Arnold Mann v Anne Katherine Carnell [1998] ACTSC 225 (4 June 1998)

  
  
  
  

  
   Downlaod RTF

   IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

   MILES CJ

   DEFAMATION - whether
publication by Chief Minister to member of Legislative
Assembly of advice to government given by lawyers is protected by client legal
privilege - it is not.

   PRACTICE AND PROCEDURE - application for production of documents under
O.34A r.5 - whether documents are
protected by privilege within scope of rule.

   Supreme Court Rules, O.34A r.5

   Evidence Act 1995 (Cth)

   Bulk Materials (Coal Handling) Services Pty Ltd v. Coal and Allied
Operations Pty Ltd (1988) 13 NSWLR 689)

   Cross on
Evidence (Aust. edn), para.25625

   Schneider v. Leigh (1955) 2 QB 195

   Attorney-General (NT) v. Maurice [1986] HCA 80;  (1986) 161 CLR 475

   R v. Bell: Ex parte Lees [1980] HCA 26;  (1980) 146 CLR 141

   Guise v. Kouvelis [1947] HCA 13;  (1947) 74 CLR 102

   Barbaro v. Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30

  

  

   CANBERRA, 2 April 1998 (hearing),
4 June 1998 (decision)

   #DATE 04:06:1998

   Appearances

   Counsel for the applicant: A. Mann in person

   Counsel for the
respondent: C. Erskine

   Solicitors for the respondent: ACT Government Solicitor

  

  

   Order:

   1. The respondent produce
to the applicant the following documents relating
to proceedings numbered SC 641 and 717 of 1990 and 458 of 1991 brought by the
applicant
as plaintiff:

   (i) Report from Australian Capital Territory Government Solicitor to
Executive Director, Financial Management and
Contracting, ACT Department of
Health and Community Care, with chronology attached, dated 7 December 1997.

   (ii) Counsel's opinion
dated 20 February 1991.

   (iii) Counsel's memorandum of advice dated 16 February 1997.

   (iv) Counsel's joint memorandum of advice
dated respectively 9 and
11 September 1997.

   2. The costs of the application abide any order made in proceedings
subsequent
hereto on any cause of action alleged to have arisen out of the
publication of the documents or any part of them by the respondent
to Michael
Moore on or about 15 December 1997.

   3. A copy of the documents be produced within ten (10) days.

   4. The documents
in question and presently in the custody of the Court be
released to the solicitors for the respondent.

  

  

   MILES CJ

  
1. This is an originating application by Dr Arnold Mann for an order under
O.34A r.5 of the ACT Supreme Court Rules for the production to him of certain
documents. The order is sought against Anne Katherine Carnell (sued as Kate
Carnell). The respondent
is and was at all material times the Chief Minister
of the Australian Capital Territory. The applicant seeks production of a
variety
of documents but there appears to be no dispute that the documents in
question are as follows:

   (i) Report from Australian Capital
Territory Government Solicitor to
Executive Director, Financial Management and Contracting, ACT Department of
Health and Community
Care, with chronology attached, dated 7 December 1997.

   (ii) Counsel's opinion dated 20 February 1991.

   (iii) Counsel's memorandum
of advice dated 16 February 1997.

   (iv) Counsel's joint memorandum of advice dated respectively 9 and
11 September 1997.

   2. Rule 5 provides as follows:

   "If -

   (a) it is reasonable to believe that the applicant has, or may have, the
right to
obtain relief from a person whose description has been ascertained;

   (b) having made reasonable inquiries, the applicant has not
gained
sufficient information to enable a decision to be made whether to institute a
proceeding to obtain the relief;

   (c) it
is reasonable to believe that the person -

   (i) has, or is likely to have; or

   (ii) has had, or is likely to have had;

  
possession of a document relating to the question whether the applicant has
the right to obtain the relief; and

   (d) inspection
of the document by the applicant would assist in making the
decision;

   the Court may order the person to produce the document
to the applicant."

   3. The documents in question have in fact been produced to the Court, but
objection is taken to their production
to Dr Mann on the ground provided for
in O.34A r.2, the relevant parts of which read as follows:

   "An order made under this Order
does not operate to require the person
against whom the order is made to produce any document that, on the ground of
privilege, the
person could not be required to produce -

   (a) in the case of an order under rule 3 or rule 5 -

   if the applicant had commenced
a proceeding against the person."

