Von Stieglitz and Comcare
[2013] AATA 908
•11 December 2013
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2012/0675
General Administrative Division )
Re: Katherine Von Stieglitz
Applicant
And: Comcare
Respondent
DIRECTION
TRIBUNAL: The Hon. Dennis Cowdroy, Presidential Member
DATE: 14 January 2014
PLACE: Canberra
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:
- Remove reference to the High Court of Australia as the Other Party on the title page of the interlocutory decision Von Stieglitz and Comcare [2013] AAT A 908; and
- Replace reference to “Sparke Helmore” as the Solicitors for the Respondent with “Dibbs Barker” on the last page of the interlocutory decision Von Stieglitz and Comcare [2013] AAT A 908.
........................[signed]...........................................
The Hon. Dennis Cowdroy, Presidential Member
[2013] AATA 908
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/0675
Re
Katherine Von Stieglitz
APPLICANT
And
Comcare
RESPONDENT
And
High Court of Australia
OTHER PARTY
INTERLOCUTORY Decision
Tribunal The Hon. Dennis Cowdroy, Presidential Member
Date 11 December 2013 Place Canberra The interlocutory application of the applicant for access to documents over which privilege is claimed is allowed in part. The service of a memorandum, authored by the High Court of Australia (‘the High Court’), by the respondent upon the applicant waived privilege with respect to legal advice received by the High Court in June 2008. The applicant will be granted access to such legal advice, but to no other document over which the High Court currently claims privilege.
.................................[sgd].......................................
The Hon. Dennis Cowdroy, Presidential Member
Practice and procedure – summons to produce documents – legal professional privilege claimed over certain documents – whether legal professional privilege waived by conduct of summonsed party or respondent – whether legal professional privilege is available to summonsed party
Administrative Appeals Tribunal Act 1975 (Cth) s 40(1A)
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 71
Administrative Appeals Tribunal Regulations 1976 (Cth) r 15
Australian Unity Health Ltd v Private Health Insurance Administration Council [1999] FCA 1770
Bennett v Chief Executive Officer of the Australian Customs Service (2004) 140 FCR 101
Bulk Materials (Coal Handling) Services Pty Ltd v Coal and Allied Operations Pty Ltd (1988) 13 NSWLR 689
Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 303 ALR 199
Mann v Carnell (1999) 201 CLR 1
Network Ten Ltd v Capital Television Holdings Ltd (1995) 36 NSWLR 275
Osland v Secretary, Department of Justice (2008) 234 CLR 275
Re Neenan and Australian Postal Corporation (2011) 121 ALD 459
Re von Stieglitz and Comcare [2013] AATA 108
REASONS FOR DECISION
The Hon. Dennis Cowdroy, Presidential Member
11 December 2013
Ms von Stieglitz has filed an application for review in respect of a decision made by the respondent (‘Comcare’) made on 19 December 2011. Comcare’s decision was a reconsideration of its previous determination to reject a claim brought by Ms von Stieglitz under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the SRC Act’). Ms von Stieglitz’s claim, lodged on 9 February 2011, is in relation to the aggravation of a depressive condition allegedly caused by bullying, harassment and similar conduct in her employment as a Court Reporter at the High Court of Australia (‘the High Court’).
The interlocutory application now before the Tribunal concerns the issue of privilege arising in respect of the production of documents by the High Court. Ms von Stieglitz, for reasons which are more fully detailed hereunder, claims that any entitlement by the High Court to claim or maintain privilege over documents it has produced has been waived, or otherwise lost.
FACTS
Section 71 request
At some time in 2011, Comcare requested documents and information relevant to Ms von Stieglitz’s claim under s 71 of the SRC Act. Such section provides:
Power to obtain information from Departments and authorities
(1)Without limiting the generality of section 70, Comcare may, by notice in writing, require the principal officer of an Entity, a Commonwealth authority or a licensed corporation to give Comcare, within such period as is specified in the notice, such documents or information (or both) as are specified in the notice, being documents or information in the possession, custody or control of the Entity or authority that are relevant to a claim made by, or in relation to, an employee of the Entity or authority or that relate to the performance of functions or the exercise of powers by the principal officer under Part III. A principal officer to whom a notice is given shall comply with the notice without delay.
