case_outcome: referred to

case_text: Different considerations seem to me to apply to an application to set aside an examination summons. In Re Struthers, Liquidator of Project Management, Architecture and Construction, Interior (PACI) Pty Ltd in Liquidation (No. 3) [2005] NSWSC 1113 ; (2005) 64 NSWLR 392 at [38] , Brereton J pointed out that an examination summons in analogous to a subpoena; "Both may, in appropriate circumstances, be set aside on the application of the witness or the examinee". The witness or the examinee does not become a party to the proceedings in which the subpoena or the summons is issued. Nonetheless, as his Honour observed at [59], the Court does have power to make a costs order against persons who are not parties to the proceedings.


case_outcome: followed

case_text: It seems to me, therefore, that the principles which were stated by McHugh J in Re The Minister for Immigration and Ethnic Affairs of the Commonwealth; Ex parte Lai Qin [1997] HCA 6 ; (1997) 186 CLR 622 at 624-625 apply. That is to say, the Court does not embark upon a hypothetical trial to determine what the result of the application would have been. Whilst it is true that in certain circumstances the Court can make an order for costs where proceedings have not proceeded to trial, the usual rule will be that there be no order as to costs; see also Chapman v Luminis Pty Ltd [2003] FCAFC 162 at [7] . 23 For the reasons that I have given, it seems to me that it is appropriate that the application for the costs of Mr Trevor and BankWest be refused consistent with the principles stated by McHugh J in Ex parte Lai Qin , and applied by the Full Court. 24 The appropriate order seems to me to be that there be no order as to costs and I would indicate that I would make the same order in relation to today's application. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Dated: 5 April 2007 Counsel for the Applicant: Mr MBJ Lee Solicitor for the Applicant: Piper Alderman Counsel for the Respondent: Mr TM Thawley Solicitor for the Respondent: Henry Davis York Date of Hearing: 5 April 2007 Date of Judgment: 5 April 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/506.html


case_text: The background to these proceedings may be seen in the decision of Gyles J in Ryan v Australian Securities and Investments Commission; in the matter of Allstate Explorations NL (Subject to Deed of Company Arrangement) [2007] FCA 59. It is to be noted that ASIC approved the applicants as persons who could seek examination orders. Nevertheless, in view of what I have said above, these are not matters which I need to consider in determining the costs question.


case_outcome: applied

case_text: This is an application for a stay of proceedings under a sequestration order pending appeal. Because of the limitations in the Bankruptcy Act 1966 (Cth) (the Act) it must be seen as an application pursuant to O 52 r 17 of the Federal Court Rules which has been held to operate in circumstances such as the present. See for example Stedman v Commissioner of Taxation [1999] FCA 539 which referred in turn to Evans v Heather Thiedeke Group Pty Ltd (1990) 95 ALR 424.


case_text: This is an application for a stay of proceedings under a sequestration order pending appeal. Because of the limitations in the Bankruptcy Act 1966 (Cth) (the Act) it must be seen as an application pursuant to O 52 r 17 of the Federal Court Rules which has been held to operate in circumstances such as the present. See for example Stedman v Commissioner of Taxation [1999] FCA 539 which referred in turn to Evans v Heather Thiedeke Group Pty Ltd (1990) 95 ALR 424. 4 The Trustee in Bankruptcy, whilst accepting the case to be made in practice for the payment to be permitted, draws attention to the fact that vesting of property is effective by virtue of the operation of s 58 of the Act and there is no authority to establish that a stay would negate the effect of what has occurred to date. Indeed, as I read Stedman , the tendency may be rather to the contrary. However, it seems to me that a stay would operate from its date and the sequestration order would not have an effect upon events after that. Thus, the practical effect of the sequestration order would not lead to any moneys held pursuant to the Proceeds of Crime Act being vested in the Trustee to the exclusion of the bankrupt if released after the stay. In my opinion, if the Supreme Court of New South Wales were persuaded to make an order releasing some of those moneys, they would not vest in the Trustee but could be properly paid to the solicitors for the applicant for the purpose of conducting the appeal. 5 I can do no more than express my view about the way the law operates. The solicitor for the applicant seeks some comfort in relation to any claim that might be made in the event of the appeal failing. I think it is better that I say no more than I have said about that issue at the moment. 6 Under the circumstances, as the order under the Proceeds of Crime Act is in force, I therefore propose to grant a stay of proceedings under the sequestration order until the disposition of the appeal or earlier order on certain terms which have been discussed between the parties. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 8 June 2006 Solicitor for the Applicant: Mr D Bowles of Bowles Lawyers Pty Ltd Counsel for the Official Trustee in Bankruptcy: Mr JT Johnson Solicitor for the Official Trustee in Bankruptcy: Ms K Britton of Sally Nash & Co Counsel for the Commonwealth Director of Public Prosecutions (amicus): Mr T Muir Date of Hearing: 30 May 2006 Date of Judgment: 30 May 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/715.html


case_outcome: affirmed

case_text: This is an appeal against a judgment of Federal Magistrate Scarlett of 12 October 2006, SZIRO v Minister for Immigration and Multicultural Affairs [2006] FMCA 1561. His Honour dismissed an application for judicial review of a decision of the Refugee Review Tribunal of 16 March 2006. The Tribunal had affirmed a decision of a delegate of the Minister to refuse to grant a protection visa to the appellants. 2 The appellants are citizens of India who arrived in Australia on 1 August 2005. The appellants are a married couple and their two children. On 9 September 2005 the appellants lodged an application for a protection visa. Only the appellant husband made claims under the Convention. The appellant husband's application will govern the outcome of the applications of the other members of his family. I shall use the term appellant as referring to the appellant husband. 3 In the application for a protection visa the appellant claimed to have a well founded fear of persecution by reason of his political opinion. He claimed to be a freelance camera journalist who composed articles for the local newspaper about human rights issues in India. He asserted his photographs and writings enraged government supporters. Although he was threatened and told to stop writing he claimed that he continued and this enraged government supporters further. Subsequently the appellant and his family left India.


case_text: The Tribunal did complete the review on the information available. It is clear that the reason for the decision was the inadequacy of the information before it in the context of the appellant's failure to attend the hearing. This finding was open to the Tribunal. As was said by the Full Court in SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15] , there must be "a refusal if the decision-maker is not affirmatively satisfied that the criteria for the grant of visa in question had been satisfied."


case_text: The Tribunal's power under s 424 is clearly discretionary. The Tribunal does not have a duty to investigate the appellant's claims: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 at 42-43. No jurisdictional error is made out. 13 This ground was really not raised before the Federal Magistrates Court. In any event, it must also fail because the appellant had not provided adequate details for the Tribunal to be satisfied. 14 At the hearing of the appeal before me the appellant relied on some further matters. He tendered a number of documents apparently provided from India. Two are certificates dated 10 February 2007 by persons in India making statements about the appellant's work as a freelance reporter and also about any attack on him by people in the community and attendance at a hospital. The third document is a medical certificate apparently showing that the appellant was admitted to hospital and was treated as an out-patient for one week by an orthopaedic surgeon. Along with these documents the appellant also sought to raise other matters going to the merits of his claim. Obviously these were matters not put before the Magistrate, let alone the Tribunal, and do not make out a case of error by the Magistrate.


case_title: Dudzinski v Centrelink [2003] FCA 308

case_text: Assuming that there is power to set aside the judgment in the present case I would not exercise the broad discretion conferred in favour of the applicant on the motion. It is well settled that, although broad, the discretion conferred by O 35 r 7(2)(c) should be exercised in a judicial manner and only in exceptional circumstances: Dudzinski v Centrelink [2003] FCA 308 at [11] . This guideline is based on the principle of finality of litigation which counsels courts to exercise caution when considering whether orders previously made and final on their face and entered should be reopened for consideration and set aside. 18 One of factors to take into account is whether there has been any satisfactory explanation or realistic attempt to comply with the orders which were made more than 6 months ago. I am not satisfied in the circumstances of this case that any satisfactory attempt was made to comply with the orders and file a new application or to have the orders vacated with the consequence that the dismissal orders have come into effect. 19 It is imperative in this case that the overlap issue be resolved as soon as possible in order to enable resolution of not only these claims but also other claims in the area. At the Western Land Summit held on 26 March 2006 the applicant had executed agreements with the Budjiti, Boonthamurra and Wangkumarra applicant, with the consequence that, on their face, these agreements resolved the overlaps between the applications. These agreements had been filed in Court in support of the orders sought by the applicant in each matter and made on 26 April 2006. 20 Because the directions to the applicant to file a new application were part of a cluster-wide strategy that required the resolution of overlaps, it is important to ensure their efficacy. It was made perfectly clear on 26 April 2006 that the claims would be dismissed and that a new application had to be made. There was no application to prevent the dismissal made prior to 2 November 2006 despite an inconclusive meeting of the claim group on 5 August 2006. That meeting could not proceed as an authorisation meeting because of the inability of those present to agree who were the relevant Kullilli People. 21 If the present applications were to be reinstated it would create an overlap with a new application filed by the Boonthamurra People in response to orders made in their application and it would slow the progress of the application and result in overlapping applications being programmed for hearing, which is a consequence to be avoided. 22 On the other hand, if the application for reinstatement is dismissed the Kullilli People can bring fresh proceedings, which are properly authorised under the Native Title Act 1993 (Cth), for the recognition of native title which reflect the agreements identified above and which will remove the doubts inherent in the present circumstances. 23 There is real doubt surrounding the question whether there has been proper authorisation in relation to a number of matters, including the appointment Messrs Drakopoulos Black and the revocation of the instructions to QSNTS. It is therefore desirable in the interests of certainty and resolution of the claims in the cluster that there be a new and clear authorisation to the future progress of these matters. 24 Accordingly, in these circumstances and for the above reasons, I dismiss the application for reinstatement and refuse the application to set aside the order which came into effect on 1 November 2006. I make no order as to costs. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin. Associate: Dated: 13 April 2007 Counsel for the Applicant: Mr P.B. Ryan Solicitor for the Applicant: Drakopoulos Black Solicitor for the Respondents: Crown Solicitor Date of Hearing: 30 January 2007 Date of Judgment: 13 April 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/512.html


case_outcome: cited

case_text: The State also cites a body of law which recognises that the role of the applicant is a representative one and it submits that it is not competent for only some of those persons comprising the applicant to obtain separate legal representation and act in other than by unanimous agreement: see 'Pooncarie' Barkandji (Paakantye People) v New South Wales Minister for Land & Water Conservation [2006] FCA 25 at [10] and Sampi v Western Australia (No 2) [2005] FCA 1567 at [24] - [27] . In these circumstances, in my view, there is a significant doubt whether Mr Black's firm has been duly authorised to act. I think the better view is that there is no such authority on the face of the present documents and the evidence before me.


