Allen v The Queensland Local Government Superannuation Board
[2015] QDC 237
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- Unreported Judgment
- Appeal Determined (QCA)
- Allen v The Queensland Local Government Superannuation Board[2015] QDC 237
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Allen v The Queensland Local Government Superannuation Board[2015] QDC 237
Allen v The Queensland Local Government Superannuation Board[2015] QDC 237
DISTRICT COURT OF QUEENSLAND
CITATION: | Allen v The Queensland Local Government Superannuation Board [2015] QDC 237 |
PARTIES: | LYNDA ALLEN v THE QUEENSLAND LOCAL GOVERNMENT SUPERANNUATION BOARD |
FILE NO/S: | 4549/14 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court of Brisbane |
DELIVERED ON: | 24 September 2015 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 17 September 2015 |
JUDGE: | Smith DCJA |
ORDER: |
|
CATCHWORDS: | PRIVILEGE – legal professional privilege – whether privilege waived. Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1995) 37 NSWLR 405 Attorney-General (NT) v Maurice (1986) 161 CLR 475 Bennett v Chief Executive Officer Australian Customs Service (2004) 140 FCR 101; 210 ALR 220 College of Law Ltd v Australian National University [2013] FCA 492 Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341; 229 ALR 304 Expense Reduction Analysts Group Pty & Ors v Armstrong Strategic Management and Marketing Pty Ltd & Ors (2013) 250 CLR 303 Finch v Telstra Super Pty Ltd (2010) 242 CLR 254 GMGC LLC v Agenix Pty Ltd [2007] QSC 309 Mann v Carnell (1999) 201 CLR 1 Nolan v Nolan & Ors [2013] QSC 140 Osland v Secretary, Department of Justice (2008) 234 CLR 275 Rich v Harrington (2007) 245 ALR 106; [2007] FCA 1987 Secretary, Department of Justice v Osland (2007) 95 ALD 380 Switchcorp Pty Ltd and Others v Multimedia Ltd [2005] VSC 425 Tarong Energy Corporation Ltd v South Burnett Regional Council [2010] 1 Qd R 575 Telstra Corporation Ltd & Anor v BT Australasia Pty Ltd & Anor (1998) 85 FCR 152; 156 ALR 634 |
COUNSEL: | Mr P. Bingham for the plaintiff Mr J. Dillon for the defendant |
SOLICITORS: | Maurice Blackburn for the plaintiff King & Co for the defendant |
Introduction
- [1]This is an application by the plaintiff for disclosure by the defendant of legal advice given by King & Co to the defendant on or about 16 October 2013.
Pleadings
- [2]The plaintiff has issued proceedings against the defendant for a declaration that decisions of the defendant refusing the payment of a total and permanent disablement (“TPD”) benefit under the trust deed of the Local Government Superannuation scheme are void and of no effect; a declaration that she is entitled to a TPD benefit under the trust deed and an order that she paid the same; alternatively damages or alternatively an order that the defendant give reasons for its decisions.