On 28 March 2011, the High Court complied with Comcare’s s 71 request.
On 17 February 2012, Ms von Stieglitz filed her application to review Comcare’s decision made on 19 December 2011. DibbsBarker, the then solicitors for Comcare, twice served Ms von Stieglitz with documents produced by the High Court in response to a s 71 request The first tranche of documents was served on 28 June 2012, and the second tranche was served on 6 August 2012. In the latter documents was a memorandum sent by the Registrar to the Chief Justice (‘the Registrar’s memorandum’). Such memorandum was dated 9 February 2008, however it is accepted by all parties that it was actually created on 9 February 2009.
Summonsed documents
On 17 December 2012 the Registry of the Tribunal issued a summons to produce documents (‘the summons’) addressed to the High Court, having a return date of 29 January 2013. The summons was issued pursuant to s 40(1A) of the Administrative Appeals Tribunal Act 1975 (Cth), (‘the AAT Act’), and r 15 of the Administrative Appeals Tribunal Regulations 1976 (Cth).
Upon receipt of the summons the Chief Executive and Principal Registrar, Mr Andrew Phelan (‘the Registrar’), consulted with Ms Carmen King of DibbsBarker. DibbsBarker in this proceeding are presently the solicitors for Comcare, which is the Workers Compensation insurer for Commonwealth agencies, including the High Court.
In his email to Ms King dated 18 December 2012, the Registrar specifically inquired of Ms King whether Comcare would respond to the summons on behalf of the High Court or whether the High Court was required to respond separately. The Registrar’s email relevantly states:
The High Court Registry just received, via process server, the attached summons. At a quick glance, the request appears almost oppressive in scope, imprecise, probably covering some privileged communications and of questionable relevance – especially given the plethora of T documents she must have by now. Do you/Comcare respond to this summons on our behalf or are we separately required to do so?
There is no evidence before the Tribunal of any response to such email from Ms King. It appears that the Registrar was advised by Ms King to collate the relevant papers and files and forward them to her by 18 January 2013 so that they could be then assessed by DibbsBarker for privilege. By letter dated 10 January 2013 the Registrar forwarded 13 folders and files to Ms King without a claim for privilege.
On 22 January 2013 the Tribunal wrote to Ms von Stieglitz informing her that the High Court had produced folders and files under the summons (‘the produced documents’). The Tribunal stated in its letter to Ms von Stieglitz:
The High Court of Australia is seeking to claim Legal Professional Privilege over some documents and these documents are identified in the attached schedule.
A schedule attached to the letter indicated that privilege would be claimed in respect of correspondence, file notes, emails and advices passing between the High Court and DibbsBarker and Comcare.
On 25 January 2013 Ms von Stieglitz’s husband, Mr O’Neill, informed the Tribunal that she wished to challenge the claim for privilege, but that she was not in a position to argue the claim on 29 January 2013.
Hearing before Member Hyman
The proceedings came before a member of the Tribunal, Member Hyman, on 20 February 2013. It is necessary for the consideration of the present interlocutory application to refer to certain extracts of the transcript before Member Hyman on that day.
The following exchange occurred before Member Hyman:
MS KING: Ms King, I represent Comcare. I'm from DibbsBarker.
MEMBER: Thank you, Ms King. One question which has crossed my mind as I was preparing to come in today was whether anyone is here to speak for the High Court.
MS KING: No, the High Court has chosen not to appear today. I spoke with them last week and advised them that the date had been set and they were content just for me to appear on behalf of Comcare and put forward the arguments in relation to privilege.
Subsequently, Ms King confirmed that she prepared the claim for privilege and stated:
MS KING: … The normal course would be when an Agency [the High Court] is summonsed that if the documents are provided directly to the AAT we would have made an application to have first access to those documents which in the normal course would be granted; and I've never had a circumstance where that wasn't the case.
The reason that we get first access to those documents is to undertake a privilege check. All that happened in this instance was that I undertook the privilege check before having the documents provided to the AAT. In that way the documents were then provided to the AAT and the applicant [Ms von Stieglitz] was able to then have immediate access to those documents; whereas in the usual course they would have been provided and there would have been a delay of one or two weeks while we would have had first access to undertake that privilege check.