case_title: Sampi v Western Australia (No 2) [2005] FCA 1567


case_outcome: discussed

case_text: argued before me, the case focused on three issues. The first issue is whether AWB has established its claim that legal professional privilege attaches to each of the documents that remain in contest. The only head of privilege that AWB relies on is the privilege that attaches to documents brought into existence for the dominant purpose of obtaining or giving legal advice. In AWB Limited v Honourable Terence Rhoderic Hudson Cole [2006] FCA 571 ( 'AWB v Cole' ), I held that litigation privilege was not available to protect documents brought into existence in contemplation of the Commission and none of the parties has disputed that decision. AWB has not contended that legal professional privilege is available solely because documents were brought into existence in contemplation of inquiries being undertaken by the PSI or by the IIC. The second issue is whether, assuming privilege attaches, that privilege has been waived by virtue of AWB's disclosure of the gist or substance of certain legal advices which it obtained. I will have to determine whether waiver should be imputed to AWB as a matter of law and, if so, what is the extent of that waiver. The Commonwealth contends that the waiver extends to all documents that relate to Project Rose and Project Water. The third issue is whether legal professional privilege attaches to documents that came into existence in connection with AWB's settlement of a claim by GBI for a rebate of approximately US$2 million on account of the fact that earlier shipments of wheat by AWB had been contaminated by iron filings ('the iron filings claim'). The Commonwealth contends that the iron filings claim is inextricably linked with the Tigris transaction, in that the prices for wheat contracts A1670 and A1680 were inflated to cover both the amount of the iron filings claim and the repayment by GBI of the debt which it owed to Tigris. It said that AWB proposed to pay the iron filings claim directly to Alia as an addition to inland transport fees, but spread over several contracts. The Commonwealth argued that the inflation of the contract prices to cover the iron filings claim was concealed from the United Nations and that it involved a contravention of the United Nations' sanctions. In these circumstances, the Commonwealth contends that AWB cannot maintain its claim to privilege over the legal advice it obtained in relation to the iron filings claim as that advice was obtained in furtherance of a fraud, wrongful conduct or sham transaction. I reviewed the relevant authorities and extracted the principles which govern legal advice privilege in my decision in AWB v Cole at [60]-[63] and [85]-[110]. I adhere to what I said in that case. I do not propose to engage in a lengthy discussion of the authorities concerning legal advice privilege in these reasons for judgment, other than to the extent necessary to address the arguments advanced by the parties. The general principles that I consider relevant to the disposition of this case can be summarised as follows: The Commonwealth contended that Project Rose and Project Water were purely factual investigations and therefore should not be regarded as attracting any legal professional privilege. In advancing this contention, the Commonwealth tended to assume that factual investigations by lawyers, such as a review of documents and interviews of persons involved in the matter under investigation, can be separated from the ultimate legal advice given by the lawyers as a result of their factual investigation. Leaving aside any question of waiver, this seems to be an unduly narrow approach to the scope of legal advice privilege. In my view, it finds no support in the authorities. In recognition of the fact that legal professional privilege is a fundamental common law right, the courts have eschewed an overly narrow or technical approach to the identification of communications or documents that fall within the scope of legal advice privilege. As I said in AWB v Cole at [127] [133], the legal advice limb of the privilege extends beyond material that is literally a communication, or a record of a communication, of legal advice or instructions. In Propend at 569, Gummow J said that the privilege extends to any document prepared by a lawyer or client from which one might infer the nature of the advice sought or given. The principle extends to internal documents or parts of documents of the client, or of the lawyer, reproducing or otherwise revealing communications which would be covered by privilege: Bank of Nova Scotia v Hellenic Mutual War Risks Association (Bermuda) Ltd [1992] 2 Lloyd's Rep 540 at 540 per Saville J. In Three Rivers , the relevant legal context consisted of a commission of inquiry into the part played by the Bank of England in the collapse of the Bank of Credit and Commerce International SA. The House of Lords upheld the Bank of England's claim that legal advice privilege attached to documents that had been generated for the purposes of providing information to the Bank's legal advisers to enable them to prepare submissions and evidence, and to advise on the nature, presentation, timing and content of the Bank's responses to the inquiry. Relevant passages from the speeches in the House of Lords are extracted in my decision in AWB v Cole at [92] [96]. The Commonwealth contended that AWB had failed in its attempt to prove legal professional privilege because it had not adduced any proof as to AWB's dominant purpose in seeking or obtaining legal advice. AWB largely relied upon evidence given by in-house and external lawyers involved in the particular communications at issue. The Commonwealth submitted that evidence proving the lawyer's understanding of the purpose of the particular communication and that he or she was giving legal advice affords no evidence of the client's dominant purpose. There is no real substance in this criticism. Dominant purpose must be determined objectively, but it is not uncommon for the relevant purpose to be established by evidence given by the maker of the statement or another person responsible for commissioning the relevant document or bringing it into existence, such as a solicitor: see Mitsubishi Electric Australia Pty Ltd v Victoria WorkCover Authority [2002] VSCA 59 ; (2002) 4 VR 332 at [14] ; Grant v Downs at 677 and AWB v Cole at [110]. Toohey and Gummow JJ dissented in separate judgments. Each expressed the view that waiver should not be imputed because the disclosures by Goldberg were made to a third party for a limited and specific purpose. Toohey J said at 110 that the following factors militated strongly against any implied or imputed waiver: first, Goldberg disclosed material to the Society because of a complaint against him on an undertaking by the Society that the contents would be kept confidential; secondly, the disclosure was made in the context of the Society's investigation of a complaint in pursuance of its statutory powers and, consequently, it could be regarded as having been made for the purposes of the Act; and thirdly, the disclosure was confined to the Society. Gummow J said at 123 that, as the disclosures were made in the context of compulsory statutory processes, the circumstances of the case supplied no sufficient reason for depriving Goldberg of privilege, even allowing for the advantage he sought to gain by making the disclosure. The applicable principles are set out in my decision in AWB v Cole at [135] [139]. The authorities draw a distinction between a mere reference to the existence of legal advice, which will not usually amount to a waiver, and cases in which the gist or substance of the legal advice has been disclosed: see Maurice at 481, 488 and 493; Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd [1996] HCA 15 ; (1996) 70 ALJR 603 at 607; Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1996) 40 NSWLR 12; Adelaide Steamship Co Ltd v Spalvins (1998) 81 FCR 360 at 376-377; and Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237 ; (2004) 140 FCR 101 (' Bennett' ) at 104-105 [6] [9]. In Propend , the High Court considered whether a charge of improper purpose must be based on evidence that is admissible in the proceeding. The only evidence of alleged illegality before the trial judge in Propend was the sworn information which supported the issue of a search warrant for the relevant documents. The Court held that, while the sworn information was admissible to establish the basis upon which the warrant was issued, it was not admissible to show that the copy documents were not privileged: see at 514 per Brennan CJ, 557 per McHugh J, 576 per Gummow J, 547 per Gaudron J, and 593 per Kirby J. The iron filings claim refers to a claim by GBI for a rebate of US$2,016,133.00 on account of the fact that earlier shipments of wheat by AWB to GBI had been contaminated by iron filings. Lindberg agreed to pay this sum to GBI in settlement of the iron filings claim in about October 2002 during the course of a visit to Bagdad. An email dated 7 November 2002 from Chris Whitwell of AWB ('Whitwell') to Lindberg and others reporting on the trip to Iraq in October 2002 stated that the responsible Iraqi Minister had asked for repayment of the iron filings rebate through the 'inland transport mechanism'. The same email referred to the fact that the Iraqi Minister was seeking cabinet approval for repayment of the Tigris debt. At the outset of this case, the Commonwealth contended that any legal advice that AWB obtained in connection with the Tigris transaction was waived by virtue of AWB's production to the Commission of a partly masked memorandum of 7 February 2003 dealing with the subject of the iron filings payment and Tigris petroleum fee. On the first day of the hearing, AWB announced that it was no longer seeking a declaration of privilege in respect of documents connected with the Tigris transaction which the Commonwealth sought to challenge on the basis of the fraud exception. Subsequently, AWB made it clear that this concession did not extend to six documents relating to the iron filings rebate payment. During the course of the hearing in this Court, AWB produced an unmasked copy of the memorandum of 7 February 2003 and provided it to the Commonwealth. The Commonwealth tendered the memorandum as an exhibit in this proceeding, without any objection from AWB. The memorandum contains a fairly full description of the way in which AWB planned to pay the iron filings claim to GBI. The memorandum, which was sent by Whitwell to Messrs Geary and Long, with copies to Scales, Johnson, Hogan, Johnstone, Cooper, Lyons, Hockey and Thomas, states: AND CONFIDENTIAL memo is in respect to refunding the Grain Board of Iraq the quality rebate of approx USD 2,016,133 through the inland transport payments for the new contract as requested by the Minister of Trade, Iraq. In addition, for the record IS & M has negotiated (through an uplift in price] the recovery of a USD 8.375 million outstanding debt to Tigris by IGB through this contract. AWB will repay this debt back to Tigris less an agreed recovery fee of USD 500 K on a pro rata basis as tonnage is shipped. Overview led by Andrew Lindberg (August 2002) to Baghdad agreed to settle the contamination of the 'Iron Filings' vessels by paying them USD 6 pmt for each vessel total = USD 2,016,133 being approached by Tigris Petroleum AWB and IGB have agreed to allow the new contract to be the conduit for a repayment of USD 8,375,000 owed to Tigris by IGB for a cargo of wheat shipped in 1996. IGB have agreed to raising the contract price by the debt amount and when payments are made under the Letter of Credit AWB will pay Tigris its debt less AWBs recovery fee. have suggested the following during our last two visits. Offsetting the debt against the Outstanding debt to 'Tigris petroleum' (approx USD 8.35 million) Reducing the any new contract price [sic] by the amount of the rebate on a pmt basis Repaying the debt through the provision of aid in some form - Wheat, Health supplies etc. in discussion with the Minister of Trade he has continually , insisted on repayment directly as an addition to the inland transport and said that this was his understanding of the agreement with Andrew Lindberg - Michael Long was present and confirms that this was discussed. Now that the new contract has been concluded ISM need a sign off to organise this payment when shipments start. Issues Possible implications for AWB on a corporate governance basis ie/ direct payment to a company with links to the Iraqi regime may be construed to be in contravention of the UN Sanctions. relevant UN Security Council Resolution is 661 (1990). This resolution provides at clause 4: States shall not make available to the Government of Iraq or to any commercial, industrial or public utility undertaking in Iraq any funds or any other financial or economic resources and shall prevent their nationals and any persons within their territories from removing from their territories or otherwise making available to that Government or to any such undertaking any such funds or resources and from remitting any other funds to persons or bodies within Iraq.... except payments exclusively for strictly medical or humanitarian purposes and, in humanitarian circumstances, foodstuffs." summary, this means that the Government of the Commonwealth of Australia would be obliged to prevent AWB Limited from making any remittance of funds to the IGB. Legal opinion in this regard is set out below. does not mean, however, that a payment might not be able to be made which will comply with the terms of the UN Resolutions. As a minimum, if AWB management determines to make the payment, then it should be made in the following circumstances: The payment is made in installments over time and coincides with payments for future shipments of wheat (ie not a lump sum payment); The payments preferably be made to a company other than the IGB and in a jurisdiction other than Iraq; and The payments be recorded as being made as a part of a settlement reached between AWB and IGB, the terms of which contemplated that IGB would agree not to take any action against AWB for the alleged contamination of the 8 vessels in 2002 with iron filings AND would agree to enter into contracts for the purchase of Australian bulk wheat in the future in exchange for a renegotiation of the price on the 8 vessels. we ensure that the above requirements are met, then Legal consider it will be at least arguable that we are not 'making funds or financial resources available to the Iraqi Government'. Instead, we are repaying part of the contract price for the 8 vessels following a re-negotiation of the sale price due to a downgrading of the grain (which potentially contained iron filings). addition to the above the UN Security Council resolutions also require (resolution 986 (1995) clause 8) that the cost of food exports to Iraq must be met by draw down from the UN "escrow account". Furthermore draw down from the escrow account is only allowable under strict conditions. Those conditions include, at clause 8(a)(iii) that the goods to which payment is referable shall have arrived in Iraq. In this case, the goods have already arrived in Iraq and HAVE been paid for in full. However, the Resolutions are SILENT on the procedure for any repayment of part of the price in circumstances where there has been a quality complaint (and a subsequent renegotiation of price). may therefore give us more scope to make the repayment to IGB. if we make payment as outlined above, there is still a risk that the Australian Government and/or the United Nations will take a contrary view on the interpretation of the above mentioned resolutions and declare that AWB has breached the terms of those resolutions by making the payment. This is a commercial and political issue, which AWB's management will need to consider. According to an informal discussion with DFAT any repayment of a quality rebate should be either re-payed through UN ESCROW account or as a contract price reduction however they have not had a full legal argument put in front of them or been told officially. In Public affairs opinion as long as the repayment is legal and could not be seen to be breaking UN Sanctions then we should proceed (with the proviso that we have an independent legal opinion to that effect - see above legal opinion). Affairs also expressed concern that this would not be well received by the UN OIP office and that there was a reasonable chance of them finding out. IS & M on the other hand do not want them involved and feel confident that this issue could be handled without the need for the OIP to be consulted. It has been articulated to us and we have circumstantial evidence that other participants in the OIP program (Russian and Pakistani companies) have had to sort out quality problems in a similar way and it is unlikely either their national governments or the OIP were consulted IS & M feel strongly that a failure to repay the IGB as discussed will lead to serious consequences for AWBs relationship with the IGB. IS & M also believe that failure to refund this agreed debt in this way would have serious implications for the execution of the new contracts. AWBI are aware of all the issues laid out above and in light of the commercial imperative of this situation agree with the recommendation as laid out below. They do however insist that the Managing Director is appraised of the situation. Actions IS & M have received a number of different opinions from different areas of AWB and an informal opinion from DFAT we still feel this issue is a grey area with no prescriptive answers. Based on the opinions we do have and the commercial circumstances surrounding this issue IS & M recommend and seek approval for the following: IS & M is to repay debt as per method outlined in AWBs legal opinion (and requested by the Minister of Trade) directly to Alia Transport in Jordan in instalments. IS & M will also look to obtain written agreement from IGB to the payment in the format agreed by legal however it is not guaranteed. Managing Director only to convey our intentions to the Australian Government at the appropriate time prior to Shipment. The timing of such a disclosure is important and we would recommend that nothing be done until at least Letters of Credit are in place for these contracts. Given that this is unlikely to happen until after a war with Iraq it may allow us a further chance of renegotiation with a new regime. IS & M to finalise as soon as possible a written agreement with Tigris with regard to the settlement of their debt.' [Original emphasis omitted]


