Case: Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1
Outcome: considered
The live issues in the proceeding are the two issues just mentioned, namely whether legal professional privilege attaches to Exhibit 665 having regard to the evidence before me, and whether the Commissioner had an implied or incidental power under the RCA to determine the claim for legal professional privilege. There is no issue concerning waiver; the Commonwealth took the position before me that it would not contend that any legal professional privilege attaching to Exhibit 665 had been waived by its mistaken production to the Inquiry. The Commonwealth's position in this respect is in line with settled authority: see Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1 at 13; Director of Public Prosecutions v Kane (1997) 140 FLR 468 at 479-480 and 485-486; Goldberg v Ng [1995] HCA 39 ; (1996) 185 CLR 83 at 96-98, 109-110, 120-22; Commissioner of Police Service v Nirta [2002] 1 QdR 364; Saunders v Commissioner of the Australian Federal Police (1998) 160 ALR 469 (' Saunders' ) at 473; Hong Kong Bank of Australia Limited v Murphy [1993] 2 VR 419 at 441; Meltend Pty Ltd v Restoration Clinics of Australia Pty Ltd (1997) 75 FCR 511; and Hooker Corporation Ltd v Darling Harbour Authority (1987) 9 NSWLR 538. 25 Under s 2 of the RCA, a member of a Commission has power to summon witnesses to give evidence or to produce documents and to require a person who is not a witness to produce a document. The latter power is exercisable by notice issued pursuant to s 2(3A) , which provides: '(3A) A member of a Commission may, by written notice served (as prescribed) on a person, require the person to produce a document or thing specified in the notice to a person, and at the time and place, specified in the notice.' The notice to Dr Fuller was issued in pursuance of s 2(3A). 26 Section 3 addresses the failure of witnesses to attend and give evidence, and the failure of witnesses and other persons to produce documents. It is helpful to set out s 3 in its entirety: '(1) A person served, as prescribed, with a summons to appear as a witness at a hearing before a Commission shall not: (a) fail to attend as required by the summons; or (b) fail to attend from day to day unless excused, or released from further attendance, by a member of the Commission. Penalty: $1,000 or imprisonment for 6 months. (1A) Subsection (1) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code . (1B) Subsection (1) does not apply if the person has a reasonable excuse. (2) A person appearing as a witness at a hearing before a Commission shall not fail to produce a document or other thing that the person was required to produce by a summons under this Act served on him or her as prescribed or that the person was required to produce by the member of the Commission presiding at the hearing. Penalty: $1,000 or imprisonment for 6 months. (2A) Subsection (2) is an offence of strict liability. (2B) Subsection (2) does not apply if the person has a reasonable excuse. (3) It is a defence to a prosecution for an offence against subsection (2) constituted by a failure to produce a document or other thing to a Commission if the document or other thing was not relevant to the matters into which the Commission was inquiring. Note: A defendant bears an evidential burden in relation to the matters in subsections (1B), (2B) and (3) (see subsection 13.3(3) of the Criminal Code ). (4) A person served with a notice under subsection 2(3A) must not refuse or fail to produce a document or other thing that the person was required to produce in accordance with the notice. Penalty: $1,000 or imprisonment for 6 months. (5) Subsection (4) does not apply if the person has a reasonable excuse. (6) It is a defence to a prosecution for an offence against subsection (4) constituted by a refusal or failure to produce a document or other thing if the document or other thing was not relevant to the matters into which the Commission was inquiring. Note: A defendant bears an evidential burden in relation to the matters in subsections (5) and (6) (see subsection 13.3(3) of the Criminal Code ).' 136 In my view, the distinction between a mere reference to advice having been obtained, and a reference that discloses the content or substance of the advice, has not been eliminated by the High Court's restatement of the relevant principles as to waiver in Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1. Gleeson CJ, Gaudron, Gummow and Callinan JJ said at 13 [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. 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 ... 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.'