That's a matter of course. It happens in most matters that the respondent gets first access to documents that are provided by the Agencies in these matters. So the only difference is [sic] this case is that I undertook that privilege check in my own office rather than coming and sitting down in the Tribunal for several hours to do it down here. My view is that there's been no prejudice to the applicant. The actual process by which I undertook the privilege check was exactly the same as it would have been had I been sitting in the AAT.
Ms von Stieglitz submitted that there was no evidence that the High Court had retained DibbsBarker nor instructed DibbsBarker to prepare a claim for privilege. Alternatively she submitted that if Comcare’s solicitors prepared the privilege claim on instructions from the High Court, then she may have suffered prejudice. Alternatively, she submitted if Comcare’s solicitors prepared the claim for privilege without instructions it was essentially Comcare’s claim for privilege, in which event she suffered prejudice.
In response Ms King, submitted, inter alia:
Privileged documents are privileged documents is our view. A document is covered by legal professional privilege and client professional – client legal privilege by virtue of the document itself, not by who’s claiming it. The documents over which we had claimed privilege fall squarely into the categories of litigation privilege or advice privilege as is set out in various case law and common law, and also in the Evidence Act.
Ms King also said:
It's simply by virtue of the document itself that privilege has been claimed which is why our view is that it's not inappropriate for me as a representative of Comcare to have checked those documents for things that we'd classify as privileged.
Later Ms King said:
Obviously I am not acting on instructions from the High Court. The High Court is not my client. Comcare is my client. But, as I say, the normal course is that the Agency is basically a third party in terms of the proceedings in relation to Comcare; so things like doing a privilege check over documents is something that often the respondent's solicitors undertake so that the Agency doesn't have to go through a lot of those documents. I'm going to have to go through those documents anyway and, so, as a matter of course we simply undertake the privilege check as part of that process.
So, no, I am not acting on behalf of the High Court. The High Court - the people from the High Court and I had a discussion about the documents that they would be sending. They said that they would send the documents to my office and they knew that I would be then going through the documents and undertaking a privilege check; but that that's [sic] as far as any kind of - there were no instructions from the High Court is the short answer.
Later, Ms King made a claim that privilege was claimed by Comcare over documents which had been produced by the High Court when she said as follows:
Yes, all of the documents over which privilege has been claimed were found within the files as listed in the letter from the High Court.
On 28 February 2013, Member Hyman delivered his decision (see Re von Stieglitz and Comcare [2013] AATA 108). He concluded that the High Court ought to have forwarded the documents to the Tribunal rather than to Comcare, and that the claim for privilege should have been made thereafter. Significantly, Member Hyman said at [13] and [14]:
It is common ground that the process followed in the current matter has departed from usual practice. Indeed it is abundantly clear that it has departed from the process set out in the AAT Act. For reasons that are not at all apparent, the High Court sent the summonsed documents not to the Tribunal but to the respondent’s solicitors, DibbsBarker. Rather than return them to the High Court or forward them immediately to the Tribunal, Ms King identified and listed in a schedule documents which, on her assertion, should be afforded legal professional privilege, only then forwarding all the documents to the Tribunal. Ms King acknowledged at the hearing that she had taken this step, under an informal arrangement with the High Court, although the documents that came to the Tribunal had no recognition of that arrangement, nor indeed any explicit recognition of the direct involvement of DibbsBarker in the preparation of the schedule.
Following the scheme set out in section 40, it is plain that when Ms King assembled her schedule of documents for which privilege was to be claimed, no leave to inspect the documents had yet been granted. It could not have been, as the Tribunal was yet to receive the summonsed documents. Ms King advised that she was not instructed by the High Court, and so she could not have been regarded as acting as the High Court’s agent, and continued to owe her undivided loyalties in this matter to Comcare. Thus the High Court has not made a claim for privilege. No leave to inspect the summonsed document having yet been granted, DibbsBarker could not legitimately lodge a claim for privilege, either on behalf of the respondent or on behalf of the High Court. I am compelled to conclude that no claim for legal professional privilege is before me.
