John Cahill v State of New South Wales (Department of Community Services) [2007] NSWIRComm 1 (8 January 2007)

Last Updated: 20 June 2007

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : John Cahill v State of New South Wales (Department of Community Services) [2007] NSWIRComm 1



FILE NUMBER(S): IRC 2387

HEARING DATE(S): 08/12/2006

DATE OF JUDGMENT: 8 January 2007
PARTIES:
PROSECUTOR
John Joseph Cahill

DEFENDANT
State of New South Wales (Department of Community Services)

CORAM: Boland J


CATCHWORDS: Occupational health and safety - Prosecution under s 8(1) of Occupational Health and Safety Act 2000 - Interlocutory proceedings - Strike out motion by defendant - Application by defendant to amend strike out motion - Notice to Produce - Client legal privilege - Applicability of Evidence Act 1995 to pre-trial process - Loss of privilege - Issue waiver - Disclosure Waiver

LEGAL REPRESENTATIVES

PROSECUTOR
Mr B G Docking of counsel
Solicitor: Ms A McRobert
W. G. McNally Jones Staff

DEFENDANT
Mr P M Skinner of counsel
Solicitor: Ms M Kelly
Crown Solicitors Office

CASES CITED: Abigroup Contractors v WorkCover (2001) 112 IR 139
Adelaide Steamship v Spalvins (1998) 81 FCR 360
Ampolex v Perpetual Trustee (1996) 137 ALR 28
Ampolex Ltd v Perpetual Trustee Co (Canberra) (1996) 40 NSWLR 12
Attorney-General (N.T.) v Maurice (1986) 161 CLR 475
Benecke v National Australia Bank (1993) 35 NSWLR 110
Bennett v CEO Customs (2004) 210 ALR 220
Chen v City Convenience Leasing Pty Ltd [2005] NSWCA 297
Commissioner of Taxation v Rio Tinto (2006) 229 ALR 304
DPP (Cth) v Kane (1997) 140 FLR 468
Fort Dodge Australia Pty Limited v Nature Vet Pty Limited [2002] FCA 501
Garratt’s Ltd v Thanga Thangathurai [2002] NSWSC 39
Mann v Carnell (1999) 201 CLR 1
Plowman v Palmer (1914) 18 CLR 339
Ridge Consolidated v WorkCover (NSW) (2000) 100 IR 156
Singapore Airlines v Sydney Airports Corporation & Anor [2004] NSWSC 380
Switchcorp Pty Ltd & Ors v Multiemedia Ltd [2005] VSC 425
Telstra Corp v Australis Media (1997) 41 NSWLR 147
Telstra v BT Australasia (1998) 85 FCR 152
Towney v Minister for Land (1997) 76 FCR 401
Van Der Lee & Ors v State of New South Wales & Ors [2002] NSWCA 286
Van Zonneveld v Seaton [2004] NSWSC 960
WorkCover Authority v Siemans Dematic (2001) 111 IR 362
WorkCover v Lucon Aust Pty Ltd (2002) 112 IR 332

LEGISLATION CITED: Criminal Procedure Act 1986
Evidence Act 1995
Industrial Relations Act 1996
Occupational Health and Safety Act 2000



JUDGMENT:

INDUSTRIAL COURT OF NEW SOUTH WALES

CORAM: BOLAND J

Monday 8 January 2007

Matter No IRC 2387 of 2006

JOHN JOSEPH CAHILL v STATE OF NEW SOUTH WALES (DEPARTMENT OF COMMUNITY SERVICES)

Prosecution under s 8(1) of the Occupational Health and Safety Act 2000

INTERLOCUTORY JUDGMENT

[2007] NSWIRComm 1

1 On 23 May 2006 John Joseph Cahill, General Secretary of the Public Service Association and Professional Officers Association Amalgamated Union of New South Wales ("PSA"), made application for an order pursuant to s 246(1) of the Criminal Procedure Act 1986 as applied by s 168 of the Industrial Relations Act 1996 that the State of New South Wales in its emanation as the Department of Community Services ("DOCS") appear before the Court to answer charges that it breached s 8(1) of the Occupational Health and Safety Act 2000.

2 The charges related to an incident that occurred on 24 May 2004 at the defendant's premises at Ballina in the State when it was alleged that employees of the defendant were exposed to risks to their health and safety as a consequence of the conduct of a client of the defendant who threatened staff with a knife. One of the employees was alleged to have been stabbed in the incident and another to have suffered psychological injuries.

3 The defendant has moved the Court to dismiss the proceedings or, in the alternative, to permanently stay the proceedings. The grounds and reasons in support of the motion were that:

1. As at 23 May 2006 when these proceedings were initiated the prosecutor was not in possession or command of sufficient admissible evidence capable of establishing each element of the offence as charged.

2. The inescapable inference from the objective facts as to the state of the prosecution brief as at 23 May 2006 and all the circumstances surrounding institution of these proceedings is that they were commenced on that day for the purpose of avoiding the effect of subsection 107(1) of the Occupational Health and Safety Act 2000, the operation of which would have caused any proceedings alleging breaches of that Act by the defendant on 24 May 2004 to become statute-barred at midnight on 23 May 2006.

3. The process of this Honourable Court was thereby employed for a purpose other than the attainment of the claim in the action. This was an abuse of the process of this Honourable Court.

4 The defendant subsequently sought to amend its notice of motion by inserting a fourth ground, namely:

4. The prosecutor invalidly delegated his authority under s 106(1)(d) of the Occupational Health and Safety Act 2000 to decide to institute these proceedings.

The prosecutor opposed the amendment.

5 There are two issues that fall for determination before addressing the substance of the defendant's motion to dismiss and they are:

(1) The amendment to the notice of motion; and

(2) Whether the prosecutor is entitled to claim client legal privilege in respect of certain documents that the defendant has sought to have the prosecutor produce by way of a Notice to Produce.

6 This interlocutory judgment concerns the above two issues. The determination of the issues will affect how the defendant pursues its motion to dismiss, which will be the subject of separate interlocutory proceedings.

