Industrial Relations Commission New South Wales Medium Neutral Citation: Nash v Glennies Creek Coal Management Pty Ltd (No 2) [2013] NSWIRComm 67 Hearing dates: 24, 25, 26 July, 7 August 2013 Decision date: 13 August 2013 Jurisdiction: Industrial Court of NSW Before: Boland J, President Decision: (1) The Second Summons and the First and Third Notices to Produce are set aside. (2) The claims by the Department of public interest immunity and client legal privilege are disallowed in respect of any statement made in Confidential exhibits MP-A to MP-D inclusive and any statement or statements made in a document referred to in JMM-1 directed to: (a) any alleged defect in, or the validity of, the instrument of appointment, under the Coal Mine Health and Safety Act 2002 dated 22 December 2006, published in the NSW Government Gazette No 5 of 12 January 2007 at page 102; (b) clause 2.1 of Schedule 2 of the Petroleum (On-Shore) Amendment Bill 2013, which concerns the proposed amendment to the Coal Mine Health and Safety Act 2002 by the insertion of a new clause 25A. (3) In respect of the documents in MP-A, MP-B, MP-C and MP-D and the documents referred to in JMM-1, the Department shall prepare a schedule or table, in date order, identifying the following: (a) where the document contains a statement or statements referred to in Order (1) hereof: (i) the nature of the document (for example, "Ministerial Letter for Minister" or email) , the author/s of the document and his or her position, to whom the document is directed, and the date of the document; and (ii) an extract of the whole of the statement or statements (including relevant headings). (4) In the alternative or in addition to Order (2) hereof, the whole of the documents may be produced in redacted form if redaction is necessary. (5) Where a document in MP-A to MP-D inclusive and a document referred to in JMM-1 contains a statement or statements referred to in Order (1) hereof and the statement is merely a reiteration of what is said in an earlier document of the same nature, there is no need to comply with Orders (2) and (3) hereof in relation to that document. Where there is any change in the wording from a previous document of the same nature, Orders (2) and (3) shall be complied with. (6) To avoid doubt, where the document contains a draft of schedule 2.1 or drafts of explanatory memoranda directly referring to schedule 2.1, it is unnecessary to provide other drafts that are in the same terms. Further, other than statements referred to in Order (1), it is not the Court's intention that any subject- matter related directly or indirectly to the Petroleum (Onshore) Amendment Bill 2013 be disclosed. (7) The Department shall, on or before 4.00pm Thursday 15 August 2013, produce the schedule or table referred to in Order (2) and/or the documents referred to in Order (3) hereof for inspection by the defendants. (8) The Department shall pay the defendants' costs of the motions in respect of public interest immunity and client legal privilege. Catchwords: OCCUPATIONAL HEALTH AND SAFETY - prosecutions under Occupational Health and Safety Act 2000 - Interlocutory proceedings - Summonses to Produce - Notices to Produce - Challenge to authority of prosecutor to institute and maintain prosecutions - Abuse of process - Legitimate forensic purpose - Public interest immunity - Client legal privilege Legislation Cited: Coal Mine Health and Safety Act 2002 Criminal Procedure Act 1986 Evidence Act 1995 Occupational Health and Safety Act 2000 Petroleum (Onshore) Act 1991 Petroleum (Onshore) Amendment Bill 2013 Cases Cited: Adelaide Steamship Co Ltd v Spalvins (1998) 88 FCR 360 Alderman v Zurich [2011] NSWSC 754 Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404 at 412 Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd [1996] HCA 15; (1996) 137 ALR 28 Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475 Australian National Airlines Commission v The Commonwealth [1993] HCA 33; (1975) 132 CLR 582 Barnes v Commissioner of Taxation [2007] FCAFC 88; (2007) 242 ALR 641 Bennett v Chief Executive Officer, Australian Customs Service [2004] FCAFC 237; (2004) 140 FCR 101 British American Tobacco Australia Ltd v Secretary, Department of Health and Ageing [2011] FCAFC 107; (2011) 195 FCR 123 College of Law Limited v Australian National University [2013] FCA 492 Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86; (2006) 151 FCR 341 Commonwealth v Northern Land Council [1993] HCA 24; (1993) 176 CLR 604 Conway v Rimmer [1968] AC 910 Commonwealth v Vance [2005] ACTCA 35; (2005) ACTR 47 Cooper v Hobbs [2013] NSWCA 70 D v National Society for the Prevention of Cruelty to Children [1978] AC 171 d'Apice v Gutkovich (No.1) [2010] NSWSC 1336 Egan v Chadwick (1999) 46 NSWLR 563 General Manager, WorkCover Authority (NSW) v Law Society (NSW) [2006] NSWCA 84;(2006) 65 NSWLR 502 Global Medical Imaging Management Ltd (in liq) v Australian Mezzanine Investments