Attorney-General (NT) v. Maurice
(1986) 161 CLR 475(Judgment by: Gibbs CJ)
Between: Attorney-General (NT)
And: Maurice
Judges:
Gibbs CJMason J
Brennan J
Deane J
Dawson J
Subject References:
Practice
Judgment date: 16 December 1986
Judgment by:
Gibbs CJ
1. These appeals are from a judgment of the Full Court of the Federal Court of Australia. The appellant, the Attorney-General for the Northern Territory of Australia, had sought in that court to challenge, by the alternative means of an application for judicial review and an application for a writ of mandamus, a decision of Maurice J., sitting as Aboriginal Land Commissioner, that he should not require the production of certain documents sought by the appellant. Maurice J. held that the documents sought to be produced were the subject of legal professional privilege and that the privilege had not been waived. The Full Court, which agreed with these conclusions, dismissed the application for judicial review and discharged the order nisi for mandamus.
2. The proceedings relate to an application ("the Warumungu Land Claim") made in 1978 on behalf of Aboriginals claiming to be traditional Aboriginal owners of a number of areas of land near Tennant Creek. The application was made under s.50(1)(a) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), as amended ("the Act"). The Act does not deal in detail with the procedure to be followed by an applicant, but a procedure has developed under which an applicant lodges a claim book with the Commissioner and a practice direction, made by Toohey J. when Aboriginal Land Commissioner, in pursuance of power given by s.51 of the Act, provides that except in special circumstances no date will be fixed for the hearing of such an application until the claim book relating to that application has been lodged with the Commissioner's associate. The claim book not only gives particulars of the claim but may also go into considerable detail (historical, anthropological and ethnological) in support of the claim. In September 1982 a claim book ("the 1982 Claim Book") prepared on behalf of the claimants was lodged with the Aboriginal Land Commissioner (then Kearney J.) and copies were distributed to the lawyers representing other parties, including those representing the appellant. It is a substantial document, occupying 447 pages of the appeal book. When the inquiry commenced before Kearney J. later that year, counsel for the claimants tendered the claim book, but the tender was never formally accepted or rejected. Counsel also made one or two references to the claim book in the course of his opening address on behalf of the claimants.
3. The proceedings before Kearney J. were adjourned to enable a question of jurisdiction to be determined by this Court. After that question had been settled in favour of the claimants, the hearing resumed de novo before Maurice J. in March 1985. The claimants then did not rely on the 1982 Claim Book but instead used a document described as a "guide". Nevertheless there were some references to the 1982 Claim Book by counsel for the claimants in the course of his examination of two witnesses. Subsequently, at the instance of the appellant, Maurice J. made an order under s.54 of the Act requiring the production of documents some of which had been prepared for the purposes of the land claim and formed source material for the 1982 Claim Book. It was objected that those documents were protected by legal professional privilege and Maurice J. found that the documents now in question were so protected.
4. The documents in question are not specifically mentioned in the 1982 Claim Book, and no passages from them are set out in that book. They apparently comprised field notes and working records which were used in the compilation of the claim book. The appellant does not now challenge the finding that those documents were originally the subject of legal professional privilege but submits that the privilege was waived when the claim book of which they were the source was distributed and used. The matter was argued as though the question in issue was whether source material is waived by a waiver of the privilege in respect of a document derived from that source material. Although it does not matter, it does not seem to me right to suggest that the 1982 Claim Book was privileged. It was not a document which had been brought into existence for the sole purpose of being submitted to legal advisers for advice or use in legal proceedings: see Grant v. Downs (1976) 135 CLR 674 . On the contrary the completed claim book (any drafts were no doubt in a different situation) was intended to be, and was, communicated to all the parties concerned and it was open to any party to make any proper use of it. However, if the claim book had been privileged, there can be no doubt that the distribution of the copies would have waived the privilege. On either view the question is whether the publication and use of the claim book constituted a waiver of the privilege in respect of the documents which formed some of its sources.
