Case: Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1
Outcome: cited
It seems to me, though, having regard to the terms of the announcement, that any privilege in so much of any advice from senior counsel as is referred to in that announcement has been waived by Prime. I take the relevant principle from a passage in the reasons for judgment of Gleeson CJ and Gaudron, Gummow and Callinan JJ in Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1 at page 13 at para 29: 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" 37 . 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. 23 Their Honours continued at page 15: Disclosure by a client of confidential legal advice received by the client, which may be for the purpose of explaining or justifying the client's actions, or for some other purpose, will waive privilege if such disclosure is inconsistent with the confidentiality which the privilege serves to protect. Depending upon the circumstances of the case, considerations of fairness may be relevant to a determination of whether there is such inconsistency. 24 There is certainly a temporal element in the word "following" which appears in the media release. In context, though, my opinion is that there is not only such an element. It also seems to me that it carries with it an indication that the course of action described and position taken is in conformity with senior counsel's advice. Why else, one asks rhetorically in a matter such as this with its evident seriousness in a public announcement, does one make such a reference to senior counsel? It is, of course, the case that senior counsel's advice to Prime may have ranged much more widely than that described in the media release. I can see no waiver of any such wider ranging advice apparent on the face of that media release. 25 It is conceivable, therefore, that there may well be, at least prima facie , some residual privilege claim available. I propose, therefore, to order that a further affidavit of documents be provided in respect of the category four documents. In so ordering I reserve expressly such claims of privilege in respect of documents within that category as may be just. Those claims will obviously be subject to the conclusions which I have reached in respect of waiver. 26 Category 9 is described in the schedule. It is not necessary to set out its terms in detail. That is because the fate of the application in respect of category 9 seems to me, correctly with respect, as was submitted by counsel on behalf of Fig Tree to turn on the outcome of category 1. There will, therefore, be an order for a further affidavit in respect of category 9.