Pty Ltd [2003] NSWSC 430 Goldberg v Ng Hango Holdings Pty Ltd [1995] HCA 39; (1995) 185 CLR 83 Idoport Pty Ltd (in liq)(recs apptd); National Australia Bank Limited (& Ors) v John Sheahan (& Ors) [2012] NSWSC 58 Inspector Estriech v Leon [2012] NSWIRComm 84 Jacobsen v Rogers [1995] HCA 6; (1995) 182 CLR 572 Lanyon Pty Ltd v The Commonwealth [1974] HCA 11; (1974) 129 CLR 650 Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 New South Wales v Ryan (1998) 101 LGERA 246 Osland v Secretary, Department of Justice [2008] HCA 37; (2008) 234 CLR 275 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales and Director General, Department of Premier and Cabinet [2010] NSWIRComm 21 Re Howard v Treasurer of the Commonwealth of Australia (1985) 7 ALD 628 Rich v Harrington [2007] FCA 1987 Rogers v Home Secretary [1973] AC 388 Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 Seven Network Ltd v News Ltd [2005] FCA 142 Singtel Optus Pty Limited v Weston [2011] NSWSC 1083; (2011) 81 NSWLR 526 Spencer v Commonwealth of Australia [2012] FCAFC 169 Sportsbet Pty Limited v State of New SouthWales (No 3) [2009] FCA 1283 State of New South Wales v Betfair Pty Ltd [2009] FCAFC 160 State of New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60 Telstra Corporation Ltd v Minister for Communications, Information Technology and the Arts (No 2) [2007] FCA 1445 Three Rivers District Council v Bank of England (No 6) [2005] 1 AC 610 Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 5 Waugh Asset Management v Merrill Lynch [2010] NSWSC 197 Young v Quin (1985) 4 FCR 483 Category: Interlocutory applications Parties: Department of Trade and Investment, Regional Infrastructure and Services (Applicant on the Notice of Motion) Jennifer Anne Nash (Prosecutor in the substantive proceedings) Glennies Creek Coal Management Pty Ltd and Integra Coal Operations Pty Ltd (Respondents on the Notice of Motion/Defendants in the substantive proceedings) Representation: Ms M Kumar of counsel (Department of Trade and Investment, Regional Infrastructure and Services - Applicant on the Notice of Motion) Mr J Agius, Senior Counsel with Mr C Magee of counsel (Prosecutor) Mr A Moses, Senior Counsel (Respondents on the Notice of Motion) I V Knight, Crown Solicitors (Applicant on the Notices of Motion) Ashurst Australia (For the First and Second Respondents on the Notices of Motion) File Number(s): IRC 315 and 316 of 2011 INTERLOCUTORY Judgment 1This interlocutory judgment deals with notices of motion by the Department of Trade and Investment, Regional Infrastructure and Services ("the Department") seeking to set asides summonses and Notices to Produce on the grounds that the summonses and Notices are oppressive, lacking in legitimate forensic purpose, constitute a fishing expedition and catch documents that may be the subject of a claim for public interest immunity and/or client legal privilege. 2The first motion seeks orders in respect of a Summons for Production ("First Summons") issued on 10 July 2013 on behalf of Glennies Creek Coal Management Pty Ltd (315 of 2011) and Integra Coal Operations Pty Ltd (316 of 2011) (together "the defendants"). The motion, firstly, seeks to set aside paragraph 5 of the schedule to the First Summons, which was in the following terms: All records relating to: (i) any alleged defect in, or the validity of, the instrument of appointment under the CHMS Act dated 22 December 2006, published in the NSW Government Gazette No 5 of 12 January 2007 at page 102; and (ii) Schedule 2 of the Petroleum (On-Shore) Amendment Bill 2013 (NSW). 3On 16 July 2013, the defendants narrowed their call in respect of paragraph 5 to the schedule of the First Summons as follows: (a) Any alleged defect in, or the validity of, the instrument of appointment, under the Coal Mine Health and Safety Act dated 22 December 2006, published in the NSW Government Gazette No 5 of 12 January 2007 at page 102; (b) Clause 2.1 of Schedule 2 of the Petroleum (On-Shore) Amendment Bill 2013, which concerns the proposed amendment to the Coal Mine Health and Safety Act 2002 (NSW) by the insertion of a new clause 25A. 4The Department produced documents in response to the call in paragraphs 1 to 4 of the schedule to the First Summons, but relies on client legal privilege in relation to other documents called for in paragraphs 1 to 2 of the First Summons. 5The defendants served a Notice to Produce ("First Notice") on the prosecutor, Jennifer Ann Nash, dated 15 July 2013. Documents were produced in answer to this Notice on 17 July 2013. There is no outstanding claim for privilege or public interest immunity over any documents caught by this Notice. 6The defendants served a further Notice to Produce ("Second Notice") on the prosecutor dated 16 July 2013. A claim for privilege was made over certain documents called for in this Notice. 