5. The rule which recognizes legal professional privilege goes back at least to the time of Elizabeth I (see Wigmore on Evidence, McNaughton rev., vol.VIII, par.2290) but that does not mean that it is archaic, technical or outmoded. Without the privilege, no one could safely consult a legal practitioner and the administration of justice in accordance with the adversary system which prevails at common law would be greatly impeded or even rendered impossible. This has been recognized in many cases: see, for example, Grant v. Downs, at p 685; Reg. v. Bell; Ex parte Lees (1980) 146 CLR 141 , at p 152; Baker v. Campbell (1983) 153 CLR 52 , at pp 66, 94, 114. In the last-mentioned case, the majority of the Court described the rule as fundamental or essential (see at pp.88, 95, 116-117, 131-132) and held that it was not confined to judicial or quasi-judicial proceedings. However like every privilege properly so called it can be waived, although only by the person entitled to claim it, that is the client, and not the client's legal representative.
6. There was of course no express waiver in the present case and there is nothing to suggest that the claimants had any actual intention to waive privilege in the source documents. The principle applicable in these circumstances seems to me to be well stated in Wigmore, op.cit., par.2327:
"In deciding it, regard must be had to the double elements that are predicated in every waiver, i.e., not only the element of implied intention, but also the element of fairness and consistency. A privileged person would seldom be found to waive, if his intention not to abandon could alone control the situation. There is always also the objective consideration that when his conduct touches a certain point of disclosure, fairness requires that his privilege shall cease whether he intended that result or not. He cannot be allowed, after disclosing as much as he pleases, to withhold the remainder. He may elect to withhold or to disclose, but after a certain point his election must remain final."
7. The decisions in which this question has been considered seem to me to be particular applications of the rule that in a case where there is no intentional waiver the question whether a waiver should be implied depends on whether it would be unfair or misleading to allow a party to refer to or use material and yet assert that that material, or material associated with it, is privileged from production. Thus it has been held that the privilege in respect of a document is not waived by the mere reference to that document in pleadings (Roberts v. Oppenheim (1884) 26 ChD 724; Buttes Oil Co. v. Hammer (No. 3) (1981) QB 223, at pp 252, 268) or in an affidavit (Lyell v. Kennedy (1884) 27 ChD 1, at p 24; Infields, Ltd. v. P. Rosen & Son [1938] 3 All ER 591 , at p 597; Tait & Lyell International Co. Ltd. v. Government Trading Corporation, The Times, 24 October 1984), although the position will be different if the document is reproduced in full in the pleading or affidavit: Buttes Oil Co. v. Hammer (No. 3), at p 252. These cases may be explained by saying that it is not unfair or misleading to refer to a document in a pleading or affidavit which is not put into evidence but that if the document is set out in full the privilege is waived. a fortiori , of course, privilege in respect of materials used in drawing a pleading or an affidavit and not referred to therein, would not lose their privilege because they had been used in that way.
8. It is not difficult to see that where a document deals with a single subject-matter it would be unfair to allow a party to use part of the document and claim privilege as to the remainder. So it has been held that where cross-examining counsel asked a witness whether he had said certain things in a written statement, examining counsel was entitled to require the whole statement to be put into evidence: Burnell v. British Transport Commission [1956] 1 QB 187 . Similarly, where a party disclosed a document which contained part only of a memorandum which dealt with a single subject-matter, and then read the document to the judge in the course of opening the case, it was held that privilege was waived as to the whole memorandum: Great Atlantic Insurance Co. v. Home Insurance Co. [1981] 1 WLR 529 ; 2 All ER 485 . In that case Templeman L.J. said, at pp 538-539; p 492 of All ER:
"... the rule that privilege relating to a document which deals with one subject matter cannot be waived as to part and asserted as to the remainder is based on the possibility that any use of part of a document may be unfair or misleading, that the party who possesses the document is clearly not the person who can decide whether a partial disclosure is misleading or not, nor can the judge decide without hearing argument, nor can he hear argument unless the document is disclosed as a whole to the other side. Once disclosure has taken place by introducing part of the document into evidence or using it in court it cannot be erased."
