Case: Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1
Outcome: followed
At common law a person who would otherwise be entitled to the benefit of client legal privilege will waive that privilege, perhaps unintentionally, if he or she engages in conduct that is inconsistent with the maintenance of the confidentiality that the privilege protects ( Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1 per Gleeson CJ, Gaudron, Gummow and Callinan JJ at [28]). 10 A central allegation made by Ms Rich is that, by imposing access restrictions on her, the first respondent, Mr Harrington, the Country Senior Partner for Australia, acting on behalf of the partners of PwC who answer the description of "Management" in the Partnership Deed ("the Management"), and with the subsequent approval of the Board of Partners ("the Board"), committed an act of victimisation against her within the meaning of s 94 of the Sex Discrimination Act . 11 Section 94(2) of the Sex Discrimination Act relevantly provides: (2) For the purposes of subsection (1), a person shall be taken to commit an act of victimization against another person if the first mentioned person subjects, or threatens to subject, the other person to any detriment on the ground that the other person: (a) has made, or proposes to make, a complaint under this Act or the Human Rights and Equal Opportunity Commission Act 1986 ; (b) has brought, or proposes to bring, proceedings under this Act or the Human Rights and Equal Opportunity Commission Act 1986 against any person; ... (d) has attended, or proposes to attend, a conference held under this Act or the Human Rights and Equal Opportunity Commission Act 1986 ; ... (f) has reasonably asserted, or proposes to assert, any rights of the person or the rights of any other person under this Act or the Human Rights and Equal Opportunity Commission Act 1986 ; or (g) has made an allegation that a person has done an act that is unlawful by reason of a provision of Part II ; or on the ground that the first-mentioned person believes that the other person has done, or proposes to do, an act or thing referred to in any of paragraphs (a) to (g), inclusive. 20 The form of implied waiver that Ms Rich seeks here to invoke is known as "issue waiver". In Mann v Carnell at [29] the majority of the High Court stated the governing principle concerning waiver of privilege as follows: 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. (Citation omitted) 21 In Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86 ; (2006) 151 FCR 341 the Full Court gave careful consideration to modern authorities, including recent judgments of the Full Court of this Court, on issue waiver. It is not necessary for me to refer extensively to what their Honours there said as they summarised their conclusions at [60]-[61]. At [60] their Honours emphasised that the authorities reveal that whether or not privilege has been waived will in every case depend very much on the particular circumstances of the case. At [61] their Honours identified the governing principle in the following way: Both before and after Mann , the governing principle required a fact-based inquiry as to whether, in effect, the privilege holder had directly or indirectly put the contents of an otherwise privileged communication in issue in litigation, either in making a claim or by way of defence. In DSE [ie DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 384 ; (2003) 127 FCR 499] [58], Allsop J put the matter somewhat more descriptively, saying waiver arises when "the party entitled to the privilege makes an assertion (express or implied), or brings a case, which is either about the contents of the confidential communication or which necessarily lays open the confidential communication to scrutiny and, by such conduct, an inconsistency arises between the act and the maintenance of the confidence, informed partly by the forensic unfairness of allowing the claim to proceed without disclosure of the communication" (emphasis in original). 29 At [68] his Honour, after referring to Australian Unity Health Ltd v Private Health Insurance Administration Council [1999] FCA 1770 ; Ampolex Ltd v Perpetual Trustee (Canberra) Ltd (1996) 40 NSWLR 12; 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 per Kirby J; Adelaide Steamship Company Ltd v Spalvins (1998) 81 FCR 360 at 366 367; BT Australasia Pty Ltd v State of New South Wales (No 7) (1998) 153 ALR 722 at 743 744; BT Australasia Pty Ltd v State of New South Wales (No 8) (1998) 154 ALR 202 at 207 and Mann v Carnell observed: ... The test looks to inconsistency between the disclosure that has been made by the client on the one hand and the purpose of confidentiality that underpins legal professional privilege on the other. It is not a matter simply of applying general notions of fairness as assessed by the individual judge. The authorities to which I have referred show that it is well established that for a client to deploy the substance or effect of legal advice for forensic or commercial purposes is inconsistent with the maintenance of the confidentiality that attracts legal professional privilege. 78 The respondents argued that, even if there were not a sufficient identity of interest between Mr Harrington and Mr Edwards, it does not automatically follow that the limited disclosure to Mr Harrington resulted in a waiver of privilege in the advice against the rest of the world. They placed reliance in particular on the majority judgment in Mann v Carnell at [30] where their Honours said: In Goldberg v Ng this Court considered a case in which there was disclosure of a privileged communication to a third party, for a limited and specific purpose, and upon terms that the third party would treat the information disclosed as confidential. The Court was divided upon whether, in the circumstances of the case, privilege was waived. However, the reasoning of all members of the Court was inconsistent with the proposition that any voluntary disclosure to a third party necessarily waives privilege. No application was made on the present appeal to re-open Goldberg or any of the earlier authorities on the subject. In Goldberg , reference was made to the statement of Jordan CJ in Thomason v Campbelltown Municipal Council : "The mere fact that a person on some one occasion chooses to impart to another or others advice which he has received from his solicitor indicates no intention on his part to waive his right to refuse on other occasions to disclose in evidence what that advice was, and supplies no sufficient reason for depriving him of a form of protection which the law has deemed it specially necessary to throw around communications between solicitor and client". (Citations omitted) 79 Shortly before the publication of the High Court's judgment in Mann v Carnell , Sackville J had followed Goldberg v Ng in Australian Rugby Union Ltd v Hospitality Group Pty Ltd (1999) 165 ALR 253. At [44] his Honour said: In my view, the mere fact that otherwise privileged communications at the meeting took place in the presence of persons who did not represent clients of [a legal firm], does not justify a conclusion that the ARU had expressly or intentionally waived privilege in those communications. The disclosure of the privileged communications was to a limited group, namely those attending the meeting. While there is no evidence of an express undertaking by the non-clients present at the meeting to preserve confidentiality, the circumstances suggest that the non-clients were under an implied obligation to respect the confidentiality of the communications at the meeting.