Trevorrow v State Of South Australia (No 2)

[2005] SASC 369

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Application)

TREVORROW v STATE OF SOUTH AUSTRALIA (NO 2)

Judgment of The Honourable Justice Gray

26 September 2005

PROCEDURE - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - PRODUCTION AND INSPECTION - LEGAL PROFESSIONAL PRIVILEGE

The plaintiff disputed the defendant’s claim to legal professional privilege – court asked to rule on whether defendant’s claim was maintainable – discussion of applicable legal principles – consideration of exclusions or exceptions to legal professional privilege – discussion of interests of child and effect on legal professional privilege - discussion of fiduciary relationship between plaintiff and defendant and effect on legal professional privilege - consideration of doctrine of waiver.

Held: Defendant’s claim to legal professional privilege is not maintainable – legal professional privilege is excluded from applying as between the plaintiff and the defendant –defendant has waived its privilege in respect of a number of the documents the subject of this dispute.

Limitations of Actions Act 1936 (SA) s 48; Aborigines Act 1934-1939 (SA) s 6, s 7, s 10, s 38, s 39, s 40; Maintenance Act 1926-1937 (SA) s 5, Part IV, referred to.
Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501; Daniels Corporation International Pty Ltd v ACCC (2002) 213 CLR 543; Mann v Carnell (1999) 201 CLR 1; Esso Australia Resources v The Commissioner of Taxation (1999) 201 CLR 4; Carter v The Managing Partner, Northmore Hale Davy & Leake (1994-1995) 183 CLR 121; Ramsbotham v Senior (1869) LR 8 575; Attorney-General (NT) v Kearney (1985) 158 CLR 500; Minister for Immigration and Multicultural and Indigenous Affairs v Hamdan [2005] FCAFC 113; Baker v Campbell (1983) 153 CLR 52; Crescent Farm (Sidcup) Sports Ld v Sterling Offices Ltd [1972] CH 553; Oxford County Council v M [1994] Fam 151; Hospital Products Ltd v United States Surgical Corporation Inc (1984) 156 CLR 41; Williams v Minister, Aboriginal Land Rights Act 1983 (1994) 35 NSWLR 497; Clay v Clay (2001) 202 CLR 410; Countess of Bective v Federal Commissioner of Taxation (1932) 47 CLR 417; Yunghanns and Ors v Elfic Pty Ltd and Ors (No 2) [2000] VSC 113; Nocton v Lord Asburton [1914] AC 932; Tesco Sotires v Pook [2003] EWHC 823; Crown Dilmun v Sutton [2004] 1 BCLC 468; Boardman v Phipps [1967] 2 AC 46; Item Software (UK) Ltd v Fassihi [2004] EWCA 1244; Maguire v Makaronis (1997) 188 CLR 449; Chan v Zacharia (1984) 154 CLR 178; Canadian Aero Service Ltd v O’Malley [1974] SCR 592; Barnes v Addy (1874) LR 9 CH App 244; Thomason v The Council of the Municipality of Campbelltown (1939) 39 SR (NSW) 347; Trade Practices Commission v Sterling (1979) 36 FLR 244; Nickmar Pty Ltd v Preservatrice Skandia Insurance Ltd (1985) 3 NSWLR 44; Hartogen Energy Ltd V AGL Co (1992) 36 FCR 557; ANZ Standard Chartered Bank of Australia Ltd v Antico (1993) 36 NSWLR 87; Goldberg v Ng (1995) 185 CLR 83; Guinness Peat Properties Ltd v Fitzroy Robinson Partnership [1987] 2 All ER 716; Meltend Pty Ltd v Restoration Clinics of Australia Pty Ltd (1997) 75 FCR 511; Doran Constructions Pty Ltd v University of Newscastle (Unreported, NSW Supreme Court, 12 December 1997); Director of Public Prosecutions (Commonwealth) v Kane (1997) 140 FLR 468; National Insurance Co Ltd v Whirlybird Holdings Ltd [1994] 2 NZLR 513; Great Atlantic Insurance Co v Home Insurance Co [1981] 2 All ER 485; Abigroup Ltd v Atkins (1997) 42 NSWLR 623; Derby & Co ltd v Weldon (No 8) [1991] 1 WLR 73; Grant v Downs (1976) 135 CLR 674; Attorney-General (NT) v Maurice (1986) 161 CLR 475; R v Bell; Ex parte Lees (1980) 146 CLR 141; Waterford v The Commonwealth (1987) 163 CLR 54; Southern Equities v Arthur Andersen (1997) 70 SASR 166; Burton v Earl of Darnley (1869) LR 8 Eq 576m , considered.

WORDS AND PHRASES CONSIDERED/DEFINED

"interests of the child
fiduciary relationship"

TREVORROW v STATE OF SOUTH AUSTRALIA (NO 2)
[2005] SASC 369

Privilege Argument

GRAY J:

Introduction

1. This is a ruling upon whether a claim to legal professional privilege is maintainable.

2. The ruling concerns an important civil right safeguarded by the law.[1]  As a result I consider that full reasons should be given for my conclusions.

   [1] Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 505, 551-552; Daniels Corporation International Pty Ltd v ACCC (2002) 213 CLR 543 at 575.

   An Unusual Case

3. The claim to privilege advanced by the defendant, the State of South Australia, involves a consideration of a difficult and developing area of law concerning exceptions and exclusions to the application of legal professional privilege.  This question arises because the plaintiff was, at the relevant times, a child and a ward of the State.  The relationship between legal professional privilege, the interests of the child and fiduciary obligations will accordingly be discussed in some depth. 

4. It should be pointed out immediately that there are some unusual features to this case.  The plaintiff claims that he was taken unlawfully and in breach of duty from his parents and placed in foster care.  Many causes of action are identified and discussed below.  The events occurred in or about 1957 and, on the plaintiff’s case, continued for more than a decade.  At trial, the court will be inquiring into events that took place almost 50 years ago.

5. Not surprisingly in these circumstances documentary records are said to have particular relevance. Amongst the documents that the plaintiff seeks to advance are documents containing legal advice from the Crown Solicitor to the Government of the day and documents disseminating that advice to other Government instrumentalities.  The plaintiff claims that this documentation provides evidence that the conduct of the Crown through its instrumentalities was understood to be beyond power and so understood by those making decisions about the plaintiff’s welfare.

6. Another unusual feature is that a number of documents over which privilege is claimed were provided to the plaintiff’s solicitors by the State more than a decade ago and are said to have been pleaded into issue both in regard to the substantive claims advanced as well as to a claim for an extension of time.  It is said that any entitlement to privilege has been waived.

7. It is against this background that the claim for legal professional privilege is to be considered.

   The Plaintiff’s Claim

8. The plaintiff, an indigenous person, was born in 1956.  When aged about 13 months, and whilst living with his parents, he became ill.  His parents determined that he was in need of medical treatment.  They arranged for a neighbour to take the plaintiff to the Adelaide Children’s Hospital.  The plaintiff was treated at hospital.  It is alleged that the Aboriginal Protection Board removed him from hospital without notice to his parents and placed him in foster care.  Quite some time passed before his parents were informed as to what had happened.  He remained in foster care for about 9 years.

9. The plaintiff asserts that the State, through its instrumentalities, acted illegally, improperly and in breach of duty.[2]  

   [2] The plaintiff alleges that State instrumentalities were involved.  Those instrumentalities are identified in paragraph 4 of the Statement of Claim.  For the purposes of these reasons, the instrumentalities are simply referred to as “the State”.  The State of South Australia has, by its defence, declined to plead to the allegations that the State of South Australia is, by statute, the legal entity liable to be sued for the alleged acts and defaults of the instrumentalities as it is said to be a question of law.

10. The plaintiff alleges that the State was subject to statutory duties pursuant to various enactments including: the Maintenance Act 1926-1937 (SA), the Aborigines Act 1934-1939 (SA), the Social Welfare Act 1926-1965 (SA), the Aboriginal Affairs Act 1962 (SA) and the Community Welfare Act 1972 (SA).  Those statutory obligations, the plaintiff claims, also gave rise to a duty of care that was separate and distinct from fiduciary duties owed between guardian and ward.  Such duties included the duty to ensure that where any child was alleged to be a “neglected child” within the meaning of section 5 of the Maintenance Act, such a child was brought before the court of summary jurisdiction for a hearing as to whether the child was a “neglected child”, with appropriate notice to the child’s guardian.  The plaintiff claims that the State breached its statutory duties and duty of care owed to him.

11. The plaintiff further claims that the State, by its servants or agents, falsely or wrongfully imprisoned the plaintiff by removing him from hospital without his parents’ consent.  He alleges that the State failed to return him to his parents and instead confined him to the custody of foster parents from about 6 January 1958 to 12 May 1967.  This conduct was said to be contrary to the requirements of Part  IV of the Maintenance Act and contrary to sections 38 and 40 of the Aborigines Act and without the knowledge or consent of the plaintiff’s parents.

12. The plaintiff further claims that his removal was ultra vires, as it was not conducted pursuant to sections 38 to 40 of the Aborigines Act 1934-1939 and there were other lawful means of removing a child from the custody of its parents.

13. In addition, the plaintiff asserts that his removal from his parents was performed in bad faith, as such action was taken contrary to legal advice received and accepted by the Aborigines Protection Board, the Children’s Welfare and Public Relief Board, the Minister for Aborigines and the Minister for Children’s Welfare and Public Relief.  It was said that such action was taken when the above-mentioned bodies knew they did not have the power to remove the plaintiff from his parents and place him in foster care.

14. Other causes of action advanced by the plaintiff include the denial of procedural fairness, illegal conduct, misfeasance in public office and breach of fiduciary duty.  The fiduciary duty was said to arise from the relationship between the plaintiff and the State and in particular the relationship of guardian and ward.

15. It is necessary to set out certain of the plaintiff’s pleaded allegations as they have a particular relevance to the claim for privilege.  As will appear later in these reasons, it is said that the plaintiff has pleaded into issue the effect of, or the contents of, a number of the documents said to be privileged.  This has come about because many of the documents said to be privileged were provided by the State to the plaintiff’s solicitors. 

16. Examples of the paragraphs where this has occurred are as follows:

    102.The Crown knew that the removing and placement of Aboriginal children without following the procedures [earlier pleaded] was unlawful.

    ...