Member Hyman said at [21] and [22]:
It remains the case that some documents have been produced to the Tribunal. The next step is to grant leave for the inspection of those documents. I will issue orders giving the respondent first access to the summonsed documents in order for a schedule of documents over which legal professional privilege is claimed to be prepared and submitted. Alternatively, the High Court is able to submit such a claim.
Any privilege claim lodged by the respondent or the High Court pursuant to this decision and the access orders I will grant must specify sufficient detail to allow Ms von Stieglitz to decide whether or not she wishes to lodge an objection. That would include, for each document, the date of the document, the parties generating and receiving the correspondence, the file from which it has been abstracted, the nature or purpose of the document, and the basis of the claim of privilege (i.e. whether it is legal advice, or a document prepared for legal proceedings, or both).
Accordingly, orders were made on 28 February 2013 which allowed for inspection of the produced documents by Comcare on 4 March 2013 and by Ms von Stieglitz on 11 March 2013.
Claim for privilege
By email dated 6 March 2013 Ms King advised the Tribunal of the High Court documents in respect of which privilege was being claimed. The email relevantly states:
Please find attached a detailed list of documents over which privilege is being claimed in relation to the High Court of Australia summonsed material.
I would be grateful if this list could be attached to the envelope containing the documents and forwarded as appropriate.
If you have any questions or you wish to discuss the above, please do not hesitate to contact me.
Attached to the email was the list of 45 documents.
On 13 May 2013 a return of summons hearing was listed for 28 May 2013. On 21 May 2013 the Australian Government Solicitor (‘AGS’) advised the Tribunal and Ms von Stieglitz that it was instructed by the High Court to claim privilege over documents at the return of summons hearing. At Ms von Stieglitz’s request, the hearing fixed for 28 May 2013 was vacated to 18 June 2013.
On 12 June 2013 the High Court filed a claim for privilege in respect of 38 of the 45 documents that Comcare had already claimed privilege over, and a list of such documents was provided to Ms von Stieglitz. The hearing was again adjourned to 3 July 2013 to allow Ms von Stieglitz time to review the High Court’s claim for privilege.
On 18 June 2013 the High Court produced further documents, but no claim for privilege was made in respect of them. On or about 28 June 2013, the hearing date of 3 July 2013 was vacated.
On 25 September 2013, Comcare abandoned its claim for privilege. The application now being considered by the Tribunal results from Ms von Stieglitz’s objection to the High Court’s claim for privilege.
Present Hearing
Ms von Stieglitz appeared unrepresented but assisted by Mr O’Neill.
For convenience, the Tribunal will summarise her submissions as follows:
1.When the High Court produced its documents to the Tribunal without a claim for privilege, it waived any such claim over those documents (‘Submission 1’).
2.No claim for privilege was made by the High Court when the summons was returnable before Member Hyman, therefore the High Court cannot now maintain a claim for privilege. The claim for privilege made by the High Court on 12 June 2013 represents a change of mind that should not be permitted (‘Submission 2’).
3.Member Hyman’s decision made it plain that either Comcare or the High Court had the right to claim privilege, but not both. Since a claim for privilege was made first by Comcare, the High Court cannot maintain a separate claim for privilege (‘Submission 3’).
4.When the High Court disclosed the produced documents to Comcare, privilege was waived by the High Court over any documents (‘Submission 4’).
5.The deliberate production to Ms von Stieglitz of the Registrar’s memorandum, which referred to legal advice received by the High Court from the Australian Government Solicitor (‘the AGS’), constituted a waiver of privilege by the High Court over all communications between 20 July 2007 and 9 February 2009 (‘Submission 5’).
Other claims were also made by Ms von Stieglitz that suggested that there had been a ‘secret arrangement’ between the High Court and Comcare and that she should have been notified of any arrangement made between the High Court and Comcare.
CONSIDERATION
Clarification of Events
It is apparent that upon receiving the summons for production of documents the Registrar believed that Comcare would be acting in the interests of the High Court. For this reason the Registrar sought advice from DibbsBarker upon the issue of the High Court’s documents in respect of which privilege should be claimed. The High Court then provided its documents as requested by DibbsBarker, and DibbsBarker undertook to determine which documents would be the subject of a claim for privilege. I am satisfied that the Registrar understood that on the return of the summons, DibbsBarker would be making a claim for privilege over the produced documents.