- [3]In the statement of claim the plaintiff alleges that at all material times she was a defined benefit member of the fund.[1]She says that she became totally and permanently disabled within the meaning of those terms under the fund rules[2]in that she ceased work with an employer through injury or illness for six consecutive months; in that she suffered from workplace bullying and harassment, fibromyalgia, chronic fatigue syndrome, depression, panic disorder, osteoarthritis, myalgic encephalitis, as a result of which she required medication, and she ceased work because of these conditions on 11 January 2002 and has not been able to work since.[3]
- [4]It is alleged the defendant ought to have formed the opinion that the plaintiff had become incapacitated to such an extent as to render her unlikely to ever to resume work in any gainful occupation for which she was or might reasonably be qualified by reason of education, training or experience.[4]She alleges that there was a refusal to pay the benefit on 20 May 2002.[5]There was a further refusal to pay the benefit on 9 December 2002.[6]It is alleged that the reasons given in the second decision were not sound.[7]The plaintiff sought a review of the second decision which was refused and the reasons for this were not sound.[8]
- [5]The plaintiff sought a review of the fund decision. She provided evidence in support of this in 2011, 2012, 2013 and 2014 including medical reports, Medicare records, a Centrelink file and taxation office records.[9]She alleges that on or about 4 September 2014 the Board refused the third fund claim and refused to pay the TPD benefit.[10]
- [6]It is alleged that the reasons given for this decision were not sound.[11]It is alleged the defendant had various duties when considering this decision, in particular, to exercise any discretion in good faith and with real and genuine consideration.[12]In refusing the claims the defendant breached the duties pleaded.[13]It is further alleged the plaintiff ceased employment by reason of the total and permanent disability[14]and in the premises the defendant is liable to pay the plaintiff a benefit pursuant to the fund claims.[15]
- [7]The defendant in its defence admits that the plaintiff ceased work with the Gold Coast City Council on 11 January 2002 and asserts the plaintiff said in her claim form that the nature of her incapacity was a severe reactive depression and severe anxiety attacks due to workplace bullying and harassment.[16]The defendant further denies that she ceased work because of all the medical conditions alleged and further denies the plaintiff has been unable to work since 11 January 2002 as she has had an ability to work for a different employer since 11 January 2002 and the tax returns indicate she has received some income in the 2003, 2004 financial years.[17]The defendant alleges the formation of its opinion that she had not ceased employment by reason of the TPD was reasonable on the material before it.[18]It alleges that its decisions were sound ones. As regard the most recent application the defendant admits the plaintiff sought a review of its decision by letter dated 1 October 2011.[19]It alleges no reasons were given by the Board in respect of its decision[20]and says that its decision was sound.[21]It denies that it breached any duties alleged and it exercised its discretion in good faith with genuine and real consideration in accordance with the purposes for which the discretion was conferred and took into account all relevant considerations and did not take into account any irrelevant ones.[22]
- [8]The defendant further alleges that the plaintiff was not at any material time incapacitated to such an extent as to render her unlikely ever to work in any gainful occupation for which she is, or may become, reasonably qualified by way of education, training or experience and the defendant reasonably forms an opinion that the plaintiff was not entitled to a benefit for total and permanent disablement.[23]
Relevant evidence
- [9]Lachlan Main in an affidavit filed 7 September 2015[24]produces a number of documents. Exhibits LJM2 and LJM3 were disclosed by the defendant during the disclosure process.
- [10]LJM2 is said to be a “complaint log”. In that document there is a notation that “on 26 June 2013 the defendant received a letter from Maurice Blackburn requesting a review of decision: denied TPD claim. Further, on 30 July 2013 the matter was referred to King & Co for legal opinion on whether the Board needed to re-examine the claim, given two previous denials, and they referenced to the tribunal. On 16 October 2013 the board received legal advice from King & Co, the board needs to reconsider the claim based/given new evidence supplied.”
- [11]LJM3 is a further document disclosed by the defendant. This document is headed “the Queensland Local Government Superannuation Board Incapacity Claim Submission for Consideration by the Board”. The board meeting date was noted to be 3 September 2014. A recommendation was made:
“it is recommended that the board uphold its earlier decision to decline the claim for total and permanent disablement for Lynda Lorraine Allen for the purpose of the trust deed. See over for details.”
- [12]A chronology of events with reference to doctors’ reports was then provided. At page 3 the following was noted:
“In a letter to the board received on 26 June 2013, Ms Allen’s appointed lawyers, Maurices Blackburn, requested the board to again review its decision to deny her claim for payment of a total and permanent disablement benefit. To support the claim a report from Dr Bankole Sotard dated 20 May 2009, a report from Dr Morris Bersin dated 12 December 2012 and a letter dated 13 February 2013 and a medical certificate dated 26 November 2012 from Dr Robert Cargill was provided. On 30 July 2013, the matter was referred to King & Co for legal opinion to determine if the board is obligated to re-examine the claim given the passage of time since the claim was first lodged and the two previous assessments of the claimant being declined. And in their response to the board dated 16 October 2013 King & Co confirmed that the board is required to reconsider the claim based on that fact that new medical evidence was supplied.”
