New South Wales Court of Appeal CITATION : Amalgamated Television Services Pty Ltd v Marsden [1999] NSWCA 97 FILE NUMBER(S) : CA 40191/99 HEARING DATE(S) : 13 April 1999 JUDGMENT DATE : 15 April 1999 PARTIES : Amalgamated Television Services Pty Ltd John Marsden JUDGMENT OF : Mason P at 1; Handley JA at 2; Giles JA at 3 LOWER COURT JURISDICTION : Supreme Court - Common Law Division LOWER COURT FILE NUMBER(S) : 20223/95; 20592/96 LOWER COURT JUDICIAL OFFICER : Levine J COUNSEL : Appellant - J S Wheelhouse & R C Titterton at hearing; W H Nicholas QC & J S Wheelhouse as to amendment to notice of appeal Respondent - N/A at hearing; G T'OL Reynolds as to amendment to notice of appeal SOLICITORS : Appellant - Mallesons Stephen Jaques, Sydney Respondent - Phillips Fox, Sydney CATCHWORDS : PRIVILEGE - client legal privilege - whether lost by providing copies of documents to Police - Evidence Act 1995 s 122(2)(a) - whether provided in the course of making a confidential communication - Evidence Act s 117(1) definition of "confidential communication" - Police could use contents of documents in investigations or for prosecution - not confidential communication. DECISION : (1) Grant leave to amend notice of motion; (2) Appeal upheld; (3) Vary order 1 made by Levine J on 19 March 1999 by granting leave to the appellant and its legal advisers to inspect the documents referred to in para 2(a)-(f) of the amended notice of appeal (see details in formal order) and document 5 in schedule B to the affidavit of Michael Lee made on 1 March 1999; (4) Costs of the appeal to be costs in the proceedings in the Common Law Division. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40191/99 CLD 20223/95 & 20592/96 MASON P HANDLEY JA GILES JA Thursday 15 April 1999 AMALGAMATED TELEVISION SERVICES PTY LTD v MARSDEN JUDGMENT 1 MASON P: I agree with Giles JA. 2 HANDLEY JA: I agree with Giles JA. 3 GILES JA: The respondent alleged that he was defamed by the appellant in two television programmes. One programme was telecast on 13 March 1995, and a jury has determined that it conveyed certain defamatory imputations. The second programme was telecast on 7 May 1996, and the jury has determined that it conveyed certain other, but similar, defamatory imputations. 4 The appellant's defences included that the imputations were matters of substantial truth. On 17 December 1996, at a time when some additional imputations were also in issue, the appellant was ordered to provide particulars of the facts, matters and circumstances on which it relied in asserting the substantial truth of each separate imputation. At various times in 1997 and 1998 the appellant provided particulars and amended particulars in accordance with this direction. 5 By letters dated 6 and 7 January 1999 the appellant provided further particulars of the facts, matters and circumstances on which it intended to rely. The particulars were concerned with three persons, sufficiently identified as D13, D14 and D15, and the respondent's conduct towards them. 6 The proceedings came before Levine J on 4 February 1999. The respondent opposed reliance by the appellant on this further alleged conduct. Its opposition led to what is now an application by the appellant for leave to amend its particulars of justification. But, although the details have not been spelt out in the materials before us, the application now appears to go well beyond particulars concerned with D13, D14 and D15, and to extend to the respondent's conduct towards a number of further persons. The application for leave to amend the particulars of justification has yet to be determined. 7 The hearing of the proceedings was listed to commence on 8 February 1999. Levine J has been occupied in the conduct of the hearing since that date. After some time spent on the application for leave to amend the particulars of justification, in its then scope, and on other interlocutory and procedural matters, the jury was empanelled and found the imputations to which I have earlier referred and that they were defamatory of the respondent. His Honour then returned to the application for leave to amend the particulars of justification and other interlocutory matters. Evidence has yet to be taken by his Honour going to the defence, which is to be determined by his Honour, that the imputations are matters of substantial truth, or to any other substantive issues for his Honour's determination. 8 This appeal arises from the service of subpoenas and a notice to produce by the appellant, said to be immediately in aid of its application to amend the particulars of justification and in due course in aid of establishing that the imputations are matters of substantial truth. The subpoenas are two subpoenas addressed to the Police Service of New South Wales ("the Police") dated 18 January 1999 and 26 February 1999, and a subpoena addressed to the respondent dated 2 February 1999. The notice to produce was served on the respondent on 25 February 1999. In general terms, the subpoenas and notice to produce were apt to require the production of documents relevant to the respondent's conduct towards persons of a kind material to the defence that the imputations were matters of substantial truth. 