In these circumstances, when the summons was returned before the Tribunal it is puzzling how it could have happened that Ms King advised the Tribunal that she was ‘not instructed by the High Court’, yet simultaneously understood she was to put forward arguments in relation to privilege on its behalf. There was clearly a misunderstanding between Ms King and the Registrar concerning the purpose of Ms King’s attendance before the Tribunal; the Registrar did not understand that the privilege arguments were to be put by Ms King only on behalf of Comcare.
This is reinforced by the finding of Member Hyman that no claim for privilege had been made by the High Court. Such conclusion is explicable only on the basis that Ms King regarded the High Court as a third party for whom DibbsBarker was not acting. Irrespective of this confusion, it remains the case that on 6 March 2013 a claim for privilege was made by DibbsBarker over 45 of the High Court documents assessed by DibbsBarker as ones properly attracting a claim of privilege. That claim was continued up to and beyond the date when the High Court made its separate claim for privilege on 12 June 2013 in respect of 38 of the 45 documents.
Principles
It is a fundamental principle that a party involved in a proceeding is entitled to make and maintain a claim for legal professional privilege. It is both a rule of substantive law and an important common law immunity: Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 at [11]. Although Comcare is the only respondent to this proceeding, there is no doubt the High Court was entitled to maintain a claim of privilege separate to that of Comcare over the produced documents. Similar circumstances formed the basis for the decision in Re Neenan and Australian Postal Corporation (2011) 121 ALD 459, where a non-party was permitted to claim privilege over documents produced to the Tribunal pursuant to a summons.
Each of Ms von Stieglitz’s submissions then must turn upon whether the relevant action or inaction of the High Court and or Comcare constituted a waiver of privilege by the High Court over the produced documents. As was confirmed by the High Court in Mann v Carnell (1999) 201 CLR 1, it is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege (at [28]), and waiver may be express or implied (at [29]).
Further, in the context of court ordered discovery, the High Court recently found that an inadvertent disclosure of privileged documents by a party should ordinarily be allowed to be corrected. In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 303 ALR 199, it was held per curiam at [45] that:
Although discovery is an inherently intrusive process, it is not intended that it be allowed to affect a person's entitlement to maintain the confidentiality of documents where the law allows. It follows that where a privileged document is inadvertently disclosed, the court should ordinarily permit the correction of that mistake and order the return of the document, if the party receiving the documents refuses to do so.
Submissions 1 & 2
As referred to above, Ms von Stieglitz submits that because the High Court produced documents to the Tribunal without claiming privilege, and did not appear on the return of the summons to claim privilege, the High Court has waived its opportunity to do so. Such contention overlooks the factual circumstances referred to above.
Arising out of the correspondence between the Registrar and Ms King, it is reasonable to infer that the Registrar understood that:
(a)Comcare would claim privilege where necessary on behalf of the High Court over the produced documents; and
(b)Ms King would represent both Comcare and the High Court at the return of summons before Member Hyman.
Such conduct of the Registrar is not inconsistent with an intention to maintain confidentiality in respect of certain information in the produced documents. The delay in privilege being claimed by the High Court, although undesirable for the orderly conduct of the proceeding, did not amount to any significant prejudice to Ms von Stieglitz. This is especially so in light of the fact that the claim for privilege now made by the High Court is less extensive than that originally claimed by Comcare.
It follows that both submissions 1 and 2 of Ms von Stieglitz must fail.
It is appropriate at this point to address Ms von Stieglitz’s allegation of a ‘secret arrangement’ between Comcare and the High Court. At the present hearing, Ms von Stieglitz submitted that such arrangement referred to the High Court’s belief that Ms King was appearing on its behalf at the hearing before Member Hyman.
The correspondence between the High Court and Comcare does not reveal any untoward or improper activities. By force of the SRC Act, Comcare is in essence the workplace insurer for the High Court and has stepped into the shoes of the High Court in respect of Ms von Stieglitz’s claim. It is to be expected in these circumstances that Comcare and the High Court would have regular correspondence in the matter. There was undoubtedly confusion as to who Ms King was representing at the hearing before Member Hyman, however that does not suggest or show any improper collusion between Comcare and the High Court.