- [13]The ultimate recommendation was signed by Robert Pare, insurance manager, on 4 September 2014. It was noted that at the Board meeting on 3 September 2014 the Board approved to decline this claim as per the recommendation.
- [14]On 25 September 2014, in response to a letter from the plaintiff’s solicitors, the defendant stated it based its decision on the following issues:
- (a)there appeared to be new evidence demonstrating Ms Allen suffered from an adjustment disorder when anxiety, depressed mood and fibro myalgia from prior to 2002 but there remained insufficient evidence to demonstrate those conditions constituted TPD in 2002;
- (b)a review of the new evidence provided to reopen the claim and further information received provided inconsistency in aspects of the case;
- (c)a review of the Board’s previous decisions on 16 May 2002, 4 December 2002 and 6 September 2006 provided no suggestion that the claim was not given fair and reasonable consideration, nor were any of the decisions unfair or unreasonable;
- (d)the plaintiff was advised she was entitled to request reasons.
- [15]The plaintiff was advised there could be an appeal to the Superannuation Complaints Tribunal.
- [16]As indicated previously, during the disclosure process, the complaint log and the submission for the Board’s consideration were disclosed by the defendant’s solicitors. On 17 August 2015 the plaintiff’s solicitors requested a copy of the legal advice and alleged it was not protected by legal professional privilege. The defendant’s solicitors by letter dated 18 August 2015[25]alleged the advice was not relevant and would not be disclosed.
- [17]In a further letter dated 21 August 2015[26]the plaintiff’s solicitor’s alleged that the advice was relevant as it was an issue whether the defendant had failed to take into account all relevant considerations and had taken into account irrelevant considerations, requesting the advice once again. By way of response in a letter dated 2 September 2015[27]the defendant’s solicitors again reiterated that the advice was not relevant to an issue on the pleadings.
- [18]Mark Williams a solicitor from the firm acting for the defendant[28]alleges that the letter of advice dated 15 October 2013 addressed four discreet issues, only one of which concerns the subject matter of correspondence exchanged. The defendant objected to disclosure of the letter on the grounds of legal professional privilege.
- [19]On 7 September 2015 the plaintiff filed further and better particulars of the statement of claim providing particulars of any relevant considerations relied upon. In particular, as to irrelevant considerations it was said:
“The defendant took into account in considering the funds claimed, the following irrelevant considerations:
- (g)whether the defendant was legally obliged to re-examine the claim given the passage of time since the first claim was lodged and the two previous assessments of the claim had been declined.
- (h)the preference of the defendant not to re-examine the claim.”
- [20]Mr Williams in a further affidavit[29]swears that at no time was he instructed to waive privilege with the respect to his advice and it was never his intent during disclosure that privilege be waived. He says that to the extent that the disclosure of the complaint log and claim submission report would have the effect of waiving privilege, this was mistaken.
- [21]In an affidavit filed 16 September 2015[30]Robert Pare, the manager of Insurance LG Super, swears that the defendant’s officers received the legal advice on or about 15 October 2013. He was responsible for the preparation of the submission for consideration to the Board. He states:
“I am personally aware that the board was not provided with a copy of the legal advice from King & Co solicitors dated 15 October 2013.”
- [22]He says that at no stage did he wish to waive privilege, nor had he provided instructions to King & Co in that regard.
Relevance of the document
- [23]The plaintiff submits that on the particulars the advice is relevant, even if the advice was not physically before the Board, Mr Pare is the Board’s officer and it was before him and the affidavit by him does not fully disclose all dealings with the advice.
- [24]The defendant on the other hand submits that the advice was not before the Board and therefore it is irrelevant to the ultimate decision made.