    135.If, contrary to paragraph 127 hereof, the removal of the plaintiff as set out in paragraph 16 hereof, was within power, the removal was undertaken for an improper purpose namely to avoid bringing the plaintiff before the court charged with being neglected pursuant to Part IV of the Maintenance Act 1926-1937.  Such a purpose was improper because:

    135.1it was contrary to the statutory requirements of sections 5 and 7 of the Aborigines Act 1934-1939 to promote the welfare of the Aboriginal people and protect them from injustice, imposition and fraud; and

    135.2it was contrary to the statutory requirements of Part IV of the Maintenance Act 1926-1937;

    135.3it was contrary to the statutory requirement of sections of 16(1), I, III and IV of the Maintenance Act 1926-1937, being requirements relating to the supervision of all children nursed by foster mothers, power to license foster mothers of children under the age of seven and the supervision of all illegitimate children under the age of seven;

    135.4it was carried out in circumstances where the plaintiff’s parents were deceived as to the circumstances and whereabouts of the plaintiff;

    135.5it failed to take the particular circumstances of the plaintiff into account;

    135.6it was undertaken in accordance with the practice described in paragraphs 101-107 hereof, which was implemented by the Aborigines Protection Board, Children’s Welfare and Public Relief Board and the Ministers responsible for them in circumstances where the Boards and the Ministers believed they were acting unlawfully and intended to act unlawfully and, or in the alternative, the implementation of the practice had the effect, which was known to and intended by the Aborigines Protection Board, Children’s Welfare and Public Relief Board and the Ministers responsible for them, that the practice would:     

    135.6.1shield from public scrutiny the failure, or appearance of failure, of the Ministers, agencies and instrumentalities of the Crown to properly perform their statutory duties, set out at paragraphs 108-112 hereof;

    135.6.2circumvent and/or shield from public scrutiny, the failure of the Children’s Welfare and Public Relief Board, Aborigines Protection Board and Minister for Aborigines and Minister for Children’s Welfare and Public Relief to implement Part IV of the Maintenance Act 1926-1937 and ss. 38-40 of the Aborigines Act 1934-1939 in relation to Aboriginal infants, including the plaintiff, who were alleged to be neglected;

    135.6.3prevent the parents or guardians of children, including the parents of the plaintiff, from exercising their right to be heard in relation to any complaint alleging neglect pursuant to s. 106 of the Maintenance Act 1926-1937;

    135.6.4avoid a finding by a Court pursuant to Part IV of the Maintenance Act 1926-1937 that as legal guardian of Aboriginal children, such as the plaintiff, the Aborigines Protection Board had failed to perform its statutory duties as set out in paragraph 109 hereof.

    135.7Both the Aborigines Protection Board and the Crown benefited and/or profited from the practice in that:

    135.7.1the Aborigines Protection Board was charged with the duty to provide for and maintain Aboriginal children, including the plaintiff, and the adoption of the practice avoided the need to form an opinion under s.40 of the  Aborigines Act 1934-1939, or by a Court pursuant to Part IV of the Maintenance Act 1926-1937, that such a chid was neglected, and so avoided public criticism of the manner in which the Aborigines Protection Board and the Crown performed, or failed to perform, those duties;

    135.7.2the practice enabled the removing and placement of Aboriginal infants and the plaintiff by the Crown without independent assessment;

    135.7.3the practice enabled the placement of Aboriginal infants by the Aborigines Protection Board without undertaking an assessment of their circumstances as required by s.40(b) of the Aborigines Act 1934-1939;

    135.7.4the practice denied the parents of the plaintiff the opportunity to challenge the decision made by the Crown to remove the plaintiff.

    135.7.5at the same time the practice gave an appearance that the Crown had satisfied its legal obligations when it had not.

    136.On numerous occasions between 1949 and 1961, internal memoranda and correspondence and other events and documents placed the Crown, including the Aborigines Protection Board, the Children’s Welfare and Public Relief Board, the Minister for Aborigines and the Minister for Children’s Welfare and Public Relief, the Cabinet and the Premier of South Australia, on notice of the lack of power of the Crown to remove Aboriginal children who were considered to be neglected otherwise than pursuant to ss. 38-40 of the Aborigines Act 1934-1939 or Part IV of the Maintenance Act 1926-1937.

    Particulars of documents

    136.1Minute from A J Hannan, Crown Solicitor, to the Hon the Attorney General dated 25 July 1949;

    136.2Minute from A J Hannon Crown Solicitor to the Hon the Attorney General dated 25 July 1949 noted by the Secretary of the Minister of Works and by the Secretary of the Aborigines Protection Board;

    136.3Minute from the Secretary of the Aborigines Protection Board to the Minister of Works dated 27 May 1949;

    136.4Minute from R R St C Chamberlain, Crown Solicitor, to the Hon the Attorney General dated 13 August 1954;

    136.5Letter from the Chairman of the Children’s Welfare and Public Relief Board to the Secretary of the Aborigines Protection Board dated 24 August 1954;

    136.6Minute from the Secretary of the Aborigines Protection Board to the Chairman of the Children’s Welfare and Public Relief Department dated 3 February 1956;

    136.7Minute from the Secretary of the Aborigines Protection Board to the Minister of Works dated 18 May 1956;

    136.8Minute from the Secretary of the Aborigines Protection Board to the Minister of Works dated 6 November 1956;

    136.9Minute from the Minister of Works to the Hon. The Chief Secretary for Cabinet dated 19 November 1956;

    136.10Minute from the Minister of Works to the secretary of the Aborigines Protection Board dated 21 June 1957;

    136.11Minute from the Minister of Works to the Hon. The Chief Secretary for Cabinet dated 2 April 1958;

    136.12Minute from the Secretary of the Aborigines Protection Board to the Secretary of the Minister of Works dated 19 May 1958;

    136.13Minute from the Secretary of the Aborigines Protection Board to the Minister of Works dated 20 October 1958.

    136.14Minute from the Secretary of the Aborigines Protection Board to the Aborigines Protection Board dated 22 October 1958;

    136.15Minute from the Minister of Works to the Hon the Chief Secretary dated 4 November 1958.

    136.16Letter from the Secretary of the Aborigines Friends Association to the Minister of Works dated  November 1958.

    136.17Minute of the Children's Welfare and Public Relief Board dated 13 November 1958.

    136.18Minute from the Secretary of the Aborigines Protection Board to the Minister of Works dated 12 January 1959;

    136.19Minute from the Minister of Works to the Hon the Chief Secretary of Cabinet dated 18 August 1960;

    136.20Minute from the Chairman of the Children's Welfare and Public Relief Board to the Hon the Chief Secretary dated 11 October 1960.

    136.21Minute from the Secretary of the Aborigines Protection Board to the Minister of Works dated 29 May 1961.

    136.22Minute from the Secretary of the Aborigines Protection Board to the Minister of Works dated 22 June 1961.

    137.The removal of the plaintiff as referred to in paragraph 16.2 hereof was performed in bad faith by reason of the following matters:

    137.1The plaintiff repeats the matters set forth in paragraph 135 and in addition:

    137.1.1such action was action contrary to the legal advice received and accepted by the Aborigines Protection Board,  the Children's Welfare and Public Relief Board, the Minister for Aborigines and the Minister for Children's Welfare and Public Relief;

    137.1.2such action was carried out in circumstances where the Aborigines Protection Board, the Children's Welfare and Public Relief Board, the Minister for Aborigines and the Minister for Children's Welfare and Public Relief knew it did not have the power to so remove and place the plaintiff.

    ...

    139.By implementing the removal of the plaintiff in the manner set out at paragraph 16.3 hereof the Aborigines Protection Board and/or in the alternative the individual members of the Aborigines Protection Board namely:

    Hon. Sir Malcolm McIntosh, Minister of Works, Chairman

    Dr John Burton Cleland, Deputy Chairman

    Mrs Constance Mary Cooke

    Mrs Alice Maude Johnston

    Rev Gordon Rowe

    Mr A.J.K. Walker

    Mr C.E Bartlett, Secretary

    Were guilty of misfeasance in public office in that:

    139.1the Aborigines Protection Board and/or the individual members of the Aborigines Protection Board were at all material times public officers;

    139.2the removal was brought about the Aborigines Protection Board and/or the individual members of the Aborigines Protection Board in purported discharge of their public duties;

    139.3the removal of the plaintiff was unlawful for reasons set out in paragraphs 127-135 and 137 hereof;

    139.4the Aborigines Protection Board and/or the individual members of the Aborigines Protection Board acted with malice in bringing about the removal of the plaintiff as they:

    139.4.1knew that the Aborigines Protection Board and/or individual members of the Aborigines Protection Board did not have the power to so remove and place the plaintiff and that the removal involved a foreseeable risk of harm to the plaintiff;

    139.4.2in the alternative, the Aborigines Protection Board and/or the individual members of the Aborigines Protection Board were recklessly indifferent as to whether the Aborigines Protection Board and/or individual members of the Aborigines Protection Board had the power to remove the plaintiff and as to the resulting injury to the plaintiff.

1. These references are sufficient to indicate the way in which the contents of documents claimed to be privileged, or at least some of them, have been pleaded into issue.  The above references are not exhaustive.

2. Paragraphs 136.1, 136.2, 136.4, 136.6, 136.9, 136.18, 136.19, 136.20 and 136.22 each identify a document in respect of which privilege has been claimed. Each of the particularised documents is a document the contents of which have been disclosed to the plaintiff.  All appear to draw on or refer to the advice of the Crown Solicitor to the Attorney-General of 25 July 1949.  On the plaintiff’s case these documents support the claim that the placing and the confirmation of foster care was undertaken with the knowledge of that advice.

3. Although it is important when considering claims for legal professional privilege not to place in the public arena the contents of the documents themselves, in this case as the effect of a number of the documents has been pleaded into issue and as those documents have been disclosed to the plaintiff and were referred to during the course of argument, it is not inappropriate to provide the description of the contents as alleged by the plaintiff.  However, I have limited that description to the extent necessary to understand these reasons.

   Extension of Time

4. The plaintiff seeks an extension of time for the commencement of the action pursuant to section 48 of the Limitations of Actions Act 1936 (SA).  He claims that his failure to institute the action within the period of the limitation resulted from the conduct of the Crown and was reasonable in view of that conduct.  The plaintiff provided the following particulars:

   145.1     The Crown failed to:

   145.1.1advise the plaintiff at any stage of the circumstances of the removal;

   145.1.2    advise the plaintiff that the removal was unlawful;

   145.1.3ensure that the plaintiff was given access to professional advice;

   145.1.4advise the plaintiff as to his legal right to take action against the Crown.

   The plaintiff further pleads that he did not ascertain certain facts material to his case until the period within 12 months prior to the issue of these proceedings.  The particulars of that allegation include the following:

   146.1On or after about 18 March 1997 the Department of Family and Community Services released a full copy of files relating to the plaintiff (“the departmental files”) to the plaintiff’s solicitors pursuant to a Freedom of Information application dated 6 February 1997.  These files were thoroughly examined by the plaintiff’s legal representative and appeared to be complete.

   ...

   146.3On 3 July 1997 in the course of an appointment with his solicitors at his home at Meningie the plaintiff first had an opportunity to read and have explained to him the full content of the departmental files and ascertained for the first time the full details of the circumstances of the removal from his family and his early placement in foster care.  Notwithstanding that these files contained records of a number of important as well as incidental matters in relation to the plaintiff’s situation and treatment, the plaintiff ascertained from his solicitor that:

   146.3.1The records did not contain any document or reference to the plaintiff’s parents’ consent to his placement in a foster situation, nor did the documents suggest that his parents’ consent was either sought and/or obtained by the Aborigines Protection Board nor by officers of the Aborigines Department.

   146.3.2The records did not contain any document or reference to any court order for the placement of the plaintiff with Mrs Davies, nor did the documents suggest that the court orders were either sought and/or obtained for this placement by the Aborigines Protection Board nor by officers of the Aborigines Department.

   146.3.3The records revealed that the Aborigines Protection Board did not seek details about the plaintiff’s circumstances prior to his placement in a foster situation and only did so on 15 January 1958.  On that date the Secretary of the Aborigines Protection Board wrote to the police officer at Meningie asking that the Aborigines Protection Board be provided with details of how the plaintiff was placed in the Children’s Hospital and where his mother was at that time.

   The Defence

5. The State denies the plaintiff’s claim that he was removed from his family.  On the State’s case, the plaintiff was placed by the State in foster care because he was a neglected child and legitimately a ward of the State.  The State asserts that it was legislatively empowered so to act in relation to the plaintiff.  The State denies the plaintiff’s claim that it breached any statutory duty.  It also denies that it breached its duty of care.  In addition, the State disputes the plaintiff’s reliance upon what is alleged to be the general practice of the State with respect to children of Aboriginal descent during the relevant period to support his claim.  The State denies all of the claims advanced by the plaintiff.

