Attorney-General (NT) v. Maurice
(1986) 161 CLR 475(Judgment by: Mason J, Brennan J)
Between: Attorney-General (NT)
And: Maurice
Judges:
Gibbs CJ
Mason J
Brennan JDeane J
Dawson J
Subject References:
Practice
Judgment date: 16 December 1986
Judgment by:
Mason J
Brennan J
1. The issue in these appeals is whether a litigant waives legal professional privilege attaching to research materials accumulated in the preparation of a "claim book" setting out the basis of an Aboriginal land claim when that claim book has been circulated as required by Practice Directions. The Aboriginal Land Commissioner (Maurice J.) hearing the claim held that the Aboriginal claimants had not waived the privilege to the underlying research materials. On appeal the Full Court of the Federal Court found no error in the Commissioner's decision and dismissed the appeals. The Attorney-General for the Northern Territory now appeals, pursuant to the grant of special leave from the decision of the Full Court of the Federal Court (Bowen C.J., Woodward and Toohey JJ.).
2. This case arises out of the Warumungu Land Claim. Pursuant to the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ("the Act"), certain Aboriginals claimed to be the traditional Aboriginal owners of unalienated Crown land around Tennant Creek in the Northern Territory. The land claim was first brought on behalf of the Aboriginal claimants by the Central Land Council and came before the then Aboriginal Land Commissioner (Kearney J.) in November 1982.
3. Section 50(1) of the Act describes the functions of the Commissioner and requires him, upon application by or on behalf of Aboriginals making a land claim, to ascertain whether the Aboriginals are "the traditional Aboriginal owners of the land" and to make a report of his findings to the Minister for Aboriginal Affairs and to the Administrator of the Northern Territory. Applications must, inter alia, identify the individuals making the land claim, and describe the claimed land.
4. Section 51 of the Act provides that the Aboriginal Land Commissioner "may do all things necessary or convenient to be done for or in connexion with the performance of his functions". Under the authority conferred by that provision, the first Aboriginal Land Commissioner, Toohey J., promulgated Practice Directions to govern the procedure of land claims under the Act. The current version is to be found in the Aboriginal Land Commissioner Report for year ended 30 June 1979, (1980) pp.9-13. These Practice Directions govern proceedings in land claims including the proceedings before Kearney J.
5. With the aim of "assist(ing) in the orderly presentation and hearing of applications", the Practice Directions require that a "claim book relating to that application" be lodged with the Commissioner's Associate. The Practice Directions do not make clear what the claim book is to contain or its specific purpose, but the practice that has developed in these land claims seems to be that the claim book sets forth the basis of the claim. This conclusion is supported by the Practice Directions' request that:
"Those appearing on the hearing of an application are asked as far as is practicable to prepare and exchange statements of their intended evidence and any material of a technical nature proposed to be used as evidence and to give a copy of those statements and that material to the Commissioner,' Associate before the hearing."
The Practice Directions also provide that, although the hearings are to be conducted "broadly along the lines of conventional court proceedings", they are to be less formal. Moreover, they provide that there is to be "no strict adherence" to the normal rules of evidence.
6. Section 21 of the Act provides for the establishment of Land Councils whose functions include "assist(ing) Aboriginals claiming to have a traditional land claim ... in pursuing the claim, in particular, by arranging for legal assistance for them at the expense of the Land Council" (s.23(f)). The Central Land Council, established under s.21, in performance of its statutory function carried out an investigation of the Warumungu land claim. Several anthropologists and linguists conducted field work and the Land Council made use of this research in bringing into existence a claim book ("the 1982 Claim Book").
7. At the hearing before Kearney J., counsel for the Land Council tendered the 1982 Claim Book in evidence. After counsel for the Attorney-General objected, the Commissioner did not admit the 1982 Claim Book as evidence. Counsel for the Land Council did, however, make general references to the 1982 Claim Book during the hearing. On 4 November 1982, Kearney J. adjourned the proceedings, believing that he had been deprived of jurisdiction to deal with the land claim by reason of the Northern Territory Minister for Lands having granted leases over part of the claimed area on 29 October 1982. Subsequently, this Court made an order absolute for mandamus requiring the Land Commissioner to proceed with the hearing of the land claim on the ground that the grant of the leases over part of the land did not deprive the Commissioner of jurisdiction to deal with the claim.
