Von Stieglitz and Comcare (Compensation)

[2015] AATA 1034

Von Stieglitz and Comcare (Compensation) [2015] AATA 1034 (11 November 2015)

Division	GENERAL DIVISION
File Number(s)	2012/0675
Re	Katherine Von Stieglitz
APPLICANT
And	Comcare
RESPONDENT

INTERLOCUTORY DECISION

Tribunal	Deputy President Gary Humphries
Date	11 November 2015
Date of written reasons	3 February 2016
Place	Canberra

Privilege has not been waived with respect to the two pieces of legal advice dated 10 January 2008 and 14 February 2008 and the advices are privileged from production on the grounds of legal professional privilege.

………………………[sgd]……………………………

Deputy President Gary Humphries

Catchwords

PRACTICE AND PROCEDURE – summons to produce documents – legal professional privilege claimed over certain documents – whether legal professional privilege waived by conduct of summonsed party.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth) s 40A

Cases

Nine Films & Television Pty Ltd v Ninox Television Ltd (2005) 65 IPR 442

REASONS FOR DECISION

Deputy President Gary Humphries

3 February 2016

1. At an interlocutory hearing, the applicant, Katherine Von Stieglitz, has sought access to two legal advices prepared by the Australian Government Solicitor (the AGS) for its client, the High Court of Australia, dated 10 January 2008 and 14 February 2008 respectively. It was common ground at the hearing that these documents attract legal professional privilege but the applicant argued that the privilege had been waived by the conduct of the representatives of the High Court.

   Background

2. The applicant was a Senior Court Reporter employed by the High Court until April 2008, when her employment was terminated. She subsequently brought two claims for workers compensation against Comcare in relation to her employment at the High Court. In relation to her second claim, the applicant applied to the Tribunal for review of a Comcare redetermination denying her compensation (2012/0675). In the course of those proceedings the applicant sought production of all communication between the High Court and AGS for the period 20 July 2007 to 9 February 2009. Citing legal professional privilege, the High Court objected to the production of those documents.

3. On 11 December 2013, the Tribunal (Cowdroy J) upheld the claim of privilege over all but one of the documents, a legal advice dated 19 June 2008. It found that privilege in that document had been waived because its substance had been included in a memorandum that was produced to the applicant by Comcare. The applicant appealed the Tribunal’s decision regarding access to the documents to the Full Federal Court.

4. In the course of that appeal the applicant sought an order that she be granted access to legal advices dated 10 January and 14 February 2008 respectively, prepared by AGS for the High Court (the 2008 advices). She argued that, as they were referred to in the advice of 19 June 2008, and privilege had been waived in that document, privilege in turn had been waived in the 2008 advices. The Full Court refused to make that order on the basis that the applicant should have sought that access at the Tribunal but had not done so.

5. The applicant now seeks access to the 2008 advices. She contends that the reading out in court on 21 May 2014 by counsel for the High Court of two complete paragraphs (paragraphs 18 and 20) of the legal advice of 19 June 2008, in which the 2008 advices were referred to, amounts to a voluntary disclosure of the substance of the privileged documents. She also referred in her written submissions to other instances where, in writing, the Principal Registrar of the High Court had relied upon the 2008 advices in such a way that they were put in issue in the applicant’s proceedings. She asserted that the High Court’s representatives had disclosed the advices to seek to gain a forensic advantage against the Applicant.

6. Paragraph 20 of the advice of 19 June 2008, which was read to the Federal Court on 21 May 2014, reads:

   Ms Von Stieglitz’ legal representatives foreshadow the possibility of claims of breach of contract being also pursued in the Federal Court, in the event that Ms Von Stieglitz pursues a claim of unlawful termination in the Federal Court. As touched on in my email to Mr Phelan of 10 January 2008 and our letter of advice to Mr Phelan of 14 February 2008, the contract issues are not without some risk exposures to the Court.

7. The High Court contends that the references to the 2008 advices in the advice of 19 June 2008 does not disclose the ‘gist substance or conclusion’ of those advices. It submits that the reference to the 2008 advices merely contextualises the bald reference to the existence of advice without divulging its substance. It asserted, using the test of Tamberlin J in Nine Films & Television Pty Ltd v Ninox Television Ltd (2005) 65 IPR 442, that the substance or content of the advice is not disclosed with specificity or clarity. It denied seeking any forensic or other advantage from the reference.

   Consideration

8. It is the starting point with consideration of matters of communication between parties and their lawyers that those communications attract privilege, specifically legal professional privilege.  In that context it is important to respect the right (I think it was put in one of the cases – perhaps a little exaggerated – as a fundamental aspect of the conduct of humankind) that people have to communicate with their lawyers in a confidential fashion, and for those communications not to be generally disclosable in proceedings.  So that is the starting point that the Tribunal takes with respect to this matter.

9. I accept the contention put by the High Court, in considering whether waiver of that privilege has occurred, that the evidentiary onus with respect to showing that a waiver has occurred falls on the party asserting that there has been a waiver.  It falls to Ms Von Stieglitz to demonstrate that the waiver has been effected by the conduct of the High Court’s representatives in these proceedings.

10. Looking at the use of the advice of 19 June 2008, I struggle to understand what kind of tactical or forensic advantage was being obtained by the High Court in its representative’s use of that advice in the proceedings before the Federal Court.  I accept that there were alternatives open to counsel for the High Court in citing paragraph 20 of that legal advice, which of course makes reference to the other advices of 10 January and 14 February 2008.  As Ms von Stieglitz has suggested, it would have been possible to make other more oblique references to the 2008 advices.  However, I do not see – by having actually quoted the paragraph – that the representative of the High Court was in fact seeking or actually obtaining some kind of forensic advantage in respect of the matter then before the Federal Court or otherwise.

11. And given that, as was pointed out, this advice was produced under protest by the High Court, I find it difficult to follow the logic of arguing that this advice essentially placed the High Court in a stronger position with respect to litigation, such that its use of the advice, or more importantly the advices of 10 January and 14 February 2008, provided or offered the circumstances where the holder of the privilege might be said to have used the privileged or protected communication to create an inaccurate perception of the content of that communication.

12. I believe that the Tribunal might find elucidation on that question by looking at the content of the quoted paragraph from the advice of 19 June 2008.  If the document which was being unprivileged in these proceedings, so to speak, disclosed the gist or the substance of the other advices that the High Court had obtained, or communications in respect of those advices, then there is some question about whether those other advices were now also freed from privilege.  But I do not believe that the reference to the contract issues are not without some risk exposures to the court in that paragraph is enough to disclose the gist or substance of those other advices.  And as such, again, I do not see where the High Court’s use of them in that context could be said to contribute to the advancement of its case in a more substantive way, such that it might be said to have waived privilege. 

13. I accept that there are circumstances where that could occur, although as Ms Von Stieglitz seemed to indicate those circumstances where entirely separate advices are shorn of their privilege and become disclosable are quite rare.  I think that the onus is squarely on an applicant attempting to prove that the documents are in fact without privilege. In this case, frankly, I do not believe that that has been demonstrated.

I certify that the preceding 13 (thirteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries

...............................[sgd].........................................

Associate

Dated 3 February 2016

Date(s) of hearing	11 November 2015
Applicant	In person
Solicitors for the Respondent	Dibbs Barker
Solicitors for the Other Party	Australian Government Solicitor