   4. It was submitted that the respondent is entitled to the immunity
conferred by para.2(a)
on the ground of legal professional privilege or client
legal privilege, as it is now called in the Evidence Act 1995 (Cth).

   5. There is a long history of matters leading to the application, but I
think that they may be stated relatively shortly.

   6. Dr Mann was for many years a surgeon practising in the Australian
Capital Territory. He was the plaintiff in proceedings commenced
in 1990 and
1991 against the ACT Board of Health (as it then was), certain public
officials, and certain other medical practitioners
(SC 641, 717 of 1990 and
458 of 1991). Interlocutory applications in those proceedings occupied a good
deal of time in this Court
and in the Federal Court. The causes of action
included breach of contract and defamation. On 3 September 1997, on the second
day
of the final hearing, it appeared that the litigation had been brought to
an end by Dr Mann's acceptance of the sum of $400,000 paid
into court on
behalf of all defendants without admission of liability.

   7. Dr Mann now says that it was in the consciousness that
there had been no
admission of liability and no apologies in his claims for defamation that he
wrote on the following day, 4 September
1997, to the ACT Government Solicitor
in the following terms:

   "May I suggest that you warn your clients that if they repeat the
allegations they have made in the past, or make fresh unsubstantiated
allegations in the future, this whole matter will return to
the Courts."

   8. Mr. Michael Moore, a member of the Legislative Assembly, who does not
belong to a political party, and who at
all material times was regarded as
belonging to the cross benches, became aware of what was described as the
"settlement" of the
litigation. On 31 October 1997 Mr. Moore wrote to the
respondent in the following terms:

   "I understand settlement has occurred
in the order of $400,000 in the
above- mentioned case.

   It seems to me that this issue has been a monumental waste of public funds.
What measures have you put in place to ensue that this sort of situation does
not occur again? How can I be assured in such a way
that I can feel confident
that we will not require an official Inquiry into this matter to ascertain how
to avoid this situation
arising in the future."

   9. The respondent replied to Mr. Moore on 15 December 1997. Her letter,
omitting formal parts, is as
follows:

   "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."

   10. The enclosure and attachments are the documents identified in para.1 of
these reasons.

   11. Mr. Moore sent a copy of the respondent's letter of 15 December 1997 to
Dr Mann, but he did not send copies of the enclosures
and attachments
referred to. In fact, Mr. Moore telephoned the respondent's office and
inquired about the confidentiality of
the documents. He was told not to pass
them on to Dr Mann. The respondent herself a day or two later confirmed with
Mr. Moore that
the documents had been supplied to him in confidence.

   12. Dr Mann considered (and it is his submission) that the documents
accompanying
the respondent's letter of 15 December contained something
defamatory of him. Bearing in mind that the payment into court had been
made
without admission of liability and that no apology had been forthcoming in
respect of the defamation in respect of which he
had sued, Dr Mann wrote to
Mr. Moore on 23 January 1998, asking Mr. Moore to forward the documents in
question, alternatively, seeking
an assurance that there was nothing
defamatory in them.

   13. On 30 January 1998 Mr. Moore returned the documents to the respondent.
In his letter to the respondent of that date he stated:

   "Our understanding has always been that in the interests of openness
you
would make documents available to me so that I could understand the full
ramifications of any particular situation. After telephone
conversations with
your office, it is my understanding that you do not wish this material to be
used in any broader sense.

   You
know I disagree with this approach, in principle, however I respect the
agreement that has been reached between you and me.

   I
am therefore returning these documents to you and I assure you that I
have made no copies."

   14. On the same day Mr. Moore wrote
to Dr Mann stating that he was unable
to supply copies of the information that was requested, but stated nothing
further about the
content of the documents, defamatory or otherwise.

   15. In his affidavit affirmed on 20 February 1998 Dr Mann states that it is
likely that the documents in question repeat the defamatory allegations made
in the proceedings previously brought by him and that
it is to be inferred
that they explain the payment into court of $400,000 by reference to an
allegation that Dr Mann could not have
paid costs if he had lost the case,
thereby further inferring that his claims were without merit and that he had
conceded the truth
of certain counter-charges made against him, and in
particular suggestions by counsel for the defendants that his claims amounted
to an attempt to extort money from the Territory. Dr Mann also relies on an
allegation that the respondent was a member of the Board
of Health on 22 March
1991 when a decision was made not to renew his fee for service contract.