case_outcome: approved

case_text: the legal advice limb of legal professional privilege, a document will attract privilege if it was brought into existence for the dominant purpose of giving or obtaining legal advice: Esso Australia Resources Limited v Commissioner of Taxation [1999] HCA 67 ; (1999) 201 CLR 49 ( 'Esso' ) at 64-65 [35]; Daniels Corporations International Pty Ltd v Australian Competition & Consumer Commission [2002] HCA 49 ; (2002) 213 CLR 543 ( 'Daniels' ) at 552 [9].


case_text: the legal advice limb of legal professional privilege, a document will attract privilege if it was brought into existence for the dominant purpose of giving or obtaining legal advice: Esso Australia Resources Limited v Commissioner of Taxation [1999] HCA 67 ; (1999) 201 CLR 49 ( 'Esso' ) at 64-65 [35]; Daniels Corporations International Pty Ltd v Australian Competition & Consumer Commission [2002] HCA 49 ; (2002) 213 CLR 543 ( 'Daniels' ) at 552 [9]. I do not agree with AWB's submission that, even if its disclosures were not compelled by law, the inquisitorial context in which they took place is a factor which strongly militates against waiver. In Australia, legal professional privilege is a fundamental common law right that can be asserted outside the context of adversarial litigation. It can, for instance, be invoked to resist the production of documents in answer to a search warrant or the giving of information or the production of documents pursuant to coercive statutory powers or notices: Daniels at 552-553 [9] [11] and 563 [44]; Baker v Campbell [1983] HCA 39 ; (1983) 153 CLR 52. As legal professional privilege can be invoked outside the context of judicial or quasi-judicial proceedings, logic suggests that it should be capable of being waived if the claimant engages in conduct that is inconsistent with the maintenance of the confidentiality that the privilege is intended to protect. It should not matter whether the conduct takes place within, or outside, the framework of the proceedings or investigatory process in which a demand has been made for the production of privileged documents or information. The crucial question is whether the conduct is inconsistent with the maintenance of confidentiality.


case_text: placed particular reliance on Dawson J's formulation of the scope of legal advice privilege in Waterford v Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54 at 95: legal professional privilege relied upon in this case is that which attaches to communications between a legal adviser and his client for the purpose of giving or receiving legal advice and to documents recording those communications or containing information for the purpose of enabling the advice to be given. In order to attract that privilege, the communications must be confidential and the legal adviser must be acting in his professional capacity: see Minet v Morgan ; Wheeler v Le Marchant ; Smith v Daniell ; Bullivant v Attorney-General (Vict.) ; Jones v Great Central Railway Co ; O'Rourke v Darbishire ' . There is nothing controversial about this formulation of the principle.