Amendment to motion


7 In the prosecutor's application for order it was alleged that:

On 24 May 2004, at the Ballina Community Services Centre in New South Wales, the State of New South Wales (Department of Community Services) whose address is 4-6 Cavill Avenue Ashfield 2131 Sydney, New South Wales, being an employer, failed to ensure the health, safety and welfare at work of all of its employees, and in particular, Gwen Balchin, Robin Kelly, Natjsia Lapic, Lynn Meehan-Frost, Kylie Philps, Theresa Pisanos, Rhonda Sherrington, Linda Williams and Raymond Hendrikas Wilton in that the defendant did not ensure systems of work and the working environment of the employees were safe and without risks to health contrary to section 8(1) of the Occupational Health and Safety Act 2000

The further particulars of the charge are:

a) From time to time clients attended the place of work of the Department of Community Services (“DOCS”) for the purpose of being interviewed by DOCS employees.

b) There was an actual risk of a DOCS employee suffering trauma, namely, a psychic or physical phenomena, or both, which may occur when an employee is exposed to a violent event involving a client that threatens danger or anxiety, or both, and can be created by being the victim or a witness to an event or restraining any client.

c) Aspects of the defendant’s unsafe systems of work were any of the following:

(i) Failing to prevent the client, Ms Cheryl Cooper (“the client”) from attending the place of work for an interview.

(ii) Failing to undertake an adequate risk assessment of the client that had a focus on the safety of the employees at the place of work, assessed the risk and assessed what preventative or control measures needed to be in place to prevent or reduce an incident arising or escalating to a more serious stage.

(iii) Failing to undertake a Protection Planning Meeting in respect of the client.

(iv) Failing to ensure that there were a security guard(s) or police officers(s) present or then attended at the place of work whenever the client attended the place of work.

(v) Failing to provide an alert in respect of the client or to warn employees that the client was to attend the place of work, or both.

(vi) Failing to have in place adequate interview facilities at the place of work.

(vii) Failing to have in place an adequate emergency system.

(d) Manifestations of the risk were the stab wounds to Ms Philps and the psychological injuries to Mr Wilton.

8 The defendant's position, as disclosed by its notice of motion, was essentially that the prosecutor was not in a position as at 23 May 2006, when it filed its application for order, to make out the charge; that proceedings were commenced on 23 May because any later commencement would have meant the proceedings were statute-barred. By its amendment to the motion, the defendant also sought to claim the prosecutor invalidly delegated his authority to decide to institute the proceedings.

9 Mr P Skinner of counsel for the defendant indicated to the Court that a decision was taken to amend the motion following consideration of the affidavit of Andrew Allan Wilson sworn on 17 November 2006 and filed 20 November 2006. Mr Wilson was an Industrial Officer employed by the PSA who assumed responsibility for the preparation of the prosecution of the defendant in February 2006. Mr Wilson's affidavit stated, inter alia:

18. The factually correct position is that approximately 2 to 3 days after 14 March 2006, the General Secretary approved the prosecution of DOCS for failing to ensure a safe system of work at the Ballina CSC and for failing to ensure that the working environment of staff was safe and without risks to health as per section 8(1) of the OHS Act. The reason I know this is correct is that the General Secretary gave the OK to this recommendation that I personally made on 14 March 2006.

19. Annexed and marked “AW2” is a copy of my internal memorandum dated 14 March 2006 that contains the subsequent written OK of the General Secretary.

20. I am aware that the General Secretary relied upon me as the Association’s investigator and the prosecution’s lawyers.

21. Client legal privilege is claimed in respect of any advice from lawyers instructed by the prosecution including that advice referred to in AW2.

22. In addition to writing the internal memorandum dated 14 March 2006 and helping settle the factual allegations made in the Affidavit of John Joseph Cahill, I gave the General Secretary a number of brief updates on how the investigation was progressing.

23. I understand that the General Secretary needed to rely upon myself and the prosecution’s lawyers because of the structure and size of the Association, the diversity of membership and the demands on the Association’s secretariat. The Association has approximately 45,000 members across the New South Wales Public Service, universities and non-government organisations. These members work in a diverse range of occupations that produce a diverse range of industrial issues. It is impractical if not impossible for the General Secretary to personally handle every issue given the breadth of issues and their responsibility for the management and administration of the organisation. The practice throughout my time at the Association has been for industrial staff such as myself to undertake duties such as Occupational Health and Safety inspections, the preparation of witness statements and the briefing of solicitors.

10 The annexure "AW2" to Mr Wilson's affidavit was a memorandum from Mr Wilson to Mr Cahill (with a copy to Ayshe Lewis, Principal Industrial Officer) seeking approval to brief a particular firm of solicitors and counsel to prosecute the defendant in relation to the incident that occurred at Ballina on 24 May 2004. The memorandum was dated 14 March 2006. The memorandum provided a brief factual background relating to the incident and attached advice from counsel. The memorandum also contained the following Recommendations:

1. That the General Secretary approve the prosecution of the Department of Community Services for failing to ensure a safe system of work at the Ballina CSC and for failing to ensure that the working environment of staff was safe and without risk as per section 81 (sic - 8(1)) of the Occupational Health and Safety Act 2000.

2. That the General Secretary approve the briefing of Jones Staff and Co and counsel for the purpose of pursuing this prosecution.

11 Beneath the typed text of the memorandum and in the middle of the page appeared the handwritten word "OK" alongside a signature, which was indecipherable but which according to Mr Wilson's affidavit was the "OK of the General Secretary". On the right hand side of the bottom of the memorandum there was also the words "Rec" and "OK" written by hand over the signature of "A Lewis" and dated "14.3.06".

12 The import of the defendant's submission was that having regard to Mr Wilson's affidavit and, in particular annexure AW2, it was open to conclude that Mr Cahill did not make the decision to prosecute; that in reality he delegated that function to Mr Wilson and the PSA's legal advisers and the "OK" and accompanying signature on the memorandum of 14 March 2006 was merely a rubber stamp.
13 Mr Docking of counsel for the prosecutor opposed the amendment of the notice of motion on the ground that the proceedings had been validly commenced under s 246(1) of the Criminal Procedure Act and r 217B of the Industrial Relations Commission Rules 1996: see Ridge Consolidated v WorkCover (NSW) (2000) 100 IR 156 at [27]-[32]; WorkCover v Lucon Aust Pty Ltd (2002) 112 IR 332 at [125]-[128]; WorkCover Authority v Siemans Dematic (2001) 111 IR 362 at [74]. Counsel contended it was now too late for the defendant to challenge the validity of the proceedings on the basis of the proposed amendment to the notice of motion.

14 There was no contest about the Court's power to amend any document in proceedings. Section 170 of the Industrial Relations Act:

170 Amendments and irregularities

(1) The Commission may, in any proceedings before it, make any amendments to the proceedings that the Commission considers to be necessary in the interests of justice.

(2) Any such amendment may be made:

(a) at any stage of the proceedings, and

(b) on such terms as the Commission thinks fit (including, if it can award costs in the proceedings, terms as to costs).

