Case: Bennett v Chief Executive Officer, Australian Customs Service [2004] FCAFC 237 ; (2004) 140 FCR 101
Outcome: followed
Both parties accepted that all of the documents and parts of documents that were ordered to be released, and those sought by way of cross-appeal, were entitled to the benefit of legal professional privilege, being either legal advices themselves or documents extracting or summarising legal advice. The basis of the AAT's decision, seeking to apply the principle discussed by the High Court in Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1, was that certain other documents, which were produced pursuant to the Freedom of Information request, disclosed the substance of the advices reflected in the nine documents not produced thereby waiving legal professional privilege in the underlying advices. The issue has been argued before the AAT and in this proceeding on the basis of the application of the common law rather than the Evidence Act 1995 (Cth). That approach is consistent with the decision in Mann [1999] HCA 66 ; 201 CLR 1 and with the approach of the Full Court in Bennett v Chief Executive Officer, Australian Customs Service [2004] FCAFC 237 ; (2004) 140 FCR 101. The AAT identified parts of five particular documents which it held disclosed the substance of the advices in question. One of those documents notes taken as to what occurred at a without prejudice meeting between Australian Taxation Office representatives and taxpayers' representatives including the counsel in question was taken into account on the basis that disclosure of the document waived the without prejudice privilege and so was held to be available to be utilised in relation to waiver by disclosure. 8 The Commissioner contends that the AAT was wrong in finding that the documents upon which it relied disclosed the gist of the advices in the necessary sense. The mere reference to legal advice does not disclose the gist or substance of it. However, the manner of reference to it may do so. The difference may be illustrated by the decision of Rolfe J in Ampolex Ltd v Perpetual Trustee Company (Canberra) Ltd (1996) 40 NSWLR 12, albeit in the context of the Evidence Act ; (see also Kirby J in Ampolex Ltd v Perpetual Trustee Company (Canberra) Ltd [1996] HCA 15 ; (1996) 137 ALR 28 at 34; [1996] HCA 15 ; 70 ALJR 603 at 607). Devereaux submits that the question as to whether or not there has been a disclosure of the substance of advice is a matter of fact and degree rather than a question of law and that any error involved would not be an error of law. In my opinion, that is generally correct although, if the wrong test is applied, there can be an error on a question of law (cf Bennett [2004] FCAFC 237 ; 140 FCR 101 at [68] ). It is unnecessary to pursue detailed examination of this issue as, in my opinion, there are more fundamental questions to be addressed. 15 Another typical application of the principle is exemplified in Bennett [2004] FCAFC 237 ; 140 FCR 101 and the authorities considered in that decision where a party quotes the substance of legal advice in support of a position that it is taking, either in relation to another party or the public generally. As was said in that case (140 FCR 101 at [68]): '... 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 In my opinion, the Commissioner is correct in submitting that the AAT fell into error on a question of law in not considering whether such disclosure as took place was conduct inconsistent with maintenance of the confidentiality of the underlying advices. Whilst many of the relevant authorities, including Mann [1999] HCA 66 ; 201 CLR 1 and Bennett [2004] FCAFC 237 ; 140 FCR 101, were referred to by the AAT, the correct question is not to be found in the dispositive parts of its decision. If the question had been asked, in my opinion, it could only properly have been answered in the negative. I cannot see any basis upon which it could be said that the production of the documents relied upon for waiver pursuant to a request under the FOI Act could be said to amount to conduct by the Commissioner inconsistent with maintenance of the confidentiality of the underlying advices. That is reinforced by the evidence, accepted by the AAT, that the failure to mask, even if relevant, was inadvertent.