case_text: Commonwealth contended that AWB had failed in its attempt to prove legal professional privilege because it had not adduced any proof as to AWB's dominant purpose in seeking or obtaining legal advice. AWB largely relied upon evidence given by in-house and external lawyers involved in the particular communications at issue. The Commonwealth submitted that evidence proving the lawyer's understanding of the purpose of the particular communication and that he or she was giving legal advice affords no evidence of the client's dominant purpose. There is no real substance in this criticism. Dominant purpose must be determined objectively, but it is not uncommon for the relevant purpose to be established by evidence given by the maker of the statement or another person responsible for commissioning the relevant document or bringing it into existence, such as a solicitor: see Mitsubishi Electric Australia Pty Ltd v Victoria WorkCover Authority [2002] VSCA 59 ; (2002) 4 VR 332 at [14] ; Grant v Downs at 677 and AWB v Cole at [110].


case_title: Commissioner of Taxation v Pratt Holdings Pty Ltd (2005) 225 ALR 266


case_title: National Crime Authority v S (1991) 29 FCR 203


case_title: Candacal Pty Ltd v Industry Research & Development Board (2005) 223 ALR 284


case_title: Seven Network Limited v News Limited [2005] FCA 142


case_title: Kennedy v Wallace [2004] FCAFC 337 ; (2004) 142 FCR 185


case_title: Southern Equities Corporation Ltd (in liq) v Arthur Anderson & Co (No 6) [2001] SASC 398


case_outcome: considered

case_title: Kennedy v Wallace (2004) 208 ALR 424


case_title: Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122 ; (2004) 136 FCR 357


case_title: Balabel v Air India [1988] 1 Ch 317

case_text: a lawyer has been retained for the purposes of providing legal advice in relation to a particular transaction or series of transactions, communications between the lawyer and the client relating to that transaction will be privileged, notwithstanding that they do not contain advice on matters of law; it is enough that they are directly related to the performance by the lawyer of his or her professional duty as legal adviser to the client: Minter v Priest [1930] AC 558 at 581 586; Balabel at 330; Nederlandse at 983 and Dalleagles at 332 333. In Dalleagles , Anderson J said at 332 333 that professional discourse in a professional capacity between a solicitor and his client with reference to the transactions covered by his instructions should be regarded as prima facie for the purpose of giving and receiving advice. In his Honour's view, this would apply to any communication that is on its face a communication of a professional nature from the solicitor to the client or his agent touching the subject matter of the solicitor's engagement and any communication from the client to the solicitor in connection with that engagement. These propositions were referred to, with approval, by Allsop J in DSE at [51]-[52] and by Branson J in Wenkart v Commissioner of Federal Police (unreported, Federal Court, Branson J, 11 November 1996). In DSE , Allsop J said that there was no substantive difference between the views expressed in Balabel and Dalleagles : at [51], [52] and [71]. Allsop J also observed that what underlies the expression of opinion in those cases is the recognition that the obligation of the lawyer to advise, once retained, is pervasive. In his Honour's view, it would be rare that one could, with any degree of confidence, say that a communication between client and lawyer, in the circumstances of a retainer requiring legal advice and the directing of the client by a legal adviser, was not connected with the provision or requesting of legal advice. Indeed, too literal a requirement of identifying legal advice as express advice about the law would place undue emphasis on formalism and undermine the privilege. Rix J (as his Lordship then was) expressed much the same view in Hellenic Mutual War Risks Associated (Bermuda) Ltd v Harrison [1997] 1 Lloyd's Rep 160 at 168.


case_title: Nederlandse Reassurantie Groep Holding NV v Bacon and Woodrow [1995] 1 All ER 976

case_text: a lawyer has been retained for the purposes of providing legal advice in relation to a particular transaction or series of transactions, communications between the lawyer and the client relating to that transaction will be privileged, notwithstanding that they do not contain advice on matters of law; it is enough that they are directly related to the performance by the lawyer of his or her professional duty as legal adviser to the client: Minter v Priest [1930] AC 558 at 581 586; Balabel at 330; Nederlandse at 983 and Dalleagles at 332 333. In Dalleagles , Anderson J said at 332 333 that professional discourse in a professional capacity between a solicitor and his client with reference to the transactions covered by his instructions should be regarded as prima facie for the purpose of giving and receiving advice. In his Honour's view, this would apply to any communication that is on its face a communication of a professional nature from the solicitor to the client or his agent touching the subject matter of the solicitor's engagement and any communication from the client to the solicitor in connection with that engagement. These propositions were referred to, with approval, by Allsop J in DSE at [51]-[52] and by Branson J in Wenkart v Commissioner of Federal Police (unreported, Federal Court, Branson J, 11 November 1996).


case_title: Three Rivers District Council v Governor and Company of the Bank of England (No 6) [2004] UKHL 48 ; [2005] 1 AC 610

case_text: Three Rivers , the relevant legal context consisted of a commission of inquiry into the part played by the Bank of England in the collapse of the Bank of Credit and Commerce International SA. The House of Lords upheld the Bank of England's claim that legal advice privilege attached to documents that had been generated for the purposes of providing information to the Bank's legal advisers to enable them to prepare submissions and evidence, and to advise on the nature, presentation, timing and content of the Bank's responses to the inquiry. Relevant passages from the speeches in the House of Lords are extracted in my decision in AWB v Cole at [92] [96].


case_title: Dalleagles Pty Ltd v Australian Securities Commission (1991) 4 WAR 325


case_title: DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 1191 ; (2003) 135 FCR 151


case_text: common application of associated material waiver relates to the case where an expert report has been prepared in reliance upon other documents. In Australian Securities & Investments Commission v Southcorp Ltd (2003) 46 ACSR 438 at 441-442 [21], Lindgren J summarised the applicable principles: Ordinarily the confidential briefing or instructing by a prospective litigant's lawyers of an expert to provide a report of his or her opinion to be used in the anticipated litigation attracts client legal privilege: cf Wheeler v Le Marchant (1881) 17 Ch D 675; Trade Practices Commission v Sterling (1979) 36 FLR 244 at 246; Interchase Corp Ltd (in liq) v Grosvenor Hill (Qld) Pty Ltd (No 1) [1999] 1 Qd R 141 (Interchase) at 151 per Pincus JA, at 160 per Thomas J. Copies of documents, whether the originals are privileged or not, where the copies were made for the purpose of forming part of confidential communications between the client's lawyers and the expert witness, ordinarily attract the privilege: Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3 ; (1997) 188 CLR 501 (Propend)...; Interchase , per Pincus JA; Spassked Pty Ltd v Cmr of Taxation (No 4) (2002) 50 ATR 70 at [17]. Documents generated unilaterally by the expert witness, such as working notes, field notes, and the witness's own drafts of his or her report, do not attract privilege because they are not in the nature of, and would not expose, communications: cf Interchase at 161-2 per Thomas J. Ordinarily disclosure of the expert's report for the purpose of reliance on it in the litigation will result in an implied waiver of the privilege in respect of the brief or instructions or documents referred to in (1) and (2) above, at least if the appropriate inference to be drawn is that they were used in a way that could be said to influence the content of the report, because, in these circumstances, it would be unfair for the client to rely on the report without disclosure of the brief, instructions or documents; cf Attorney-General (NT) v Maurice [1986] HCA 80 ; (1986) 161 CLR 475 at 481... per Gibbs CJ, CLR 487—488... per Mason and Brennan JJ, CLR 492-493... per Deane J, CLR 497—498... per Dawson J; Goldberg v Ng [1995] HCA 39 ; (1995) 185 CLR 83 at 98... per Deane, Dawson and Gaudron JJ, CLR 109... per Toohey J; Instant Colour Pty Ltd v Canon Australia Pty Ltd [1995] FCA 870... ; Australian Competition and Consumer Commission v Lux Pty Ltd [2003] FCA 89... at [46] . Similarly, privilege cannot be maintained in respect of documents used by an expert to form an opinion or write a report, regardless of how the expert came by the documents; Interchase at 148—150 per Pincus JA, at 161 per Thomas J. It may be difficult to establish at an early stage whether documents which were before an expert witness influenced the content of his or her report, in the absence of any reference to them in the report: cf Dingwall v Commonwealth of Australia (1992) 39 FCR 521; Tirango Nominees Pty Ltd v Dairy Vale Foods Ltd (No 2) (1998) 83 FCR 397 at 400;... ACCC v Lux at [46].'