7A third Notice to Produce ("Third Notice") was served on the prosecutor on 17 July 2013 seeking the same information as that sought in the First Summons. In a notice of motion filed on 19 July 2013 the Department sought to have the Third Notice set aside. 8A Second Summons for Production directed to the Department was issued on 18 July 2013. The Department submitted there were no further documents caught by Second Summons that were not caught by the First Summons. Therefore, the order sought in relation to the Second Summons was that it be set aside. 9On 7 August 2013, the Department filed in Court a notice of motion seeking that, in respect of the Second Notice, the prosecutor be excused from producing any document or thing that is properly the subject of a claim for client legal privilege and that, in respect of the Third Notice, the prosecutor be excused from producing any document or thing that is properly the subject of a claim for client legal privilege and/or public interest immunity. 10In summary, the Department seeks to have set aside: (a) the schedule to the First Summons to the extent it is lacking in legitimate forensic purpose and that the Department be excused from producing any document or thing that is properly the subject of a claim for public interest immunity and/or client legal privilege. The claim for public interest immunity and/or client legal privilege relates mainly to paragraph 5 of the schedule, but in addition there is a claim for privilege in relation to documents called for under paragraphs 1 and 2 of the schedule; (b) the schedule to the Second Summons to the extent it is lacking in legitimate forensic purpose and that the Department be excused from producing any document or thing that is properly the subject of a claim for public interest immunity and/or client legal privilege. It is noted the documents sought under the Second Summons are caught by the First Summons. (c) the Second Notice in so far as a claim of client legal privilege has been asserted over certain documents; (d) the Third Notice on the ground that the documents sought under this Notice are caught by the First Summons. 11In total, there are 19 folders of documents in respect of which a claim for public interest immunity and/or client legal privilege is made, plus a further folder containing documents over which a claim for client legal privilege is made in respect of parts of those documents. Evidence 12In support if its motion the Department relied on eight affidavits: (1) two affidavits of Mark Ian Paterson AO, Director General of the Department; (2) an affidavit of Rebecca Falkingham, Acting Deputy Director, Policy and Strategy of the Department of Premier and Cabinet; (3) an affidavit of Jacqueleine Marie Moore, the Department's Director, Resource Development Law; (4) an affidavit of the prosecutor, Ms Jennifer Ann Nash; an affidavit of Andrea Bronwyn Gill, Senior Legal Officer, Litigation, with the Department; (5) an affidavit of Emma Solomon, Acting Manager Mineral Resources and Energy Law, Resource Development Law Team, Legal Branch of the Department; (6) an affidavit of Kevin Vincent Bennett, formerly the Department's Principal Legal Officer, Prosecutions, Litigation & Advisings Unit, now retired; and, (7) an affidavit of David William Christian Holmes formerly the Assistant Principal Legal Officer, Prosecutions Litigation & Advisings Unit, Legal Services with the Department. 13There will be a reference to "JMM-1" throughout this judgment. JMM-1 is an exhibit to Ms Moore's affidavit. In addition to affidavit evidence, the Department tendered a document entitled "Litigation involving Government Authorities" issued by the Department of Premier and Cabinet 8 October 1997. A one-page document was also tendered summarising the summonses, the Notices to Produce and the Department's motions. 14The defendants relied on two folders of materials, one entitled "Notices of Motion", which was Exhibit 1 in the interlocutory proceedings on 5 July 2013 and which contained some 13 tabs with material relevant to the appointment of Mr Regan. The second folder, entitled "Chronology of Correspondence - Appointment of Robert Regan", contained correspondence between the parties' solicitors between 5 July 2013 and 12 July 2013 and transcript of proceedings on 5 July 2013. In addition, an affidavit of Trent Daniel Sebbens was read. Mr Sebbens is the solicitor with day-to-day carriage of the proceedings for the defendants. Exhibited to Mr Sebbens' affidavit was a folder of materials to which I will refer in the course of this judgment. Background 15Before dealing with the Department's motions, some background is necessary. On 31 March 2011, Robert William Regan filed Applications for Order charging the defendants with contraventions of the Occupational Health and Safety Act 2000 ("the OHS Act"). 16Mr Regan stated in the Application for Order and deposed in the affidavit in support that he was a government official (Chief Inspector) appointed under s 145(1)(a) of the Coal Mine Health and Safety Act 2002 ("CMHS Act") and thereby, by s 47B of the OHS Act, was taken to have been appointed as an inspector under the OHS Act and authorised by s 106(1)(c) of the OHS Act to institute the proceedings. 