Attorney-General (NT) v. Maurice

(1986) 161 CLR 475

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(Judgment by: Dawson J)

Between: Attorney-General (NT)
And: Maurice

Court:

Judges: Gibbs CJ
Mason J
Brennan J
Deane J

Dawson J

Subject References:
Practice

Hearing date: 30, 31 July 1986
Judgment date: 16 December 1986

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Judgment by:
Dawson J

1. These are appeals from the Full Court of the Federal Court before which the appellant, the Attorney-General for the Northern Territory, unsuccessfully contested a ruling given by Maurice J., an Aboriginal Land Commissioner. The latter was hearing an application pursuant to the provisions of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) by a group of Aboriginals claiming to be the traditional owners of land in the area of Tennant Creek. The claim has become known as the Warumungu Land Claim. The ruling given by the Commissioner was that there had been no waiver by the claimants of legal professional privilege in relation to certain documents which had been brought into existence for the sole purpose of the preparation of the claim before the Commissioner. The claim was being presented on behalf of the claimants by the Central Land Council through which the claimants were legally represented. Under s.23(1)(f) of the Aboriginal Land Rights (Northern Territory) Act, the functions of a Land Council include the assistance of Aboriginals claiming to have a traditional land claim to an area of land within the area of the Land Council, in particular, by arranging for legal assistance for them at its expense.

2. The provisions of the Aboriginal Land Rights (Northern Territory) Act give little guidance in the procedure to be followed in the hearing of an Aboriginal land rights claim. Section 49 provides that there shall be an Aboriginal Land Commissioner and s.50 provides that upon application being made by or on behalf of Aboriginals claiming to have a traditional land claim to an area of land, his functions include, amongst other things, ascertaining whether those Aboriginals or any other Aboriginals are the traditional Aboriginal owners of the land. Section 51 provides that the Commissioner may do all things necessary or convenient to be done for or in connexion with the performance of his duties. Under s.54 he may issue notices to persons whom he believes to have information relating to a land claim to appear before him and answer questions or to produce specified documents or both.

3. This particular land claim came before the then Commissioner, Kearney J., in 1982. A book referred to as the "1982 Claim Book" was produced on behalf of the claimants and distributed to the parties to the claim. In opening the claimants' case counsel referred to it. The Central Land Council sought to tender the claim book as evidence but objection was taken to it. Kearney J. did not rule upon the objection then, but simply marked the book for identification.

4. Questions of jurisdiction arose and, after proceedings in this Court, the hearing of the land claim was resumed in 1985 before Maurice J., who by that time had been appointed an Aboriginal Land Commissioner. The hearing before Maurice J. was treated as a hearing de novo and no reliance was placed upon the 1982 Claim Book. Instead, another document called a Guide Book was produced. However, in the course of cross-examination of one of the authors of the 1982 Claim Book, parts of it were put to him and the book was then tendered in evidence for the purpose of testing questions of legal professional privilege relating to it.

5. It was contended by the Attorney-General that any privilege in the 1982 Claim Book had been waived by reason of what had happened before Kearney J. Not only that, but, so it was contended, privilege was also waived in those documents which were prepared in the course of research for the compilation of the claim book. Maurice J. ruled that privilege in respect of the claim book had been waived but held that there was no waiver of any privilege in the documents which lay behind it. It is only this latter ruling which was contested in the Federal Court and is contested before us.

6. I should say at the outset that I regard it as inappropriate to speak in terms of waiver of privilege in relation to the claim book. Whilst it may be difficult to describe with any precision its true nature, the purpose of the claim book was to give notice of the claim made by the claimants, not only in relation to the area of land over which the claim was made, but also in relation to the basis of the claim, that is to say, the basis upon which it was said that the claimants were the traditional owners of the land. The practice of lodging a claim book had developed previously and its function was recognized in the revised Practice Directions issued by the Commissioner in 1979. The Practice Directions also require those appearing on the hearing of an application, 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's Associate before the hearing. See Aboriginal Land Commissioner Report for year ended 30 June 1979 (1980), at pp.9-13. The development and the nature of a claim book is described by a former Commissioner, Toohey J., in an article entitled "Aboriginal Land", (1985) 15 Federal Law Review 159, at p.173, as follows:

"Claimants are required to lodge particulars of their claim, the primary purpose of which is to identify the land claimed and those said to be the traditional Aboriginal owners. The practice has developed of lodging a claim book some weeks before the hearing. Usually this book is prepared by one or more of the anthropologists whom the claimants propose to call in support of their claim. The claim book has become a substantial and sophisticated document which not only identifies the land and the traditional owners. It plots sites of significance on a map, formulates the principle of local traditional land holding and, with the use of genealogies, identifies the traditional owners, gives some history of the claim area since white contact, and generally canvasses the advantages to the claimants and the disadvantages to others if the claim is acceded to."

No doubt a claim book ordinarily - and certainly in the case of the 1982 Claim Book - goes somewhat further than a Statement of Claim. But its initial purpose is to make known the case which the claimants seek to put. It may subsequently be accepted as evidence on the basis that the author or authors are available for cross-examination if required: Toohey, supra, at p.173. Until it is placed in evidence, which never occurred with the 1982 Claim Book, it remains no more than a statement of the claimants' case for use in the relevant proceedings by all parties. It is a document which is intended to be communicated to the Commissioner and other participants in the hearing. It is not in any sense a confidential communication nor is it intended to be. In those circumstances I am unable to see how it is a document to which legal professional privilege attaches.

7. Before it emerges in its final form, successive drafts of a claim book may be privileged but this is not because of any privilege attaching to the final product. Draft pleadings in an action may be privileged, but I have never heard it suggested that a Statement of Claim or a Defence or a Reply is privileged so that the privilege is waived when it is filed or delivered to the other side. The reason why the draft may be privileged before the document is completed was early explained in Walsham v. Stainton (1863) 2 H. & M. 1, at p 4 (71 ER 357, at p 358), upon the basis that, although after a pleading has been filed it becomes publici juris, the drafts "might disclose the precise character of confidential communications with the solicitor, by showing the alterations made from time to time". In the same way a letter to the other side in litigation which is drafted in a solicitor's office may be privileged before it is sent because it may reveal confidential communications between the solicitor and his client. Once it is sent, however, it ceases to be confidential and there is no privilege in it, not because privilege in the document is waived, but because no privilege attaches to it.

8. When the claim book in this case reached final form or, at all events, when it was put to the use for which it was intended, it was not a confidential communication and not a privileged document. Legal professional privilege exists to secure confidentiality in communications between a legal adviser and his client but it can have no application in relation to a document the purpose of which is to communicate information to others. Of course, what is contained in such a document may reveal some confidential communication between a legal adviser and his client, but if it does do so and so waives privilege, the waiver is of the privilege in the anterior communication and not in the document itself.

9. Thus, if in a pleading the contents of a privileged communication are set out then the privilege attaching to that communication may be waived by the pleading. But for this to happen the content of the communication itself must be revealed. The mere reference to the occasion, such as a conversation or a letter, without reference to its content will not constitute a waiver of the privilege: Buttes Oil Co. v. Hammer (No.3) (1981) QB 223, at p 252; Roberts v. Oppenheim (1884) 26 ChD 724.

10. The 1982 Claim Book did not, however, contain any apparent reference to those documents which were brought into existence for the purpose of its compilation, let alone reveal their contents. Even assuming those documents to be, as the Commissioner found, the subject of legal professional privilege, no question of waiver of privilege with respect to them can, as I see it, arise.

11. Nor do I think that there would have been any waiver of privilege with respect to the documents which were said to have been brought into existence as preparation for the claim book even if, as was not the case, the claim book had been put in evidence in the proceedings before Kearney J. The basis upon which the claim book would have become evidence is not entirely clear, but the proceedings were informal and no doubt such a course was permissible. It is plain, however, that if what was alleged in the claim book did not give rise to any waiver of privilege with respect to the documents which lay behind it, then the conversion of the allegations into evidence would not have done so. The waiver could not, of course, have been direct because the claim book does not disclose the contents or, indeed, the apparent existence of any of the documents used in its compilation. The waiver would have to have been waiver by implication or, as it has been called, associative waiver, whereby documents mentioned in or connected with a document for which privilege has been waived themselves become liable to disclosure. See Phipson on Evidence, 13th ed., 1st suppl., (1984), par.15-20.