9 Documents were produced to the Court. The respondent had first access to them. By a notice of motion filed on 9 March 1999, a composite notice of motion to cover matters which had been raised prior to that date, the respondent sought an order that inspection of a number of documents be restricted to himself and his legal advisers. The respondent contended that the documents in question should not be disclosed to the appellant because they were subject to legal professional privilege, or client legal privilege as it is termed in the Evidence Act 1995 ("the Act"), or alternatively and as to at least some of the documents because principles of public interest immunity precluded their being made available to the appellant. 10 The hearing of the respondent's application extended over some days. On 19 March 1999 Levine J published reasons for orders, and made orders, substantially as sought by the respondent. 11 On 24 March 1999 the appellant filed a summons for leave to appeal in relation to the orders made on 19 March 1999. The application for leave to appeal came before us on 6 April 1999. By that date the documents inspection of which would be affected by a successful appeal had been confined, as a result of a successful application made by the Police on grounds of public interest immunity. There remained subject to the potential appeal - (a) Documents delivered or said to have been delivered by the respondent's solicitors to the Police, produced by the Police in answer to the subpoenas addressed to it; (b) Other documents produced by the Police in answer to the subpoenas addressed to it, so far as those documents repeated or reflected the contents of documents in (a); and (c) Documents produced by the respondent in answer to the notice to produce, being a copy of a document delivered by the respondent's solicitors to the Police and copies of documents delivered by the respondent's solicitors to the Royal Commission of Inquiry into the operations of the Police ("the Commission"). 12 Levine J decided in favour of the respondent on grounds of client legal privilege, finding it unnecessary to deal in the respondent's application with the question of public interest immunity. On the application for leave to appeal the appellant sought to contend for error in applying the principles of the Act rather than the common law and, even if the principles of the Act applied, error in holding that the documents were initially subject to client legal privilege and in failing to hold that the documents in (a) and (b) and the one document in (c) were no longer subject to client legal privilege. The issue for loss of client legal privilege was whether the documents in (a) were delivered to the Police "in the course of making a confidential communication" within s 122(2)(a) of the Act. As to the documents in (c) other than the copy of the document delivered by the respondent's solicitors to the Police, the issue for loss of client legal privilege was whether those documents had been delivered to the Commission under compulsion of law within s 122(2)(e) of the Act. 13 Levine J said that he approached the resolution of the respondent's motion on the basis that the principles of the Act dealing with client legal privilege governed whether the documents produced could be excluded from inspection by the appellant, following the decision of this Court in Akins v Abigroup Limited (1998) 43 NSWLR 539. The appellant drew attention to the later decision of a bench of five judges of the Federal Court in Esso Australia Resources Limited v Federal Commissioner of Taxation (1999) 159 ALR 664, in which a majority took a view different from that taken by this Court, and to some observations in Northern Territory of Australia v GPAO (1999) HCA 8 which it said indicated that the High Court was disposed also to take a different view. The appellant urged that the derivative application of the principles to be found in the Act should be reconsidered by this Court. Leave to appeal for the purposes of reconsidering Aikins v Abigroup Limited was refused. The unsatisfactory confusion which the Act has brought in this area, whichever view of its effect on common law principles applied otherwise than in the adducing of evidence be taken, is well known. Notwithstanding what was said by the majority in Esso Australia Resources Limited v Federal Commissioner of Taxation, we did not think there was occasion to address the matter again, and we did not think that the observations in Northern Territory of Australia v GPAO indicated a disposition on the matter leading to a different view. 14 On the application for leave to appeal the appellant suggested that there could not be compulsion of law if the persons subject to a notice served by the Commissioner requiring the production of documents was entitled to have the requirement set aside on the ground of client legal privilege; it said that the respondent was so entitled, or would have been so entitled if he had been served with a notice requiring the production of the documents in fact delivered to the Commission, by virtue of s 8(2) of the Royal Commission (Police Service) Act 1994. 15 A similar argument had been put to Levine J, who held that the compulsion arose upon the service of the notice, and that while compliance might be affected by the setting aside of the requirement because a ground of privilege was established, until that occurred the compulsion persisted. We did not think error was evident, and leave to appeal was refused in relation to this aspect of his Honour's decision. 16 As to the documents delivered, or said to have been delivered, by the appellant's solicitors to the Police, and consequently the other documents produced by the Police, it appeared to us that there was a strong argument that his Honour had erred in upholding the respondent's position. The respondent submitted that nonetheless leave to appeal should not be granted because his Honour's determination was a discretionary decision in a matter of practice and procedure, invoking In re the Will of Gilbert (1946) 46 SR 318 at 323 where the distinction was drawn between: " … an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight reign were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal. But an appeal from an exercise of a so-called discretion which is determinative of legal rights stands in a somewhat different position. In this class of case, too, a Court of Appeal submits itself to self-imposed restraints, but restraints which though strict, are somewhat less stringent than those adopted in matters of practice or procedure." The respondent said, as well, that the decision was in an interlocutory application in the course of the hearing and that this Court should not lend itself to disruption of the proceedings at first instance by entertaining an appeal. 17 The determination as to the existence of client legal privilege was not a discretionary decision in a matter of practice and procedure. While it was a determination ancillary to the substantive proceedings, whether the privilege existed affected the entitlement of a party to keep material to itself pursuant to "a substantive and fundamental common law principle" (Carter v Northmore Hale Davey Leake (1995) 183 CLR 121 at 122 per Deane J), a principle which has now been enshrined in the Act. It is not uncommon for appeals to be heard in relation to disputes over privilege prior to the hearing of the substantive proceedings - Akins v Abigroup Limited was such a case. There may have been a discretion whether or not to grant access to the documents or defer the grant of access (see National Employers' Mutual General Association Ltd v Waind (1978) 1 NSWLR 372 at 383-6), but that was not involved in his Honour's determination as to privilege. If the documents were not, or no longer, subject to client legal privilege, his Honour had no discretion to afford them privileged status. 18 It was of course correct that the decision was in an interlocutory application in the course of the hearing, and this Court should not condone disruption of proceedings at first instance by appeals against interlocutory orders or rulings. But the proceedings before Levine J were and are out of the ordinary. The arguably late service of the subpoenas and the notice to produce was explained. The status of the documents, and so their availability to the appellant, could have a significant impact not just on the application for leave to amend the particulars of justification but on the substantive issues in the hearing. Discretionary considerations may remain, but it would have been unfortunate if error as to the status of the documents should cause the proceedings to go astray, with the occasion for recognition of the error only after the expenditure of much time and costs and with the possibility of the need for a new trial. The sound general rule inhibiting appellate intervention in interlocutory matters in the course of a hearing did not apply with its full rigour in the unusual circumstances here presented. Leave to appeal was granted, but limited to the documents delivered by the respondent's solicitors to the Police. 19 The appeal was expedited, and was listed for hearing on 13 April 1999. On 12 April 1999 we were informed that the respondent would not be represented at the hearing of the appeal. A reason was given. The respondent did not appear. In the course of the hearing it became apparent that the orders sought by the appellant, effectively for dismissal of the respondent's notice of motion of 9 March 1999, might not achieve the appellant's purpose, which was to obtain access to the documents. The respondent was given notice of an amended notice of appeal specifically claiming access to the documents, and the hearing was adjourned to enable the respondent to appear, if he desired, in relation to the amendment. The respondent did appear in that connection, and I return to what occurred later in these reasons. 