(3) If this Act, the regulations or a rule of the Commission is not complied with in relation to the institution or conduct of proceedings before the Commission, the failure to comply is to be treated as an irregularity and does not nullify the proceedings, any step taken in the proceedings, or any decision in the proceedings.

(4) For the purposes of subsection (3), the Commission may wholly or partly set aside the proceedings, a step taken in the proceedings, or a decision in the proceedings.

15 Further, r 148 of the Industrial Relations Commission Rules 1996 provides:

148 General

(1) A tribunal may, at any stage of any proceedings, on application by any party or of its own motion, order that any document in the proceedings be amended, or that any party have leave to amend any document in the proceedings, in either case in such manner as the tribunal considers to be necessary in the interests of justice.

(2) Unless the tribunal otherwise orders or permits, an application to amend shall be made by notice of motion.

16 In the present proceedings, Mr Cahill, as the General Secretary of the PSA, has instituted proceedings for breach of the Occupational Health and Safety Act, a function he is entitled to exercise pursuant to s 106(1)(d) of that Act, which provides:

1) Proceedings for an offence against this Act or the regulations may be instituted only:

...

(d) by the secretary of an industrial organisation of employees any member or members of which are concerned in the matter to which the proceedings relate.

2) ...

17 The onus, of course, in making out a case for the amendment to the motion, lies with the defendant. Whilst I have not come to any concluded view about the matter, I am somewhat sceptical about the defendant's contentions that Mr Cahill may not have made the decision to prosecute. If it were not for his "OK" on the memorandum of 14 March 2006 seeking approval to proceed with the prosecution, it is questionable whether the prosecution could have proceeded. In other words, in the absence of a decision by Mr Cahill to approve the recommendations to prosecute the proceedings against the defendant, could the proceedings have been instituted or, to express it another way, set in operation? That Mr Wilson may have been involved in bringing the prosecution to a point where it could be launched, and that legal advice and assistance had been provided to Mr Wilson to reach that point, would not appear to detract from the fact that without Mr Cahill's decision to proceed, there would have been no prosecution. Further, it would be most surprising that any person authorised to institute proceedings for an offence under the Occupational Health and Safety Act would not seek legal advice and assistance in launching the prosecution.

18 I note that Mr Cahill was provided with a summary of the factual background to the alleged offence and with counsel's advice regarding the proposed prosecution. It could not be reasonably contended he had no basis for instituting the proceedings or that he was not entitled to rely on the advice and recommendations provided to him.

19 In so far as the prosecutor's contentions are concerned, there can be no doubt that the proceedings were validly commenced: Ridge Consolidated; Lucon. But that does not prevent a defendant seeking later to have the proceedings dismissed or permanently stayed on the grounds of abuse of process. The order made by Staff J on 23 May 2006 pursuant to s 246(1) of the Criminal Procedure Act as applied by s 168 of the Industrial Relations Act required the defendant to appear before the Court to answer the offence charged. The defendant has complied with that order and now seeks to challenge the basis upon which the proceedings were brought: see Abigroup Contractors v WorkCover (2001) 112 IR 139. No question arises under s 179 of the Act in relation to the order made by Staff J; it is not being reviewed, quashed or called into question.

20 That the proceedings were validly commenced in accordance with r 217B does not, as the prosecutor appeared to contend, constitute a bar to amending the defendant's motion to allow it to challenge the validity of Mr Cahill's decision to prosecute.

21 Despite my scepticism, the defendant has indicated that it intends to adduce evidence to show that the prosecutor invalidly delegated his authority under s 106(1)(d) of the Occupational Health and Safety Act to decide to institute these proceedings. The effect of s 106 of the Occupational Health and Safety Act is to prohibit any person other than a prescribed person from instituting proceedings for an offence. This is apparent from the use of the word "only" in s 106(1). That being the case, proceedings instituted by a person not authorised to do so may be regarded as proceedings instituted in contravention of a lawful prohibition and, therefore, the proceedings are a nullity: Plowman v Palmer (1914) 18 CLR 339 at 347 per Isaacs J. It does not seem to me that such a nullity could be cured by s 170 of the Industrial Relations Act, especially given that if there was an invalid delegation of the decision to prosecute the prosecutor would now out of time: see s 107(1) of the Occupational Health and Safety Act.

22 I consider that it would be in the interests of justice to provide the defendant with the opportunity to make a case based on the alleged invalid delegation. Accordingly, I propose to grant leave to the defendant to amend its notice of motion to include the fourth ground.

Client legal privilege


23 The defendant served on the prosecutor a Notice to Produce pursuant to r 161 of the Commission's Rules. The Notice was dated 29 November 2006. The Notice sought the production of a number of documents in respect of which the prosecutor claimed legal professional privilege. The defendant contended the privilege had been waived.

24 It should be noted that all of the documents in respect of which privilege was claimed were produced to the Court for its inspection. I propose to deal with the privilege issue by addressing each of the documents in respect of which privilege is claimed, in turn. The first two of the documents, sought pursuant to r 161(1)(a), may be dealt with together. They were:

· an unedited copy of annexure AW2 to the affidavit of Andrew Allan Wilson sworn 17 November 2006;

· the "advice attached" referred to in point 4 of annexure AW2 to the affidavit of Andrew Allan Wilson sworn 17 November 2006.

25 As mentioned previously, annexure AW2 was a memorandum from Mr Wilson to Mr Cahill recommending the prosecution of the defendant and seeking approval to do so. The memorandum also sought approval for the briefing of a firm of solicitors and counsel for the purpose of pursuing the prosecution. In paragraph numbered "4" and under the heading "Background", the memorandum stated:

I have responded to the requests for specific information from Jones Staff and Co. and Brendan Docking of counsel. [The next sentence was edited out]. Please refer to the advice attached.

The prosecutor claimed privilege in respect of the sentence edited out in paragraph 4 of the memorandum and in respect of the attached advice.

26 Rule 161 of the Commission's Rules is in the following terms:

161 Notice to produce for inspection

(1) A party (party A) may by notice served on another party (party B) require party B to produce for the inspection of party A:

(a) any document (other than a privileged document) referred to in any originating process, pleading, affidavit or witness statement filed or served by party B,

(b) any other specific document (other than a privileged document) clearly identified in the notice, relevant to a fact in issue.

(2) The maximum number of documents which party A may require party B to produce in reliance on subrule (1) (b), whether by one or more notices, is 50.