- [25]The evidence before the Court clearly indicates that the advice was not before the Board when it made its decision. There is no evidence contrary to that sworn by Mr Pare. However I do not consider this to be the end of the matter.
- [26]Mr Pare at all times was an agent of the defendant. Indeed this is shown by his claim for privilege on behalf of the defendant. The advice was used in the preparation of the submission to the Board. The Board relied upon the submission significantly and indeed adopted the recommendations contained therein.
- [27]I note that the Board requested the advice and that the advice was addressed to the Board.
- [28]In those circumstances bearing in mind the further particulars I consider reliance on the ultimate advice was relevant to the conclusion reached by the defendant and therefore the advice is relevant to the issues here.
- [29]I also note that Mr Pare does not swear he was not present when the defendant made its decision nor does he swear he did not discuss the contents of the advice with the decision maker.
- [30]Ultimately in this case the Court will need to decide whether the decision was made in good faith with real and genuine consideration and in accordance with the purposes for which the discretion was conferred.[31]
Has privilege been waived?
- [31]The next issue is whether privilege has been waived here.
- [32]It is common ground that the advice attracted legal professional privilege.
- [33]The plaintiff submits that the privilege was waived here by the reference to the advice in the two documents.
- [34]The defendant on the other hand submits there was no waiver and disclosure of that part of the document referring to the documents was a mistake and the plaintiff should not take advantage of this.
Relevant principles
- [35]There is no doubt that a person may waive privilege. It is the client who is entitled to the benefit of the confidentiality. Waiver may be express or implied and “disputes as to waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of confidentiality which the privilege is intended to protect.”[32]Further considerations of fairness are relevant as regards the conduct of the client and the maintenance of the confidentiality “not some overriding principle of fairness operating at large.”[33]
- [36]In Bennett v Australian Customs Service[34] the Full Court of the Federal Court considered a situation where the parties were involved in proceedings. The applicant sought documents under the Freedom of Information legislation. There was a letter dated 28 September 1999 from the Australian Government Solicitor to the applicant’s solicitors which proposed a settlement of the litigation. The letter noted that:
“I note that in reaching the subject decisions the First Respondent construed [the Regulation] broadly, in the light of legal advice which had been provided to him. As a consequence of the proceedings instituted by your client, the correctness of this legal advice has been reconsidered. AGS has now advised Customs that [the Regulation] does not prohibit all public comment by an officer on matters of public administration. Rather, the sub-regulation must be construed or ‘read down’ so as not to apply to public comment on matters of administration which are already on the public record. … AGS has advised Customs that your client is not correct in asserting that he is not subject to the Act and Regulations if he makes public statements about Customs-related matters in his capacity as President of the COA.”
- [37]It was held by the majority (Emmett J dissenting) that privilege had been waived with respect to the advice in the letter Tamberlin J held at [5] that it was apparent the substance and effect of the advice was being communicated in order to emphasise the strength that the case made against Mr Bennett. His Honour held at [6] it would be inconsistent and unfair having disclosed and used the substance of the advice to seek to maintain privilege in respect of parts of the advice pertaining to the expressed conclusion. His Honour held that there was imputed waiver of the privilege. His Honour did note that the mere reference to the existence of legal advice would not amount to waiver of its contents. His Honour further held at [14] that the weight of the authority supported disclosure of the conclusion reached in, or the course of action recommended by the advice, can amount to a waiver of privilege. Importantly, at [14] his Honour stated:
“Disclosure of one conclusion but not others in an advice does not necessarily amount to waiver in respect of the non-disclosed conclusions. However, if the conclusions and reasoning are so interconnected that they cannot be separated or isolated then it may be that the whole of the advice on which all of those conclusions are based must be considered to have been waived.”
- [38]Gyles J held at [65] that the voluntary disclosure of the gist or conclusion of the legal advice amounts to waiver.