   The Claim of Privilege

   The Primary Contention of the Parties

6. The State has claimed legal professional privilege with respect to 20 documents.  The State claims that those documents or parts thereof were brought into existence for the dominant purpose of either requesting, providing or recording legal advice, and thus they attracted and continue to attract legal professional privilege. 

7. Counsel for the State submitted that the documents over which it has claimed legal professional privilege were clearly privileged on their face.  All of the documents reflected communications that occurred between a lawyer and a client for the dominant purpose of obtaining or conveying that legal advice.  Counsel for the State further submitted that none of the exceptions to privilege applied.

8. The State refuted the plaintiff’s assertion that legal professional privilege did not attach to the documents by virtue of being excluded from operation because of the fiduciary nature of the relationship that existed between the State and the plaintiff whilst the plaintiff was in the State’s care.

9. Counsel for the State further submitted that legal professional privilege had not been waived.  Counsel relied upon the limb test proposed by the High Court in Mann v Carnell,[3] and asserted that the State had not acted so as to abandon confidentiality in the documents.  Counsel said that the State had not waived privilege over the documents either expressly or by implication.

   [3] Mann v Carnell (1999) 201 CLR 1.

10. In relation to how the plaintiff came to be in possession of a number of the documents, counsel for the State, when pressed, and notwithstanding aspects of cross-examination, abandoned any suggestion that the plaintiff’s solicitor had acted fraudulently, or otherwise improperly.  However, counsel for the State contended that letters sent by the plaintiff’s solicitor requesting access to various records held at State Records did not disclose to the reader that the plaintiff proposed to use any relevant information in litigious proceedings against the State.  Rather, it was said, the letters, in particular the letter sent on 20 December 1995, gave the impression that the plaintiff sought access to the documents to be used for an entirely different purpose.

11. The plaintiff disputes the State’s claim for privilege on several grounds:

    -There is no proper basis for the claim of privilege in the case of most documents.

    -The documents come within the exception that privilege does not apply when the welfare of a child is in issue.

    -The documents come within the exception that privilege does not apply in the case of a deliberate abuse of statutory power.

    -If privilege is established, the privilege has been waived by operation of law and inconsistent conduct.

    Material before the Court

12. The following material was tendered at the hearing of submissions in relation to the State’s claim of legal professional privilege:

    -an affidavit of Joanna Richardson, a solicitor, sworn on 2 June 2005 outlining the circumstances leading up to and including her obtaining access to the documents the subject of the claim.  Attached as exhibits were the correspondence between Ms Richardson and the various government agencies to which she wrote seeking access to the material;

    -a further affidavit of Ms Richardson sworn on 9 June 2005 describing the nature of the submission made by the Aboriginal Legal Rights Movement Incorporated to the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (“the National Inquiry”), attached to which was correspondence between Ms Richardson and the Crown Solicitor;

    -an affidavit of Dr Cameron Murray Raynes sworn on 8 June 2005 outlining the scope of his employment as a Project Officer, Aboriginal Access at State Records of South Australia, and the manner in which he came to access some of the documents the subject of this claim, and the use that he made of those documents.  Attached was a letter from Mr Rathman recording the Department of State Aboriginal Affairs’ approval for Dr Raynes to access the records and extracts of publications written by Dr Raynes, in which reference is made to documents that he accessed at State Records;

    -a further affidavit of David John Rathman sworn 17 June 2005 outlining his role as Director and subsequently Chief Executive Officer of the Department of State Aboriginal Affairs during the period 1989-2002, and the Department’s policy with respect to public access to documents held at State Records;

    -a further affidavit Mr Rathman sworn 27 June 2005 indicating that he was not aware that the files over which access was sought and granted to Ms Richardson contained opinions of the Crown Solicitor;

    -an affidavit of Andrew Steven Wilson sworn 20 June 2005 outlining his role as the Senior Aboriginal Project Officer at State Records and his involvement in the events leading up to Ms Richardson’s obtaining access to the documents at State Records; and

    -an affidavit of Mary Therese Karpinski sworn 20 June 2005 stating that the deponent has the responsibility for the conduct of this matter on behalf of the State, and setting out the documents over which the State claims legal professional privilege and the basis for the claim.

    Other material before the Court included:

    -a copy of a page from the Report of the National Inquiry, August 1997, detailing the “terms of reference” of the National Inquiry;

    -a copy of page 669 from the Report of the National Inquiry, August 1997, comprising a list of bodies or individuals that had made submissions to the National Inquiry;

    -a booklet prepared by the plaintiff containing documents said to demonstrate the public interest in recognition of the true state of affairs regarding the treatment of Aboriginal people;

    -a booklet prepared by the plaintiff containing a list and, where in the possession of the plaintiff, a copy of the documents subject to the disputed claim for privilege;

    -a booklet prepared by the plaintiff containing documents said to raise prima facie evidence of abuse of statutory power on the part of the State;

    -the general written submission dated 30 August 1996, prepared by Aboriginal Legal Rights Movement Incorporated and submitted to the National Inquiry;

    -a document presented to Dr Raynes during cross-examination for use as an aide-memoire;

    -the Report of the National Inquiry, August 1997;

    -a summary prepared by the plaintiff of the documents in the booklet said to raise prima facie evidence of abuse of statutory power on the part of the State making admissions that the Aborigines Protection Board had no power to remove Aboriginal children from their parents.

13. Three of the deponents, Ms Richardson, Dr Raynes and Mr Rathman, were called to give oral evidence and were cross-examined on the contents of their affidavits.  All three presented as honest and reliable witnesses.  There was ultimately little challenge to their evidence.  The debate centred on the relevant inferences to be drawn from that evidence. 

14. I have accepted the testimony of Ms Richardson and Dr Raynes.  Generally, I accept Mr Rathman’s evidence; however, I note that the extent to which he could assist the Court was limited by his lack of first-hand knowledge of the events about which he testified and was cross-examined.

15. Mr Rathman attested that the reply to Ms Richardson’s letter granting permission for her to access the documents was neither prepared nor signed by him personally.  Rather, a departmental officer had responded on Mr Rathman’s behalf.  Mr Rathman had no independent recollection of actually receiving Ms Richardson’s letter.  The following exchange took place between the Bench and Mr Rathman during the course of his evidence:

    Q.Can I just understand the procedure that was followed when these letters came in.  I want to show you two exhibits from an affidavit of Ms Richardson.  The first is JCR 4 which is a letter written to the chief executive officer, which was you at the time, in November 1995.

    A.    Yes.

    Q.    Do you have any recollection of seeing that letter before.

    A.    No, not until recently.

    Q.In the ordinary course, would an officer of your department deal with that correspondence [for] you.

    A.    Yes, they would.

    …

    Q.Would you discuss the contents of the letter or would it be presented to you for your approval and signature.

    A.    It would be presented to me for my approval and signature.

    Q.I think you still have JCR 7 there, the letter from Ms Richardson dated 20 December.

    A.Yes, I do have that.

    Q.Again, when that was received a member of your department would have looked into it and prepared the response.

    A.They would have.

    Q.Again, the response would have been presented to you for your approval and signature.

    A.Yes, that would have been the case.

    Q.Could you just look at your response, JCR 8.  That is the response that was prepared for you that you approved and signed.

    A.It’s not signed by me.

    Q.It was signed for you.

    A.It was signed for me, yes.

    Given his lack of any contemporaneous awareness of the correspondence, Mr Rathman’s evidence as to how he interpreted the letter can only go to how he interprets it now and not how he might have interpreted it in 1995 and 1996. 

16. Counsel for the State handed to the Court two sealed envelopes, one containing the masked copies of the disputed documents 1-18 and the other containing unmasked copies of the same documents.  With the consent of the parties, I have reviewed the contents of both envelopes.  I have reached the conclusion that all of the documents, or portions of the documents in respect of those that have been masked, contained therein would appear, in the ordinary course, to be protected from disclosure by legal professional privilege.  The question remains whether the documents are excluded from the protection of privilege and if not excluded, whether privilege has been waived.

    The Factual Background

17. The following factual history was not the subject of any real dispute on this interlocutory hearing.  I have drawn on the material before me as providing strong evidence of each of the matters that follow.

18. From early 1994, the plaintiff’s solicitor, Ms Richardson, made numerous written requests to various government departments for information regarding the removal of the plaintiff from his family.  On 20 December 1995, Ms Richardson wrote to the chief executive officer of the Department of State Aboriginal Affairs, Mr Rathman, advising that she had been instructed by the plaintiff in relation to the question of his separation from his family, and that she was assisting him to prepare information to be submitted to the National Inquiry.  The letter was in the following terms:

    Thank you for you letter of 24 November 1995

    I note that you have advised that formal procedures for access to records held by State Records have been developed and that you wish further information from me on the nature of my investigations and the purpose of the information copied from the archives.

    Mr Trevorrow has instructed me to act on his behalf in relation to the question of his separation as a child from his family and we are in the process of assisting him to prepare information to be submitted to the National Inquiry.

    I understand that State Records hold volumes of minutes of the Aboriginal Protection Board for the years 1940-45, 1954/57 and 1960/63.  I believe the relevant years to which [our] request relates would be 1957-1960.  I would be pleased if you could advise me whether or not such records exist and if not the reason that they are not available.

    I understand that there are however volumes of correspondence which relate to the Minutes of the Board which are held by State Records for the years 1866/1968.  I would be pleased if you would grant access to these records, which I believe are entitled “Aboriginal Affairs Correspondence File (letters received) 1866-1968”, and permission to copy documents relevant to Mr Trevorrow.

    Lastly I would be pleased if you could provide me with a copy of your guidelines for access to these records in order to facilitate the process in the future.

19. Mr Rathman, the chief executive officer, responded by letter on 17 January 1996 in the following terms:

    I refer to you letter dated 20 December 1995, regarding Bruce Trevorrow/Lampard – Access to Files.

    The volumes of minutes of the Aboriginal Protection Board held by State Records relating to the years 1957 – 1960 which you have requested access [to] do not exist.

    However your second request for access to the volumes of correspondence which relate to the Minutes of the Board entitled ‘Aboriginal Affairs Correspondence File (letters received) 1866-1968’, permission is given on the condition that:

    1.     no documents or material are removed or altered by the SA Museum in the process of your investigations; and

    2.     no information regarding the names of persons alive or deceased should be disclosed or used in documentation without permission of the person who is named or an authorised person able to give such permission; and

    3.     if copies of documents are required, Mr Andrew Wilson, Aboriginal Project Officer of State Records will copy the documents and you will be charged accordingly for the copies.

20. By this letter, Mr Rathman granted conditional permission to the plaintiff through his agent to access and obtain copies of documents held by State Records.

21. On various occasions during 1996, Ms Richardson attended at State Records and, in accordance with the authority provided by Mr Rathman, examined a number of Aborigines Department files, including files relating to: foster parents for Aboriginal children; applications and related correspondence; licensed foster mothers to Aboriginal children; the Aborigines Protection Board – Maintenance of Aboriginal Children – approval for expenditure; Crown Law opinions; the power of the Aborigines Protection Board to remove children from parents; and a Draft Bill for amending the Aborigines Act 1934-1939.  Copies of numerous pages from these files were made available to Ms Richardson upon her request. 