12. This is a difficult area of the law, but it is clear enough that an implied waiver may be required by fairness notwithstanding that it was not intended. It would not be fair to allow privilege to be waived with respect to a portion of a document or a conversation without requiring disclosure of the rest of it, at least if the document or conversation dealt with the one subject matter. See Burnell v. British Transport Commission [1956] 1 QB 187 and Great Atlantic Insurance Co. v. Home Insurance Co. [1981] 1 WLR 529 , at p 536; [1981] 2 All ER 485 , at p 490. So much may be obvious, but legal professional privilege is concerned with protecting the confidentiality of a relationship and if that confidentiality is abandoned by a particular disclosure it may be necessary in fairness, whether further disclosure was intended or not, to require disclosure extending beyond the particular communication. See Wigmore on Evidence, vol.VIII (McNaughton rev. 1961), par.2327. The cases are not entirely consistent and perhaps what is fair by way of disclosure must ultimately depend upon the relevant circumstances.

13. In Geo. Doland Ltd. v. Blackburn & Co. [1972] 1 WLR 1338 ; [1972] 3 All ER 959 waiver of privilege with respect to a conversation between solicitor and client, which took place before litigation was contemplated, was held to extend to any other communications in relation to the subject matters of the conversation, although the implied waiver was held not to cover similar documents which came into existence for the purpose of prosecuting the litigation. This decision was not followed in General Accident Corporation Ltd. v. Tanter (1984) 1 WLR 100 ; [1984] 1 All ER 35 where a distinction was drawn between the waiver of privilege before a trial and the further waiver of privilege by calling evidence in a trial. In the latter situation the waiver was held to extend to the transaction constituted by the privileged communication but not to the subject matter of that communication arising upon other privileged occasions. General Accident Corporation Ltd. v. Tanter has been criticized for the distinction which it draws between waiver by the tender of evidence of a privileged communication and waiver by the disclosure of the communication in some other way and for the restriction which it places upon the extent of associative waiver. See Phipson on Evidence, par.15-20. In Nea Karteria Maritime Co. Ltd. v. Atlantic & Great Lakes Steamship Corporation (No.2) (1981) Com. LR 138, at p 139, a broader view was taken by Mustill J. that "... where a party chooses to deploy evidence which would otherwise be privileged the court and the opposition must, in relation to the issue in question, be given the opportunity to satisfy themselves that they have the whole of the material and not merely a fragment". This view was approved by the Court of Appeal in Great Atlantic Insurance Co. v. Home Insurance Co. In the United States it has been widely held that voluntary disclosure of the content of a privileged attorney communication constitutes waiver of the privilege with respect to all other such communications upon the same subject matter: Weil v. Investment/Indicators, Research and Management (1981) 647 F 2d 18 at p 24 and the cases there cited; Diotima Shipping Corp. v. Chase, Leavitt & Co. (1984) 102 FRD 532 ; United States v. Aronoff (1979) 466 FSupp 855; In re Sealed Case (1982) 676 F 2d 793.

14. However in this case there is no basis for the application of any doctrine of waiver by implication or association for there was no waiver of privilege in respect of a privileged communication in the first place. The 1982 Claim Book was not admitted in evidence before Kearney J. but that, in my view, is immaterial. The fact that the claim book may have drawn upon information contained in communications which were themselves privileged, being made solely in contemplation of litigation, involves no violation of the confidence in which those communications were made. That is obvious. There would be little point in communications made in contemplation of litigation if they could not be used for the purposes of the litigation. What is important is that the 1982 Claim Book, while its source may be information imparted upon a privileged occasion, does not disclose the content of any privileged communication and so does not abandon the element of confidentiality which the privilege protects. There was, therefore, no waiver of privilege.

15. I would dismiss the appeals.