case_title: Trade Practices Commission v Sterling (1979) 36 FLR 244


case_title: Propend Finance Pty Ltd v Commissioner of Australian Federal Police (1995) 58 FCR 224


case_title: Saunders v Commissioner of Australian Federal Police (1998) 160 ALR 469


case_title: GSA Industries (Aust) Pty Ltd v Constable (2002) 2 Qd R 146


case_title: Glengallan Investments Pty Ltd v Arthur Andersen (2002) 1 Qd R 233


case_title: Commonwealth v Vance (2005) 158 ACTR 47


case_title: Mitsubishi Electric Australia Pty Ltd v Victoria WorkCover Authority [2002] VSCA 59 ; (2002) 4 VR 332


case_text: kind of waiver that is in issue in this case is commonly referred to as imputed or implied waiver. The former expression is preferable, as it reflects the way in which the High Court expressed the governing legal principles in Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1 ( 'Mann' ). In Mann at 13 [29], Gleeson CJ, Gaudron, Gummow and Callinan JJ said: 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.' The concluding part of this passage draws attention to the fact that the test for imputed waiver had previously been expressed in terms of fairness: see Attorney-General (NT) v Maurice [1986] HCA 80 ; (1986) 161 CLR 475 (' Maurice' ) at 481 per Gibbs CJ, 487 488 per Mason and Brennan JJ, 492 493 per Deane J, and 497 498 per Dawson J. Under the test propounded in Mann , it is inconsistency between the conduct of the client and the maintenance of the confidentiality that the privilege is intended to protect which effects a waiver of the privilege. Fairness has become a subsidiary consideration; it may be relevant to the court's assessment of inconsistency in some contexts but not in others. In Commissioner of Taxation v Rio Tinto Limited [2006] FCAFC 86 (' Rio Tinto' ) at [44], the Full Court (Kenny, Stone and Edmonds JJ) said that there was a good deal of doubt whether the language used by the majority in Mann worked any real change in the principle which governs imputed waiver. This observation was made somewhat tentatively and was not material to the Court's decision. My own view is that a test expressed in terms of inconsistency more readily accommodates the variety of situations in which questions of imputed waiver can arise than a test expressed in terms of fairness. The criterion of fairness is readily understandable in the context of inter partes litigation, but it is difficult to apply sensibly in other contexts: see the observations by McHugh J in Mann at 40 [128] and Toohey J in Goldberg v Ng [1995] HCA 39 ; (1995) 185 CLR 83 (' Goldberg v Ng' ) at 110. AWB submitted that this Court should hold that there has been no imputed waiver because the Commonwealth has made no attempt to identify why it would be unfair or inequitable for AWB to maintain privilege in the underlying investigations. This submission immediately raises the question unfair or inequitable to whom? I doubt that any question arises of fairness to the Commission it is an arm of the executive government charged with the investigation of specified matters. Nor does any question arise of fairness to the Commonwealth. Fairness presupposes a balancing of interests between parties who are in dispute. In that context, partial disclosures raise a question of fairness because there is the capacity to mislead one party to the dispute to his or her detriment. These concepts do not translate easily to the present case: cf McHugh J in Mann at 40 [127]-[128]. There is also the difficulty that, outside the framework of an inter partes dispute, fairness is truly a term of 'indeterminate reference': Mann at 40 [129] per McHugh J, citing RJ Desiatnik, Legal Professional Privilege in Australia , 1999, p 122. Mann anticipated that there will be cases in which considerations of fairness have little or no role to play. This is such a case. The broad question posed by Mann is whether, and to what extent, AWB's disclosures are inconsistent with the maintenance of confidentiality in the documents which are at issue in these proceedings. This question wraps up several subsidiary issues, in particular whether AWB's disclosures involved, on each occasion, a disclosure of the gist or substance of its legal advice, whether AWB consciously deployed that advice so as to advance its own commercial or other interests, and, if so, whether that disclosure has resulted in an imputed waiver of privilege over any and what associated materials. In any application of Mann , the starting point must be an analysis of the disclosures or other acts or omissions of the party claiming privilege that are said to be inconsistent with the maintenance of confidentiality in the privileged material: see Rio Tinto at [45]. The disclosures in question here were made variously to the IIC, to the Australian Government, to the Commission and in some instances via the procedures of the Commission to the public at large. In my opinion, there is no reason why these disclosures cannot support a finding that AWB has waived legal professional privilege over associated material. AWB submitted that imputed waiver cannot arise in the context of a commission established under the RCA. Alternatively, it submitted that the coercive and inquisitorial context in which the alleged waiver has taken place is an important factor which strongly militates against waiver. These submissions ignore the voluntary disclosures that AWB made to the Australian Government. In any event, I am not persuaded that AWB's disclosures to the Commission and the IIC are incapable of giving rise to an imputed waiver. Leaving aside any question of waiver, AWB was entitled to maintain legal professional privilege in the course of proceedings before the Commission and, by and large, it sought to do so. To the extent that AWB has already produced documents to the Commission containing legal advice or instructions, it did so because it recognised that actions it had taken outside the Commission had the consequence of waiving privilege over those documents. As for the oral evidence that the Commonwealth now relies upon, Lindberg, Cooper and Scales were senior executives of AWB when they gave that evidence to the Commission. There is nothing before me to suggest that they were not speaking as executives of AWB when they gave their evidence, or that their evidence fell outside the scope of their authority from AWB. Further, their evidence was given in the presence of AWB's legal representatives, without any objection being raised on grounds of legal professional privilege. Lindberg, Cooper and Scales may have been compelled to give evidence at the Commission, but they were under no compulsion to reveal the gist or substance of legal advice that had been obtained by AWB. The disclosure of privileged communications to a third party can result in an imputed waiver of privilege, even if there is no intention of waiving privilege and the disclosure is for a limited and specific purpose. In Mann , the Chief Minister of the Australian Capital Territory conveyed legal advice, on a confidential basis, to a member of the Territory's Legislative Assembly to enable him to consider the reasonableness of the Government's decision to settle certain legal proceedings. The majority decision turned on the fact that the disclosure to a member of the Legislative Assembly was not regarded as disclosure to a third party. In their joint judgment, Gleeson CJ, Gaudron, Gummow and Callinan JJ said at 15 [35] that: purpose of the privilege being to protect the Territory from subsequent disclosure of the legal advice it received concerning the litigation instituted by the appellant, there was nothing inconsistent with that purpose in the Chief Minister conveying the terms of that advice, on a confidential basis, to a member of the Legislative Assembly who wished to consider the reasonableness of the conduct of the Territory in relation to the litigation.' However, their Honours also observed that, while the voluntary disclosure of privileged legal advice to a third party will not necessarily waive privilege, it can do so. They said that Goldberg v Ng illustrates that, depending on the circumstances, the disclosure of a privileged communication to a third party for a limited and specific purpose, and on terms as to confidentiality, can have the consequence of waiving privilege. In Network Ten Ltd v Capital Television Holdings Ltd (1995) 36 NSWLR 275, which predated Goldberg v Ng and Mann , Giles J held that a limited and specific disclosure of privileged material, on terms of confidentiality, did not result in a loss of privilege. In Australian Rugby Union Ltd v Hospitality Group Pty Ltd (1999) 165 ALR 253, Sackville J said that it follows from Goldberg v Ng that the disclosure of a privileged communication for a limited purpose and subject to a confidentiality requirement may, or may not, amount to a waiver of privilege, depending on the circumstances of the case: at 262-263 [42]-[43]. On the facts of that case, Sackville J held that a disclosure of legal advice to the solicitors and representatives of two other companies, on strict terms as to confidentiality and for the purpose of those other companies obtaining legal advice, did not result in an imputed waiver. His Honour distinguished Goldberg v Ng as a case in which the disclosure was made to gain an advantage over the opposing party in related litigation: at 263 [45].


