Case: Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86 ; (2006) 151 FCR 341
Outcome: applied
it may be accepted that implied waiver at common law will occur where: [T]he privilege holder's conduct is inconsistent with the continued confidentiality of the communication because he or she has put in issue the character or contents of the communication in pursuing a right or claim, or has created a situation where another party must reasonably do so by way of a defence. ( Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86 ; (2006) 151 FCR 341 at [54] ) Earlier, the same Full Court said at [52]: These authorities show that, where issue or implied waiver is made out, the privilege holder has expressly or impliedly made an assertion about the contents of an otherwise privileged communication for the purpose of mounting a case or substantiating a defence. Where the privilege holder has put the contents of the otherwise privileged communication in issue, such an act can be regarded as inconsistent with the confidentiality that would otherwise pertain to the communication. Third, nothing in Ms Paatsch's affidavit put the contents of an otherwise privileged communication in issue, in the sense of mounting a case or substantiating a defence. The contrast with Rio Tinto is exemplified by what the Full Court said at [71] and [72]: [71] By his answers to Rio's requests, the Commissioner disclosed that the eight privileged scheduled documents were relevant to reaching his state of satisfaction and exercising his discretions. Although the validity of his state of satisfaction and the exercises of his discretion are key issues in the substantive proceeding, as indicated earlier, the mere acknowledgement of the relevance of privileged documents to the key issues does not amount to an act inconsistent with the maintenance of privilege. As we have seen, so far as the Commissioner was concerned the relevant inquiry was whether, having regard to the material before the decision-maker, the contested decisions were vitiated on Avon Downs grounds. If the particulars merely disclosed that the Commissioner took into account legal advice in reaching his state of satisfaction and exercising his discretions, then that disclosure would not be inconsistent with the maintenance of privilege. [72] The Commissioner has not, however, simply said that the eight privileged scheduled communications were relevant to reaching his state of satisfaction or exercising his discretions. Nor has he said that he took them into account in so doing. We interpolate that a document may be relevant to a decision without evidencing any matter taken into consideration in the making of it (as, eg, an instrument conferring authority to make the decision). The Commissioner could have identified his bases for satisfaction and exercises of discretion by listing the matters he took into account in each case, but he did not do so. Instead, he identified his bases for satisfaction and exercises of discretion as the matters evidenced in the scheduled documents. In so doing, the Commissioner did more than make an assertion about the relevance of these communications . In his particulars, the Commissioner has said that he took into account the matters evidenced by numerous documents, including the eight privileged scheduled documents. In so doing, the Commissioner has made an assertion that puts the contents of these eight documents in issue, or necessarily lays them open to scrutiny, with the consequence that there is an inconsistency between the making of the assertion and the maintenance of the privilege. (Emphasis added.) For these reasons, I am of the view that there was no waiver of any privilege in any documents of the kind referred to in [62] above. ISSUES 1 AND 2 Issue 1: What Information did Telstra use in the Preparation of the Market Share Reports? The difficulty with determining this particular issue is that the only party which knew what information had been used in the preparation of the market share reports, Telstra, led no evidence on the matter. There was some 'evidence from the bar table' in the form of submissions but, apart from its answers to the interrogatories I gave Optus leave to administer, there is no direct evidence. There are documents in evidence which, arguably, enable one to draw inferences and conclusions as to what information might have been used, in particular, the market share reports and internal Telstra communications, but the element of uncertainty that attends that task, makes it a less than satisfactory course to take.