20 The hearing of the appeal was conducted by reference to a listing of documents in schedules A and B to the affidavit of Mr Michael Lee sworn 1 March 1999. The facts material to the documents differed, and they were categorised as - (a) document 1 in schedule A; (b) documents 13, 41, 42, 43 and 44 in schedule B; (c) documents 34, 35, 36, 37, 39 and 40 in schedule B; (d) document 14 in schedule B; (e) document 17 in schedule B; (f) document 33 in schedule B; (g) documents 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 15, 16, 18 and 19 in schedule B. 21 The principle can be established by reference to document 1 in schedule A, described as a copy of a statutory declaration of the respondent dated 25 November 1998 with attachments consisting of other documents. 22 In December 1997 the Police established Strike Force Cori to investigate claims made by the Honourable Franca Arena MP. Superintendent Michael Woodhouse was the Commander of the strike force. The investigation included investigation of allegations made against the respondent. In September 1998 Superintendent Woodhouse wrote to the respondent in relation to certain of the allegations, informing him of the investigation and saying that he intended to contact the respondent or his legal representative at the appropriate stage in order to afford the respondent the opportunity of responding. On 20 November Mr Lee, a member of the firm of solicitors acting for the respondent in relation to the investigation by Strike Force Cori, spoke to Superintendent Woodhouse to arrange a meeting, saying that he proposed to give Superintendent Woodhouse some material. According to Mr Lee, in the conversation he said, "I trust that like any other material I provide to you during the course of your investigation that you will keep it strictly confidential", and Superintendent Woodhouse said that he would. Superintendent Woodhouse had no recollection of this conversation, but said that "my understanding at all times when I received material from Mr Marsden's solicitors was that the material was to be used exclusively for the purpose of considering it in the context of other material I had received in the course of the investigation of Strike Force Cori". Mr Lee met Superintendent Woodhouse on 26 November 1998, and gave him a copy of document 1 in schedule A. 23 Levine J said of the documents provided to the Police - "I am persuaded that the compilation of material both by Mr Whittaker and Mr Lee for provision to the Police as between each and the plaintiff was the compilation of privileged material including privileged material constituted by "witnesses statements" hitherto obtained. Equally am I persuaded that the provision of that material to the relevant Police officers in the course of an ongoing investigation was a confidential communication; that in relation to both Mr Whittaker and Mr Lee the circumstances of their giving the information and the position of the recipient gave rise to the requisite confidentiality. I am satisfied in relation to the November 1998 and January 1999 provision of materials that the circumstances were such as to create an express or implied obligation not to disclose the contents of those materials. The ambit of that confidentiality at one end, as-it-were, can be identified as not precluding the Police during the course of their investigation using it to conclude that the plaintiff should be prosecuted and using the material in the course of the prosecution of the plaintiff. On the other hand, the position taken by both Mr Lee and Mr Whittaker to the effect that the material was placed before the Police with a view to their considering it in isolation and being thereby persuaded to shut down the investigation favourably to the plaintiff, cannot be described as having, on any realistic view, been reasonably based. Mr Woodhouse in his affidavit (paragraph 35) in relation to his understanding stated that the material was to be used exclusively for the purpose of "considering it" in the context of other material he had received in the course of his investigation. Even that understanding, on any realistic view, could not preclude a person in the position of Mr Woodhouse from making an inquiry of a complainant in the light of the information provided to him. To put it at its highest, it would be naive to expect an officer in the position of Mr Woodhouse either to immediately shutdown his investigation by reason of the provision of the information or to take no step by way of inquiry or in pursuing the investigation, the material having been provided. Nonetheless, whilst the ambit of confidentiality would permit such a limited course to be taken by the Police officer, such a course would not amount to one taken with the implied or express consent of the plaintiff to extinguish the privilege that attaches both to the material or the confidentiality that otherwise exists. This is an extremely delicate and difficult area. I am not persuaded by the submission for the defendant in relation to s 122(4) of the Evidence Act . The documents being privileged, the provision of them to the Police being a confidential communication, the consent of the plaintiff to the use by the Police officer as I have described it, in my view, is not consent, express or implied, to the disclosure of the substance of the privileged material by the Police officer which, as a matter of principle, construction of the Evidence Act or in any sense of fairness could be one as to amount to a " waiver " and thus