case_text: concluding part of this passage draws attention to the fact that the test for imputed waiver had previously been expressed in terms of fairness: see Attorney-General (NT) v Maurice [1986] HCA 80 ; (1986) 161 CLR 475 (' Maurice' ) at 481 per Gibbs CJ, 487 488 per Mason and Brennan JJ, 492 493 per Deane J, and 497 498 per Dawson J. Under the test propounded in Mann , it is inconsistency between the conduct of the client and the maintenance of the confidentiality that the privilege is intended to protect which effects a waiver of the privilege. Fairness has become a subsidiary consideration; it may be relevant to the court's assessment of inconsistency in some contexts but not in others. The applicable principles are set out in my decision in AWB v Cole at [135] [139]. The authorities draw a distinction between a mere reference to the existence of legal advice, which will not usually amount to a waiver, and cases in which the gist or substance of the legal advice has been disclosed: see Maurice at 481, 488 and 493; Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd [1996] HCA 15 ; (1996) 70 ALJR 603 at 607; Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1996) 40 NSWLR 12; Adelaide Steamship Co Ltd v Spalvins (1998) 81 FCR 360 at 376-377; and Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237 ; (2004) 140 FCR 101 (' Bennett' ) at 104-105 [6] [9]. Turning to the scope of any imputed waiver, it is well established that a voluntary disclosure of privileged documents can result in a waiver of privilege over those documents and associated material. The test applied to determine the scope of any waiver of associated material is whether the material that the party has chosen to release from privilege represents the whole of the material relevant to the same issue or subject matter: Maurice at 482 and 484 per Gibbs CJ, 488 per Mason and Brennan JJ, and 498 499 per Dawson J. In Maurice , Gibbs CJ said at 482: Similarly, where a party disclosed a document which contained part only of a memorandum which dealt with a single subject-matter, and then read the document to the judge in the course of opening the case, it was held that privilege was waived as to the whole memorandum: Great Atlantic Insurance Co v Home Insurance Co . In that case Templeman LJ said: ... the rule that privilege relating to a document which deals with one subject matter cannot be waived as to part and asserted as to the remainder is based on the possibility that any use of part of a document may be unfair or misleading, that the party who possesses the document is clearly not the person who can decide whether a partial disclosure is misleading or not, nor can the judge decide without hearing argument, nor can he hear argument unless the document is disclosed as a whole to the other side. Once disclosure has taken place by introducing part of the document into evidence or using it in court it cannot be erased." same test must be applied in deciding whether the use in legal proceedings of one document impliedly waives privilege in associated material. In Nea Karteria Maritime Co Ltd v Atlantic & Great Lakes Steamship Corporation [No 2] Mustill J dealt with this question and suggested the following test: ... where a party is deploying in court material which would otherwise be privileged, the opposite party and the court must have an opportunity of satisfying themselves that what the party has chosen to release from privilege represents the whole of the material relevant to the issue in question. To allow an individual item to be plucked out of context would be to risk injustice through its real weight or meaning being misunderstood."' AWB relied upon the way in which the principle was formulated by the Court of Appeal in British American Tobacco Australia Services Ltd v Cowell [2002] VSCA 197 ; (2002) 7 VR 524 at 564 [121] : reference in one letter of advice to an earlier letter of advice does not expose the latter to scrutiny by the other party to litigation merely because legal professional privilege is waived in relation to the former: implied waiver is not so generous a doctrine. As we apprehend it, where legal professional privilege is waived in relation to one piece (or part) of advice, the privilege is impliedly waived in relation to another if - and only if - that other is necessary to a proper understanding of the first. As established by the High Court (at least since Mann v. Carnell ) the test in such cases is whether it would be "inconsistent" for a party to rely upon, and so to waive legal professional privilege in respect of, the one without also being taken to have waived privilege in respect of the other.' It is no doubt correct that a mere reference to the existence of legal advice in a disclosed document will not be regarded as a waiver of its contents, albeit a different conclusion would follow if the gist, substance or conclusion of the legal advice is voluntarily disclosed. But, with great respect to their Honours, the proposition concerning waiver of associated material is expressed too narrowly and in a way that is not consistent with the test propounded by the High Court in Maurice . The principle propounded by the Court of Appeal may work adequately enough in some circumstances, particularly where privilege is sought to be maintained over one part of a single piece of legal advice, but in other circumstances it will not give effect to the principles explained in Maurice. A common application of associated material waiver relates to the case where an expert report has been prepared in reliance upon other documents. In Australian Securities & Investments Commission v Southcorp Ltd (2003) 46 ACSR 438 at 441-442 [21], Lindgren J summarised the applicable principles: Ordinarily the confidential briefing or instructing by a prospective litigant's lawyers of an expert to provide a report of his or her opinion to be used in the anticipated litigation attracts client legal privilege: cf Wheeler v Le Marchant (1881) 17 Ch D 675; Trade Practices Commission v Sterling (1979) 36 FLR 244 at 246; Interchase Corp Ltd (in liq) v Grosvenor Hill (Qld) Pty Ltd (No 1) [1999] 1 Qd R 141 (Interchase) at 151 per Pincus JA, at 160 per Thomas J. Copies of documents, whether the originals are privileged or not, where the copies were made for the purpose of forming part of confidential communications between the client's lawyers and the expert witness, ordinarily attract the privilege: Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3 ; (1997) 188 CLR 501 (Propend)...; Interchase , per Pincus JA; Spassked Pty Ltd v Cmr of Taxation (No 4) (2002) 50 ATR 70 at [17]. Documents generated unilaterally by the expert witness, such as working notes, field notes, and the witness's own drafts of his or her report, do not attract privilege because they are not in the nature of, and would not expose, communications: cf Interchase at 161-2 per Thomas J. Ordinarily disclosure of the expert's report for the purpose of reliance on it in the litigation will result in an implied waiver of the privilege in respect of the brief or instructions or documents referred to in (1) and (2) above, at least if the appropriate inference to be drawn is that they were used in a way that could be said to influence the content of the report, because, in these circumstances, it would be unfair for the client to rely on the report without disclosure of the brief, instructions or documents; cf Attorney-General (NT) v Maurice [1986] HCA 80 ; (1986) 161 CLR 475 at 481... per Gibbs CJ, CLR 487—488... per Mason and Brennan JJ, CLR 492-493... per Deane J, CLR 497—498... per Dawson J; Goldberg v Ng [1995] HCA 39 ; (1995) 185 CLR 83 at 98... per Deane, Dawson and Gaudron JJ, CLR 109... per Toohey J; Instant Colour Pty Ltd v Canon Australia Pty Ltd [1995] FCA 870... ; Australian Competition and Consumer Commission v Lux Pty Ltd [2003] FCA 89... at [46] . Similarly, privilege cannot be maintained in respect of documents used by an expert to form an opinion or write a report, regardless of how the expert came by the documents; Interchase at 148—150 per Pincus JA, at 161 per Thomas J. It may be difficult to establish at an early stage whether documents which were before an expert witness influenced the content of his or her report, in the absence of any reference to them in the report: cf Dingwall v Commonwealth of Australia (1992) 39 FCR 521; Tirango Nominees Pty Ltd v Dairy Vale Foods Ltd (No 2) (1998) 83 FCR 397 at 400;... ACCC v Lux at [46].'


case_text: Commissioner of Taxation v Rio Tinto Limited [2006] FCAFC 86 (' Rio Tinto' ) at [44], the Full Court (Kenny, Stone and Edmonds JJ) said that there was a good deal of doubt whether the language used by the majority in Mann worked any real change in the principle which governs imputed waiver. This observation was made somewhat tentatively and was not material to the Court's decision. My own view is that a test expressed in terms of inconsistency more readily accommodates the variety of situations in which questions of imputed waiver can arise than a test expressed in terms of fairness. The criterion of fairness is readily understandable in the context of inter partes litigation, but it is difficult to apply sensibly in other contexts: see the observations by McHugh J in Mann at 40 [128] and Toohey J in Goldberg v Ng [1995] HCA 39 ; (1995) 185 CLR 83 (' Goldberg v Ng' ) at 110. The disclosure of privileged communications to a third party can result in an imputed waiver of privilege, even if there is no intention of waiving privilege and the disclosure is for a limited and specific purpose. In Mann , the Chief Minister of the Australian Capital Territory conveyed legal advice, on a confidential basis, to a member of the Territory's Legislative Assembly to enable him to consider the reasonableness of the Government's decision to settle certain legal proceedings. The majority decision turned on the fact that the disclosure to a member of the Legislative Assembly was not regarded as disclosure to a third party. In their joint judgment, Gleeson CJ, Gaudron, Gummow and Callinan JJ said at 15 [35] that: purpose of the privilege being to protect the Territory from subsequent disclosure of the legal advice it received concerning the litigation instituted by the appellant, there was nothing inconsistent with that purpose in the Chief Minister conveying the terms of that advice, on a confidential basis, to a member of the Legislative Assembly who wished to consider the reasonableness of the conduct of the Territory in relation to the litigation.' However, their Honours also observed that, while the voluntary disclosure of privileged legal advice to a third party will not necessarily waive privilege, it can do so. They said that Goldberg v Ng illustrates that, depending on the circumstances, the disclosure of a privileged communication to a third party for a limited and specific purpose, and on terms as to confidentiality, can have the consequence of waiving privilege. McHugh J dissented. In his view, any disclosure of privileged material to a third party who is a stranger to the privileged relationship (ie to a person who is not the lawyer or the client) should have the consequence that privilege in that material is waived as against the world: at 34 [108], 37-38 [118], 42 [133]-[134]. As I read his Honour's judgment, the key reason why his Honour preferred a bright line rule of this kind is that it would ensure that legal professional privilege was not extended beyond the rationales that support it (at 37 [117]-[118]): candid communications between a lawyer and a client is unlikely to be endangered if a privilege holder is held to waive privilege because he or she has voluntarily disclosed the communication to a stranger. Whether the communication will be disclosed in the future to a stranger to the privilege is entirely within the control of the client. At that stage, the client will determine whether his or her interests are best served by retaining the privilege or disclosing the communication. But it is difficult to see how the possibility of voluntary disclosure will prevent the client being candid with his or her lawyer. ... client who voluntarily discloses privileged information to a stranger to the privileged relationship has made a choice, based no doubt on considerations personal to him or her, that the purpose for which the communication is disclosed to the stranger is more important than protecting the absolute confidentiality of the communication by preventing the stranger from having knowledge of it. The person may be encouraged to do so, as in Goldberg v Ng , by an expectation that the stranger will not further disclose the communication. But in my opinion, if privileged material is voluntarily disclosed to a stranger to the privileged relationship, the fact that it may be received under an obligation of confidence should not be relevant to whether privileged is waived.' On the facts, McHugh J considered that disclosure to a member of the Legislative Assembly who was not a member of the Executive Government was relevantly a disclosure to a stranger to the privileged relationship: at 44 [139]. In Goldberg v Ng , the respondents sued their solicitor, Goldberg, for failure to account for monies received and disbursed by him as their solicitor. They also made a professional conduct complaint against him to the Law Society of New South Wales. In answer to the complaint, Goldberg prepared statements, with annexures that included a draft brief to counsel, and submitted them to the Society's professional conduct department. In doing so, Goldberg told the Society that the statements and the annexures were confidential and he wished to retain his legal professional privilege in them. The Society dismissed the complaint on the ground that there was no evidence of professional misconduct or unsatisfactory professional conduct. Subsequently, in the course of the Supreme Court proceedings instituted by the respondents against Goldberg, the respondents served a subpoena on the Society requiring it to produce documents relating to the complaint against Goldberg. All of the members of the High Court held that there had been no express or intentional waiver by Goldberg of his legal professional privilege in the statements and annexures. The issue that divided the Court was whether waiver should be imputed by operation of law. Deane, Dawson and Gaudron JJ held at 100-102 that it should because the professional complaint and the Supreme Court proceedings were but different emanations of the one dispute, and Goldberg's provision of the statements to the Society was voluntary and for the calculated purpose of demonstrating the reliability of his denial of the alleged failure to account. Their Honours analysed the issue in terms of 'fairness', but they could equally, and perhaps more appropriately, have done so in terms of inconsistency. In Network Ten Ltd v Capital Television Holdings Ltd (1995) 36 NSWLR 275, which predated Goldberg v Ng and Mann , Giles J held that a limited and specific disclosure of privileged material, on terms of confidentiality, did not result in a loss of privilege. In Australian Rugby Union Ltd v Hospitality Group Pty Ltd (1999) 165 ALR 253, Sackville J said that it follows from Goldberg v Ng that the disclosure of a privileged communication for a limited purpose and subject to a confidentiality requirement may, or may not, amount to a waiver of privilege, depending on the circumstances of the case: at 262-263 [42]-[43]. On the facts of that case, Sackville J held that a disclosure of legal advice to the solicitors and representatives of two other companies, on strict terms as to confidentiality and for the purpose of those other companies obtaining legal advice, did not result in an imputed waiver. His Honour distinguished Goldberg v Ng as a case in which the disclosure was made to gain an advantage over the opposing party in related litigation: at 263 [45]. A common application of associated material waiver relates to the case where an expert report has been prepared in reliance upon other documents. In Australian Securities & Investments Commission v Southcorp Ltd (2003) 46 ACSR 438 at 441-442 [21], Lindgren J summarised the applicable principles: Ordinarily the confidential briefing or instructing by a prospective litigant's lawyers of an expert to provide a report of his or her opinion to be used in the anticipated litigation attracts client legal privilege: cf Wheeler v Le Marchant (1881) 17 Ch D 675; Trade Practices Commission v Sterling (1979) 36 FLR 244 at 246; Interchase Corp Ltd (in liq) v Grosvenor Hill (Qld) Pty Ltd (No 1) [1999] 1 Qd R 141 (Interchase) at 151 per Pincus JA, at 160 per Thomas J. Copies of documents, whether the originals are privileged or not, where the copies were made for the purpose of forming part of confidential communications between the client's lawyers and the expert witness, ordinarily attract the privilege: Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3 ; (1997) 188 CLR 501 (Propend)...; Interchase , per Pincus JA; Spassked Pty Ltd v Cmr of Taxation (No 4) (2002) 50 ATR 70 at [17]. Documents generated unilaterally by the expert witness, such as working notes, field notes, and the witness's own drafts of his or her report, do not attract privilege because they are not in the nature of, and would not expose, communications: cf Interchase at 161-2 per Thomas J. Ordinarily disclosure of the expert's report for the purpose of reliance on it in the litigation will result in an implied waiver of the privilege in respect of the brief or instructions or documents referred to in (1) and (2) above, at least if the appropriate inference to be drawn is that they were used in a way that could be said to influence the content of the report, because, in these circumstances, it would be unfair for the client to rely on the report without disclosure of the brief, instructions or documents; cf Attorney-General (NT) v Maurice [1986] HCA 80 ; (1986) 161 CLR 475 at 481... per Gibbs CJ, CLR 487—488... per Mason and Brennan JJ, CLR 492-493... per Deane J, CLR 497—498... per Dawson J; Goldberg v Ng [1995] HCA 39 ; (1995) 185 CLR 83 at 98... per Deane, Dawson and Gaudron JJ, CLR 109... per Toohey J; Instant Colour Pty Ltd v Canon Australia Pty Ltd [1995] FCA 870... ; Australian Competition and Consumer Commission v Lux Pty Ltd [2003] FCA 89... at [46] . Similarly, privilege cannot be maintained in respect of documents used by an expert to form an opinion or write a report, regardless of how the expert came by the documents; Interchase at 148—150 per Pincus JA, at 161 per Thomas J. It may be difficult to establish at an early stage whether documents which were before an expert witness influenced the content of his or her report, in the absence of any reference to them in the report: cf Dingwall v Commonwealth of Australia (1992) 39 FCR 521; Tirango Nominees Pty Ltd v Dairy Vale Foods Ltd (No 2) (1998) 83 FCR 397 at 400;... ACCC v Lux at [46].'