8. The further hearing of the land claim took place before Maurice J. who had been appointed an Aboriginal Land Commissioner in the meantime. The further hearing was treated as a hearing de novo . For the fresh proceedings the claimants prepared and filed a "Guide Book" which was a shorter version of the 1982 Claim Book. The 1982 Claim Book was neither filed nor tendered in those proceedings, save for the limited purposes of the dispute now under consideration.
9. The Attorney-General sought disclosure of some of the documents that provided source material for the 1982 Claim Book. Maurice J. held that the claimants had waived any legal professional privilege attaching to the 1982 Claim Book itself, when they filed, exchanged and tendered it in the first proceeding. His Honour, however, rejected the submission that, by distributing the 1982 Claim Book and tendering it in evidence in the first proceeding the Aboriginal claimants had manifested an intention to waive any privilege adhering to the source materials for the 1982 Claim Book. His Honour explained that in view of:
"... the novelty (in the land claim context) of the requirement that source materials be produced, the lack of prescribed procedures for the investigation of traditional land claims, and the fact that it has not been the practice in the past to produce all materials of this sort upon request or otherwise, I am not satisfied that the applicants or their legal advisers did harbour any such intention. Indeed, such has been the lack of discussion in the past about practice and procedures for the investigation of traditional land claims that I doubt if the applicants' advisers gave much consideration at all to what might be the consequences of the proposed tender."
His Honour went on to say:
"... the 1982 claim book has not been deployed in the evidence before me. The tender was not accepted by Kearney J. in 1982 and, in any event, mine is a fresh and independent inquiry. Accepting, as I do, that there is a distinction to be made between pre-trial disclosures and those which occur in the course of evidence, I am of the opinion that considerations of fairness in the conduct of my inquiry do not require that the privilege adhering to the source materials upon which the authors of the 1982 claim book drew be treated as having been waived."
Maurice J. thus held that the waiver of privilege attaching to the 1982 Claim Book did not extend to the background materials such as the field notes and reports of the anthropologists and linguists.
10. Legal professional privilege is an ancient doctrine which has assumed a life of its own. Succinctly stated, the privilege protects from disclosure "communications made confidentially between a client and his legal adviser for the purpose of obtaining or giving legal advice or assistance": Reg. v. Bell; Ex parte Lees (1980) 146 CLR 141 , at p 144 (per Gibbs J.). The raison d'etre of legal professional privilege is the furtherance of the administration of justice through the fostering of trust and candour in the relationship between lawyer and client. The privilege is based on:
"... the need of laymen for professional assistance in the protection, enforcement or creation of their legal rights. They should have the benefit of that assistance, free of any restraint which fear of the disclosure of their communications with those advisers would impose."
(Reg. v. Bell, at p 152, per Stephen J.). When the privilege applies, it enables the client to keep the communication from disclosure and interferes with the public's "right to every man's evidence": Cobbett's Parliamentary History (1812) vol.12, at p.675. Because of this conflict between the public interest in ensuring the availability of all relevant evidence in a particular case and the public interest in the administration of justice through effective legal representation, the privilege is confined within strict limits: Grant v. Downs (1976) 135 CLR 674 , at p 685, per Stephen, Mason and Murphy JJ.
11. The limiting effect of legal professional privilege on the availability of evidence otherwise relevant is confined, inter alia, by the doctrine of waiver. A litigant can of course waive his privilege directly through intentionally disclosing protected material. He can also lose that protection through a waiver by implication. An implied waiver occurs when, by reason of some conduct on the privilege holder's part, it becomes unfair to maintain the privilege. The holder of the privilege should not be able to abuse it by using it to create an inaccurate perception of the protected communication. Professor Wigmore explains:
"(W)hen 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."