   16. It is to be observed that
Dr Mann's application for production of the
documents is made, not against the Australian Capital Territory, but against
the respondent.
Accordingly, any question of privilege that arises under O.34A
r.2 is a question of the privilege of the respondent, not the privilege
of the
Australian Capital Territory. Nevertheless it is in relation to the office and
function of Chief Minister that the respondent
seeks to raise privilege under
O.34A r.2

   17. Mr. Erskine, who appeared for the respondent, accurately summarised the
nature of
the documents as follows:

   (i) Three are counsel's opinions provided to the Territory. All contain
legal advice to the Territory,
either as to the conduct of litigation then
under way between the Applicant and the Territory or as to other legal matters
involving
the Applicant.

   (ii) The fourth is a report by the ACT Government Solicitor to its client,
the Department of Health, on the outcome
of the litigation between the
Applicant and the Territory. The report canvasses the progress of the
litigation with particular reference
to the advice given by Counsel. It refers
extensively to privileged information.

   18. The respondent is not and was not a party
to any of the litigation
previously brought by Dr Mann. Insofar as she was a member of the Board of
Health at a time which may be
material for the purposes of that litigation, it
was against the Board of Health, a statutory corporation, that Dr Mann brought
the
proceedings. The point was raised in Dr Mann's submissions that the
respondent can no more claim legal privilege than could a director
claim
privilege in respect of communications prepared for the purpose of litigation
by or against a company. The point was not really
dealt with in the
submissions on behalf of the respondent. There are conflicting authorities on
this issue. There is said to be a
"common interest" privilege (e.g. Bulk
Materials (Coal Handling) Services Pty Ltd v. Coal and Allied Operations Pty
Ltd (1988) 13
NSWLR 689). Cross on Evidence (Aust. edn) observes at para.25265
that "If a privileged document is in the hands of a third party
that does not
destroy the privilege, the question being whether the party entitled to the
privilege has waived it". In Schneider
v. Leigh (1955) 2 QB 195 a doctor
supplied a medical report to solicitors acting for a company being sued for
personal injuries.
When the company's solicitors published the allegedly
libellous report to the plaintiff's solicitors the Court of Appeal held that
the doctor could claim no privilege.

   19. I will assume, without deciding, that the respondent as Chief Minister
is entitled to
rely on whatever privilege could have been relied upon by the
Australian Capital Territory if the present application had been made
against
the Territory.

   20. I do not accept that the documents are on their face the subject of
client legal privilege for the
purposes of the present application. Privilege
from production arises from the occasion of publication, not from the nature
of documents.
I have no doubt that the publication of the documents in
question by their passing from lawyer to client was a privileged occasion
and
that Dr Mann could not require production of any of the documents if he sued
the ACT Government Solicitor who wrote the letter
or if he sued the counsel
who furnished the advice and opinions. But that is not what is in
contemplation for the purpose of O.34A
r.5. What Dr Mann wants to do, within
the terms of the rule, is to make a decision whether or not to institute
proceedings against
the respondent for the publication by her to Mr. Moore of
documents which, when originally published by lawyer to client, were published
on a privileged occasion. The occasion of the publication by the respondent to
Mr. Moore is a different matter altogether and, in
my view, not protected by
client legal privilege.

   21. As this issue was not addressed in submissions, I pass on to what was
the
major issue addressed and that is, assuming (contrary to my view) that the
documents are protected in a prima facie way by client
legal privilege,
whether that privilege has been waived by the publication of the document by
the respondent to Mr. Moore.

   22.
It was submitted on behalf of the respondent that disclosure is not
waiver of privilege in confidential documents. No authority was
cited for this
proposition, but reliance was placed, inter alia, on Attorney-General (NT) v.
Maurice [1986] HCA 80;  (1986) 161 CLR 475. In that case the question arose whether disclosure
of some documents subject to legal professional privilege
implied waiver of
the privilege in relation to other associated documents. In such a situation
waiver is to be implied when, by some
conduct on the part of the privileged
holder, it becomes unfair to maintain the privilege: see judgment of Brennan
and Mason JJ at
487. There is nothing in the judgment, however, to support the
proposition that disclosure of a privileged document to a communicant
does not
waive privilege as far as that communicant is concerned. Notions of fairness
and justice are irrelevant, unless it is to
be suggested that the waiver goes
beyond the particular disclosure. Nothing of that sort is suggested in the
present application.