deprive the plaintiff of the benefit of the privilege that attached to the material and the confidentiality that flowed from the occasion of its being handed over." 24 It will be noted that document 1 in schedule A was not produced in answer to the subpoena addressed to the Police, but was produced in answer to the notice to produce. From the evidence of Mr Lee, however, a copy of that document was delivered to the Police. His Honour considered that the document so delivered was initially subject to client legal privilege, and that the undoubted knowing and voluntary delivery of the document to the Police was in circumstances of confidentiality sufficient that the client legal privilege was not lost. 25 The appellant sought to argue that the document was not initially subject to client legal privilege, because the copy provided by Mr Lee to Superintendent Woodhouse (an instance of what his Honour described as a compilation of privileged material) was brought into existence for the purpose of provision to the Police in order to move the Police to a view favourable to the respondent in their investigation, as distinct from the purpose of the provision of legal advice or professional legal services. It was indicated that this argument did not fall within the grant of leave. It does not matter to the outcome of the appeal. 26 Section 122(2) of the Act provides that, subject to a later sub-section of no present relevance, the Division of the Act concerned with client legal privilege - " … does not prevent the adducing of evidence if a client or party has knowingly and voluntarily disclosed to another person the substance of the evidence and the disclosure was not made: (a) In the course of making a confidential communication or preparing a confidential document … ." "Confidential communication" is defined in s 117(1) to mean - " … a communication made in such circumstances that, when it was made: (a) the person who made it, or (b) the person to whom it was made, was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law." 27 Through Mr Lee, the respondent knowingly and voluntarily disclosed the substance of document 1 in schedule A to Superintendent Woodhouse by delivering a copy to the Police. Unless the disclosure was made in the course of making a confidential communication, client legal privilege was lost. The disclosure was in the course of Mr Lee making a communication to Superintendent Woodhouse. Was the communication a confidential communication, that is, a communication made in such circumstances that, when it was made, Mr Lee or Mr Woodhouse was under an express or implied obligation not to disclose its contents? 28 The content of the communication between Mr Lee and Superintendent Woodhouse was not just to the effect that Mr Lee gave the document to Superintendent Woodhouse and Superintendent Woodhouse received it. The content of the communication included the contents of the document, the purpose of the communication being to convey the contents to the Police. As Levine J recognised in the latter part of the passage from his reasons set out above, while the Police could not disclose the contents of the documents to all the world, it could disclose them for the purposes of the investigation in which Strike Force Cori was engaged and, if it came to that, for a prosecution of the respondent. So the contents of the document could be put to persons referred to in it, as in fact happened, and those persons would not be under any restriction in further disclosing whatever was disclosed to them; and if the contents of the document were disclosed in the course of a prosecution of the respondent, subject to any special order which might be made, the contents would pass into the public domain. 29 The circumstances were quite different from those arising when the Police receive information from an informer. With respect, while early in the passage set out above Levine J expressed satisfaction as to an express or implied obligation not to disclose the contents of the documents delivered to the Police, the permitted uses of the documents properly recognised by his Honour thereafter undermined the early statement. Confidentiality was to be measured not by consent to extinguishing privilege or confidentiality, or a sense of fairness, but by the words of the definition in s 117(1). In my view, it can not be said in relation to that communication that either Mr Lee or Superintendent Woodhouse was under an express or implied obligation not to disclose the contents of the document within that expression as used in s 117(1) of the Act, and the communication between the respondent's solicitors and the Police was not a confidential communication. By the derivative application of s 122(2), following its provision to the Police the document was no longer subject to client legal privilege. 30 Documents 13, 14, 41, 42, 43 and 44 were statutory declarations or parts of statutory declarations of persons other than the respondent. They were originally taken for the dominant purpose of anticipated criminal proceedings. They were delivered by Mr Lee to Superintendent Woodhouse after November 1998 for the purpose of seeking to persuade Superintendent Woodhouse to conclude the investigation of the respondent by Strike Force Cori in a manner favourable to the respondent. Superintendent Woodhouse intended to keep them confidential within the purpose of his inquiries. What I have said in relation to document 1 in schedule A applies equally to these documents. 