(3) Party B, upon being served with a notice under subrule (1), shall within a reasonable time:

(a) produce for the inspection of party A such of the documents as are in the possession, custody or power of party B,

(b) in respect of any document which is not produced, serve on party A a notice stating in whose possession the document is, to the best of the knowledge, information and belief of party B, or that party B has no knowledge, information or belief as to that matter.

(4) A notice under subrule (1) may specify a time for production of all or any of the documents required to be produced. If the time specified is 14 days or longer after service of the notice it is to be taken to be a reasonable time for the purpose of subrule (3) unless the contrary is shown. If the time specified is less than 14 days after service of the notice it is to be taken to be less than a reasonable time unless the contrary is shown.

27 The term "privileged document" as it is used in r 161 is defined in r 160 to mean:

...

(c) privileged document means in relation to proceedings:

(i) a document of which evidence could not be adduced in the proceedings over the objection of any person, by virtue of the operation of Part 3.10 of the Evidence Act 1995,

(ii) a document that relates to matters of state within the meaning of section 130 of the Evidence Act 1995, unless and until the Commission directs that it cease to be a privileged document,

(iii) where a claim is made against a party for the recovery of a statutory penalty or for the enforcement of a forfeiture, a document which is or has been in the possession, custody or power of that party which is:

(A) relevant to a fact in issue on that claim, and

(B) not relevant to a fact in issue on any claim made in the proceedings other than for the recovery of a statutory penalty or for the enforcement of a forfeiture,

...

28 The definition of "privileged document" in r 160 is similar in effect to that of the definition of "privileged document" in the Uniform Civil Procedure Rules 2005 (see also r 1.9), which is that it makes the Evidence Act 1995 rules concerning privilege applicable to pre-trial processes in civil proceedings. Rule 160 does not make any distinction between civil and criminal proceedings, which makes for an unusual situation because in the general criminal law it is the common law relating to legal professional privilege that applies to pre-trial processes.

29 I am inclined to believe that r 160 does not apply to criminal proceedings, not only because it would be inconsistent with the general criminal law but also because:

(1) To apply r 160 to pre-trial processes in criminal proceedings would give rise to an inconsistency with s 123 of the Evidence Act. The result of s 123 is that the right of a party to claim client legal privilege is lost where the evidence is sought to be adduced by an accused in a criminal proceeding, unless the accused is seeking the evidence from a co-accused. It would mean that s 123 would extend to pre-trial processes in criminal proceedings before the Industrial Court thereby potentially removing the current common law right of a prosecutor to claim legal professional privilege in relation to, for example, legal advice obtained relating to the prosecution;

(2) Section 164(1)(c) of the Industrial Relations Act provides that the Commission may exercise the functions ("function" is defined in the Dictionary to the Act as including a power, authority or duty) of the Supreme Court in relation to compelling the production, discovery and inspection of records and other documents. As I have noted, the Uniform Civil Procedure Rules 2005 and before that the Supreme Court Rules 1970 limited the application of the Evidence Act rules concerning privilege to pre-trial processes in civil proceedings. To interpret r 160 as applying to criminal proceedings would give the Industrial Court different powers in relation to pre-trial processes in criminal proceedings than those that may be exercised by the Supreme Court and there does not appear to be any reason why that should be so.

30 In any event, given the nature of the present proceeding, which is an interlocutory motion to dismiss or, in the alternative, to permanently stay the proceeding, the proceeding is not a "criminal proceeding" for the purpose of s 123 of the Evidence Act: see definition of "criminal proceeding" in the Dictionary to the Evidence Act and see also DPP (Cth) v Kane (1997) 140 FLR 468. In those circumstances, the relevant provisions of Part 3.10 of the Evidence Act (not including s 123) apply to this proceeding by virtue of r 160.

31 In ss 118 and 119, the Evidence Act refers to client legal privilege rather than legal professional privilege, as it is known in the common law. This would appear to be because the privilege is that of the client. Section 118 creates a privilege for confidential communications made, and confidential documents prepared, for the dominant purpose of a lawyer providing legal advice, sometimes referred to as "advice privilege". Section 119 deals with what is referred to as "litigation privilege" and prevents the disclosure of a confidential communication between, on the one hand, the client or his or her lawyer, and on the other hand a third party, such communication that was made, or the contents of a document that was prepared, for the dominant purpose of the client being provided with professional legal services in relation to legal proceedings that are in existence or are anticipated or pending.

32 Section 122(1) provides that the privilege created by ss 118 and 119 of the Evidence Act will be lost where the client consents to the evidence in question being adduced. Section 122(2) provides that the privilege created by ss 118 and 119 of the Evidence Act will be lost where the client knowingly and voluntarily discloses to another person the substance of the evidence and the disclosure was not made in the circumstances described in s 122(2)(a)-(d) or s 122(3) or s 122(5)(a) and (b).

33 At issue in the proceeding is whether, by putting into evidence communications such as "AW2", the prosecutor has lost any claim to privilege over those documents the defendant seeks to inspect. In other words, having disclosed the existence of legal advice in the context of AW2 has the prosecutor waived his right to claim privilege over the whole of the contents of "AW2" and the legal advice referred to in that document? Waiver arises when:

[T]he party entitled to the privilege makes an assertion (express or implied), or brings a case, which is either about the contents of the confidential communication or which necessarily lays open the confidential communication to scrutiny and, by such conduct, an inconsistency arises between the act and the maintenance of the confidence, informed partly by the forensic unfairness of allowing the claim to proceed without disclosure of the communication: DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499 at [58] (emphasis original).

34 The relevant principles regarding waiver were stated by the High Court (Gleeson CJ, Gaudron, Gummow and Callinan JJ) in Mann v Carnell (1999) 201 CLR 1 at [29] (references omitted):

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, 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.

35 Thus, implied waiver may occur where the privilege holder does not intend to lose the privilege but divulges the privileged communication (or part of it) to a third party. The waiver may be imputed because the conduct of divulging the communication is an act inconsistent with the maintenance of the privilege. As the majority also said at [29], considerations of fairness may be relevant but not fairness at large.

36 In Attorney-General (N.T.) v Maurice (1986) 161 CLR 475 Deane J said at 493:

Thus, ordinary notions of fairness require that an assertion of the effect of privileged material or disclosure of part of its contents in the course of proceedings before a court or quasi-judicial tribunal be treated as a waiver of any right to resists scrutiny of the proprietary of the use he has made of the material by reliance upon legal professional privilege. ... If, in such a document, a party sets forth part of the contents of a particular identified document or communication or asserts the effect of or his reliance upon a particular identified document or communication, it may be that consideration of fairness might require that he be treated as having waived any legal professional privilege in relation to the whole document or communication. ... Where, however, he does no more than make use of privileged material (e.g. legal advice, expert opinion or statements of potential witnesses) for the purpose of formulating the statement in such a document of the details of the case which he proposes to make, it would be an affront to ordinary notions of fairness to hold that the effect of his compliance with that procedural requirement was that he has waived his legal professional privilege ...