22. A number of the copies of documents obtained by Ms Richardson from State Records now form part of the 20 documents over which there is a dispute regarding legal professional privilege.  The 20 documents may be listed chronologically and described as follows:

    1Letter of the Crown Solicitor returned to the Honourable Attorney General, dated 25 July 1949.  This document was read and copied at State Records by the plaintiff’s solicitor.  The entire document is subject to a claim of legal professional privilege by the State.  [Referred to in paragraph 136.1 of the Amended Statement of Claim]

    2A second letter of the Crown Solicitor returned to the Honourable Attorney General, dated 25 July 1949.  This document was read and copied at State Records by the plaintiff’s solicitor.  The entire document is subject to a claim of legal professional privilege by the State.  [Referred to in paragraph 136.2 of the Amended Statement of Claim]

    3Minute of the Chairman Children’s Welfare and Public Relief Board to Chief Secretary for forwarding to the Crown Solicitor for advice, dated 8 June 1954.  The plaintiff’s solicitor has not seen this document.  The entire document is subject to a claim of legal professional privilege by the State. 

    4Letter of the Crown Solicitor returned to the Honourable Attorney General, dated 13 August 1954.  This document was read and copied at State Records by the plaintiff’s solicitor.  The entire document is subject to a claim of legal professional privilege by the State.  [Referred to in paragraph 136.4 of the Amended Statement of Claim]

    5Minute of the Secretary, Aborigines Protection Board to the Chairman of Children’s Welfare and Public Relief Board regarding Aboriginal children, dated 3 February 1956.  This document was read and copied at State Records by the plaintiff’s solicitor.  Those parts of the document that are subject to the State’s claim to legal professional privilege have been masked in the book of documents.  [Referred to in paragraph 136.6 of the Amended Statement of Claim]

    6Minute of the Acting Minister of Works to the Honourable Chief Secretary for Cabinet, dated 19 November 1956.  This document was read and copied at State Records by the plaintiff’s solicitor.  Those parts of the documents that are subject to the State’s claim to legal professional privilege have been masked in the book of documents.

    7Minutes of the Aborigines Protection Board, dated 19 December 1956.  Read and noted or dictated, but not copied by the plaintiff’s solicitor.  Those parts of the documents that are subject to the State’s claim to legal professional privilege have been masked in the book of documents.

    8Minute of the Secretary Aborigines Protection Board to the Honourable Minister of Works, dated 24 January 1957.  This document has not been seen in unmasked form by the plaintiff’s solicitor.  Those parts of the documents that are subject to the State’s claim to legal professional privilege have been masked in the book of documents.  [Referred to in paragraph 136.9 of the Amended Statement of Claim]

    9Minute of the Acting Minister of Works to the Chief Secretary for Cabinet, dated 2 April 1958.  This document has not been seen in unmasked form by the plaintiff’s solicitor.  Those parts of the document that are subject to the State’s claim to legal professional privilege have been masked in the book of documents.

    10Minute of the Secretary, Aborigines Protection Board, to the Honourable Minister of Works, dated 12 January 1959.  This document has been read and copied at State Records by the plaintiff’s solicitor.  Those parts of the document that are subject to the State’s claim to legal professional privilege have been masked in the book of documents.  [Referred to in paragraph 136.18 of the Amended Statement of Claim]

    11Minute of the Minister of Works to the Chief Secretary for Cabinet, dated 18 August 1960.  This document has not been seen unmasked by the plaintiff’s solicitor.  Those parts of the document that are subject to the State’s claim to legal professional privilege have been masked in the book of documents.  [Referred to in paragraph 136.19 of the Amended Statement of Claim]

    12Minute of the Secretary Children’s Welfare and Public Relief Board to the Honourable Chief Secretary, dated 11 October 1960.  This document was read and copied at State Records by the plaintiff’s solicitor.  Those parts of the document that are subject to the State’s claim to legal professional privilege have been masked in the book of documents.  [Referred to in paragraph 136.20 of the Amended Statement of Claim]

    13Minute of the Secretary Children’s Welfare and Public Relief Board to the Honourable Chief Secretary, dated 11 October 1960.  This document was read and copied at State Records by the plaintiff’s solicitor.  Those parts of the document that are subject to the State’s claim to legal professional privilege have been masked in the book of documents.

    14Minute of the Secretary, Aborigines Protection Board, dated 4 November 1960.  This document has not been seen unmasked by the plaintiff’s solicitor.  Those parts of the document that are subject to the State’s claim to legal professional privilege have been masked in the book of documents.

    15Minute from the Secretary, Aborigines Protection Board to the Minister of Works, dated 22 June 1961.  The file copy of this document was read and copied at State Records by the plaintiff’s solicitor.  The entire document is subject to the State’s claim to legal professional privilege.  [Referred to in paragraph 136.22 of the Amended Statement of Claim]

    16File copy of document 584, dated 22 June 1961.  The file copy of this document was read and copied at State Records by the plaintiff’s solicitor.  The entire document is subject to the State’s claim to legal professional privilege.

    17Minutes of the Aborigines Protection Board, dated 5 December 1962.  This document has not been seen unmasked by the plaintiff’s solicitor.  Those parts of the document that are subject to the State’s claim to legal professional privilege have been masked in the book of documents.

    18Note regarding copies of Crown Law Opinion (undated).  This document has not been seen unmasked by the plaintiff’s solicitor.  Those parts of the document that are subject to the State’s claim to legal professional privilege have been masked in the book of documents.

    19Opinion of the Crown Solicitor, dated 13 December 1946.  This document was referred to in an affidavit of Dr Raynes.  This document was read and copied by Dr Raynes at State Records.  Dr Raynes subsequently forwarded the copy to the plaintiff’s solicitor.  The entire document is subject to a claim to legal professional privilege by the State.

    20Notes of the response of the Crown Solicitor, dated 25 July 1949, made by Dr Raynes.  This document was referred to in an affidavit of Dr Raynes.  This document was read and noted by Dr Raynes at State Records.  The entire document is subject to a claim to legal professional privilege by the State.

1. The disputed documents can be categorised in five groups: those that the plaintiff has copies of (documents 1, 2, 4, 5, 6, 10, 12, 13, 15, 16, 19); those that the plaintiff does not have in his possession and has never had access to, the contents of which are not known to the plaintiff (document 3); those that have not been seen in unmasked form by the plaintiff (documents 8, 9, 11, 14, 17, 18); those that the plaintiff does not possess a copy of but that the plaintiff’s solicitor has previously reviewed (document 7); and those that have been reviewed by Dr Raynes but that the plaintiff has never seen (document 20).  The plaintiff became aware of the existence of the last two documents on this list (documents 19 and 20) through Dr Raynes.

2. Dr Raynes gave evidence that during the period 2000 to 2002 he was contracted to work as a Project Officer, Aboriginal Access at State Records.  In November 2001, he sought and was granted the right to access and copy relevant information for the records of the Aborigines Department and Aborigines Protection Board held at State Records.  He wanted this access for the purpose of his private research into the administration of the Aborigines Department under William Penhall, Chief Protector and Secretary of the Aborigines Protection Board from 1939 to 1953.  Dr Raynes undertook the research in furtherance of his academic and professional career as a writer and historian. 

3. It was during the course of this research that Dr Raynes obtained access to documents 19 and 20 in the above-mentioned list.  On 18 March 2005, Dr Raynes published an article in the Adelaide Review entitled: “Did SA Aborigines’ last Chief Protector go beyond the law?” in which he referred to those documents and their contents: 

   The Aborigines Department in Adelaide, in removing Aboriginal children from their families during the 1940s and 1950s, may not have acted within the law.  This is the way evidence is pointing as a result of my extensive research into the correspondence of the Aborigines Department in Adelaide under William Richard Penhall the last Chief Protector of Aborigines in South Australia and the head of the department from 1939 to 1953.

   …

   In 1951, Penhall wrote: “The Aborigines Protection Board has no power or authority to remove children from their mothers, and in fact have never done so.  Whenever children of aboriginal descent in South Australia are neglected or ill-treated, action is always taken by the Children’s Welfare Department in the same way as that department deals with neglected white children.  A number of children are placed in special institutions by the Board for training, but this is only done with the consent of the parents.”

   Then later:

   [In May 1949], Penhall asked for advice from the Crown Solicitor as to whether he could use parts of the Act, other than that allowing a transfer of control from his Board to the CWPRB’s, to remove Aboriginal children from their parents.

   Hannan, the Crown Solicitor, suggested that certain sections of the Act could be used in tandem to confine any Aboriginal person, child or otherwise, to a reserve or Aboriginal institution.  But, he added: “I do not think the Board has any powers in the matter.”

   It was as a result of the publication of that article that Ms Richardson contacted Dr Raynes and asked him for access to the documents and his notes.

4. For the purposes of this interlocutory proceeding, and this proceeding only, I proceed on the basis that the material before the Court is strong evidence of the following:

   -The letter from the plaintiff’s solicitor of 20 December 1995 represented a straightforward request for access to documentation.  The purpose of the request was twofold:  to gain information relevant to Ms Richardson’s inquiries concerning the separation of the plaintiff from his family when he was a child; and to assist the plaintiff in the preparation of information to be submitted to a national inquiry into the separation of Aboriginal children from their families.

   -The request was handled by internal departmental officers who considered the request and prepared a response for the chief executive officer, Mr Rathman.  Mr Rathman, by his response, granted conditional permission to the plaintiff’s solicitor to access and obtain copies of the documents.

   -The solicitor’s letter would have put the reasonable reader on notice that the documents disclosed would be used in regard to advising the plaintiff generally about his separation and that would include any possible claims that he might have against persons involved.  It would further have alerted the reasonable reader to the possibility that any documents provided would make their way to the National Inquiry and be available on publication to the public generally.

   -The documents, once obtained by the plaintiff’s solicitor, were made available to the plaintiff for his consideration and were later used in the preparation of his claim in the present proceedings.  To a significant degree, the plaintiff has acted on the documents in formulating a number of his claims and in the preparation and content of his pleading.

   -Relevant portions of the documents were also accessed by a researcher, Dr Raynes, and used by him again in publications available generally to the public.

   -The contents of part of the privileged documentation has also found its way into a weekly paper published generally to the public in South Australia, known as the Adelaide Review.

   -There has come a time when the State has decided to assert legal professional privilege in respect of the documentation released as well as other documentation.  Much of that other documentation has been generally available to the public through files, but apparently not accessed by the public.  Insofar as that other documentation is relevant to these proceedings, it has been either disclosed with a masking of what is said to be privileged or, alternatively, not disclosed at all with a claim to privilege over the entire document.

   The significance of the above is discussed later in these reasons.

   Applicable Principles

5. Esso Australia Resources v The Commissioner of Taxation,[4] a leading Australian authority on legal professional privilege, established that the test for whether or not the privilege will attach to a communication is what is termed the “dominant purpose test” – that is, whether the communication occurred between a claint and his or her lawyer for the dominant purpose of obtaining or providing legal advice.  In Esso, Gleeson CJ, Gaudron and Gummow JJ summarised the doctrine of legal professional privilege in the following terms:[5]

   Legal professional privilege (or client legal privilege) protects the confidentiality of certain communications made in connection with giving or obtaining legal advice or the provision of legal services, including representation in proceedings in a court. In the ordinary course of events, citizens engage in many confidential communications, including communications with professional advisers, which are not protected from compulsory disclosure. The rationale of the privilege has been explained in a number of cases, including Baker v Campbell and Grant v Downs itself. The privilege exists to serve the public interest in the administration of justice by encouraging full and frank disclosure by clients to their lawyers. In Waterford v The Commonwealth, Mason and Wilson JJ explained that legal professional privilege is itself the product of a balancing exercise between competing public interests and that, given the application of the privilege, no further balancing exercise is required. As Deane J expressed it in Baker v Campbell, a person should be entitled to seek and obtain legal advice in the conduct of his or her affairs, and legal assistance in and for the purposes of the conduct of actual or anticipated litigation, without the apprehension of being prejudiced by subsequent disclosure of the communication. The obvious tension between this policy and the desirability, in the interests of justice, of obtaining the fullest possible access to the facts relevant to the issues in a case lies at the heart of the problem of the scope of the privilege. Where the privilege applies, it inhibits or prevents access to potentially relevant information. The party denied access might be an opposing litigant, a prosecutor, an accused in a criminal trial, or an investigating authority. For the law, in the interests of the administration of justice, to deny access to relevant information, involves a balancing of competing considerations. This Court is now asked to reconsider the balance that was struck in Grant v Downs.