31 Documents 34, 35, 36, 37, 39 and 40 in schedule B were parts of documents created by the Police during the investigations of Strike Force Cori. The relevant parts were sections which had been blacked out, being sections repeating or reflecting contents of the documents delivered by the respondent's solicitors to the Police. It is questionable whether there was ever client legal privilege in the documents or their relevant parts, or client legal privilege precluding disclosure of the relevant parts. Where the documents delivered by the respondent's solicitors to the Police were not subject to client legal privilege, there was no client legal privilege in these documents or their relevant parts. 32 It is convenient to take document 17 in schedule B before document 14 in schedule B. It was in fact three documents, two statutory declarations of persons other than the respondent and an unsigned statement of the respondent. It was provided by Mr Rod McGeoch of the respondent's solicitors to Inspector Inkster of the Police in March 1995, under cover of a letter conveying the respondent's understanding that a task force group had been established to investigate allegations about him and stating - "Our client has instructed us that he wishes to do everything he can to facilitate a clear and speedy examination of the falsity of these manufactured allegations. We have been provided with voluminous evidence which points to a fraudulent conspiracy against our client." 33 There was no evidence of a conversation concerning confidentiality such as the conversation or conversations between Mr Lee and Superintendent Woodhouse. No doubt the Police would have been limited in the purpose for which the information in the document could be used or disclosed (see Johns v Australian Securities Commission (1993) 178 CLR 408), but there would not have been a higher obligation of confidentiality than understood by Superintendent Woodhouse. What I have said in relation to document 1 in schedule A applies also to this document. 34 Document 14 in schedule B was a statutory declaration of a person other than the respondent. It was provided by Mr Brian Whittaker, of the respondent's solicitors, to Inspector Inkster, under cover of a letter dated 5 August 1996, without any expression of confidentiality but (I will assume) "in accordance with the practice of confidentiality" which he described, namely, that when producing documents to the Police he generally said words to the effect "Here is (describe document). John has instructed I provide it/them to you. Of course it is confidential and given to you for the purpose of the inquiry only." So far as anything may be inferred from the letter, it was provided either with a view to persuading the Police that the investigation of the allegations against the respondent should be resolved favourably to him, or to assist the respondent's contention that the Police should lay unspecified charges against another named person. This document is in the same position as document 17 in schedule B. 35 Document 33 in schedule B was a statutory declaration of a person other than the respondent. Mr Whittaker had an unclear recollection that he gave it to the Police. When he did so was not established. At best, on the evidence, the document could have been delivered to the Police in accordance with Mr Whittaker's practice of confidentiality or on terms of confidentiality of the kind stated in the conversation or conversations between Mr Lee and Superintendent Woodhouse. This document is in no better position than document 1 in schedule A. 36 The position as to the remaining documents, documents 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 15, 16, 18 and 19 in schedule B, was more confused. 37 Document 5 in schedule B was a statutory declaration of a person other than the respondent. It was provided by Mr Whittaker to the Police, I will assume in accordance with his practice of confidentiality. Levine J found that the document was provided to Inspector Inkster "on a confidential basis for the purpose of providing legal advice and in response to his request". The reference to providing legal advice is curious, and does not seem to be supported by the evidence. In my opinion it is proper to find that this document was delivered to the Police in the same manner as other documents to which I have referred, and it can not be in any better position than them. 38 The other documents in this group were not the subject of evidence directly establishing that they had been delivered by the respondent's solicitors to the Police. If they were not so delivered, there could not have been the knowing and voluntary disclosure necessary for the derivative application of s 122(2) of the Act. The respondent had written to the appellant shortly before the hearing of the appeal taking issue with its