case_outcome: distinguished

case_title: Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86

case_text: Commissioner of Taxation v Rio Tinto Limited [2006] FCAFC 86 (' Rio Tinto' ) at [44], the Full Court (Kenny, Stone and Edmonds JJ) said that there was a good deal of doubt whether the language used by the majority in Mann worked any real change in the principle which governs imputed waiver. This observation was made somewhat tentatively and was not material to the Court's decision. My own view is that a test expressed in terms of inconsistency more readily accommodates the variety of situations in which questions of imputed waiver can arise than a test expressed in terms of fairness. The criterion of fairness is readily understandable in the context of inter partes litigation, but it is difficult to apply sensibly in other contexts: see the observations by McHugh J in Mann at 40 [128] and Toohey J in Goldberg v Ng [1995] HCA 39 ; (1995) 185 CLR 83 (' Goldberg v Ng' ) at 110.


case_title: Goldman v Hesper [1988] 1 WLR 1238

case_text: would, of course, be a different case if the documents and information that the Commonwealth relies upon were disclosed under legal compulsion. On any view, the fact that documents and information were disclosed under compulsion would be very relevant to the question whether the person claiming privilege had engaged in inconsistent conduct. There is, moreover, authority to the effect that a production of documents or evidence under compulsion will not result in any waiver of privilege: Goldman v Hesper [1988] 1 WLR 1238 ( 'Goldman' ); Trans America Computer Co Inc v IBM Corporation 573 F2d 646 (9 th Cir 1978) ( 'Trans America' ) at 651. There are several English cases in which disclosure to a third party for a limited and specific purpose has not resulted in a loss of privilege: British Coal Corporation v Dennis Rye Ltd (No 2) [1988] 1 WLR 1113 ( 'British Coal' ); Goldman ; and Gotha City v Southeby's (No 1) [1988] 1 WLR 1114. In Goldman , the Court of Appeal considered the effect of a statutory requirement that a claimant for costs must disclose privileged materials to the Court's taxing officers. Taylor LJ (with whom Woolf LJ and Lord Donaldson MR agreed) said that once a party puts forward privileged documents as part of his case for costs, the privilege is relaxed temporarily and pro hac vice . If the taxing officers felt compelled by natural justice considerations to disclose part or all of the contents of a privileged document to the opposite party, that disclosure would be for the purposes of the taxation only and would not amount to a waiver that prevented the owner of the document from reasserting privilege in any subsequent context: at 102. McHugh J took a stricter view in Giannarelli v Wraith (No 2) [1991] HCA 2 ; (1991) 171 CLR 592. His Honour noted that in Victoria, unlike in England, a litigant can refuse to produce documents to the taxing master on the grounds of legal professional privilege. However, McHugh J said that if the litigant choses to produce privileged documents to the taxing master, then the litigant will be taken to have waived privilege and must let the opposing parties see the documents. His Honour did not countenance any middle course under which privilege could be waived solely for the purposes of the taxation and then re-asserted in some other context: at 607.


case_text: would, of course, be a different case if the documents and information that the Commonwealth relies upon were disclosed under legal compulsion. On any view, the fact that documents and information were disclosed under compulsion would be very relevant to the question whether the person claiming privilege had engaged in inconsistent conduct. There is, moreover, authority to the effect that a production of documents or evidence under compulsion will not result in any waiver of privilege: Goldman v Hesper [1988] 1 WLR 1238 ( 'Goldman' ); Trans America Computer Co Inc v IBM Corporation 573 F2d 646 (9 th Cir 1978) ( 'Trans America' ) at 651. The US courts have accepted that there will be no imputed or implied waiver of privilege if the disclosure of the privileged material is involuntary and compelled by law: see eg Trans America.


case_text: do not agree with AWB's submission that, even if its disclosures were not compelled by law, the inquisitorial context in which they took place is a factor which strongly militates against waiver. In Australia, legal professional privilege is a fundamental common law right that can be asserted outside the context of adversarial litigation. It can, for instance, be invoked to resist the production of documents in answer to a search warrant or the giving of information or the production of documents pursuant to coercive statutory powers or notices: Daniels at 552-553 [9] [11] and 563 [44]; Baker v Campbell [1983] HCA 39 ; (1983) 153 CLR 52. As legal professional privilege can be invoked outside the context of judicial or quasi-judicial proceedings, logic suggests that it should be capable of being waived if the claimant engages in conduct that is inconsistent with the maintenance of the confidentiality that the privilege is intended to protect. It should not matter whether the conduct takes place within, or outside, the framework of the proceedings or investigatory process in which a demand has been made for the production of privileged documents or information. The crucial question is whether the conduct is inconsistent with the maintenance of confidentiality.


case_title: Restom v Battenberg [2006] FCA 781

case_text: case of Restom v Battenberg [2006] FCA 781 provides an example of a case where disclosures to a third party triggered a waiver of legal professional privilege. In the course of bankruptcy proceedings, the debtor claimed privilege over a letter that passed between his Australian and Scottish solicitors. Stone J held that the disclosure of the contents of the letter to the Scottish Employment Tribunal was inconsistent with the maintenance of confidentiality in the letter and constituted a waiver of privilege.


case_text: Network Ten Ltd v Capital Television Holdings Ltd (1995) 36 NSWLR 275, which predated Goldberg v Ng and Mann , Giles J held that a limited and specific disclosure of privileged material, on terms of confidentiality, did not result in a loss of privilege. In Australian Rugby Union Ltd v Hospitality Group Pty Ltd (1999) 165 ALR 253, Sackville J said that it follows from Goldberg v Ng that the disclosure of a privileged communication for a limited purpose and subject to a confidentiality requirement may, or may not, amount to a waiver of privilege, depending on the circumstances of the case: at 262-263 [42]-[43]. On the facts of that case, Sackville J held that a disclosure of legal advice to the solicitors and representatives of two other companies, on strict terms as to confidentiality and for the purpose of those other companies obtaining legal advice, did not result in an imputed waiver. His Honour distinguished Goldberg v Ng as a case in which the disclosure was made to gain an advantage over the opposing party in related litigation: at 263 [45].