- [39]Now, the defendant here submitted that some caution should be applied to the decision in Bennett in light of the decision in Secretary, Department of Justice v Osland.[35]In Osland Mrs Osland had been found guilty of murdering her husband. She submitted a petition for mercy which was refused by the Attorney-General. On 6 September 2001 the Attorney-General in a press release stated:
“Following consultation with the state opposition, I appointed a panel of three senior counsel, Susan Crennan QC, Jack Rush QC and Paul Holdenson QC, to consider Mrs Osland’s petition. This week I received a memorandum of joint advice from the panel in relation to the petition. The joint advice recommends on every ground that the petition should be denied. After carefully considering the joint advice, I have recommended to the Premier the Governor be advised to deny the petition. The Governor has accepted this advice and denied the petition.”
- [40]Mrs Osland, in reliance on Bennett, submitted that the Attorney-General had waived privilege. Maxwell P at [29], with respect to the statement by Gyles J at [65] in Bennett, stated:
“As will appear, this statement has been applied subsequently as if it were a rule of general application. For reasons which follow, I am respectfully unable to accept that any such general rule is either justified by the authorities or compatible with the inconsistency test as enunciated in Carnell. Although Tamberlin J expressed agreement with the reasons of Gyles J, his Honour went on to express his own view in terms which are inconsistent with the generality of the proposition enunciated by Gyles J.”
- [41]Maxwell P, after analysing a number of authorities, determined that the authorities did not establish any general rule that a statement which reveals the contents of a legal advice, even in a summary way or by reference to a conclusion, would result in a waiver. His Honour held at [42]:
“Whether there is imputed waiver in any given case is a question to be determined in the circumstances of that case.”
- [42]Maxwell P at [46] considered the correct position was that stated by Tamberlin J in Bennett and ultimately held at [49] that:
“Disclosure of the conclusion (or the gist, substance or effect) of legal advice may, or may not, amount to a waiver of privilege in respect of the advice as a whole. Whether it does in a particular case will depend on whether, in the circumstances of the case, the requisite inconsistency exists, between the disclosure on the one hand and the maintenance of confidentiality on the other… [50]. The content of an advice will often include confidential information about instructions given by the client, or about evidence to be given by a witness, or about forensic investigations being or proposed to be undertaken. These examples are sufficient to demonstrate why it is simply not the case that the disclosure of the conclusions necessarily amounts to, or necessarily entails, the disclosure of the content. There is no necessary inconsistency between of the one and nondisclosure of the other.”
- [43]In the result the Court upheld the Attorney’s claim. The High Court agreed that the privilege in the joint advice had not been waived. The High Court agreed with the decision of Maxwell P on this point.[36]At [45] the plurality held:
“Waiver of the kind presently in question is somewhat timed to described as implied waiver and sometimes as waiver imputed by operation of law. It reflects a judgement that the conduct of the party entitled to the privilege is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. Such a judgment is to be made in the context and circumstances of the case, and in light of any considerations of fairness arising from that context or those circumstances…
[46] The conduct of the Attorney-General in issuing the press release and including in it certain information about the joint legal advice is to be considered in context, which includes the nature of the matter in respect of which the advice was received, the evident purpose of the Attorney-General in making the disclosure that was made, and the legal and practical consequences of limited rather than complete disclosure…”
- [44]It was held that the reasoning of Maxwell P was correct.[37]
- [45]The defendant relied on Expense Reduction Analyst Group Pty Ltd & Ors v Armstrong Strategic Management and Marketing Pty Ltd & Ors[38]. In that case, during the discovery process, the firm claimed that a number of documents, the subject of client legal privilege, had inadvertently been disclosed but the opposing firm of solicitors refused to return the documents. The plurality at [20] noted:
“It may be accepted that a continuing intention to claim privilege is relevant to the question of whether there has been a waiver of the privilege. But it was not necessary to prove a continuing intention to show that a review of formed intention with respect to each document at the time it was listed. It was sufficient to prove that the ERA parties intended to maintain their claims to privilege and that the reviewers were carrying out their client’s instructions. From that point defective mistake in the incorrect listing of the documents could be inferred. The evidentiary value of the correct listing of the nine duplicate documents in the privilege sections is to confirm specifically that their contrary listing as non-privilege resulted from an error and to suggest more generally that mistakes were being made in the process of listing.”