Submission 3
Ms von Stieglitz’s third submission has arisen from [21] of Member Hyman’s decision. Reproduced in full at [22] above, the Member stated in part that:
I will issue orders giving the respondent first access to the summonsed documents in order for a schedule of documents over which legal professional privilege is claimed to be prepared and submitted. Alternatively, the High Court is able to submit such a claim.
Ms von Stieglitz’s submission promotes a strict reading of Member Hyman’s reasons; namely, that due to the use of the word ‘alternatively’, either Comcare or the High Court could make a privilege claim, but not both. It follows in Ms von Stieglitz’s submission that as Comcare claimed privilege over certain produced documents on 6 March 2013, the High Court was unable to claim privilege as it purported to do on 12 June 2013.
The High Court submitted at the present hearing that should Member Hyman’s decision be found to deprive the High Court of its right to make a claim for privilege, his decision would be beyond the power of the Tribunal. It is unnecessary for the Tribunal to consider this argument, as the strict reading for which Ms von Stieglitz agitates is rejected. In retrospect, it is unfortunate that the Member chose to use ‘alternatively’ in the context of Comcare and the High Court making claims for privilege. Rather than deprive either Comcare or the High Court of the ability to make such a claim, it is more likely that Member Hyman was merely expressing that both had the ability to do so even if it was envisaged that only one of them would claim privilege. The reasons of the Member should not be read in an over-zealous fashion.
Accordingly, the third submission of Ms von Stieglitz is rejected.
Submission 4
Ms von Stieglitz’s fourth submission is that the High Court waived privilege over the produced documents by providing them to Comcare. Such argument raises the issue of common interest privilege.
Common interest privilege was explained by Giles J in Network Ten Ltd v Capital Television Holdings Ltd (1995) 36 NSWLR 275, where his Honour said at 279:
If two parties with a common interest exchange information and advice relating to that interest, the documents or copy documents containing that information will be privileged from production in the hands of each; thus, if one of the parties obtains a letter of advice attracting legal professional privilege and provides it to the other, the other can also claim legal professional privilege.
Whether common interest privilege exists between parties with an interest in a proceeding will depend upon the facts of each case. It is important to note in the present proceeding, as referred to above, that Comcare is in essence the workplace insurer for the High Court. That an insurer would have a common interest with the insured is not unusual. In Bulk Materials (Coal Handling) Services Pty Ltd v Coal and Allied Operations Pty Ltd (1988) 13 NSWLR 689 (‘Bulk Materials’), Giles J found that an underwriter who had not yet extended, but was likely to extend, indemnity to the insured plaintiff had interests identical to the insured plaintiff. His Honour found at 695 that:
[The underwriter] had an interest in seeing the best defence put forward by the plaintiff to the cross-claim made against it by the defendant, and an interest in enabling the plaintiff to put forward in a timely manner the best cross-claim against consultants involved in the project. They had an interest in the most advantageous conduct by the plaintiff of the proceedings then on foot. They had those interests even prior to a decision to afford indemnity, because upon making such a decision they would become subject to the consequences of the steps earlier taken in the conduct of the litigation. Their interests in these respects were identical with those of the plaintiff.
Almost paradoxically, the interests of Comcare and the High Court appear to be closer than the identical interests of the underwriter and the insured plaintiff in Bulk Materials. As referred to above, Comcare has stepped into the shoes of the High Court in respect of Ms von Stieglitz’s claim.
It follows that the interests of Comcare and the High Court are sufficiently similar to give rise to a common interest privilege. Ms von Stieglitz’s fourth submission must be rejected.
