Case: Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1
Outcome: applied
than what is recorded at [23] and [24], no reason was given why the applicants could assert any privilege that may have attached to the documents in Bankers Trust's hands. It may be that a party to whom privileged documents are provided in circumstances that are not inconsistent with the maintenance of privilege, has a general or limited right to assert that privilege on behalf of that person. I need not decide that question here for the applicants have failed to lead any evidence of the circumstances of the provision of the documents to them. In particular, they have not proved that the provision of the documents to them was done in circumstances that were consistent with the maintenance of privilege: see Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1. The only evidence is the brief reference in Mr Schoenberg's affidavit to Bankers Trust requesting the applicants to maintain privilege in the documents. It is to be inferred that the request was not made at the time the documents were provided to the applicants, but at a later stage. It follows from what I have said that the applicants have also failed to prove that privilege in the Bankers Trust documents was not waived. Where a document which is privileged, or alleged to be privileged, in the hands of the client for whom it was prepared, is then provided to a third party, the party claiming privilege bears the burden of proving that the provision of that document to the third party did not waive privilege. That burden will be discharged by showing that the circumstances of the provision of the document to the third party were not such as to constitute "inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege" : Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1 at 13 per Gleeson CJ, Gaudron, Gummow and Callinan JJ. An ex post facto request by the client for the third party to maintain the privilege does not discharge the burden. For these reasons, it follows that the applicants have failed to prove that they are entitled to assert privilege over the Bankers Trust documents, assuming they are privileged in Bankers Trust's hands. The motion in respect of these documents must be dismissed. Documents 1780 and 1898 were both created by Mr Tiffen who was at the time the Chief Counsel of the applicants and an admitted and practising solicitor. Mr Tiffen has not given any evidence concerning these documents or the circumstances of their creation. However Mr Schoenberg deposes that he has been informed of certain matters by Mr Tiffen. According to Mr Schoenberg, Mr Tiffen was asked by Mr Drenth, then an employee of the applicants, to "advise him on the form of resolutions required by the Boards of certain Rio Tinto group companies to authorise those companies to enter into certain transactions" and that Mr Tiffen prepared document 1780, which is an email attaching draft board papers, in response to that request. According to Mr Schoenberg, Mr Tiffen did so in his capacity as an in-house legal counsel of the applicants and for the dominant purpose of providing Mr Drenth with legal advice.