a varied nature. A number contain legal advice, or legal advice and instructions. These are clearly primary documents. The remaining documents relate to the 14 July 2008 letter, either directly or in a general sense. In my opinion, they are related documents which go to explain these primary documents and the 14 July 2008 letter, or are so connected with them and the letter as to be the subject of privilege against production.
Finally, in relation to the pleading contained in paragraph nine of the second and third defendants’ amended defence, I accept the position put on behalf of the second and third defendants.
For these reasons, I dismiss the plaintiff’s summons and will hear the parties in relation to the question of costs.
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