Case: Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86 ; (2006) 151 FCR 341
Outcome: applied
to the applicant's primary submission that privilege in the documents did not arise, the applicant acknowledges what was said by a Full Court of this Court in Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86 ; (2006) 151 FCR 341 at [67] that '... [s] ince the decision of the majority of the High Court in [Waterford v Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54] , it is plain enough that legal professional privilege may attach to communications brought into existence by government officers seeking or giving legal advice as to the nature and extent of governmental powers, whether statutory or otherwise: see Waterford at 63-64 per Mason and Wilson JJ and 74-75 per Brennan J.' (Emphasis added) but submits that the nature of the Review Board is such that it could not engage in communications of the kind here in issue in a manner such that those communications could be confidential as against the applicant. The Review Board was obliged to disclose the advice to the applicant as a matter of procedural fairness. This submission is developed in the following way. The Attorney-General submits the fact that Waterford was decided at a time when the sole purpose test was the accepted test for determining legal professional privilege claims, does not impact upon the principles expressed on this issue. I was referred to Webb v Commissioner of Taxation (1993) 44 FCR 312 where Cooper J considered the comments of Mason CJ and Wilson J, and Brennan J in Waterford to support the conclusion that 'the fact that advice relates to the exercise of a statutory power or the performance of a statutory duty or function does not preclude legal professional privilege attaching to it' (at 317). Reference was also made to Rio Tinto , in particular [67] from which the quotation in [7] supra was extracted. The Attorney-General's response to the first of the bases of implied waiver is that the mere reference to an advice as being relevant or as having contributed to a decision in the course of defending a judicial review proceeding would not be inconsistent with the maintenance of the privilege, in reliance on what was said in Rio Tinto (at [67]): 'This is because the decision-maker (here the Commissioner) would not put such legal advice in issue merely by saying that the advice was relevant or contributed to his decision. There would be no issue waiver because the decision-maker would not have done anything inconsistent with the maintenance of the privilege.' The Attorney-General's response to the second of the bases of implied waiver is itself multi-based. First, that the Review Board is but an emanation of the Commonwealth. This is not a case of common interest, it is a case of single interest and disclosure only within one body politic. Second, the disclosure was not inconsistent with the maintenance of the privilege. Third, the disclosure is, in any event, protected from waiver by subs 55ZH(4) of the Judiciary Act 1903 (Cth). As a Full Court of the Federal Court noted in Rio Tinto (at [45]), the inconsistency principle expressed by the High Court in Mann v Carnell requires the court to 'focus upon the facts of the particular case'. Accordingly, other cases in which implied waiver has been considered 'provide limited guidance unless they arise out of similar facts'. Inherent in the passage quoted from the Full Court's judgment in Rio Tinto at [19] supra, is the conclusion that the act of using legal advice in a way that contributes to a statutory decision does not itself constitute a waiver of privilege. This conclusion was also at least implicit in Waterford : there would have been no point in allowing legal privilege in respect of communications to persons exercising statutory powers if consideration of the advice in the course of exercising those powers would effect a waiver of the advice.