Mann v Carnell [1999] HCA 66

This version of the judgment has been prepared by: Dr Robert N Moles and Bibi Sangha
Underlining where it occurs is for editorial emphasis]

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High Court Australia 21 December 1999

On appeal from the Federal Court of Australia

Gleeson CJ, Gaudron, Gummow and Callinan JJ

The principal question in this appeal is whether legal professional privilege which attached to certain communications was lost by a subsequent disclosure of those communications. The question arose in the context of an application made by Dr Mann, to the Supreme Court of the Australian Capital Territory, for pre-trial discovery of documents. Dr Mann, believed that he had, or may have had, a right to damages against the Chief Minister for the Australian Capital Territory. The possible defamation was believed to have arisen out of the publication by the Minister to Mr Moore, a member of the Legislative Assembly of the Australian Capital Territory, of certain matter concerning Dr Mann. The matter was contained in four documents which were confidential communications between legal advisers and client, in relation to litigation. Three were advices of counsel, and one was a report from the Australian Capital Territory Government Solicitor.

It was common ground that the documents constituted written communications which were the subject of legal professional privilege. Nothing turned upon any dispute as to the test for determining the existence of such privilege. The issue was whether that privilege was lost. Dr Mann, apprehending that the advices and report contained imputations defamatory of him, sought access to the copies of the documents which were, in the circumstances set out below, provided by the Minister to Mr Moore.

The application came before Miles CJ. The matter was determined upon the basis that the decisive question was whether legal professional privilege subsisted, or had been lost. Legal professional privilege was not the only basis upon which the Minister sought to resist the application. The Minister also relied upon public interest immunity.

Miles CJ ruled against the Minister's argument based on legal professional privilege. He did not deal expressly with the subject of public interest immunity, although some of the observations in his reasons for judgment indicate that he would have held against the Minister on that question. The Minister appealed successfully to the Full Court of the Federal Court which held that legal professional privilege had not been lost.

The Full Court found it unnecessary to determine any issue of public interest immunity. The privilege which was relied upon in written and oral argument in this Court was legal professional privilege not public interest immunity.

Dr Mann was for many years a surgeon practising in the Australian Capital Territory. In 1990 and 1991 he commenced legal proceedings against the Australian Capital Territory Board of Health, certain public officials and various medical practitioners. The causes of action included breach of contract and defamation.  The litigation finally came on for hearing in September 1997. It was brought to an end on the second day of the hearing when Dr Mann accepted the sum of $400,000 paid into court on behalf of all defendants. That payment was made without any admission of liability.

During the progress of the litigation, Dr Mann had been in contact with Mr Moore, who was an Independent member of the Legislative Assembly of the Territory. On 24 October 1997 he wrote a letter to Mr Moore describing what had occurred as a "monumental waste of public funds". Mr Moore thereupon wrote to the Minister, in her capacity as Chief Minister, repeating the assertion that there appeared to have been a monumental waste of public funds, and seeking from her some assurance that this sort of situation would not occur again. He sent a copy of the letter to Dr Mann. Dr Mann told Mr Moore that he had also written to the Auditor-General. The Minister, in December 1997, replied to Mr Moore in the following terms:

"I enclose for your information, a letter from the ACT Government Solicitor to the Department of Health and Community Care setting down the particulars of the litigation over the past six years. I also attach copies of briefs received from senior counsel engaged to represent the Territory in the matter.

The settlement of $400,000 was arranged to protect the Territory's interests by avoiding the costs of a four week hearing and took into account Dr Mann's ability to pay costs had the Territory been successful in defending the matter.

Please do not hesitate to contact me if you have any further concerns in relation to this matter."

At the hearing before Miles CJ there was evidence, which was accepted, to the effect that it was established practice in the legislature of the Australian Capital Territory, and in other Australian legislatures, for Ministers, in appropriate cases, to provide members, confidentially, with background information concerning matters of Government administration. This practice assisted members of the legislature to be fully informed on issues of interest to them, and assisted Government Ministers seeking to satisfy the concerns of members, without the necessity of ventilating, in an open and adversarial context, matters which were capable of appropriate explanation. Mr Moore gave evidence that, from time to time, he sought and obtained information from the Chief Minister on a confidential basis, and that he regarded this as a useful method of discharging his responsibilities. The arrangement was relatively informal, but, if it appeared that the Chief Minister desired that information provided to him in that fashion should remain confidential, then he would respect her wishes, without compromising his capacity to pursue the subject in other ways if necessary.

Mr Moore, upon receipt of the Minister's letter to him, checked with her office as to whether the legal documents were the subject of confidentiality. Having been told that they were, he returned the documents without making any copies, saying that he was doing so out of respect for "the agreement that has been reached between you and me". He sent Dr Mann a copy of the Minister's letter, but not the enclosures, and said he had formed the view that there was no justification for taking the matter any further.

The documents enclosed in the Minister's letter to Mr Moore were copies of the four privileged communications referred to above. It is apparent that they were provided to Mr Moore for the purpose of seeking to satisfy him that the litigation, and the settlement, did not involve a waste of public funds, and that those who represented the Australian Capital Territory had acted responsibly and in accordance with legal advice. It was suggested in argument that one purpose of the Minister was to denigrate Dr Mann. No such finding of fact was made in the courts below, and such a conclusion is not supported by the evidence. It was Dr Mann who prompted Mr Moore's letter to the Minister in the first place, and her conduct in seeking to satisfy him by providing, confidentially, the legal advice upon which the Government acted, was an understandable and natural response.