   Their Honours went on to consider what was the appropriate test for determining the application of legal professional privilege:[6]

   The search is for a test which strikes an appropriate balance between two competing considerations: the public policy reflected in the privilege itself, and the public policy that, in the administration of justice and investigative procedures, there should be unfettered access to relevant information. Additionally, whatever test is adopted must be capable of being applied in practice with reasonable certainty and without undue delay and expense in resolving disputed claims.

   …

   As a practical matter, the choice presently confronting this Court is between sole purpose and dominant purpose. The dominant purpose test should be preferred. It strikes a just balance, it suffices to rule out claims of the kind considered in Grant v Downs and Waugh, and it brings the common law of Australia into conformity with other common law jurisdictions.

   [4] Esso Australia Resources v The Commissioner of Taxation (1999) 201 CLR 49.

   [5] Esso (1999) 201 CLR 49 at [35] (footnotes omitted).

   [6] Esso (1999) 201 CLR 49 at [57], [61].

6. By the late 18^th century, the rationale of legal professional privilege had been recognised and firmly established at common law.   The privilege is aimed to protect the client, not the legal adviser, in order to promote freedom of consultation of legal advisers by clients by removing the apprehension of compelled disclosure by the legal adviser except with the client’s consent.[7]  The privilege extends to protect both client and adviser from being compelled to disclose confidential communications about legal matters.

   [7] See Carter v Northmore Hale Davy & Leake (1994-1995) 183 CLR 121 at 132 per Deane J; Wigmore on Evidence McNaughton rev (1961), vol 8, §2290, p545.

7. In Grant v Downs,[8] Stephen, Mason and Murphy JJ outlined the rationale of the doctrine of privilege as follows: [9]

   [8] Grant v Downs (1976) 135 CLR 674.

   [9] Grant v Downs (1976) 135 CLR 674 at 685.

   The rationale of this head of privilege, according to traditional doctrine, is that it promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisers, the law being a complex and complicated discipline.  This it does by keeping secret their communications, thereby inducing the client to retain the solicitor and seek his advice, and encouraging the client to make a full and frank disclosure of the relevant circumstances to the solicitor.  The existence of the privilege reflects, to the extent to which it is accorded, the paramountcy of this public interest over a more general public interest, that which requires that in the interests of a fair trial litigation should be conducted on the footing that all relevant documentary evidence is available.  As a head of privilege legal professional privilege is so firmly entrenched in the law that it is not to be exorcised by judicial decision.

   In Attorney-General (NT) v Maurice,[10] Mason and Brennan JJ observed:[11]

   [10] Attorney-General (NT) v Maurice (1986) 161 CLR 475.

   [11] Maurice (1986) 161 CLR 475 at 487.

   The raison d’être of legal professional privilege is the furtherance of the administration of justice through the fostering of trust and candour in the relationship between lawyer and client.  The privilege is based on:

   “…the need of laymen for professional assistance in the protection, enforcement or creation of their legal rights.  They should have the benefit of that assistance, free of any restraint which fear of the disclosure of their communications with those advisers would impose.”[12]

   [12] R v Bell; Ex parte Lees (1980) 146 CLR 141 at 152 (Stephen J).

   …

   Deane J observed:[13]

   [13] Maurice (1986) 161 CLR 475 at 490.

   [Legal professional privilege’s] efficacy as a bulwark against tyranny and oppression depends upon the confidence of the community that it will in fact be enforced.  That being so, it is not to be sacrificed even to promote the search for justice or truth in the individual case or matter and extends to protect the citizen from compulsory disclosure of protected communications or materials to any court or to any tribunal or person with authority to require the giving of information or the production of documents or other materials.

   In Carter v The Managing Partner, Northmore Hale Davy & Leake,[14] Toohey J described the rationale behind legal professional privilege as follows:[15]

   [14] Carter v The Managing Partner, Northmore Hale Davy & Leake (1994-1995) 183 CLR 121.

   [15] Carter (1994-1995) 183 CLR 121 at 145 (Toohey J).

   The privilege has been described as an important element in the protection according to law of the privacy and liberty of the individual which is an essential mark of a free society, as of fundamental importance to the protection and preservation of the rights, dignity and equality of the ordinary citizen under the law and as no less fundamental the right which supports the privilege against self-incrimination.

   Deane J observed:[16]

   [L]egal professional privilege is not a mere rule of evidence but is a substantive and fundamental common law principle.

   …

   To no small extent, legal professional privilege, like the privilege against self-incrimination, is an established facet of our adversarial system of justice.  … While the adversarial system remains, however, legal professional privilege is of fundamental importance in the administration of justice.  It “promotes the public interests because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisers, the law being a complex and complicated discipline”.  It plays an essential role in protecting and preserving the rights, dignity and freedom of the ordinary citizen - particularly the weak, the unintelligent and the ill-informed citizen – under the law.

   …

   …[A]s a fundamental principle, … the confidentiality which should be afforded to communications and documents protected by legal professional privilege was, in the words of Fletcher Moulton LJ:[17]

   “the very highest  - so high that the solicitor is absolutely privileged and cannot be made to state what passed between him and his client.  To that extent the solicitor is made, as it were, a part of his client for the purposes of those communications.”

   That fundamental principle is now so well entrenched in the common law of this country that it should not be overturned or significantly curtailed by the courts, in the absence of compelling legal considerations.

   [16] Carter (1994-1995) 183 CLR 121 at 132-133, 138 (Deane J).

   [17] Rakusen v Ellis Munday & Clarke [1912] 1 Ch 831 at 840.

8. Although the doctrine of legal professional privilege is based on the requirements of the public interests, in particular the public interest in the rule of law and the protection of the law, the Courts have generally adopted the view that its application in particular cases does not depend upon balancing the public’s interest against other rights that are grounded in the public interest.[18]  For example, the public interest in courts having all relevant material before them has been considered insufficient to override the public interest in maintaining the unqualified operation of the privilege.  As observed by Mason and Wilson JJ in Waterford v The Commonwealth:[19]

   Legal professional privilege is itself the product of a balancing exercise between competing public interests whereby, subject to the well-recognised crime or fraud exception … the public interest in ‘the perfect administration of justice’ … is accorded paramountcy over the public interest that requires, in the interests of a fair trial, the admission in evidence of all relevant documentary evidence.  Given its application, no further balancing exercise is required.

   [18] Carter (1994-1995) 183 CLR 121 at 161 (McHugh J). See also Waterford (1987) 163 CLR 54.

   [19] Waterford (1987) 163 CLR 54 at 64-65.

9. As earlier observed, my inspection of the disclosed documents as well as the undisclosed documents and masked documents, has allowed the conclusion that in the ordinary course those documents would have been protected from disclosure by legal professional privilege.  The question remains whether the documents have been excluded from the protection of privilege and, if claimable, whether privilege has been waived.

   Whether Privilege Can Be Claimed

   Common Law Exclusions from the Reach of Legal Professional Privilege

10. Legal professional privilege has been accepted as “unquestioned” by the common law for centuries.[20]  Despite the entrenched nature of the doctrine, there exist common law “exceptions” or “exclusions” from the application of the doctrine in particular circumstances. 

    [20] Carter (1994-1995) 183 CLR 121 at 132 (Dawson J).

11. In Southern Equities v Arthur Andersen[21] Doyle CJ, having discussed the rationale of legal professional privilege considered the exception to the general rule.  In doing so he reviewed the recent High Court pronouncements and then observed:[22]

    That being the rationale, it is not surprising that there should be exceptions to the general rule against non-disclosure.  The public interest in a fair hearing, and in a decision based upon all relevant evidence, is a strong one.  A well established exception to the privilege from production is that communications between solicitor and client are not privileged, as Stephen J said in R v Cox (1884) 14 QBD 153 at 165, if “intended to facilitate or to guide the client in the commission of a crime or fraud, the legal adviser being ignorant of the purpose or [sic] which his advice is wanted”. The case for an exception would be all the stronger if the solicitor was aware of the purpose.

    ...

    I conclude from this reference to authority that the claim of privilege will fail only if there is material raising an arguable case that the relevant communications were made for the purpose of furthering or assisting a crime or fraud, and that fraud in this context embraces a range of legal wrongs that have deception, deliberate abuse of or misuse of legal powers, or deliberate breach of a legal duty at their heart.  It is not enough, I consider that one could simply say that a transaction constituted sharp practice, or fell below the normal standard of commercial probity.  It is not enough, I consider that one would regard a transaction on which advice was sought as artificial, or as deliberately structured to take advantage of the law on a topic.  In light of the authorities, one cannot be more precise than that.

    [21] Southern Equities v Arthur Andersen (1997) 70 SASR 166.

    [22] Southern Equities (1997) 70 SASR 166 at 172 and 174

12. In the present proceedings the plaintiff contended that the relevant communications were made for the purpose of taking advice concerning conduct that involved deception, deliberate abuse or misuse of powers and a deliberate breach of duty.  I propose to return to this contention later in these reasons, but first it is helpful to discuss a suggested exception to the general principle – circumstances involving the welfare of a child.

13. The welfare of the child has been identified as a competing public interest that may, in certain circumstances, qualify the application of legal professional privilege.  This “exception” was discussed by the High Court in The Queen v Bell; Ex parte Lees. [23]

    [23]The Queen v Bell; Exparte Lees (1980) 146 CLR 141.

1. Bell concerned an order made by the Family Court that a husband should have interim custody of the young child of the marriage.  Previously, an order had been made granting custody to the wife.  The wife opposed the making of the second order.  At the hearing, she was represented by a solicitor.  Following the making of the second order, the wife disappeared, taking the child with her.  Shortly after her disappearance, she instructed a different solicitor to take steps to protect her interests in the matrimonial home.  The wife asked the new solicitor to keep the information confidential.  The solicitor refused to disclose the information when requested to do so by the husband’s solicitors.  The husband applied to the Family Court, seeking an order that the wife’s new solicitor should inform the husband of all information that would assist the husband to ascertain the whereabouts of his wife and child.  The Family Court found no privilege could be claimed.  The matter proceeded by way of appeal to the High Court.

2. The High Court held that the communication by the wife to her new solicitor was not privileged.  Gibbs, Stephen and Murphy JJ found that, as a general principle, legal professional privilege attached to communications made confidentially between a client and his or her legal adviser for the purpose of obtaining legal advice.  However, their Honours considered the general principle to be inapplicable to wardship or custody proceedings where the client improperly seeks to conceal the whereabouts of the child from the Court.  Gibbs J observed:[24]

   In the present case it is clear that the address of the wife was communicated confidentially to Mr Lees for the purpose of obtaining legal assistance from him, and that, if nothing more appeared, the general principles would apply and the disclosure of the address would be privileged.