   23. It is not to be overlooked that a document attracts legal professional
privilege because it is a communication "made confidentially
and passing
between client and legal adviser for the purpose of obtaining or giving legal
advice or assistance" : R v. Bell: Ex parte
Lees [1980] HCA 26;  (1980) 146 CLR 141 at 144 per
Gibbs J. The confidentiality is between client and lawyer. That
confidentiality is lost if the document
is passed on to a third party who has
no place in the client-lawyer relationship or the matters in respect of which
legal advice
or assistance is sought. It is lost whether the document is
passed on by the client or by the lawyer, and whatever be the understanding
between the third party and the client or lawyer who passes it on about how
the document is to be treated. It is the occasion of
publication between
lawyer and client which confers the privilege, but the privilege does not
extend to republication unless republication
occurs on a privileged occasion.
The distinction between a privileged occasion and a privileged communication
is to be recognized:
see Guise v. Kouvelis [1947] HCA 13;  (1947) 74 CLR 102 at 117, per Dixon
J.

   24. The further submission was made that, assuming that it were held that
the publication
of the documents to Mr. Moore was on an occasion protected by
client legal privilege, there is nothing in the material before the
Court that
could possibly support a claim of malice to defeat the defence of qualified
privilege which would be established by a
finding that the publication was on
an occasion of client legal privilege. However, in my view, this is by no
means so. If the defendant
publishes for some purpose other than that for
which the privilege is occasioned, that purpose constitutes malice and is
sufficient
to defeat the defence : Barbaro v. Amalgamated Television Services
Pty Ltd (1985) 1 NSWLR 30 at 50, per Hunt J. The purpose of publication
by
this respondent to Mr. Moore is not necessarily the purpose of publication by
lawyer to client.

   25. If I understood Mr. Erskine's
written submissions correctly, they did
not seek to claim immunity on a separate ground of public interest privilege.
The claim was
that the confidential nature of the disclosure to Mr. Moore
(evident from the correspondence already referred to) supported the
proposition
that there was no waiver. For the fundamental reasons already
given, I hold that the confidential nature is irrelevant to the question
of
waiver. However, in deference to the evidence called on behalf of the
respondent and the submissions of Mr. Erskine, I acknowledge
that I accept the
evidence of Mr. Keady, Chief Executive Officer of the Department of
Justice and Community Safety and Mr. Butt,
Chief Executive of the ACT
Department of Health and Community Care. That evidence shows that it is
considered in government circles
desirable for a government to provide
confidential information to members of the legislature in order to enable them
to be more informed
on important issues. It is the view of the witnesses that
if communications of that nature are not protected by some sort of privilege,
the existing practice of the disclosure of confidential information to members
of parliament by ministers would be unduly curtailed,
restricting informed
public debate on major issues. I note also the opinions of the witnesses that,
in the context of a minority
government, as in the Australian Capital
Territory, it is desirable that independent members (on whose support the
Government relies)
can be kept informed of matters and form their own views on
the actions of the Government. It may well be that unless the independent
members regard themselves as so informed, minority governments may face
difficulty in enlisting the continuing support of the independent
members,
with consequent risks of instability in government.

   26. There are countervailing views, I should expect, although no
witnesses
were called to put them. It is arguable, I should think, that the public
interest no more requires the law to recognize
a general principle of
confidentiality in communications between ministers and members of parliament
than it requires recognition
of confidentiality between ministers and members
of the public or between members of parliament and their constituents. There
is
always, I should think, a tension between openness and confidentiality in
government. If the matter presently before the court had
to be decided on
whether the court should recognize a general principle of confidentiality in
communications between ministers and
members of parliament, I would not be
convinced that it should. However, as I have indicated, the principle of such
confidentiality
is, in my view, an irrelevant issue.

   27. I therefore hold that the respondent is not entitled to resist the
application on the
ground that she could not be required to produce the
documents in question if the applicant had commenced a proceeding against the
respondent. Dr Mann has made out a case for production and inspection under
O.34A r.5 and I order the respondent to produce to him
the documents (i) to
(iv) above.

   28. As far as the costs of this application are concerned, I order that
they abide any order
made in any subsequent proceedings on any cause of action
alleged to have arisen out the publication of the documents or any of them
by
the respondent to Mr. Michael Moore.