37 In Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1996) 40 NSWLR 12 Rolfe J had to consider whether there had been a waiver of privilege in legal advice given to Ampolex by counsel. His Honour considered what was meant by ‘the substance’ and ‘the effect’ of advice or relevant evidence for the purposes of s 122(2) of the Commonwealth Evidence Act. At 19, his Honour said:

In my opinion the substance of the advice may well be disclosed if the ultimate conclusion, without the supporting reasoning process, is revealed. At that stage there has been, in my opinion, a disclosure of the substance of the advice, i.e. what the advice is. Further the ultimate conclusion, whilst it may be a ‘result’ or ‘consequence’ of the reasoning is more than that: in its own right it is the essence or vital part of the advice. Some advices may be very short and answer the question whether minimum of reasoning or, in some circumstance without any.

38 The same approach was taken by the Full Federal Court, after referring to Ampolex, in Adelaide Steamship v Spalvins (1998) 81 FCR 360 at 376.

39 In Commissioner of Taxation v Rio Tinto (2006) 229 ALR 304 at [61] and [74] the Full Federal Court stated:

61 Both before and after Mann, the governing principle required a fact-based inquiry as to whether, in effect, the privilege holder had directly or indirectly put the contents of an otherwise privileged communication in issue in litigation, either in making a claim or by way of defence ...
...

74 It follows that the Commissioner is to be taken to have waived privilege over the eight privileged scheduled documents, notwithstanding that, in his letter of 22 October 2004 and the accompanying lists, he disavowed any intention of so doing. In providing particulars that in substance state the bases for his satisfaction and exercises of discretion by reference to these documents, the Commissioner has waived such privilege as there would otherwise have been in them. As previously noted, the High Court made it clear in Mann that, when inconsistency arises, it does not matter that the privilege holder did not subjectively intend to lose the benefit of the privilege ... (my emphasis).

40 In Bennett v CEO Customs (2004) 210 ALR 220 Tamberlin J stated at [12]-[14]:

12 While it is true that questions of fact and degree may be involved in determining whether the conduct or circumstances are such that waiver can be imputed, nevertheless, there is an underlying principle of law to be resolved as to what in law may or will constitute a waiver. In these circumstances, I do not consider that it can be said to be merely a question of fact and degree so that an appellate court cannot re-examine the matter and come to a different conclusion. In this case, the ‘detail’ of the advice has not been disclosed, but there is no doubt that the substance of the conduct has been stated. Hence, not only is the ‘legal stance’ or ‘position’ disclosed but also the interpretation which has been advised as correct. The question whether this is a waiver necessarily involves the consideration and application of legal principles, as the appellate authorities on waiver demonstrate.

13 Various expressions are used in the formulation of principles relating to waiver of legal professional privilege, such as references to ‘the substance’, ‘effect’, or ‘content’ of the advice. The weight of the authorities, in my view, supports the conclusion that the disclosure of the conclusion reached in or course of action recommended by, an advice can amount to waiver of privilege in respect of the premises relating to the opinion which has been disclosed, notwithstanding that this reasoning is not disclosed. By way of illustration, if there is a disclosure that a client has been advised that interpretation ‘A’ is preferable to interpretation ‘B’ of a legislative provision, then even if there is no disclosure of the reasoning leading to that conclusion, the reasoning and content of the advice may be waived, including the factual premises and circumstances leading to that conclusion.

14 Disclosure of one conclusion but not others in an advice does not necessarily amount to waiver in respect of the non-disclosed conclusions. However, if the conclusions and reasoning are so interconnected that they cannot be separated or isolated, then it may be that the whole of the advice on which all those conclusions are based, must be considered to have been waived.

41 In the same case at [68] Gyles J stated:

The authorities to which I have referred show that it is well established that for a client to deploy the substance or effect of legal advice for forensic or commercial purposes is inconsistent with the maintenance of the confidentiality that attracts legal professional privilege.

42 In Switchcorp Pty Ltd & Ors v Multiemedia Ltd [2005] VSC 425, Whelan J found privilege had been waived over legal advice referred to in an announcement to the Stock Exchange. Multiemedia made a statement that, "The Board's lawyers have been instructed to vigorously defend the claim and have advised the plaintiff's claim will not succeed". The statement was found to be "a clear and deliberate disclosure of the gist or the conclusion of legal advice received by Multiemedia from its lawyers". Consequently, privilege was found to have been waived.

43 Maurice, Mann v Carnell, Bennett, Rio Tinto and Switchcorp were concerned with the common law of privilege and not the provisions of the Evidence Act. However, the approach developed by the courts to waiver under the Evidence Act, has not been, in so far as it is relevant, materially different from that taken in respect of waiver under the common law. In Adelaide Steamship the Full Federal Court said at 425:

We have not had the benefit of submissions on the extent of operation of s 122(1), although we consider it of some relevance to the topic of `issue waiver' raised by the respondents. There seems to us no reason for construing the term `consent' in s 122(1) as referring only to express consent, even if the formula `with the express or implied comment', which appears in s 122(4), is not used. It is unnecessary for us on this appeal to comment further on the extent to which common law doctrines, such as estoppel, might operate to preclude the client or party concerned from denying that the relevant consent was given.

44 In Telstra v BT Australasia (1998) 85 FCR 152 Branson and Lehane JJ, Beaumont J dissenting, held that consent in s 122(1) should be construed to extend to imputed consent. At 168 the majority stated:

In our view, s 122(1) of the Act is to be construed as reaching to cases in which the client or party concerned is deemed to have consented to the disclosure of the otherwise privileged material in the sense discussed above. To constrain the operation of the subsection to instances of voluntary assent to the adducing of evidence which would otherwise attract client legal privilege is, in our view, to give insufficient weight to the context in which the subsection is found, and to the common law background against which the Act as a whole is to be understood. The primary judge expressed the view that, while "consent" in s 122(1) might include implied as well as express consent, it would be straining language excessively to hold that it extended to a "consent" imputed to a party on the basis of fairness. Presumably an implied consent, as envisaged by his Honour, is one that is found to be, on the evidence, real and voluntary though not express. In fact, however, the cases, not surprisingly, use the terms "implied" and "imputed" interchangeably (see, for example, Maurice at 488 per Mason and Brennan JJ, Goldberg at 95-96 per Deane, Dawson and Gaudron JJ and at 109 per Toohey J). Once it is accepted that consent for the purposes of the section extends beyond express consent, we think it should be taken to extend to imputed consent. In particular, if that were not so, a defendant ordinarily would no longer be able, where the plaintiff alleges that a transaction was procured by the defendant's undue influence, to lead evidence to the effect that the plaintiff had comprehensive legal advice, immediately before entering into the transaction as to its effect. We cannot believe that that was intended. It follows that, in such cases, the position has changed little, if at all, following the introduction of the Act. Of course, as the Adelaide Steamship case demonstrates, the position may be different where the conduct relied upon is some disclosure of legal advice, but that need not be further considered here.

