Case: Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1
Outcome: referred to
The starting point is the Evidence Act 1995 (Cth) ("Evidence Act"), the provisions of which, at least insofar as legal professional privilege (or, more accurately, "client legal privilege") is concerned, apply where, as here, evidence is sought to be adduced. The respondents did not address directly the operation of the Evidence Act and I was taken, in argument, to cases where the common law was the applicable law either because of the jurisdiction or because of the pre-trial (discovery and production) context in which the issue of privilege arose ( Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1; Bennett v Australian Customs Service [2004] FCAFC 237 ; (2004) 140 FCR 101; Secretary to the Department of Justice v Osland [2007] VSCA 96 ; GT Corporation Pty Ltd v Amare Safety Pty Ltd [2007] VSC 123). Whatever assistance I may derive from those cases, it is clear that my starting point must be the provisions of the Evidence Act . Equally, the applicant did not articulate precisely the legal basis for his submission that the privilege had been waived, although I understood his submission to be based upon the disclosure to him of the unedited copy of the memorandum by the respondents' solicitors. 144 It is unclear on the authorities whether subsections (2) and (4) have exclusive spheres of operation, or whether they overlap to some degree. On one view, subsection (2) applies when the disclosure is made by the client (including the client's solicitor: s 117(1)(b)) and subsection (4) applies when the disclosure is made by some other person. This interpretation has its genesis in Telstra Corp Ltd v Australis Media Holdings Pty Ltd (1997) 41 NSWLR 346 at 350-351 per McClelland CJ in Eq and was described by the Full Court of this Court as "cogent and persuasive": Carnell v Mann (1998) 89 FCR 247 at 261 per Higgins, Lehane and Weinberg JJ. Carnell v Mann was overruled by the High Court (on a different point) ( Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1) so the Full Court's decision is not binding on me, although it is a persuasive authority (see also J D Heydon Cross on Evidence (7 th Australian ed, 2004) [25300] 838-839). An alternative view is that the subsections operate together, the relevant distinction between the two being knowing and voluntary disclosure (subsection (2)) as opposed to express or implied consent to the disclosure (subsection (4)): see S Odgers Uniform Evidence Law (6 th ed, 2004) [1.3.11100] 474-475. In Sovereign Motor Inns Pty Ltd v Bevillesta [2000] NSWSC 521 , Austin J expressly doubted the interpretation according each subsection an exclusive sphere of operation, but left open the question because his Honour had not had the benefit of argument on the point. I am in a similar position in the present case. Given the doubt attending the question, it would not be appropriate to attempt to resolve the conflicting views without the benefit of full argument where the resolution is unnecessary to the decision. In my opinion, the applicant was unable to establish waiver under either subsection and I was content to proceed on the assumption, without deciding the point, that the applicant may rely prima facie on either subsection. 147 Waiver of privilege at common law, which is brought about by "the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and the maintenance of the confidentiality" ( Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1 at [29] per Gleeson CJ, Gaudron, Gummow and Callinan JJ) is described as an "imputed waiver" because it does not depend upon the subjective intentions of the client. Subsection (4) is not satisfied by imputed consent of this species: Sovereign at [28] per Austin J. It is not necessary for the purpose of subsection (4) to consider the common law test and I conclude that subsection (4) is not made out. The common law test is, however, relevant to a consideration of subsection (1) to which I now turn.