- [46]At [30] the Court held:
“According to its strict legal connotation, waiver is an intentional act done with knowledge whereby a person abandons a right or privilege by acting in a manner inconsistent with that right (or privilege). It may be expressed or implied. In most cases concerning waiver, the area of dispute is whether it is to be implied. In some cases waiver will be imputed by the law with the consequence that a privilege is lost even although that consequence is not intended by the party losing the privilege. The courts will impute an intention where the actions of the party are plainly inconsistent with the maintenance of confidentiality which the privilege is intended to protect.”
- [47]It was further held at [45]:
“Although discovery is an inherently intrusive process, it is not intended that it be allowed to effect 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.”
- [48]It was ultimately held that there was no waiver of privilege in that case.
- [49]The parties referred to a number of other cases on the question.
- [50]The High Court in Attorney-General (NT) v Maurice[39] considered a situation where a claim book was prepared by the applicant in a native title claim. The claim book was circulated to the parties but the tender of it in the proceedings was not formally accepted or rejected. It was held there was no waiver of the source materials. Gibbs CJ noted at p 481 referring to Wigmore that when considering waiver there may come a point where despite the intention of the claimant fairness requires that the privilege shall cease. He cannot disclose as much as he pleases and withhold the remainder.[40]
- [51]In Nolan v Nolan and Others[41] Ann Lyons J was concerned with an action where the plaintiff had sued her parents in law claiming a trust or lien over farming land on property owned by the defendants. The plaintiffs had sought legal advice as to estate planning and wills. Relevant documents were disclosed by the plaintiffs’ former solicitors during non-party disclosure. The defendants sought to claim privilege on the advice. Her Honour concluded that privilege was waived and noted as a matter of consistency and fairness they should be disclosed.
- [52]On the other hand in Tarong Energy Corporation Ltd v South Burnett regional Council[42] the Court of Appeal was concerned with a claim for privilege relating to confidential legal advice obtained by the appellant concerning budget and rating resolutions. The advice was considered at a meeting closed to the public under s 463 of the Local Government Act. The court held there was no unfairness in maintaining the privilege bearing in mind the Council had not disclosed any part of the opinion nor sought to rely on it during the litigation.[43]
- [53]Rich v Harrington[44] was a case considered by Branson J in the Federal Court. The applicant a former partner of PwC had lodged a complaint in HREOC that PwC had unlawfully discriminated against her. The central allegation was that an act of victimisation of her had been committed with the approval of the Board of Partners. In the defence the partners had pleaded that restrictions were placed upon her but that these were imposed in good faith and in the best interests of the firm. The applicant contended that this defence put in issue the Board’s state of mind and therefore privilege was waived as to legal advice received by the Board. Her Honour held that privilege was not waived as the defence did not raise questions of reliance on the legal advice. I consider this case to be a different one to the instant case as we know that legal advice was used in the submission and in reaching the recommendation made.
- [54]In Commissioner of Taxation v Rio Tinto Ltd[45] the Full Court of the Federal Court considered a claim for privilege where Rio had filed applications for review of the Commissioner’s objection decisions. Rio sought access to alleged privileged audit reports. The primary judge ordered production of the documents as the Commissioner had waived the privilege as they were relevant to the Commissioner’s state of mind. The Court noted at [47] that each case depends on its own facts. The Court held at [52] that “Where the privilege holder has put the contents of the otherwise privileged communication in issue, such an act can be regarded as inconsistent with the confidentiality that would otherwise pertain to the communication.” The governing principle is whether the privilege holder had directly or indirectly put the contents of the privileged communication into issue.[46]Ultimately it was held that while the Commissioner had not said the documents were relevant to reaching his state of satisfaction he did take into account inter alia the privileged documents.[47]It followed that there was an inconsistency between making the assertion and the claim for privilege.