   However, there are exceptions to the general rule – cases in which the privilege will not exist even though the communication was made confidentially for the purpose of obtaining professional assistance.

   [24] Bell (1980) 146 CLR 141 at 145.

3. Gibbs J went on to discuss the exception regarding a communication that constitutes part of a criminal or unlawful proceeding or that was made in furtherance of an illegal object.  His Honour continued:[25]

   However, there is another exception, which may possibly be regarded as an extension of the rule which excluded privilege in the case of crime or fraud, but which I incline to think rests upon an independent foundation.  It has been held that a solicitor is obliged to give to the court any information (including his client’s address) which will enable the court to discover the whereabouts of a ward of court whose residence is being concealed from the court, and that such information may not be the subject of a claim for professional privilege: Burton v Earl of Darnley; Ramsbotham v Senior.  In the last mentioned case Malins VC said that the privilege, where it exists, is that of the client and not of the solicitor, that a person who improperly endeavours to keep children out of the reach of the court can have no privilege to conceal their whereabouts, and that the solicitor of such a person also can have no privilege.  These cases appear to have stood unchallenged for over one hundred years.  …

   …

   … The privilege is inapplicable, in the case of wardship, because the case goes beyond “mere questions of civil right” and because the privilege, if given effect, might frustrate the efforts of the court to secure the benefit of the child and might have the result that the child remained in conditions detrimental to his or her welfare (cf. Ramsbotham v Senior).  Exactly the same considerations apply where an order for custody has been made under the Act.  This view appears to have been accepted in the United States, where it has been held that a solicitor is not entitled to withhold information as to the address of his client who has removed a child from her home in violation of a custody order: Dike v Dike.  In that case, in the course of giving reasons for holding that the information was not privileged, it was said: “The primary purpose of disclosure is to protect a minor child’s welfare which is, at least potentially, being harmed by the client’s continuing wrongful actions.”

   [25] Bell (1980) 146 CLR 141 at 145-146 (footnotes omitted).

4. Stephen J took a similar view.  Having considered in detail the authorities giving rise to the common law right of legal professional privilege and the exception regarding crime or fraud, His Honour observed:[26]

   Although the facts of the present case are significantly different from those which gave rise to the precedent decisions, the principle which those decisions reveal as underlying this privilege points clearly enough to what should be the answer to the present question.

   It is true that the quite limited professional assistance sought by Mrs McJarrow from the applicant was not itself to be used by her so as to further any illegal purpose.  But there was absent from her relationship with the applicant that reposing of professional confidence of which Stephen J spoke in Reg. v Cox and Railton.  Mrs McJarrow, when she instructed the applicant to act on her behalf, was already acting in defiance of the order of the Family Court and she concealed from the applicant not only this fact but all mention of the previous proceedings between her husband and herself which led to the making of that order.  When she asked the applicant not to disclose the address with which she supplied him she was using him as “an unconscious instrument” in her continued frustration of the order of the Family Court regarding the custody of Tanya.  She was, in effect, seeking to use the processes of the law to protect her interest in the matrimonial home while at the same time acting in defiant disregard of its processes in relation to the custody of Tanya.  To confer upon her communication of her address the protection of legal professional privilege would be to allow that privilege to be used for a purpose alien to its whole purpose and history.

   [26] Bell (1980) 146 CLR 141 at 153-154.

5. Stephen J referred to the two wardship cases cited by Gibbs J, Burton v Earl of Darnley[27] and Ramsbotham v Senior[28] as authority for the proposition that a client will have no claim to privilege as to his or her address where the client’s actions result in keeping the court’s ward out of reach of the court. 

   [27] Burton v Earl of Darnley (1869) LR 8 Eq 576m.

   [28] Ramsbotham v Senior (1869) LR 8 Eq 575.

6. Murphy J considered the remarks of the Court in Grant v Downs where the paramountcy of the public interest in the protection of privilege was emphasised.  However, as the majority went on to point out in Grant v Downs, there are powerful considerations, which suggest that privilege should be confined within strict limits.  Murphy J refused the claim for privilege in Bell, concluding:[29]

   [I]t would be curious if the child’s welfare were not paramount over legal professional privilege in circumstances such as those in this case.  The wardship cases of Burton v Earl of Darnley and Ramsbotham v Senior suggest that the child’s welfare should prevail over the privilege.

   [29] Bell (1980) 146 CLR 141 at 159 (footnotes omitted).

7. Wilson J, with whom Aickin J agreed, also referred to the English wardship cases as authority for the proposition that the public interest in the welfare of the child may override the public interest in legal professional privilege in certain circumstances. 

8. Each of the members of the High Court in Bell found an exception to the doctrine of legal professional privilege.  Gibbs J propounded a narrow exception, denying the use of privilege to conceal from the Court the whereabouts of its ward.  Murphy and Wilson JJ suggested a broader exception, finding that there will be an exception to legal professional privilege where to allow a claim would adversely affect a child’s welfare.  Stephen J’s formulation of the exception was particularly broad, extending its scope to any claim for privilege that would frustrate an order of the Court or constitute an act that is in furtherance of an illegal object.[30] 

   [30] Bell (1980) 146 CLR 141 at 153 (Stephen J).

9. This broad formulation of the Bell exception was confirmed by Gibbs CJ, with whom Mason and Brennan JJ agreed, in Attorney-General (NT) v Kearney[31] where Bell was described as:

   … authority for the view that legal professional privilege will be denied to a communication which is made for the purposes of frustrating the processes of the law itself, even though no crime or fraud is contemplated.[32]

   [31] Attorney-General (NT) v Kearney (1985) 158 CLR 500.

   [32] Kearney (1985) 158 CLR 500 at 515.

10. In Kearney Gibbs CJ went on to observe that a claim for legal professional privilege will not be allowed where privilege would be:

    … used to protect communications made to further a deliberate abuse of statutory power and by that abuse to prevent others from exercising their rights under the law.[33]

    [33] Kearney (1985) 158 CLR 500 at 515.

11. The development of the exception to legal professional privilege as formulated in Bell and later in Kearney suggests that Australian courts are prepared to refuse a claim to privilege where paramountcy is to be accorded to a higher public interest than that which supports the privilege.[34]  Where the party seeking to access the documents subject to the claim of privilege has been a victim of a course of action that is contrary to law, the authorities suggest it would be incongruous to deny that party access to relevant documents on the grounds of legal professional privilege.[35]

    [34] See Kearney (1985) 158 CLR 500 at 532 (Dawson J).

    [35] See: Desiatnik, RJ, Legal Professional Privilege in Australia (2005, 2^nd ed) at 119; O’Connor, RK, ‘Recent Cases’ (1986) 60 Australian Law Journal  99 at 102.

12. Counsel for the State submitted that Gibbs CJ in Kearney correctly described the principle espoused by the High Court in Bell, namely that legal professional privilege does not attach to a communication with a legal adviser where the communication occurs in the course or furtherance of a wrongdoing or impropriety and in the context of wardship or custody proceedings.  It was said that this principle was confined to the particular circumstances that arose in the case and that, importantly, any “exception” to privilege that it provided for was limited to situations that involved wrongdoing.

13. Counsel for the plaintiff submitted that the reasoning of Gibbs CJ, Murphy and Wilson JJ went beyond the strict ratio of the decision as enunciated by counsel for the State.  It was said that the separate judgments of their Honours stood for the proposition that, in circumstances affecting a child’s welfare, legal professional privilege would not arise.  Privilege is “excluded” from applying in such circumstances.  Counsel emphasised that Gibbs, Murphy and Wilson JJ all referred to the protection of the welfare of children as the central element of their reasoning that privilege either did not arise or could not be claimed in order to protect information.

14. Cases that have since referred to Bell have used the decision as authority for the proposition that legal professional privilege will ordinarily exist in respect of a confidential communication of a client’s address where the confidential communication of the address was made for the purpose of obtaining legal assistance.[36]  It has also been recognised, as in Kearney, as providing for the principle that privilege will not be maintainable to protect communications with a legal adviser that occurred in the context of a wrongdoing. 

    [36] Minister for Immigration and Multicultural and Indigenous Affairs v Hamdan [2005] FCAFC 113 at [23].

15. Bell supports the proposition that the protection of the welfare of a child may exclude the operation of legal professional privilege.

16. The High Court in Carter discussed the existence and application of such “exceptions”.  The Court was asked to determine whether persons having in their possession or power documents that were privileged could be compelled to produce those documents on subpoena issued on behalf of an accused person in criminal proceedings when those documents may establish the innocence of the accused or may materially assist his defence.  Brennan, Deane and McHugh JJ concluded that privilege could be claimed.  Their Honours declined to formulate an exception to the doctrine of privilege in order to serve the interest of the person charged with a criminal offence.  Brennan J observed:[37]

    Counsel for the appellant accepts the general rule (laid down by this court in Grant v Downs; Baker v Campbell; Attorney-General (NT) v Maurice and Waterford v The Commonwealth) that, subject to particular exceptions, legal professional privilege prevails over an obligation to produce documents on subpoena unless the privilege is excluded or cut down by a clear statutory provision.

    …

    There is, of course, a public interest in having available all evidence relevant to the issues in litigation.  And that public interest encompasses the public interest in achieving fairness in the trial of a person charged with a criminal offence. Although the public interest in having all relevant evidence available is, to an extent, defeated by the privilege, there is no occasion for the courts to undertake a balancing of public interests:  the balance is already struck by the allowing of the privilege. 

    …

    Of course, an individual charged with a criminal offence has his own interest in securing evidence that may tend to assist in his defence.  But if there be no public interest which defeats the privilege, there can be no individual interest which does so.  I do not subscribe to the view that legal professional privilege is a fundamental human right which sterilizes the operation of any law which infringes it.  The privilege facilitates the giving of legal advice on any subject and consultations on legal problems of all kinds.  An exception created in order to serve the interests of a person charged with a criminal offence would create, at least potentially, a right in such a person to destroy any privileged communication between legal adviser and client and perhaps to publish the contents of the privileged communication to the public generally by disclosing the communication in court.  No a priori assurance of confidentiality could be given to a client consulting a legal adviser, since confidentiality of such consultations would be contingent on the absence of an accused person's subpoena seeking production or evidence of the communication.  The contingency would have a chilling effect on the seeking of advice as to the law governing proposed conduct or relating to an event or transaction.

    Deane J also observed:[38]

    Where legal professional privilege attaches, there is no question of balancing the considerations favouring the protection of confidentiality against any considerations favouring disclosure in the circumstances of the particular case.  The privilege itself represents the outcome of such a balancing process and reflects the common law's verdict that the considerations favouring the "perfect security" of communications and documents protected by the privilege must prevail. 

    [37] Carter (1994-1995) 183 CLR 121 at 126,128 and 129 (footnotes omitted).

    [38] Carter (1994-1995) 183 CLR 121 at 133.

