Case: Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86 ; (2006) 229 ALR 304
Outcome: followed
The principles underlying issue waiver have been the subject of considerable discussion in judgments of this Court, most recently in the Full Court in Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86 ; (2006) 229 ALR 304 at [43] ff; see also DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 384 ; (2003) 127 FCR 499; Telstra Corp Ltd v BT Australasia Pty Ltd (1998) 85 FCR 152. In light of the Full Court's decision it is unnecessary for me to consider the extent to which Federal Court decisions which pre-dated the decision of the High Court in Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1 require some qualification. 35 What is notable of issue waiver cases, as the Full Court indicated in Rio Tinto (at [47]), is their fact specific character. Nonetheless, observations in that case on the joint judgment of Kiefel and Finn JJ in Spalvins are appropriate to the present matter. In Spalvins Kiefel J and I said (at 371-372): "The usual type of case said to illustrate issue waiver at common law is one in which, in order to establish a particular right, claim, or defence a party who previously has been legally advised, or has provided advice, needs to show that the advice so given did, or did not, have a particular character, for example that it was or was not negligent where the claim is for professional negligence against the adviser: see Kershaw v Whelan [1996] 1 WLR 358; that it was not based on full information or was not meaningful, in an undue influence claim: see Inche Noriah v Shaik Allie Bin Omar [1929] AC 127 at 130-131; see also Bester v Perpetual Trustee Co Ltd [1970] 3 NSWR 30 and Brusewitz v Brown [1923] NZLR 1106 or that it did not address or properly address a matter which, if addressed or properly addressed, would defeat or call into question the right or claim asserted as in claims where the applicant has to demonstrate he or she acted with or without adequate knowledge of a matter: see Thomason v Campbelltown Municipal Council (1939) 39 SR (NSW) 347; Hongkong Bank of Australia Ltd v Murphy [1993] 2 VR 419; Pickering v Edmunds (1994) 63 SASR 357. In other words the cases are ones in which, in the substantive proceeding brought, the privilege holder has put in issue the very advice received. We observe in passing that it is questionable whether advice can properly be said to be in issue in a proceeding merely because it may be relevant to an issue in it: see Rhone-Poulenc Rorer Inc v The Home Indemnity Company (3 rd Cir 1994) 32 F (3d) 851 at 863; save, perhaps, where the proceeding is between client and legal adviser and the advice is relevant to the adviser's defence of that proceeding: see Lillicrap v Nalder &amp; Son [1993] 1 WLR 94; 1 All ER 724. 36 The Full Court in Rio Tinto said of this (at [53]-[54]): "... this correctly summarises the effect of previous authorities, such as Thomason, United States Surgical and Benecke . Referring to the observation of Kirby J in Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd [1996] HCA 15 ; (1996) 137 ALR 28 at 34; [1996] HCA 15 ; 70 ALJR 603 at 607; [1996] HCA 15 that a mere reference to legal advice will not amount to disclosure, the Spalvins court found that, for the most part, the ASC had done no more than this and had not, therefore, waived privilege. Although the Full Court was necessarily guided by the authorities prior to Mann , there is little, if anything, in the passage quoted above that would require modification to take account of Mann . It is plain enough that the majority in Mann also saw the 'issue waiver' cases as a species of waiver, to which the same basic principle applied. Their Honours' analysis in Spalvins emphasises, as does the majority in Mann , that waiver comes about because the 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." (Emphasis added)