Case: Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86 ; (2006) 151 FCR 341
Outcome: cited
In Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86 ; (2006) 151 FCR 341 , the Full Court considered the authorities and concluded at [52] that they show that, where the privilege holder has put the contents of an otherwise privileged communication in issue, such an act can be regarded as inconsistent with the maintenance of confidentiality. 14 As is repeatedly emphasised, each case turns on its own facts. However, it is helpful to consider some other factual circumstances where waiver has been considered: &#8226; An Attorney-General stated that he had received an advice, considered it and then made a recommendation to the Premier. The reference by the Attorney-General to the legal advice and to the recommendation in that advice that a petition should be denied involved no inconsistency with the maintenance of privilege and involved no unfairness to the appellant. This was because, in context, the Attorney-General was seeking to give the fullest information about the process that had been followed, while not giving reasons for the decision ( Osland v Secretary to the Department of Justice [2008] HCA 37 (' Osland ') at [44]-[48] per Gleeson CJ, Gummow, Heydon and Kiefel JJ). &#8226; A statement in response to a request for particulars that the facts, matters and circumstances taken into account by the decision-maker included certain material and was confirmed by legal advice amounted to waiver ( Rio Tinto ). &#8226; Where, in order to establish a particular right, claim or defence, a party has previously been given legal advice and needs to show that the advice did or did not have a particular character, the privilege holder puts in issue the advice received and the character or contents of the communications in which it claims confidentiality. In these circumstances, the privilege holder's conduct is inconsistent with the continued confidentiality of the communications ( Adelaide Steamship Co Ltd v Spalvins (1998) 81 FCR 360 , disapproved in Esso Australia Resources Limited v Commissioner of Taxation of the Commonwealth of Australia [1999] HCA 67 ; (1999) 201 CLR 49 but not on this point, discussed in Rio Tinto at [53]-[54]). &#8226; Privilege is waived where a party relies on a cause of action, an element of which is the party's state of mind. Privilege is taken to have been waived in respect of legal advice that is material to the formation of that state of mind. On the other hand, there is no waiver if the advice only played a part in the formation of the state of mind relevant to an issue in the proceedings. ( Telstra Corporation Ltd v BT Australasia Pty Ltd (1998) 85 FCR 152 , also discussed in Rio Tinto at [55]-[58]). 17 The privilege holder is Servier. It is Servier's acts and omissions that must be considered in deciding whether it has, expressly or impliedly, waived privilege or, put another way, whether those acts or omissions are inconsistent with the maintenance of privilege ( Rio Tinto at [45]). Servier, as the applicant for amendment of the Alpha Crystalline Patent, has an obligation to put forward correct reasons for the amendment. Servier has accepted the obligation of providing evidence of its reasons for seeking to amend the Alpha Crystalline Patent. That evidence is given by Mr Hamer who explained in some detail his reasons for seeking amendment of the Patent. Those reasons concerned the validity of the Alpha Crystalline Patent and also infringement by Apotex. His evidence, in cross examination, is that so far as he is aware, Servier's reasons are his reasons. In any event, there is no other link proffered between Mr Hamer's decision to seek amendment and Servier's application to amend. Mr Hamer gave evidence that he obtained instructions from Servier to file an application to amend. Presumably, and I infer, those instructions included instructions to seek the specific proposed amendment to the Alpha Crystalline Patent. There are similar patents filed by Servier in other countries. 18 Servier says that the only reasons for the decision were those in Mr Hamer's mind and that he is in the position to provide, firsthand, the relevant matters pursuant to the obligation to give reasons for the amendment. Servier accepts that there is a legal obligation to give reasons for the amendment but says that, in complying with that obligation, there is no ' superadded peril ' of the need to disclose privileged material. Servier says that reference to communications between the solicitor and the client is a necessary part of the discharge of Servier's obligations, while seeking to maintain privilege. However, in my view, this is not a case of Servier giving evidence of the fact of legal advice, or merely referring to communications between itself and Mr Hamer as part of its reasoning process.