Case: Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1
Outcome: cited
Optus accepts that its disclosure of the Alchemy Paper in unmasked form to the applicants waived any client legal privilege that otherwise would have existed in respect of the communication contained in the Alchemy Paper itself. However, Optus says that: &#8226; the waiver is limited to that particular communication and does not extend to the legal advice referred to in the Alchemy Paper, in respect of which privilege has been specifically claimed; &#8226; the test to apply in determining whether privilege in the legal advice has been waived is that stated in Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1, at [29], as follows: ' 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 '; &#8226; the fact that the 'gist' of the legal advice was disclosed to the applicants (as Mr Bannon SC, on behalf of Optus, concedes) is not determinative of the question of waiver, because considerations of fairness need to be taken into account; and &#8226; since Optus has not sought to rely upon the legal advice in the proceedings in any way, there is no unfairness in seeking to maintain privilege in that advice. 11 Mr Bannon argued energetically that the common law test of waiver applies in the circumstances of this case, notwithstanding the provisions of s 122 of the Evidence Act 1995 (Cth). I am content to deal with the application to set aside the notice to produce on the basis that, as Optus contends, common law principles apply. 12 On that basis, however, it seems to me that Optus has waived privilege in the legal advice referred to in the Alchemy Paper. The waiver has come about because Optus has voluntarily disclosed the gist or conclusion of the legal advice recorded in the document identified in the Alchemy Paper. 15 Gyles J noted that the primary Judge in Bennett v CEO had correctly identified the decision in Mann v Carnell as providing guidance as to the law to be applied. However, Gyles J considered that the test had been misunderstood, at least in part. His Honour said this (at [68]): ' 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. ' 17 Mr Bannon submitted that the comments made by Gyles J in the last sentence of the passage extracted in par 15, above, should be regarded as qualifying the scope of the principle applied by his Honour. However, Gyles J specifically stated that Mann v Carnell had not implicitly overruled the line of authority upon which he relied in reaching the conclusion expressed in [65] of his judgment (see par 14, above). His Honour pointed out that the question in Mann v Carnell was whether a particular kind of limited disclosure had waived client legal privilege. He considered that the reasoning in that case cast no doubt on the principles to be applied where disclosure is made by one party to a dispute to the other party, in the absence of any special arrangements as to confidence (at [66]).