case_title: Australian Rugby Union Ltd v Hospitality Group Pty Ltd (1999) 165 ALR 253


case_text: are several English cases in which disclosure to a third party for a limited and specific purpose has not resulted in a loss of privilege: British Coal Corporation v Dennis Rye Ltd (No 2) [1988] 1 WLR 1113 ( 'British Coal' ); Goldman ; and Gotha City v Southeby's (No 1) [1988] 1 WLR 1114. In British Coal , Neill LJ (with whom Stocker LJ and Dillon LJ agreed) held that the disclosure of documents by the plaintiff to the police to assist in a criminal investigation and criminal trial did not constitute a waiver of the privilege. Neill LJ said at 822: my judgment the action of the plaintiff in making documents available for the purpose of the criminal trial did not constitute a waiver of the privilege to which it was entitled in the present civil proceedings. Its action in regard to both the category A and the category B documents was in accordance with its duty to assist in the conduct of the criminal proceedings, and could not properly be construed as an express or implied waiver of its rights in its own civil litigation. Indeed, it would in my view be contrary to public policy if the plaintiff's action in making the documents available in the criminal proceedings had the effect of automatically removing the cloak of privilege which would otherwise be available to them in the civil litigation for which the cloak was designed.'


case_text: are several English cases in which disclosure to a third party for a limited and specific purpose has not resulted in a loss of privilege: British Coal Corporation v Dennis Rye Ltd (No 2) [1988] 1 WLR 1113 ( 'British Coal' ); Goldman ; and Gotha City v Southeby's (No 1) [1988] 1 WLR 1114.


case_text: Goldman , the Court of Appeal considered the effect of a statutory requirement that a claimant for costs must disclose privileged materials to the Court's taxing officers. Taylor LJ (with whom Woolf LJ and Lord Donaldson MR agreed) said that once a party puts forward privileged documents as part of his case for costs, the privilege is relaxed temporarily and pro hac vice . If the taxing officers felt compelled by natural justice considerations to disclose part or all of the contents of a privileged document to the opposite party, that disclosure would be for the purposes of the taxation only and would not amount to a waiver that prevented the owner of the document from reasserting privilege in any subsequent context: at 102. McHugh J took a stricter view in Giannarelli v Wraith (No 2) [1991] HCA 2 ; (1991) 171 CLR 592. His Honour noted that in Victoria, unlike in England, a litigant can refuse to produce documents to the taxing master on the grounds of legal professional privilege. However, McHugh J said that if the litigant choses to produce privileged documents to the taxing master, then the litigant will be taken to have waived privilege and must let the opposing parties see the documents. His Honour did not countenance any middle course under which privilege could be waived solely for the purposes of the taxation and then re-asserted in some other context: at 607.


case_title: Weil v Investment/Indicators Research and Management , Inc 647 F2d 18, 24 (9 th Cir 1981)

case_text: general rule adopted in the United States is that any voluntary disclosure of privileged communications by a client to a third party breaches the confidentiality of the attorney-client relationship and therefore waives the privilege, not only as to the specific communication disclosed but as to all other communications relating to the same subject matter: see Weil v Investment/Indicators Research and Management Inc 647 F2d 18 (9 th Cir 1981) at 24; United States v Aronoff 466 FSupp 855 (DC NY 1979) at 862 [9]-[10]; In re Sealed Case 676 F2d 793 (DC Cir 1982) (' re Sealed Case' ) at 809 [6] [7]; United States v AT & T Co 642 F2d 1285 (DC Cir 1980) at 1299; cf Diotima Shipping Corp v Chase, Leavitt & Co ., 102 F.R.D. 532 (D Me 1984); von Bulow v von Bulow , 114 F.R.D. 71 (SD NY 1987); and T Harman, Fairness and the Doctrine of Subject Matter Waiver of the Attorney-Client Privilege in Extrajudicial Disclosure Situations (1988) University of Illinois Law Review 999.


case_title: United States v Aronoff 466 FSupp 855 (DC NY 1979)


case_text: general rule adopted in the United States is that any voluntary disclosure of privileged communications by a client to a third party breaches the confidentiality of the attorney-client relationship and therefore waives the privilege, not only as to the specific communication disclosed but as to all other communications relating to the same subject matter: see Weil v Investment/Indicators Research and Management Inc 647 F2d 18 (9 th Cir 1981) at 24; United States v Aronoff 466 FSupp 855 (DC NY 1979) at 862 [9]-[10]; In re Sealed Case 676 F2d 793 (DC Cir 1982) (' re Sealed Case' ) at 809 [6] [7]; United States v AT & T Co 642 F2d 1285 (DC Cir 1980) at 1299; cf Diotima Shipping Corp v Chase, Leavitt & Co ., 102 F.R.D. 532 (D Me 1984); von Bulow v von Bulow , 114 F.R.D. 71 (SD NY 1987); and T Harman, Fairness and the Doctrine of Subject Matter Waiver of the Attorney-Client Privilege in Extrajudicial Disclosure Situations (1988) University of Illinois Law Review 999. The US courts have also considered whether a disclosure of privileged material to government investigators will have the consequence of waiving privilege. In re Sealed Case , the United States Court of Appeals for the District of Columbia considered whether a corporation that had submitted its own investigating counsel's report into alleged bribes and improper payments to the Internal Revenue Service and the Securities and Exchange Commission ('SEC') pursuant to voluntary disclosure programs had thereby impliedly waived its privilege over documents which were clearly identified in the report. The Court held that, by revealing part of privileged communications to the agencies to gain a commercial advantage, the corporation had made a disclosure which was inconsistent with the maintenance of confidentiality. Accordingly, the Court held that the corporation had waived privilege as to all other communications relating to the same subject matter. The principle applied by the Court was that (at 818 [29]): need not allow a claim of privilege when the party claiming the privilege seeks to use it in a way that is not consistent with the purpose of the privilege. Thus, since the purpose of the attorney-client privilege is to protect the confidentiality of attorney-client communications in order to foster candor within the attorney-client relationship, voluntary breach of confidence or selective disclosure for tactical purposes waives the privilege. Disclosure is inconsistent with confidentiality, and courts need not permit hide-and-seek manipulation of confidences in order to foster candor.' Dawson J discussed the authorities at 498-499: Geo. Doland Ltd v Blackburn Robson Coates & Co 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 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] , 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 and the cases there cited; Diotima Shipping Corp v Chase, Leavitt & Co ; United States v Aronoff ; In re Sealed Case .'


case_title: United States v AT & T Co 642 F2d 1285 (DC Cir 1980)


case_text: Court rejected an argument that waiver should not be imputed because the corporation had disclosed the investigating counsel's report for specific and limited purposes only. In doing so, it declined to follow the decision in Diversified Industries Inc v Meredith 572 F2d 596 (8 th Cir 1977) ( 'Diversified Industries' ) at 611 in which the Eighth Circuit Court of Appeals held that disclosures to the SEC under a voluntary disclosure program did not constitute a waiver to anyone but the SEC. It noted that the decision in Diversified Industries was rejected in Permian Corp v United States 665 F2d 1215 (DC Cir 1981) at 1220-1222 on the ground that it unnecessarily expanded the scope of attorney-client privilege: see also In re Weiss 596 F2d 1185 (4 th Cir 1979) at 1186. Like the District Columbia Circuit, the First, Third, Fourth, Sixth and Federal Circuit Courts of Appeal have rejected the approach adopted by the Eighth Circuit in Diversified Industries : see AM Pinto, Cooperation and Self-Interest are Strange Bedfellows: Limited Waiver of the Attorney-Client Privilege through Production of Privileged Documents in a Government Investigation (2004) 106 West Virginia Law Review 359, p 372; RH Porter, Voluntary Disclosures to Federal Agencies Their Impact on the Ability of Corporations to Protect from Discovery Materials Developed During the Course of Internal Investigations (1990) 39 Catholic University Law Review 1007, pp 1029-1052.


case_title: In re Weiss 596 F2d 1185 (4 th Cir 1979)


case_text: Canadian courts apply a waiver test that is based on considerations of fairness and consistency: see S & K Processors Ltd v Campbell Ave Herring Producers Ltd (1983) CPC 146 (BCSC) at 150; Professional Institute of the Public Service of Canada v Canada (Director of the Canadian Museum of Nature) [1995] 3 FC 643 ; British Columbia (Securities Commission) v BDS (2000) BCJ No 2111 (BCSC), affirmed (2003) 226 DLR (4 th ) 393; and RD Manes and MP Silver, Solicitor-Client Privilege in Canadian Law , Butterworths, 1993, p 207. As in the United States, waiver will not be imputed if privileged material is produced to a government regulator under compulsion of law.


case_title: Professional Institute of the Public Service of Canada v Canada (Director of the Canadian Museum of Nature) [1995] 3 FC 643


case_title: British Columbia (Securities Commission) v BDS (2000) BCJ No 2111 (BCSC); (2003) 226 DLR (4 th ) 393


case_text: applicable principles are set out in my decision in AWB v Cole at [135] [139]. The authorities draw a distinction between a mere reference to the existence of legal advice, which will not usually amount to a waiver, and cases in which the gist or substance of the legal advice has been disclosed: see Maurice at 481, 488 and 493; Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd [1996] HCA 15 ; (1996) 70 ALJR 603 at 607; Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1996) 40 NSWLR 12; Adelaide Steamship Co Ltd v Spalvins (1998) 81 FCR 360 at 376-377; and Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237 ; (2004) 140 FCR 101 (' Bennett' ) at 104-105 [6] [9].