Dr Mann made application for discovery of the documents which had been enclosed with the Minister's letter to Mr Moore, on the basis that he believed that they contained, or repeated, defamatory imputations, and that he had a cause of action against the Minister for publishing such matter to Mr Moore. It being acknowledged that the original written communications had been the subject of legal professional privilege, there was an issue as to whether the privilege had been lost by reason of the disclosure by the Minister to Mr Moore of those communications.

The outcome does not turn upon the particular manner in which the content of the privileged communications was disclosed to Mr Moore. The privilege attached to the communications, not to the pieces of paper on which they were written. What Mr Moore was shown were copies, but they were relevantly copies of privileged communications. The question is whether the disclosure to Mr Moore of the communications resulted in the loss of the privilege. The privilege was that of the Australian Capital Territory, but the arguments for both sides proceeded upon the assumption that the Minister, as Chief Minister, was acting within her authority in disclosing the communications to Mr Moore, and that the body politic was bound by whatever might have been the consequences of that disclosure. It was not, and could not be, argued that the body politic lost its privilege by disclosing the communications to the Minister, as Chief Minister. In her capacity as Chief Minister, she was entitled to see the legal advice given to the Territory by its lawyers. It is likely that she represented the Territory for the purpose of receiving the communication from the lawyers. Unless the privilege in the communications was lost by the disclosure to Mr Moore, then on the ground of privilege, the Minister, who had documents in her possession in her capacity as Chief Minister for the Territory, could not be required to produce them.

Waiver of privilege at common law

At common law, a person who would otherwise be entitled to the benefit of legal professional privilege may waive the privilege. It has been observed that "waiver" is a vague term, used in many senses, and that it often requires further definition according to the context. Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege. Examples include disclosure by a client of the client's version of a communication with a lawyer, which entitles the lawyer to give his or her account of the communication, or the institution of proceedings for professional negligence against a lawyer, in which the lawyer's evidence as to advice given to the client will be received.

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 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. Thus, in Benecke v National Australia Bank (1993) the client was held to have waived privilege by giving evidence, in legal proceedings, concerning her instructions to a barrister in related proceedings, even though she apparently believed she could prevent the barrister from giving the barrister's version of those instructions. She did not subjectively intend to abandon the privilege. She may not even have turned her mind to the question. However, her intentional act was inconsistent with the maintenance of the confidentiality of the communication. 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.

In Goldberg v Ng (1995) 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 to the statement of Jordan CJ in Thomason v The Council of The Municipality of Campbelltown (1939):

"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".

Reference was also made to British Coal Corporation v Dennis Rye Ltd(No 2) (1988) and Goldman v Hesper (1988) in which the English Court of Appeal held that, in the circumstances of those cases, disclosure to a third party for a limited and specific purpose did not lead to a loss of the privilege as against a person opposed in litigation. To like effect is the recent decision in Gotha City v Sotheby's(1998).

It does less than justice to the Minister's position to describe what occurred in the present case as disclosure to a third party. The privilege was that of the body politic, the Australian Capital Territory. The head of the Territory's Executive, the Chief Minister, in response to a question raised by a member of the Territory's Legislative Assembly as to the reasonableness of the conduct of the Territory in relation to certain litigation, gave the member, confidentially, access to legal advice that had been given to the Territory, and on the basis of which it had acted. Although "disclosure to a third party" may be a convenient rubric under which to discuss many problems of this nature, it represents, at the least, an over-simplification of the circumstances of the present case.

The purpose of the privilege was to enable the Australian Capital Territory to seek and obtain legal advice, in relation to the litigation which Dr Mann had instituted, without the apprehension of being prejudiced by subsequent disclosure of that advice. That included, and perhaps included above all, subsequent disclosure to Dr Mann. If Mr Moore had been given copies of the legal report and advice given to the Territory in relation to the proceedings brought by Dr Mann upon the basis that he was at liberty to show them to Dr Mann, (even if to nobody else), that would have waived the privilege, because it would have been inconsistent with the confidentiality protected by the privilege. It is not difficult to imagine other circumstances in which the basis on which the communications were made available to Mr Moore, even though limited, would have been inconsistent with the purpose of the privilege and thus would have resulted in waiver. Disclosure by a client of confidential legal advice received by the client, which may be for the purpose of explaining or justifying the client's actions, or for some other purpose, will waive privilege if such disclosure is inconsistent with the confidentiality which the privilege serves to protect. Depending upon the circumstances of the case, considerations of fairness may be relevant to a determination of whether there is such inconsistency. The reasoning of the majority in Goldberg illustrates this.

The purpose of the privilege being to protect the Territory from subsequent disclosure of the legal advice it received concerning the litigation instituted by Dr Mann, there was nothing inconsistent with that purpose in the Chief Minister conveying the terms of that advice, on a confidential basis, to a member of the Legislative Assembly who wished to consider the reasonableness of the conduct of the Territory in relation to the litigation. The conclusion of the Full Court of the Federal Court, that privilege was not lost, was correct. The appeal should be dismissed with costs.

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