- [55]In College of Law Ltd v Australian National University[48] the Court was concerned with a situation where the College had brought proceedings against the ANU for trade mark infringement and for misleading and deceptive conduct arising from the use of the applicant’s name. By way of background ANU decided to restructure and had sought legal advice on the use of the name “ANU College of Law.” Disclosure of this advice was sought. Griffiths J noted at [23] the general principles noting that the onus was on the party making the claim. His Honour also noted at [24] that privilege may be waived regardless of intention. Ultimately his Honour found against waiver. Unlike the present case his Honour noted that the purpose of the disclosure was not to secure some advantage to the ANU which had an adverse impact of the College. The purpose of disclosure was to keep interested people informed of this publicly funded institution. In the present case of course the ultimate decision has adversely affected the plaintiff’s rights.
- [56]In GMCG LLC v Agenix Ltd[49]Douglas J refused to order disclosure of legal advice to the defendant. The defendant was a company sued by the plaintiff for fees claimed to be owed under an agreement whereby the plaintiff acted as a financial adviser to the defendant concerning a merger and acquisition. The defendant had lodged a preliminary final report with the ASX in which it noted concerning the litigation that it had received legal advice that it had no liability and if the matter proceeded to trial its “potential exposure is estimated at $820,000”. There was uncontradicted evidence that this disclosure occurred because of the relevant accounting standard. I consider this case to be different to the instant one. The advice was not made an issue in the proceedings.[50]It was not a case where disclosure was made for forensic advantage.
- [57]A different approach was taken by Whelan J in Switchcorp Pty Ltd and Others v Multimedia Ltd[51] a case relied on by the plaintiff in correspondence. The facts were similar to those in GMCG. His Honour considered that authority supported the proposition that a statement which reveals the contents of legal advice even only in a summary way will probably result in waiver and ordered disclosure. However it must be borne in mind that Maxwell P in Osland[52] in effect thought the line of authority relied on was not correct so I do not place weight on this decision.
- [58]Some other cases are of relevance.
- [59]In Benecke v National Australia Bank[53] it was held that the client had waived privilege where she gave evidence as to her instructions to a barrister even though she may not have turned her mind to the question of privilege. In this case she made the issue of instructions relevant in the pleadings.
- [60]I consider the decision of Telstra Corporation Ltd and Anor v BT Australasia Pty Ltd and Anor[54] also to be relevant. In that case it was there where a party’s state of mind is in issue in an action and where the matter cannot be fairly assessed without examination of relevant legal advice then the party is taken to having waived reliance of privilege. In my view the Board’s “state of mind” is a very relevant issue in this case.
- [61]Another case of relevance is Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd[55]. In that case Giles CJ held that the respondent was obliged to give discovery of documents which went to the state of mind of the respondent in entering into a trust deed. His Honour held “... having exposed to scrutiny their corporate states of mind, being states of mind to which their legal advice is likely to have contributed GPG cannot withhold the advice from their opponent.” Again in the instant case I note that the defendant has put in issue whether the decision was a reasonable one and has alleged it acted properly (in a legal sense) and on reasonable grounds.
Disposition
- [62]In my view, after having considered the authorities taking into account the principles of fairness and consistency, privilege has been waived for the following reasons.
- [63]Very relevant to the conclusion to be reached by the Court is the approach taken by the Board in reaching its decision. It seems to me that the submission was a crucial document in this regard. Integral in that submission was a reference to the conclusions expressed in the legal advice. As noted the defence specifically alleges the decision was made in good faith taking into account all relevant considerations and no irrelevant ones (para 22).
- [64]The submission is certainly a disclosable document in this action as it goes to the heart of the decision here. This was not a meeting held behind closed doors like e.g. in the Tarong Energy case. Tarong is also distinguishable as no part of the advice was used or disclosed in that case.