(Wigmore, Evidence in Trials at Common Law (1961) vol.8, 2327, at p.636). In order to ensure that the opposing litigant is not misled by an inaccurate perception of the disclosed communication, fairness will usually require that waiver as to one part of a protected communication should result in waiver as to the rest of the communication on that subject matter: see Great Atlantic Insurance v. Home Insurance [1981] 1 WLR 529 ; [1981] 2 All ER 485 .
12. Hence, the implied waiver inquiry is at bottom focused on the fairness of imputing such a waiver. On this principle, an American court refused to imply a waiver when the person entitled to the privilege, who had been subjected by court order to an exceptional accelerated discovery process, accidentally disclosed some protected communications: Transamerica Computer v. International Business Machines (1978) 573 F 2d 646. Likewise, a waiver was not implied beyond actually disclosed material when the person entitled to the privilege, in a spirit of co-operation, disclosed some confidential communications to opposing counsel, not to the court, and the partial disclosure did not prejudice the opposing litigant: Weil v. Investment/Indicators, Research & Management (1981) 647 F 2d 18. As the court in Champion International Corp. v. International Paper Co. (1980) 486 F Supp 1328, at p 1333 asked rhetorically, "Can the disclosure of a very slight amount of privileged material, produced in a spirit of openness in discovery, be the basis for a waiver of a large amount of other privileged material?"
13. In this case the appellant argues that the respondent Aboriginal claimants waived legal professional privilege in the source materials of the 1982 Claim Book by tendering it in evidence and referring to it during the hearing before Kearney J. We cannot agree.
14. Aboriginal land claims are unique proceedings. In proving that they are the "traditional Aboriginal owners", Aboriginal claimants must show that they are of a local descent group that has "common spiritual affiliations" to the claimed land and, by "Aboriginal tradition", have a right to forage over that land (ss.3 and 50 of the Act). Because proof of these matters requires unusual evidence such as descriptions of traditions, observances, customs and beliefs of Aboriginals, the procedures of the Commission are less formal than those of ordinary judicial proceedings. The 1982 Claim Book is a product of these unique proceedings and does not fit neatly within established categories. A claim book's closest analogy is with a pleading. There is a requirement that the claim book be filed. It specifies the claimants and the claimed land, and sets forth the basis of the claim (see Toohey J., "Aboriginal Land" (1985) 15 Federal Law Review 159, at p.173). It is well settled that a litigant of course does not waive his legal professional privilege to research materials, directly or by implication, by merely submitting a pleading. See Buttes Oil Co. v. Hammer (No. 3) (1981) QB 223, at p 252; Roberts v. Oppenheim (1884) 26 ChD 724.
15. The 1982 Claim Book differs from a pleading in that it contains a substantial amount of historical and anthropological information tracing the history of the Warumungu over the past one hundred years. The inclusion of this material should not undermine the protection of the privilege. A claim book is not treated as evidence of the facts alleged in it. While there is, as Maurice J. noted, a dearth of procedures in land claims to guide claimants, the Practice Directions request that "Those appearing on the hearing of an application ... as far as is practicable to prepare and exchange statements of their intended evidence". Source materials have not usually been required to be produced in land claims, and it would be unfair to impute to the respondents a waiver of the privilege attaching to source materials merely because the respondents, in complying with Practice Directions without clear procedures to follow, provided information tracing the basis of their claim.
16. More importantly, the appellant has not been prejudiced by a partial disclosure - i.e., the disclosure of the 1982 Claim Book and non-disclosure of the source materials. Although the Central Land Council tendered the 1982 Claim Book in the first proceeding the book never found its way into evidence. The respondents have not sought to reveal beneficial parts while keeping injurious parts hidden, and although the Central Land Council referred to the 1982 Claim Book in the first proceeding before Kearney J., those references were very general and were not prejudicial. For example, early in that first proceeding, counsel for the respondents made the following reference:
"Historically, the extent of Warumungu influence is well documented and quite a considerable section of the claim book is devoted to references from the works of early explorers and others which indicate the extent of that influence."
This statement does not seek to use partially disclosed privileged communications as evidence and the appellant can hardly argue that it is prejudiced by this passing reference to non-privileged material.
17. In the result Maurice J. was correct in refusing to require disclosure of the source material of the 1982 Claim Book.
18. The appeals should be dismissed with costs.