Case: Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1
Outcome: followed
Implied waiver of legal professional privilege was discussed by the High Court in Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1. In that decision, the majority (Gleeson CJ, Gaudron, Gummow and Callinan JJ) observed (at 13): '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.' 20 As recognised in the above passage, whether privilege has been impliedly waived depends upon an objective assessment whether conduct is inconsistent with the maintenance of privilege, not a consideration of the subjective intention of the party whose confidentiality the privilege protects. 21 In Mann v Carnell , the High Court referred to the case of Benecke v National Australia Bank Ltd (1993) 35 NSWLR 110, a decision of the New South Wales Court of Appeal. In that case, a woman gave evidence concerning her instructions to a barrister in related proceedings, apparently believing that she could prevent the barrister giving his version of the instructions. The Court of Appeal held that privilege had been impliedly waived. The High Court said of that decision (at 13): 'She did not subjectively intend to abandon the privilege. She may not even have turned her mind to the question. However, her intentional act was inconsistent with the maintenance of the confidentiality of the communication. 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.' 22 However both Mann v Carnell and Benecke involved circumstances where the alleged waiver resulted from a voluntary act by the holder of the privilege, albeit an act which was not intended to waive privilege. The present case involves circumstances where documents were provided under compulsion of law. Several authorities have indicated that the considerations in such cases are likely to be different: see Saunders v Commissioner, Australian Federal Police (1998) 160 ALR 469 at 473; Commissioner of the Police Service v Nirta [2002] 1 Qd R 364 at 368-9; Goldberg and Anor v Ng and Ors (1995) 132 ALR 57 at 68. 42 In my opinion, that conduct is inconsistent with the continuation of privilege in the documents seized. I recognise that the right to maintain the confidentiality of legal advice attaches to the applicant rather than to her legal advisor: see Mann v Carnell at [28]. However, in this case, the applicant had instructed Mr O'Brien to advise her in relation to the privilege claim. Mr O'Brien, having knowledge of the seized documents from both Dimocks and the Rosebery premises, did not make a claim for privilege on her behalf. The fact that the documents were being held pending a claim for privilege was drawn to his attention by the facsimile from the AFP. He did not then make a claim for legal professional privilege and accordingly abandoned Robert Norman's claim for privilege. The situation is analogous to that considered by the Supreme Court of New South Wales in Spedley , where Cole J observed at 729: '... I am of the opinion that the conduct of Bank of New Zealand in sitting by with knowledge [that material to which a claim for privilege could be made was being used] ... and yet taking no steps to make a claim of privilege on behalf of Bank of New Zealand ... does constitute waiver of legal professional privilege. Messrs Freehill Hollingdale &amp; Page were advising Bank of New Zealand regarding the $25 million claim. Litigation obviously was a possibility, if not a probability. In those circumstances a solicitor is "the agent of his client in all matters that may reasonably be expected to arise for decision in the cause" (per Denning LJ in Griffiths v Evans [1953] 1 WLR 1424 at 1431 ...).'