17. Deane J referred to the observations of Dawson J in Kearney and acknowledged the “recognised exceptions”, such as that formulated in Bell to the general doctrine.  Deane J went on to explain:[39]

    As Dawson J’s reference in the above passage to “the recognised exceptions” suggests, legal professional privilege is subject to a number of established and settled “exceptions”.  In particular, the privilege does not extend to communications or documents made or brought into existence for the purpose of, or as part of the process of, crime, fraud, abuse of statutory powers or, in some circumstances, defeating or frustrating the administration of justice by the courts.  For present purposes, a critical characteristic of those “exceptions” is that they are exclusions from the reach of legal professional privilege rather than exceptions to the scope of the protection which it affords.  They are directed to circumstances in which the privilege does not attach with the result that the particular communication or documents is not protected by legal professional privilege at all.  They are not directed to circumstances in which, notwithstanding that legal professional privilege does attach, the courts will override the privilege and order that the privileged document be produced for inspection or that the privileged communication be disclosed.  Nor, in accordance with what has been said above, are they directed to identifying circumstances in which the courts will embark upon a balancing process to determine whether the considerations favouring disclosure outweigh the considerations favouring confidentiality.  In that regard, the established position in this country is that, in the absence of waiver or loss of confidentiality and subject to one apparent (and, in my view, anomalous) qualification in relation to wardship or custody proceedings, the protection which legal professional privilege accords to the communications or documents to which it actually attaches is, for so long as that attachment persists, unqualified.  And there is a powerful reason why that is so.  I turn to identify it.

    As has been seen, the focus of the modern theory of legal professional privilege is upon the removal of "apprehension" of compelled disclosure:  "the necessity of providing subjectively for the client's freedom of apprehension in consulting his legal adviser" .  The achievement of that "necessity" is not frustrated by the established exclusions in the form of particular identified circumstances in which legal professional privilege will not attach.  Those circumstances can be identified in advance and the client can be advised that, provided they do not exist at the time when the relevant communication or document is made or comes into existence, legal professional privilege will attach to it and will, in the absence of waiver or loss of confidentiality, provide conclusive protection in the future subject only to the possible qualification in respect of wardship or custody proceedings.  In contrast, if the privilege could be overridden by the courts by reason of the outcome of some subsequent balancing process or whenever particular circumstances arise in subsequent litigation, an assurance of confidentiality could never be given and the "necessity" for "the client's freedom of apprehension" could never be fully achieved. [emphasis in original]

    [39] Carter (1994-1995) 183 CLR 121 at 134-136 (footnotes omitted).

18. As Deane J observed, the recognised exclusions to the application of legal professional privilege do not defeat the rationale of the doctrine or undermine the protection of the confidentiality of communications or documents to which privilege attaches.[40]  Rather, they operate only if relevant circumstances exist at the time the communication or document comes into existence.  When such circumstances exist, there will be no privilege.  McHugh J took a similar approach to that of Deane J on this issue.  His Honour found that the so-called exceptions to the rule of professional privilege are best described as circumstances where the doctrine does not apply to communications between legal adviser and client – excluding from the protection of the privilege communications that are designed to facilitate wrongdoing.[41]

    [40] Carter (1994-1995) 183 CLR 121 at 137 (Deane J).

    [41] Carter (1994-1995) 183 CLR 121 at 163 (McHugh J).

19. Toohey J, in dissent in Carter, noted the great importance the Courts have attached to the doctrine of legal professional privilege but also emphasised its limits.  His Honour found that competing public interests could, in certain circumstances, outweigh the public interest in legal professional privilege:[42]

    [W]hat the authorities demonstrate is that the privilege is one aspect of the public interest in its various manifestations and that it has from time to time been required to yield to other aspects of that interest.  The entitlement of an accused to a fair trial in which all information tending to establish innocence is forthcoming is one of those aspects.

    [42] Carter (1994-1995) 183 CLR 121 at 154.

1. Counsel for the plaintiff submitted that waiver was imputed by operation of the law.  Counsel for the plaintiff said that, where a party pleads into relevance the substance of a communication that is subject to a claim for legal professional privilege, there is an implied waiver of that legal professional privilege.  Counsel said that this was particularly the case where a defendant’s state of knowledge is in issue.  In Thomason v The Council of the Municipality of Campbelltown,[79] Jordan CJ observed:[80]

   …if a communication made upon a privileged occasion is disclosed to a third party by a person who is entitled to the benefit of the privilege, and the third party is led by the disclosure to regulate his conduct in relation to some matter which becomes relevant in subsequent litigation to which he is a party, the otherwise privileged party cannot on the ground of privilege refuse to give evidence as to the nature of the privileged communication if questioned on behalf of the third party.

   His Honour then went on to find:[81]

   In these circumstances, since the fact and nature of the advice is an issue in the case, I am of the opinion that privilege cannot be raised to prevent the proof of the advice.

   [79] Thomason v The Council of the Municipality of Campbelltown (1939) 39 SR (NSW) 347.

   [80] Thomason (1939) 39 SR (NSW) 347 at 357-358.

   [81] Thomason (1939) 39 SR (NSW) 347 at 359.

2. Paragraph 136 of the plaintiff’s Amended Statement of Claim is an example of the plaintiff’s pleading with respect to the documents:

   On numerous occasions between 1949 and 1961, internal memoranda and correspondence and other events and documents placed the Crown, including the Aborigines Protection Board, the Children’s Welfare and Public Relief Board, the Minister for Aborigines and the Minister for Children’s Welfare and Public Relief, the Cabinet and the Premier of South Australia, on notice of the lack of power of the Crown to remove Aboriginal children who were considered to be neglected otherwise than pursuant to ss. 38-40 of the Aborigines Act 1934-1939 or Part IV of the Maintenance Act 1926-1937.

   Set out, as particulars to paragraph 136, are the details of 22 documents said to prove that the State was aware that it lacked the power to deal with the plaintiff in the way that it did. 

3. Counsel for the plaintiff further submitted that there had been an implicit waiver of privilege by the State’s inconsistent conduct.  It was said that the State relinquished, by conduct that was inconsistent with the maintenance of privilege, any entitlement to the benefit of confidentiality and protection by way of legal professional privilege over the disputed documents.  In support of this proposition, the plaintiff referred to Mann v Carnell where Gleeson CJ, Gaudron, Gummow and Callinan JJ observed:[82]

   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.  ...

   Waiver may be express or implied.  Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect.  When an affirmative answer is given to such a question, it is sometimes said that waiver is “imputed by operation of the law.”  This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege. … What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.

   [82] Mann v Carnell (1999) 201 CLR 1 at 13 (footnotes omitted).

4. The inconsistent conduct on the part of the State, which counsel for the plaintiff said gave rise to the waiver of the privilege, included:

   -reference made to the substance of legal advice in numerous documents including correspondence to parties external to the State including the Director of Native Affairs Brisbane and Superintendent of Aborigines Welfare, Aborigines Welfare Board Melbourne;

   -the provision of access to a number of the disputed documents to the plaintiff’s legal adviser, Ms Richardson, and the provision of copies of the documents requested by her without qualification;

   -the publication in 2002 of “A Little Flour and a Few Blankets: An Administrative History of Aboriginal Affairs in South Australia”;

   -providing access to Dr Raynes to a number of the documents;

   -making the documents available to the general public over a period spanning numerous decades;

   -the fact that staff in charge of monitoring the public’s access to the documents were not trained in matters of legal professional privilege.

5. Counsel for the State denied the plaintiff’s assertion that these were examples of inconsistent conduct as understood by the authorities.  Counsel for the State contended that recording the substance of legal advice in other documents did not amount to a waiver of privilege.  Counsel for the State cited Trade Practices Commission v Sterling[83] as authority for the principle that privileged communications do not lose that privilege merely because the communications are recorded or repeated in other documents, such as notes, memoranda or minutes.[84] 

   [83] Trade Practices Commission v Sterling (1979) 36 FLR 244.

   [84] Trade Practices Commission v Sterling (1979) 36 FLR 244 at 246; see also Waterford v The Commonwealth (1987) 163 CLR 54 at 87; Nickmar Pty Ltd v Preservatrice Skandia Insurance Ltd (1985) 3 NSWLR 44 at 54; Hartogen Energy Ltd v AGL Co (1992) 36 FCR 557 at 561 and ANZ Standard Chartered Bank of Australia Ltd v Antico (1993) 36 NSWLR 87 at 89.

6. In addition, counsel for the State asserted that privilege is not lost when documents containing privileged material are communicated to third parties with a common interest on a confidential basis.  In Mann, McHugh J observed:[85]

   In Goldberg v Ng[86] this Court considered a case in which there was disclosure of a privileged communication to a third party, for a limited and specific purpose, and upon terms that the third party would treat the information disclosed as confidential.  The Court was divided upon whether, in the circumstances of the case, privilege was waived.  However, the reasoning of all members of the Court was inconsistent with the proposition that any voluntary disclosure to a third party necessarily waives privilege.  No application was made on the present appeal to re-open Goldberg or any of the earlier authorities on the subject.  In Goldberg, reference was made[87] to the statement of Jordan CJ in Thomason v Campbelltown Municipal Council:[88]

   “The mere fact that a person on some one occasion chooses to impart to another or others advice which he has received from his solicitor indicates no intention on his part to waive his right to refuse on other occasions to disclose in evidence what that advice was, and supplies no sufficient reason for depriving him of a form of protection which the law has deemed it specially necessary to throw around communications between solicitor and client.”

   [85] Mann (1999) 201 CLR 1 at [30] (footnotes original).

   [86] Goldberg v Ng (1995) 185 CLR 83.

   [87] Goldberg (1995) 185 CLR 83 at 107-108.

   [88] Thomason (1939) 39 SR (NSW) 347 at 355.

7. Counsel for the State submitted that the plaintiff could not rely on access to documents that were clearly privileged in files that were provided for a purpose unconnected with the litigation as the basis for suggesting that the State had acted inconsistently with the maintenance of privilege. 

8. The State contended that, as a person with legal qualifications, Ms Richardson would or should have been aware that the information that she was accessing was of the type ordinarily protected by legal professional privilege.  However, as earlier observed, the State abandoned any suggestion of impropriety on the part of Ms Richardson.

9. There is a body of case law dealing with the inadvertent disclosure of privileged documents during discovery.[89]  In such circumstances, courts have held that where the party to whom disclosure has been made knew that the document was protected by privilege and therefore suspected that it had been mistakenly disclosed, then there was no waiver of privilege, notwithstanding the fact that the receiving party was, as a result, aware of the contents of the privileged documents.

   [89] Guinness Peat Properties Ltd v Fitzroy Robinson Partnership [1987] 2 All ER 716; Meltend Pty Ltd v Restoration Clinics of Australia Pty Ltd (1997) 75 FCR 511; Doran Constructions Pty Ltd v University of Newcastle (Unreported, NSW Supreme Court, 12 December 1997); Director of Public Prosecutions (Commonwealth) v Kane (1997) 140 FLR 468; National Insurance Co Ltd v Whirlybird Holdings Ltd [1994] 2 NZLR 513; Great Atlantic Insurance Co v Home Insurance Co [1981] 2 All ER 485.

10. In Guinness Peat Properties Ltd v Fitzroy Robinson Partnership, the court accepted as a general rule that, where inspection has been given in the process of discovery, albeit inadvertently, privilege is lost.  Slade LJ, with whom Woolf LJ and Sir George Waller agreed, observed:[90]

    … a mere plea of inadvertence does not by itself necessarily enable a party to litigation to avoid a loss of privilege.  Privilege may be lost by inadvertence …

    Ordinarily, a party in my judgment who sees a particular document referred to in the other side’s list, without privilege being claimed, and is subsequently permitted inspection of that document, is fully entitled to assume that any privilege which might otherwise have been claimed has been waived.  There is no doubt about that.

    The justification for this rule was said to be that:

    [it] avoids the practical problems involved in attempting to restore the previous status quo by prohibiting a party and his experts from using information obtained in the normal course of discovery.[91] 

    [90] Guinness Peat Properties [1987] 2 All ER 716 at 729-730.

    [91] Guinness Peat Properties [1987] 2 All ER 716 at 729.