45 In Telstra the Court was concerned with issue waiver, that is where a litigant opens up the source and basis for its belief on a particular question, inspection cannot be denied by a general law claim of legal professional privilege (Telstra at 155), as distinct from disclosure waiver, which is exemplified by Mann v Carnell and Benecke v National Australia Bank (1993) 35 NSWLR 110. However, the Full Federal Court in Rio Tinto appears to have adopted the view expressed in Adelaide Steamship at 371 that issue waiver was "no more than a particular manifestation of the principles applying either to waiver by disclosure or to implied consent to disclosure". At [54] The Full Court in Rio Tinto stated:

54 Although the Full Court was necessarily guided by the authorities prior to Mann, there is little, if anything, in the passage quoted above that would require modification to take account of Mann. It is plain enough that the majority in Mann also saw the ‘issue waiver’ cases as a species of waiver, to which the same basic principle applied. Their Honours’ analysis in Spalvins emphasises, as does the majority in Mann, that waiver comes about because the privilege holder’s conduct is inconsistent with the continued confidentiality of the communication because he or she has put in issue the character or contents of the communication in pursuing a right or claim, or has created a situation where another party must reasonably do so by way of a defence.

46 As Campbell J noted in Van Zonneveld v Seaton [2004] NSWSC 960 at [11]:

The decision in Telstra Corporation Ltd v BT Australasia Pty Ltd has been followed by numerous judges: see Wayne Lawrence Pty Limited v Hunt [1999] NSWSC 1044 per Hodgson CJ in Eq; Garratt’s Ltd v Thanga Thangathurai [2002] NSWSC 39 at [51] per Bergin J; Ford Dodge Australia Pty Ltd v Nature Vet Pty Ltd [2002] FCA 501 per Hely J; Perpetual Trustees Victoria Limited v Richard Kingsley Sheehan [2004] NSWSC 294 at [20] per Dunford J; Singapore Airlines v Sydney Airports Corporation [2004] NSWSC 380 per McDougall J; Gordian Run-Off v Price [2004] NSWSC 600 per McDougall J; ASIC v Rich [2004] NSWSC 923 at [12] per Austin J; and Travel Compensation Fund v John Harvey Blair [2004] NSWSC 501 per McDougall J.

47 His Honour went on to say, however, in the same paragraph:

However, when the High Court has expressly said, in Mann v Carnell (1999) 201 CLR 1 at 11, [23], that “the provisions of s.122 as to the circumstances in which privilege may be lost are not identical to the corresponding common law principles”, it would only be after full argument that I would be willing to decide whether section 122(1)’s concept of consent operated identically to the common law concerning waiver of legal professional privilege. Deciding that question would also involve considering whether the common law concerning waiver of legal professional privilege continues to depend on considerations of fairness, as laid down by Attorney-General (for the Northern Territory) v Maurice (1986) 161 CLR 475 and Goldberg v Ng (1995) 185 CLR 83, or whether Mann v Carnell has substituted a test which looks at whether there is inconsistency between maintaining the privilege and the act said to amount to a waiver of it: see DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 384; (2003) 127 FCR 499 per Allsop J.

48 Nonetheless, in Chen v City Convenience Leasing Pty Ltd [2005] NSWCA 297 Gzell J with whom Bryson JA and Windeyer J agreed, stated at [32]:

In my view, the majority in Telstra were correct in concluding, at 168, that the Evidence Act 1995, s 122(1) is to be construed as reaching to cases in which the client or party concerned is deemed to have consented to the disclosure of otherwise privileged material in terms of the common law rule.

In making this statement, as it was noted by Odgers in Uniform Evidence Law, Lawbook Co, 7th ed at 532, Gzell J made no distinction between issue waiver and disclosure waiver.

49 In Singapore Airlines v Sydney Airports Corporation & Anor [2004] NSWSC 380 McDougall J, in a disclosure context, applied the common law test to "consent" in s 122(1) of the Evidence Act. After referring to a number of the authorities including Garratt’s Ltd v Thanga Thangathurai [2002] NSWSC 39, Fort Dodge Australia Pty Limited v Nature Vet Pty Limited [2002] FCA 501, his Honour stated at [55]-[56]:

55 It seems to me that the balance of authority is in favour of the proposition that the common law test, as enunciated most recently in Mann, can be applied to the statutory concept of consent referred to in s 122(1) of the Act. It follows, I think, that in asking whether there has been a consent for the purposes of s 122(1):

(1) The search for consent extends to implied as well as express consent; and

(2) For the purpose of ascertaining whether there has been implied (or imputed) consent, the common law test remains applicable.

56 It remains only to note that, as the majority pointed out in Mann at 13 [29], the question is not to be determined by reference to “some overriding principle of fairness operating at large”, but by perceived inconsistency “between the conduct of the client and maintenance of the confidentiality”. In asking whether there is inconsistency it is, however, legitimate to have regard to considerations of fairness as they have been explained and developed in the authorities, including (as Austin J noted in Sovereign), Maurice and Goldberg.

50 Notwithstanding the observations of Campbell J in Van Zonneveld, I do not see any basis to depart from the approach taken by McDougall J in Singapore Airlines in relation to disclosure waiver under s 122(1) of the Evidence Act, especially in light of Chen where Singapore Airlines was cited (at [33]) in support of the approach taken in Chen.