9. The same test must be applied in deciding whether the use in legal proceedings of one document impliedly waives privilege in associated material. In Nea Karteria Maritime Co. Ltd. v. Atlantic & Great Lakes Steamship Corporation (No. 2) (1981) Com.LR 138 Mustill J. dealt with this question and, at p 139, suggested the following test:
"... where a party is deploying in court material which would otherwise be privileged, the opposite party and the court must have an opportunity of satisfying themselves that what the party has chosen to release from privilege represents the whole of the material relevant to the issue in question. To allow an individual item to be plucked out of context would be to risk injustice through its real weight or meaning being misunderstood."
In General Accident Corporation v. Tanter [1984] 1 WLR 100 ; 1 All ER 35 , Hobhouse J. considered that in this passage Mustill J. used the words "deploying in court" in a strict sense, as referring to what is in evidence: see at p.113; p.46 of All E.R. After carefully reviewing the authorities, Hobhouse J. held that it was only where privileged material was adduced in evidence by the party to whom privilege attached that the waiver extended to related material. He said, at p.114; p.47 of All E.R., that "the underlying principle is one of fairness in the conduct of the trial and does not go further than that." In the United States it appears that so strict a view has not been taken. In United States v. Cote (1972) 456 F 2d 142 it was held that a taxpayer by filing income tax returns waived privilege in the working papers used in preparing the returns. In the United States, also, the principle that there is a waiver if fairness requires it appears to be well accepted: The Duplan Corporation v. Deering Milliken Inc. (1975) 397 Fed.Sup. 1146, at pp 1161-1162; Weil v. Investment/Indicators, Research and Management Inc. (1981) 647 F 2d 18, at p 24.
10. If Hobhouse J. was correct in saying that there is no waiver of associated material until that material is adduced in evidence it follows in the present case that privilege in the source material has not been waived. In my opinion however the rule is not so inflexible; the question is whether the disclosure or use of material that has been made renders it unfair to uphold the privilege in the associated material, and although the question whether the material that has been disclosed has been used in evidence is relevant, it is not decisive.
11. The Claim Book of 1982 was in some respects analogous to a pleading; it served to state the case which the claimants intended to present although it went into much more detail than would be expected of a formal pleading. So long as the claim book was not used in any other way, it is impossible to say that it was in any respect unfair or misleading to lodge it with the Commissioner and to distribute it to the parties without making available the sources from which it was derived.
12. The 1982 Claim Book was a document of a kind that would not be admissible in ordinary proceedings, but if it had been admissible in the proceedings before the Aboriginal Land Commissioner, and if it had in fact been admitted as evidence, the appellant would have been entitled to test its accuracy and weight, and since that could hardly be done unless it was known on what sources it was based, considerations of fairness might have required those sources to have been produced. However it was not unfair or misleading for the claimants to make some reference to the book during the opening of the case before Kearney J. and to put some questions in the course of the examination of two of the witnesses, without making the source materials available. The use of the book in examination was in the case of one witness (Dr Nash) for the purpose of showing that certain corrections made to the claim book were corrections to typing and matters of that kind and in the case of the other witness (Miss Lloyd) for the purpose of identifying the portions of the book for which she had been responsible, apparently with a view to showing the consistency of her evidence. The source materials in question were in the possession of another witness, Mr Reyburn, who was cross-examined by counsel for the appellant as to what documents specified in the notice given under s.54 of the Act he had taken into account in preparing the 1982 Claim Book or his proof of evidence which was tendered before Maurice J. The contents of the source materials were not revealed, and the 1982 Claim Book does not show how any particular source document was used. The case is not one in which the disclosure of a document, or the giving of evidence, without the disclosure of associated material, would give a partial or misleading picture, or would otherwise prejudice or embarrass the appellant in the conduct of the case.
13. Clearly the claimants had no intention to waive privilege in the source materials. In the circumstances, having regard to the principles which I have endeavoured to state, a waiver could not be implied.
14. I would dismiss the appeals.