- [65]The reasons and the approach taken by the Board should be open to scrutiny bearing in mind the issues to be considered in this action as outlined in Finch.[56]
- [66]The state of mind of the Board is a very relevant matter. The legal advice goes to the state of mind. The board here adopted in full the recommendation of its officer who considered the legal advice in making his recommendation.
- [67]I consider the advice has either directly or indirectly been put in issue in these proceedings.
- [68]In those circumstances the principles of fairness and inconsistency dictate that a conclusion should be reached that privilege was waived.
Is all of the advice disclosable?
- [69]In this regard as I noted above the High Court has said in Attorney-General (NT) v Maurice[57]that the whole document has become disclosable.
- [70]I therefore order disclosure of the whole document.
- [71]I will hear the parties on the question of costs.
Footnotes
[1] Paragraph 4 of the statement of claim.
[2] The rules are pleaded at paragraph 3 of the statement of claim.
[3] Paragraph 5 of the statement of claim.
[4] Paragraph 6 of the statement of claim.
[5] Paragraph 8 of the statement of claim.
[6] Paragraph 10 of the statement of claim.
[7] Paragraph 12 of the statement of claim.
[8] Paragraphs 14 and 15 of the statement of claim.
[9] Paragraph 17 of the statement of claim.
[10] Paragraph 18 of the statement of claim.
[11] Paragraph 20 of the statement of claim.
[12] Paragraph 21 of the statement of claim.
[13] Paragraph 22 of the statement of claim.
[14] Paragraph 23 of the statement of claim.
[15] Paragraph 24 of the statement of claim.
[16] Paragraph 5(a)-(b) of the defence.
[17] Paragraph 5(c) and (d) of the defence.
[18] Paragraph 6 of the defence.
[19] Paragraph 16 of the defence.
[20] Paragraph 19 of the defence.
[21] Paragraph 20 of the defence.
[22] Paragraph 22 of the defence.
[23] Paragraph 24 of the defence.
[24] Document 8.
[25] Exhibit LJM4, affidavit of Lachlan Main filed 7 September 2015 (document 8).
[26] Exhibit LJM5, affidavit of Lachlan Main filed 7 September 2015 (document 8).
[27] Exhibit MFW3, affidavit of Mark Williams filed 16 September 2015 (document 12).
[28] Affidavit of Mark Williams filed 9 September 2015 (document 10).
[29] Affidavit filed 16 September 2015 (document 12).
[30] Document 11.
[31]Finch v Telstra Super Pty Ltd (2010) 242 CLR 254 at [28].
[32]Mann v Carnell (1999) 201 CLR 1 at [28-29].
[33] Ibid. at [29].
[34] (2004) 140 FCR 101; 210 ALR 220.
[35] (2007) 95 ALD 380 approved by the High Court in Osland v Secretary, Department of Justice (2008) 234 CLR 275.
[36] Ibid. at [33]-[35].
[37] Ibid. at [50].
[38] (2013) 250 CLR 303.
[39] (1986) 161 CLR 475.
[40] See also Gibbs CJ at p 482.1.
[41] [2013] QSC 140.
[42] [2010] 1 Qd R 575.
[43] Ibid. at [34] per Fraser JA.
[44] (2007) 245 ALR 106; [2007] FCA 1987.
[45] (2006) 151 FCR 341.
[46] Ibid. at [61].
[47] Ibid. at [72].
[48] [2013] FCA 492.
[49] [2007] QSC 309.
[50] Ibid. at [18].
[51] [2005] VSC 425 at [12].
[52] Op. Cit. 35 at [38].
[53] (1993) 35 NSWLR 110.
[54] (1998) 85 FCR 152; 156 ALR 634.
[55] (1995) 37 NSWLR 405 at 411.
[56] Op. Cit. 31.
[57] (1986) 161 CLR 475.