51 In the present proceeding the prosecutor has sought to use, for a forensic purpose, a communication from Mr Wilson to the prosecutor. Referred to in the communication (AW2), and attached to it, was legal advice. The mere reference to legal advice will not amount to waiver of the privilege in respect of that advice: Ampolex v Perpetual Trustee (1996) 137 ALR 28 at 34 per Kirby J. However, the tenor of the communication that was AW2 was that Mr Wilson had:

(1) Consulted lawyers in relation to the prosecution of the defendant;

(2) Provided information to lawyers regarding the prosecution of the defendant;

(3) Received legal advice from the same lawyers;

(4) Commenced preparations for a prosecution of the defendant;

(5) Recommended prosecution of the defendant;

(6) Recommended the lawyers with whom he had been dealing be briefed for the purpose of pursuing the prosecution against the defendant;

(7) Noted that the prosecution had to be filed by 23 May 2006.

52 In Adelaide Steamship it was accepted at 375 that the substance of legal advice has been disclosed where its effect could be inferred. The inescapable inference to be drawn from AW2 was that advice had been received from lawyers that allowed Mr Wilson to recommend to the prosecutor that he should approve the prosecution; there was no indication of any other basis upon which Mr Wilson recommended that the prosecution proceed. It is most unlikely that Mr Wilson would recommend that the prosecution proceed if the lawyers had advised that the prosecution was unlikely to be successful. Thus, it may also be reasonably inferred that the lawyer's advice was the prosecution would succeed or had reasonable prospects of success. Further, the clear inference is available that on the strength of Mr Wilson's recommendation to approve the prosecution, a recommendation made on the basis of legal advice, the prosecutor accepted the advice and gave his "OK" to the prosecution.

53 In my opinion, the prosecutor has voluntarily disclosed the "gist or conclusion" (see Bennett at [65]) of the legal advice in relation to the prosecution of the defendant. In circumstances where the defendant has contended that when the proceedings were initiated the prosecutor was not in possession or command of sufficient admissible evidence capable of establishing each element of the offence as charged, the disclosure by the prosecutor of the substance of the legal advice relating to the prospects of success of the prosecution is inconsistent with the confidentiality of that advice which the privilege serves to protect. As it was observed in Mann v Carnell at [34]:

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. ... considerations of fairness may be relevant to a determination of whether there is such inconsistency.

54 In this situation, it would be unfair to the defendant to deny it access to the advice upon which it may be inferred the prosecutor based his decision to prosecute. Consequently, I propose to order that the prosecutor produce to the defendant for inspection:

(1) An unedited copy of annexure AW2 to the affidavit of Andrew Allan Wilson sworn 17 November 2006; and

(2) The "advice attached" referred to in paragraph 4 of annexure AW2 to the affidavit of Andrew Allan Wilson sworn 17 November 2006.

55 The next document sought by the defendant was written legal advice referred to in paragraph 43 of Mr Wilson's affidavit of 17 November. This was a different document to the one referred to as "advice" in AW2. The relevant paragraph was in the following terms:

On or about 29 January 2006, the Association through Jones Staff & Co (as that firm was then called) received written legal advice on the question of the prosecution of the defendant.

In the following paragraph Mr Wilson purported to claim privilege over the advice.

56 The advice attached to AW2 was a letter from the prosecutor's lawyers to Mr Wilson indicating the general nature of counsel's advice regarding the prosecution of the defendant. The written legal advice referred to at paragraph 43 of Mr Wilson's affidavit was the actual advice of counsel. Considered in isolation, paragraph 43 does no more than refer to legal advice; it does not reveal the gist or substance of the advice and, consequently, privilege would not be lost. However, s 126 of the Evidence Act provides that if the application of sections 121, 122, 123, 124 or 125 means that privilege is lost in respect of evidence of a communication or the contents of a document, privilege will also be lost in respect of evidence of another communication or document if it is necessary to enable a proper understanding of the communication or document.

57 In Towney v Minister for Land (1997) 76 FCR 401 at 414, Sackville J observed in relation to s 126:

However, I think it is fair to say that, if a privileged document is voluntarily disclosed for forensic purposes, and a thorough apprehension or appreciation of the character, significance or implications of that document requires disclosure of source documents, otherwise protected by client legal privilege, ordinarily the test laid down by s 126 of the Evidence Act will be satisfied.

58 If the defendant is to have a proper understanding of the advice referred to in the letter attached to AW2, it will need to see the legal advice referred to in paragraph 43 of Mr Wilson's affidavit. Accordingly, I propose to order that the prosecutor produce the legal advice for the defendant's inspection.

59 Next, the defendant sought "a transcribed copy of the manuscript appearing as AW17 to the affidavit of Andrew Allan Wilson sworn 17 November 2006".

60 At paragraphs 70 and 71 of his affidavit, Mr Wilson deposed:

70. On 7 March 2006, a conference took place at the offices of Jones Staff & Co to discuss the prosecution. This meeting was attended in person by Brendan Docking of counsel, Alison McRobert of Jones Staff and myself, with Ray Wilton and Pam Veivers calling in on teleconference.

71. Annexed and marked “AW17” is a copy of my notes of the teleconference. These notes do not purport to be a transcript but highlight some of the issues discussed.

61 As I understand it, no transcript of the meeting of 7 March 2006 was taken and so there is nothing to produce. The prosecutor has provided the Court and the defendant with a typed version of Mr Wilson's manuscript.

62 The next documents sought by the defendant were any other notes of the meetings referred to at paragraphs 70 and 78 of Mr Wilson's affidavit. I have already reproduced paragraph 70. Paragraph 78 was in the following terms:

On 18 May 2006, a conference took place. This meeting was attended in Sydney by Brendan Docking of counsel and Alison McRobert of Jones Staff, with Ray Wilton and myself calling in on teleconference from Ballina.

63 One of the classes of documents that is protected by client legal privilege is communications between lawyer or client (and between lawyers engaged by the same client) made for the dominant purpose of providing legal advice to the client: s 118 of the Evidence Act; Telstra Corp v Australis Media (1997) 41 NSWLR 147 per McLelland CJ in Eq. His Honour also considered that the protection of privilege extended to documents (such as notes, memoranda, opinions, and advices of the lawyer and records of communications) prepared for the same purpose whether delivered or not.

64 The first document of the other notes was a two-page manuscript of notes taken by an unknown person at the conference on 7 March. The purpose of the conference was to discuss the prosecution. Subject to the question of waiver, if the client's lawyer prepared the notes for the dominant purpose of providing legal advice to the prosecutor, the notes are protected by privilege. If the notes were made by Mr Wilson, Mr Wilton or Ms Veivers recording the lawyer's advice to the prosecutor (Mr Wilson may properly be regarded as the prosecutor's agent) at the conference, the notes are still protected. Otherwise, no privilege attaches to the notes.