identification of documents 1, 2, 3, 4, 5, 6, 7, 8, 9, 18 and 19 in schedule B as documents the subject of the appeal, on the ground that there was no evidence showing that they were delivered by the respondent's solicitors to the Police. As I have indicated, there was evidence in relation to document 5 in schedule B, but documents 10, 11, 12, 15 and 16 were not taken up in the respondent's objection although in the same position as the remaining documents in the group. In the circumstances, I consider that the appeal should be determined on the evidence without regard to the respondent's failure to object in relation to documents 10, 11, 12, 15 and 16 in schedule B. 39 The documents were a number of statutory declarations of the respondent and other persons. As to most of them, there was evidence that Mr Whittaker provided them to the Commission, and Levine J said that, by the operation of the Police Commission (Police Service) Act 1994, the Commission "obtained the information under an obligation not to disclose its contents for the purposes of the definition of confidential communication in s 117 and thus, the operation of s 122(2)(a)". The appellant submitted that it should be inferred that the respondent's solicitors delivered these documents to the Police. Its reasoning was that, consistently with the confidentiality to which his Honour referred, the Commission could not have provided them to the Police, that there was nothing to suggest that anyone else would have done so other than the respondent, and that the respondent must therefore have provided them or caused them to be provided to the Police. As to one of the documents, document 4 in schedule B, it was said that the inference should more readily be drawn because that document had been provided to the Commission with an express waiver of privilege: so it might be thought that the respondent was not resistant to its further disclosure. 40 In my opinion the inference should not be drawn. The Commission was at liberty to communicate any information or furnish any material that it obtained to a law enforcement agency, if the information or material related or might relate to a breach of a law of a State, Territory, or the Commonwealth (Royal Commissions Act 1923, s 12A(2)). His Honour's reference to the confidentiality under which the Commission received documents from Mr Whittaker must be read subject to what his Honour later said, in the passage earlier set out, whereby confidentiality nonetheless permitted a certain extent of disclosure. I am not satisfied that provision of the documents by the Commission to the Police can be excluded so as to found the inference. Levine J made no specific finding as to documents 1, 2, 3, 4, 6, 7, 8, 9, 10, 11, 12, 15, 16, 18 and 19 in schedule B, and in my view it has not been established that they were delivered by the respondent's solicitors to the Police. Accordingly, it has not been shown that client legal privilege has been lost by the operation of s 122(2) of the Act. 41 The respondent had neither filed a notice of contention nor appeared on the hearing of the appeal, so public interest immunity as a ground for upholding the orders made by his Honour was not part of the appeal. When the respondent appeared later on 13 April 1999 in connection with the amendment to the notice of appeal, the Court indicated that it was disposed to allow the appeal and make orders entitling the appellant access to the documents in question other than documents 1, 2, 3, 4, 6, 7, 8, 9, 10, 11, 12, 15, 16, 18 and 19 in schedule B. The respondent contended that an order to that effect should not be made, and that it should be left able to present further argument to Levine J in support of public interest immunity or the exercise of a discretion to defer access to the documents or permit access only on conditions. For reasons then given, the Court determined to make the orders as foreshadowed. 42 Orders were then made, with the Court's reasons to be delivered today. These are my reasons for joining in making the orders which were - (1) Grant leave to amend the notice of appeal in accordance with the document produced to the Court this afternoon. (2) Appeal upheld. (3) Vary order 1 made by Levine J on 19 March 1999 by granting leave to the appellant and its legal advisers to inspect the documents referred to in para 2(a)-(f) of the amended notice of appeal, that is - (a) document 1 in schedule A to the affidavit of Michael Lee made on 1 March 1999; (b) documents 13, 41, 42, 43 and 44 in schedule B to the affidavit of Michael Lee made on 1 March 1999; (c) documents 34, 35, 36, 37, 38, 39 and 40 in schedule B to the affidavit of Michael Lee made on 1 March 1999; (d) document 14 in schedule B to the affidavit of Michael Lee made on 1 March 1999; (e) document 17 in schedule B to the affidavit of Michael Lee made on 1 March 1999; (f) document 33 in schedule B to the affidavit of Michael Lee made on 1 March 1999; and document 5 in schedule B to the affidavit of Michael Lee made on 1 March 1999. (4) Costs of the appeal to be costs of the proceedings in the Common Law Division. _______ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.