11. However, in the circumstances of that case, the Court of Appeal held that privilege had not been waived because it was decided that the inspecting parties’ solicitors must have known that inspection of the privileged documents had been given as a result of an obvious error.  As such, the inspecting party was not able to benefit from the inadvertent disclosure by the discovering party.  Given that the inspecting parties were already aware of the contents of the privileged documents, they were compelled to proceed on the basis that they had never seen that information. 

12. In Director of Public Prosecutions (Commonwealth) v Kane,[92] Hunt J made the following observation:[93]

    Even if the person who received the privileged document asserts he or she did not realise that it had been sent by mistake, the privilege is not lost if the hypothetical reasonable person with the qualities of the actual recipient would have so realised.

    [92] Director of Public Prosecutions (Commonwealth) v Kane (1997) 140 FLR 468.

    [93] Kane (1997) 140 FLR 468 at 485.

13. Counsel for the plaintiff sought to avoid the application of this line of authority to the present proceedings by arguing that the State’s disclosure of the documents was intentional rather than inadvertent.  Counsel for the plaintiff also said that there was no obvious error and that inadvertence was not established, nor was it made out that the recipient was or should have been aware of inadvertence on the part of the State. 

14. Another variation between the present proceedings and the above cases is that disclosure in this matter did not occur within the context of discovery.  Rather, it occurred, on the State’s argument, without any warning having been given to the State that the plaintiff contemplated litigation. 

15. In each of the cases mentioned above, a primary consideration as to whether or not privilege had been waived as a result of the disclosure was whether there were ongoing and lasting consequences of the disclosure that could not be corrected without affecting the conduct of the matter.[94]

    [94] See for example: Great Atlantic Insurance Co v Home Insurance Co [1981] 2 All ER 485 at 491; National Insurance Co Ltd v Whirlybird Holdings Ltd [1994] 2 NZLR 513 at 517.

16. Counsel for the State further submitted that, even though the documents were in the possession of the plaintiff, privilege had not been waived because the plaintiff had obtained the documents through mistake.  The State led evidence that, had Mr Rathman known that Ms Richardson wanted the documents in order to support a litigious claim against the State, he would not have permitted access to material containing legal advice.  As Templeman LJ observed in Great Atlantic Insurance Co v Home Insurance Co: [95]

    [a] man who is entitled to assert privilege over a document does not waive that privilege by suffering the misfortune of the theft of those documents from his custody or from the custody of his solicitor.

    [95] Great Atlantic Insurance Co v Home Insurance Co [1981] 2 All ER 485 at 494 (Templeman LJ).

17. Counsel for the State insisted that the mere fact that the documents had been freely available to the general public for decades did not in itself amount to a waiver of privilege.  This contention finds some support in Abigroup Ltd v Atkins,[96] a decision of Bainton J of the New South Wales Supreme Court:[97]

    The mere fact that a document is in the hands of a person other than the parties to litigation in which its production is required, does not of itself deprive the document of its privileged character:…

    [96] Abigroup Ltd v Atkins (1997) 42 NSWLR 623.

    [97] Abigroup Ltd v Atkins (1997) 42 NSWLR 623 at 632.

18. Counsel for the defendant submitted that in order for there to be waiver, there must be an intention, either express or implied, on the part of the defendant to waive the privilege.  It was said that in the case of an implied waiver, the circumstances must be such that it is fair to hold that there has been a waiver by the party entitled to claim the privilege. 

19. An issue between the parties was whether Mr Rathman had been put on notice by Ms Richardson’s letter that one of the potential purposes underlying her request for the information was litigation against the State.  Mr Rathman gave evidence that, on his reading of Ms Richardson’s letter of 20 December 1995, he understood that her purpose for wanting the information the subject of her request was in order to prepare a submission on the plaintiff’s behalf to the National Inquiry.  The text of this letter has been referred to earlier.

20. Counsel for the State submitted that it was open, on a plain reading of Ms Richardson’s letter, to adopt the view, as Mr Rathman did, that Ms Richardson wanted the information for the sole purpose of preparing a submission to the National Inquiry.

21. Counsel for the plaintiff emphasised that the phrase “instructed to act on his behalf in relation to the question of his separation as a child from his family” put Mr Rathman and those advising him on notice that Ms Richardson may have had litigation in contemplation.  Counsel for the plaintiff said that Ms Richardson could not have stated her purpose more clearly, given that at that stage she was generally investigating all potential avenues, and that proceedings had not been issued, and were in fact, not issued for some two years.  This submission should be rejected.  I refer to my earlier remarks and findings concerning Ms Richardson’s evidence and correspondence. 

    Fairness

22. A further question raised by the disclosure of the documents to the plaintiff is that of fairness.  Is it fair to the plaintiff that he cannot use the information that is, in some ways, not only a relevant but a crucial aspect of this case?  This is not to suggest that a finding of whether privilege has been maintained is to be determined by balancing the existence of the privilege and the right to maintain it against the significance or importance of the document.  The courts have previously rejected this approach.[98]  However, as Goldberg J observed in Meltend Pty Ltd v Restoration Clinics of Australia Pty Ltd:[99]

    …once documents have been disclosed to an opposite party as part of the formal process of discovery and inspection, in circumstances involving no criticism of that party, I consider that fairness requires that that party be not disadvantaged in the use it can make of those documents.

    [98] Derby & Co Ltd v Weldon (No 8) [1991] 1 WLR 73 at 99-100; Meltend Pty Ltd v Restoration Clinics of Australia (1997) 75 FCR 511 at 524.

    [99] Meltend Pty Ltd v Restoration Clinics of Australia Pty Ltd (1997) 75 FCR 511 at 524.

23. Counsel for the State drew the Court’s attention to Maurice in support of the contention that waiver occurs in circumstances where a person has used privileged material in such a way that it would be unfair for a claim for legal professional privilege to be maintained.  Gibbs CJ observed:[100]

    [100] Maurice (1986) 161 CLR 475 at 481.

    The decisions in which [the question of implied waiver] has been considered seem to me to be particular applications of the rule that in a case where there is no intentional waiver, the question whether a waiver should be implied depends on whether it would be unfair or misleading to allow a party to refer to or use material and yet assert that that material, or material associated with it, is privileged from production.

    Mason and Brennan JJ stated:[101]

    [101] Maurice (1986) 161 CLR 475 at 487-488.

    An implied waiver occurs when, by reason of some conduct on the privilege holder’s part, it becomes unfair to maintain privilege.

    …

    Hence, the implied waiver inquiry is at bottom focused on the fairness of imputing such a waiver.

    Deane J observed:[102]

    Waiver of legal professional privilege by imputation or implication of law is based on notions of fairness.  It occurs in circumstances where a person had used privileged material in such a way that it would be unfair for him to assert that legal professional privilege rendered him immune from procedures pursuant to which he would otherwise be compellable to produce or allow access to the material which he has elected to use to his own advantage.  Thus, ordinary notions of fairness require that an assertion of the effect of privileged material or disclosure of part of its contents in the course of proceedings before a court or quasi-judicial tribunal be treated as a waiver of any right to resist scrutiny of the propriety of the use he has made of the material by reliance upon legal professional privilege.

    Dawson J commented:[103]

    This is a difficult area of the law, but it is clear enough that an implied waiver may be required by fairness notwithstanding that it was not intended. … [L]egal professional privilege is concerned with protecting the confidentiality of a relationship and if that confidentiality is abandoned by a particular disclosure it may be necessary in fairness, whether further disclosure was intended or not, to require disclosure extending beyond the particular communication.

    [102] Maurice (1986) 161 CLR 475 at 492-493.

    [103] Maurice (1986) 161 CLR 475 at 497-498.

24. In the circumstances of the present case, fairness supports the conclusion that waiver has occurred, thereby permitting the plaintiff to rely upon the documents that have been used by the plaintiff.  The plaintiff initiated these proceedings with knowledge of the contents of the legal advice provided by the Crown Solicitor to the Aborigines Protection Board.  The plaintiff’s action against the State is in part based upon the existence of this advice.  Having already permitted the plaintiff to access the documents, even if inadvertently, the State could not now fairly maintain its claim to privilege over those documents.  As such, consistent with Maurice, any privilege that may have once existed in the disclosed documents has been waived.

    Conclusion re waiver

1. This is a case where waiver of privilege has been made out with respect to the disclosed documents.  I have reached the conclusion that the State, on request from the plaintiff’s solicitor, provided access to documents generally.  The plaintiff’s request was in terms that would have alerted the reasonable reader to the fact that the documents could be used in litigation with respect to any entity involved in the plaintiff’s separation from his family.  That plainly would raise the possibility of claims against a number of State instrumentalities.  The State gave access and the plaintiff’s solicitor perused the documents and made copies.

2. The reasonable reader of the plaintiff’s solicitor’s letter of 20 December 1995 would also have realised that the documents might well be used for and provided to the ongoing National Inquiry concerning the separation of Aboriginal children from their families.  In that event, there would be a communication of the documents and their contents to third persons with the practical reality that they might be used and further disseminated both by the National Inquiry in its report and otherwise.  The State made no attempt to keep any part of the documents confidential, including the legal advice that was being proffered at the time.  Confidentiality in that material has been lost.

3. It is unclear on the evidence as to what particular view the departmental officers took, if any, on the issue of privilege.  It is possible that the departmental officers simply did not put their minds to the issue of privilege at all.  Mr Rathman was unable to assist, as he himself had acted on advice in the signing of letters prepared for him.  What he may or may not have done had the matters been drawn to his attention is one matter.  However, whether the issues such as privilege would have been drawn to his attention is highly problematic. 

4. The plaintiff has acted and used the disclosed documents by pleading them into issue in the proceedings.  They are also relevant in part to his claim for extension of time.  The plaintiff has acted on the disclosed documents and on the absence of any confidentiality and has done so bona fides.  In these circumstances, questions of fairness would preclude any claim to privilege with respect to the disclosed documents. 

   Conclusion

5. All 20 of the documents, or portions of the documents, the subject of the claim would ordinarily be protected by legal professional privilege, being communications made for the dominant purpose of obtaining or conveying legal advice.

6. However, it is arguable that all of the documents, or portions of the documents, refer to legal advice relating to the scope of the Aborigine Protection Board’s power to remove children of Aboriginal descent from their families.  They are arguably relevant to the welfare of the plaintiff who, at the relevant time, was both a child and a ward of the State.  As such, any privilege that would otherwise attach to all of the documents is excluded from so attaching for the earlier expressed reasons.

7. In any event, any privilege that would otherwise exist in the documents already accessed, reviewed or copied by the plaintiff has been waived.  Waiver arises because of the combination of circumstances referred to earlier.  By permitting the plaintiff’s solicitor to access the documents, the State has failed to maintain the confidentiality in the documents.  The privilege that might otherwise have been claimable in respect of documents 19 and 20, those accessed by Dr Raynes and referred to in the article published in the Adelaide Review on 18 March 2005, has also been waived.  As the contents of those documents have been revealed through the print media to the public at large, the State cannot be said to have maintained any confidentiality in respect of them.  Other factors include the use made of the disclosed documents and the unfairness that would flow if privilege could be maintained.  However, I do not consider that there has been waiver in respect of those documents or parts of documents not disclosed.

8. The conclusion that legal professional privilege is excluded because of the interests of the child and the fiduciary relationship of guardian and child resolves the dispute with respect to all of the documents.  In any event, if privilege was not excluded, there has been a waiver of privilege with respect to the disclosed documents. 

9. Accordingly, I direct that the plaintiff be permitted access to all 20 documents the subject of this application.