65 If it be the case that privilege attaches to the notes, it does not seem to me that the prosecutor has waived his right to privilege. There has been no disclosure of the contents of the notes and there is no evidence or indication that the prosecutor, by his words or deeds, asserted any reliance on legal advice contained in the notes in arriving at the decision to prosecute or in applying for the order under s 246(1) of the Criminal Procedure Act. Consequently, it could not be said the prosecutor has put in issue any legal advice in the notes that influenced his state of mind regarding the decision to prosecute. Accordingly, the prosecutor has not acted inconsistently with the maintenance of confidentiality of legal advice that might have been contained in the notes.

66 In relation to the meeting of 18 May 2006, there were two sets of handwritten notes by unknown authors. I make the same observation about these notes as I did in respect of the notes of the meeting on 7 March. If privilege attaches to the notes, that privilege has not been waived.

67 In relation to the notes of the meetings of 7 March and 18 May, I have not come to any conclusion about whether or not they are privileged because I have not been able to determine whether the notes attract privilege under s 118 or s 119 of the Evidence Act. The burden of proof, of course, falls on the client objecting to the documents being produced for inspection. In this case that is the prosecutor. In relation to the notes, that burden has not been discharged but I am prepared to allow the prosecutor the opportunity to re-assess his position in respect of privilege having regard to what I have said about the notes and to advise the Court accordingly.

68 The next document that falls for consideration is another copy of counsel's advice to the prosecutor regarding the prosecution. Whilst I have already decided such advice should be produced to the defendant for inspection, this other copy was obviously the subject of discussion at the conference on 18 May because it contains handwritten notes. Whether the notes on the copy of counsel's advice attract privilege or not I am unable to say because the author of the notes is unknown as is the nature of the information contained in them. If privilege does attach, however, I do not consider it has been waived. The prosecutor should advise of its position regarding privilege of the notes on counsel's advice in the same way I have directed in respect of other handwritten notes.

69 In addition to the documents already dealt with the Notice to Produce, in a series of six further paragraphs, sought any other communications between relevant persons relating to the prosecutor's application for order and/or the affidavit in support. In response, the prosecutor produced a number of documents for the Court to inspect for the purpose of determining whether privilege attached. The documents included:

(1) A communication dated 19 May 2006 between the prosecutor's solicitor and counsel with an attachment;

(2) A communication dated 22 May 2006 between the prosecutor's solicitor and counsel with an attachment;

(3) Several communications dated 22 May 2006 between the prosecutor's solicitor and Mr Wilson, some of the communications having attachments;

(4) A communication between the prosecutor's solicitor, counsel and Mr Wilson dated 23 May 2006 with attachments;

(5) A single sheet of manuscript dated 22 May 2006, which is largely unintelligible and the author is unknown.

70 Communications between lawyer or client and a third party (including the client's employees and agents) made for the dominant purpose of providing or receiving legal services in connection with pending or anticipated litigation are privileged: s 119; Telstra Corp v Australis Media. I am satisfied that the communications identified in sub-paragraphs (1)-(4) in [69] above are privileged communications. It is clear that by 19 May 2006 litigation was anticipated and that the communications were made for the dominant purpose of providing or receiving legal services.

71 I am also satisfied the prosecutor has not waived privilege because there has been no disclosure of the contents of the communications. Nor was there any evidence or other indication that the prosecutor, by his words or deeds, asserted any reliance on legal advice contained in the communications in arriving at the decision to prosecute or in applying for the order under s 246(1) of the Criminal Procedure Act so as to create any inconsistency with maintaining the confidentiality of the communications. In relation to the document referred to in sub-paragraph (5) at [69], the prosecutor is to deal with that in the same manner as the notes referred to earlier.

72 The prosecutor also provided for the Court's inspection a number of other documents that were not the subject of the Notice to Produce. The documents do not, in my opinion, fall within the class of documents to which s 126 of the Evidence Act applies and I can discern no other basis for finding they should be produced to the defendant.

73 The defendant put an alternative submission seeking access to the documents sought in the Notice to Produce pursuant to s 11 of the Evidence Act. Section 11 provides:

(1) The power of a court to control the conduct of a proceeding is not affected by this Act, except so far as this Act provides otherwise expressly or by necessary intendment.

(2) In particular, the powers of a court with respect to abuse of process in a proceeding are not affected.

74 The defendant referred to Van Der Lee & Ors v State of New South Wales & Ors [2002] NSWCA 286 where it was held that s 11(2) of the Evidence Act allows the admission of evidence of without prejudice negotiations which could be evidence of an abuse of process. The court may receive the evidence on the voir dire and, if an abuse of process is established, then it may rule the evidence admissible and make the appropriate orders: per Hodgson JA at [62], Mason P and Santow JA agreeing.

75 The defendant contended there were indications of an abuse of process; statements of evidence were not signed until after 23 May 2006 and it was alleged this indicated the prosecutor was not in possession or command of sufficient admissible evidence capable of establishing each element of the offence as charged, but was forced to file on 23 May 2006 because any later would have meant the proceedings were statute-barred. It was submitted that pursuant to s 11(2) of the Evidence Act, and on the authority of Van Der Lee, the Court should rule that material that could be evidence of an abuse of process should be admitted notwithstanding the protection afforded to that evidence by client legal privilege.

76 I do not propose to employ s 11(2) for the purpose the defendant proposed. Van Der Lee was concerned with the common law privilege that attached to without prejudice settlement negotiations and I am not prepared to extend the principles expressed in that case to client legal privilege generally without having had the benefit of full argument.

Orders and directions


77 The Court makes the following orders and directions:

(1) Leave is granted to the defendant to amend its notice of motion to include the following ground:

4. The prosecutor invalidly delegated his authority under s 106(1)(d) of the Occupational Health and Safety Act 2000 to decide to institute these proceedings.

(2) The prosecutor shall, within 28 days, produce to the defendant for inspection:

(a) An unedited copy of annexure AW2 to the affidavit of Andrew Allan Wilson sworn 17 November 2006; and

(b) The "advice attached" referred to in paragraph 4 of annexure AW2 to the affidavit of Andrew Allan Wilson sworn 17 November 2006.

(3) The prosecutor shall, within 28 days, produce for the defendant's inspection the legal advice referred to in paragraph 43 of Andrew Allan Wilson's affidavit sworn 17 November 2006.

(4) The prosecutor shall advise the Court within 28 days of the basis upon which privilege is claimed in respect of the handwritten notes taken at the meetings of 7 March, 18 May and 22 May 2006. The Court will then determine whether the notes are privileged and advise the parties accordingly.

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LAST UPDATED: 1 September 2007