Waiver of Client Legal Privilege Presented by Prof Les McCrimmon William Forster Chambers & Charles Darwin University NTBA-CDU 2014 CIVIL LAW CONFERENCE, DILI, TIMOR-LESTE JULY 2014

Focus of Discussion NTBA-CDU 2014 CIVIL LAW CONFERENCE, DILI, TIMOR-LESTE JULY 2014 Waiver under s 122 of the ENULA (NT) Establishing inconsistency Disclosure Waiver Issue Waiver

Governing Law Evidence (National Uniform Legislation) Act (NT) s122 Waiver of client legal privilege (CLP) can occur by:  consent (s 122(1))  privilege holder has acted in a way that is “inconsistent with the maintenance of the privilege” (s 122(2)) Common law principles established in Mann v Carnell (1999) 201 CLR 1 incorporated into UEA NTBA-CDU 2014 CIVIL LAW CONFERENCE, DILI, TIMOR-LESTE JULY 2014

ENULA (NT) s 131A Pursuant to s 131A, Pt 3.10 or the ENULA (NT) (other than: s 123 re loss of CLP re defendants in criminal proceedings, s 128 re privilege re self- incrimination) applies to the pre-trial stages of civil proceedings. Includes: summons or subpoena pre-trial discovery and interrogatories non-party discovery notice to produce request to produce document under Pt 4.6, Div 1 (request provisions) NTBA-CDU 2014 CIVIL LAW CONFERENCE, DILI, TIMOR-LESTE JULY 2014

Requirement of Inconsistency Mann v Carnell (1999) 201 CLR 1 at [29] (per Gleeson CJ, Gaudron, Gummow and Callinan JJ) “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.” NTBA-CDU 2014 CIVIL LAW CONFERENCE, DILI, TIMOR-LESTE JULY 2014

Fact Sensitive The inquiry mandated by the ‘inconsistency principle’ in s 122(2) of the ENULA (NT) must focus on the facts of a particular case. As the Full Court of the Federal Court stated in Commissioner of Taxation v Rio Tinto (2006) 151 FCR 341 at [45], “it follows that other cases in which implied waiver has been considered provide limited guidance unless they arise out of the same facts”. NTBA-CDU 2014 CIVIL LAW CONFERENCE, DILI, TIMOR-LESTE JULY 2014

Express or Implied Waiver NTBA-CDU 2014 CIVIL LAW CONFERENCE, DILI, TIMOR-LESTE JULY 2014 Implied Disclosure Issue State of mind

Disclosure Waiver Disclosure of the fact of, or even the conclusions of, legal advice will not necessarily result in an implied waiver of client legal privilege. The court will look at the reason for the disclosure. If the facts indicate that the disclosing party is seeking to deploy a partial disclosure of the legal advice for a forensic advantage, while at the same time seeking to deny the other party an opportunity to see the full text of the privileged communication, then such conduct will likely be held to be inconsistent with the maintenance of the privilege within the meaning of s 122(2) ENULA (NT): British American Tobacco v Secretary, Department of Health and Aging (2011) 195 FCR 123 at [47], [58]; Osland v Secretary of the Department of Justice (2008) 234 CLR 275 at [45]-[46]. NTBA-CDU 2014 CIVIL LAW CONFERENCE, DILI, TIMOR-LESTE JULY 2014

Issue Waiver Privilege may be waived pursuant to s 122(2) ENULA (NT) where the content of the privileged communication has been put in issue in the proceeding by the party entitled to the privilege. Putting the privileged communication in issue can occur in a number of ways, for example: by making an assertion in the pleadings as to the state of mind of a party. See, for example, Liquorland (Australia) Pty Ltd v Anghie (2003) 7 VR 27; by asserting in particulars provided to the other side that a party took into account matters evidenced by privileged documents. See, for example, Commissioner of Taxation v Rito Tinto Ltd (2006) 151 FCR 341 NTBA-CDU 2014 CIVIL LAW CONFERENCE, DILI, TIMOR-LESTE JULY 2014

Establishing Issue Waiver “Where a party to proceedings makes an assertion as part of his case that puts the contents of a privileged document in issue, or necessarily opens them up to scrutiny, with the consequence that that an inconsistency arises between the making of the assertion and the maintenance of the privilege, privilege will be impliedly waived. It does not matter that the privilege holder did not subjectively intend to lose the benefit of the privilege”: headnote - Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341 at [52], [68], [43]. NTBA-CDU 2014 CIVIL LAW CONFERENCE, DILI, TIMOR-LESTE JULY 2014

Proving inconsistency critical 1.The mere fact that a party raises an issue as to his or her state of mind, and the basis for it, does not generally raise a relevant inconsistency – for example, the assertion in a pleading that a party was mislead and the factual basis for it. 2.Nor does the mere acknowledgment by a party that privileged documents were relevant to reaching his or her asserted state of mind generally raise a relevant inconsistency. 3.To satisfy the test of waiver in s 122(2) ENULA (NT), it must be shown that an inconsistency arises between the making of an assertion as to state of mind and the maintenance of the privilege. In such a case “a court is bound to analyse the acts or omissions of the privilege holder that are said to be inconsistent with the maintenance of the privilege”: C of T v Rio Tinto at [45]. See also [67], [71]. NTBA-CDU 2014 CIVIL LAW CONFERENCE, DILI, TIMOR-LESTE JULY 2014

Questions NTBA-CDU 2014 CIVIL LAW CONFERENCE, DILI, TIMOR-LESTE JULY 2014

Thank You/Obrigados NTBA-CDU 2014 CIVIL LAW CONFERENCE, DILI, TIMOR-LESTE JULY 2014 Prof Les McCrimmon Ph: (08) E: