Case: Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1
Outcome: applied
majority of the High Court expressed the general principles of implied wavier in Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1 as follows (at [29]): 'Waiver 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 ... 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.' As a Full Court of the Federal Court noted in Rio Tinto (at [45]), the inconsistency principle expressed by the High Court in Mann v Carnell requires the court to 'focus upon the facts of the particular case'. Accordingly, other cases in which implied waiver has been considered 'provide limited guidance unless they arise out of similar facts'. In applying Mann v Carnell, the starting point must be, in the words of Young J in AWB Ltd v The Honourable Terence Rhoderic Hudson Cole (No. 5) [2006] FCA 1234 (at [134]), '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'. The conduct of the Review Board in relation to the documents in question has in no way been inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. The existence of the documents was properly disclosed in the course of discovery in these proceedings, pursuant to a request for 'all documents considered by the [Review Board] in making their decision subject of the Application'. The reference by the solicitor for the Attorney-General to the advice in this context is not sufficient to constitute a waiver of privilege in respect of the documents. Secondly, even if the delivery of the documents by the Attorney-General's Department to the AGS solicitor for the Attorney-General could be characterised as a 'disclosure', any such disclosure was not conduct that was inconsistent with the maintenance of the privilege. The majority's analysis of the disclosure in Mann v Carnell is instructive in this context (at [33]): It does less than justice to the respondent's position to describe what occurred in the present case as disclosure to a third party. The privilege was that of the body politic, the Australian Capital Territory. The head of the Territory's Executive, the Chief Minister, in response to a question raised by a member of the Territory's Legislative Assembly as to the reasonableness of the conduct of the Territory in relation to certain litigation, gave the member, confidentially, access to legal advice that had been given to the Territory, and on the basis of which it had acted. Although "disclosure to a third party" may be a convenient rubric under which to discuss many problems of this nature, it represents, at the least, an over-simplification of the circumstances of the present case. (Emphasis added.)' The distinction that the applicant seeks to maintain between the Department and its responsible Minister is contrary to the constitutionally entrenched position of Ministers as officers appointed by the Governor-General to administer such departments as may be established. Nor does the disclosure of the documents to the Attorney-General, or his solicitor, as a party to these proceedings, confer some forensic advantage on him over the applicant, such as requires this Court to order their production. For one thing, the Attorney-General (or the Department for that matter) did not obtain a copy of the advice prior to the Review Board making its decision. Further, and significantly for present purposes, references to forensic advantage place a gloss on the nature of the Attorney-General's role in applying for review of these decisions. The Attorney-General was not a 'contradictor' in these applications, in the sense in which that word is traditionally used. Other than the power to request a review of the decisions, the Attorney-General took no active part in the proceedings before the Review Board. Further, it is clear from subs 42(2) of the Act, pursuant to which the Attorney 'must' apply for review where a 'Participating Minister' asks him to do so, that on some occasions the Attorney-General does not even have a discretion as to whether or not to trigger the review process.