Submission 5
Ms von Stieglitz’s final submission turns upon Comcare having deliberately produced to her the Registrar’s memorandum, which referred to legal advice received by the High Court from the AGS. Other evidence before the Tribunal indicates that such advice was dated 19 June 2008 (‘the AGS advice’). The relevant portion of the memorandum states:
Contrary to the assertions in Mr O’Neill’s letter about the Court and my not intending to act as model litigant, at the time this was happening I obtained advice from AGS on prospects and how the [High] Court could adhere strictly to the model litigant requirements. AGS opined that while Ms von Stieglitz’s prospects were “poor to very poor”, it was open to me to settle the matter under the Legal Services Directions (again, happy to discuss the reasons). Given the likelihood of “expensive and protracted” litigation costs, impacts on Court resources and perceived impacts on the reputation of the Court, I agreed to settle very generously by offering her the maximum amount that would have been payable to her (six months salary [sic]) if the AIRC had found in her favour, unlikely though that might have been. Acting on her own independent legal advice, she accepted this and signed the usual deed of release and indemnity. I discussed this with the Court prior to settlement.
The issue for the Tribunal to determine is whether the production of the Registrar’s memorandum on Ms von Stieglitz was inconsistent with the maintenance of the confidentiality which privilege of any or all documents is intended to protect. It is important to note two factors. First, there is no suggestion by the High Court that Comcare was not authorised to reveal the Registrar’s memorandum, or that Comcare was acting beyond its authority in so doing. Accordingly it can be assumed that the information was conveyed to Ms von Stieglitz intentionally. Secondly, the Registrar’s memorandum only refers to the content of one piece of advice not already in the possession of Ms von Stieglitz, that being the advice to the Registrar from the AGS.
It was found by Gyles J, with Tamberlin J agreeing, in Bennett v Chief Executive Officer of the Australian Customs Service (2004) 140 FCR 101 at [65] that ‘[t]he voluntary disclosure of the gist or conclusion of the legal advice amounts to waiver in respect of the whole of the advice to which reference is made including the reasons for the conclusion’. In doing so, his Honour in part relied upon the decision of Goldberg J in Australian Unity Health Ltd v Private Health Insurance Administration Council [1999] FCA 1770 where his Honour came to a similar conclusion at [18].
Despite this principle, the High Court in the present proceeding relies on Osland v Secretary, Department of Justice (2008) 234 CLR 275. In that case, the High Court considered whether a press release issued by the Attorney General for the State of Victoria stating that he had obtained joint advice from three Queen’s Counsel which recommended that a petition for mercy following a conviction for murder should be denied waived privilege over that joint advice. By majority (Gleeson CJ, Gummow, Haydon and Keifel JJ), it was found at [48] that the privilege had not been waived as the purpose of the press release was ‘to satisfy the public that due process had been followed in the consideration of the petition, and that the decision was not based on political considerations’. At [49] the majority said:
Whether, in a given context, a limited disclosure of the existence, and the effect, of legal advice is inconsistent with maintaining confidentiality in the terms of advice will depend upon the circumstances of the case. As Tamberlin J said in Nine Films and Television Pty Ltd v Ninox Television Ltd, questions of waiver are matters of fact and degree.
[Footnotes removed]
The present circumstances are patently different to those in Osland where the disclosure was made to the public for a limited purpose. In the present proceeding, the relevant disclosure was to Ms von Stieglitz, being the opposing party in the matter, and the disclosure detailed the conclusion of the AGS advice. Should Comcare or the High Court have sought to maintain the confidentiality of the AGS advice, the relevant portion of the Registrar’s memorandum extracted above at [54] should have been redacted prior to the memorandum being provided to Ms von Stieglitz.
It follows that privilege has been waived with respect to the AGS advice, and that Ms von Stieglitz should have access to it. The Tribunal is informed that such advice is contained in document 35 in the High Court’s list of privileged documents. As the Registrar’s memorandum does not refer to the gist or conclusion of any other document over which privileged is claimed, Ms von Stieglitz’s fifth submission is otherwise rejected.
I certify that the preceding 59 (fifty-nine) paragraphs are a true copy of the reasons for the decision herein of The Hon. Dennis Cowdroy, Presidential Member
...........................[sgd].............................................
Associate
Dated 11 December 2013
Date of hearing 26 September 2013 Date final submissions received 27 September 2013 Applicant In person Advocate for the Respondent Ben Dubé Solicitors for the Respondent Sparke Helmore Advocate for the Third Party Damien O'Donovan Solicitors for the Third Party Australian Government Solicitor
0
11
1