17Section 145(1)(a) of the CMHS Act provides: 145 Appointment of government officials 1) The Minister may appoint a person employed under Chapter 2 of the Public Sector Employment and Management Act 2002 as: (a) the Chief Inspector, or ... 18Section 47B of the OHS Act provided: 47B Appointment of inspectors in connection with coal workplaces A person appointed as a government official under the Coal Mine Health and safety Act 2002 is taken to have been appointed as an inspector for the purposes of this Act and the regulations. Such a person is only authorised to exercise functions under this Act in relation to a coal workplace, but may exercise functions under Division 2 in relation to premises other than a coal workplace for the purpose of investigating any matter under this Act in relation to a coal workplace. 19Section 106(1)(c) of the OHS Act provided: 106 Authority to prosecute (1) Proceedings for an offence against this Act or the regulations may be instituted only: ... (c) by an inspector, or ... 20On 7 March 2012, by consent, the Applications for Order were amended to substitute Ms Nash for the former prosecutor, Mr Regan. It is to be noted that Mr Regan and Ms Nash are officers of the Department. 21From April 2009 until the commencement of the proceedings against the defendants, another officer of the Department, Mark William Freeman, had the conduct of an investigation into the alleged breaches of the OHS Act by the defendants. 22The defendants have raised the threshold questions of whether: (a) the proceedings against the defendants have been validly commenced by a person authorised under s 106 of the OHS Act; (b) the proceedings against the defendants are being maintained by a person validly authorised unde the OHS Act; and (c) whether any evidence relied upon by the prosecutor has been lawfully obtained by a person validly exercising powers under the OHS Act. 23Having raised these questions, the defendants have sought, via the summonses and Notices to Produce served on the Department and the prosecutor, information regarding the appointment of Messrs Freeman and Regan and Ms Nash. It would appear the defendants' inquiries were triggered by the fact that there is a bill presently in the Parliament, the Petroleum (Onshore) Amendment Bill 2013 ("the Bill"), which purportedly seeks to validate certain appointments, including the appointment of Chief Inspector Regan, by amending the CMHS Act by inserting a new s 25A. 24The Bill passed through the Legislative Assembly on 28 May 2013, but is only at the second reading stage in the Legislative Council. The Legislative Council next sits on 20 August 2013. The proposed amendment is in Schedule 2 of the Bill in the following terms: 25A Validation of appointment of officers (1) A person purporting to have been appointed as the Chief Inspector, an inspector, a mine safety officer or an investigator by the 2006 instrument of appointment is taken to have been validly appointed as such an officer on and from the commencement of section 145. (2) Any act purported to be done or omitted to have been done by the person as such an officer on or after that commencement is taken to have been validly done or omitted to be done, if it could have been validly done or omitted to be done had subclause (1) been in force. (3) Nothing in this clause continues the appointment of a person who, before the commencement of this clause, ceased to hold an office to which the person was appointed as referred to in subclause (1). (4) In this clause: 2006 instrument of appointment means the instrument of appointment under the Coal Mine Health and Safety Act 2002, dated 22 December 2006, published in Gazette No 5 of 12 January 2007 at page 102. 25Reference was made in earlier interlocutory proceedings to the appointment of Chief Inspector Regan, according to the Government Gazette (of 12 January 2007), being on 22 December 2006 by Alan Coutts, Deputy Director-General, NSW Department of Primary Industries - Mineral Resources, in circumstances where, according to the defendants, the relevant provisions of the CMHS Act enabling the responsible Minister to delegate his authority to make appointments did not commence until 23 December 2006 (one day after the appointment of Chief Inspector Regan). Further, that the delegated power to appoint Mr Regan as a government official (Chief Inspector) was not granted until 28 December 2006. 26This places a question mark over the validity of what was purported to be Mr Regan's appointment as a Chief Inspector on 22 December 2006. If that appointment was invalidly made, prima facie Mr Regan had no authority pursuant to that appointment to institute proceedings against the defendants in the Application for Order filed on 31 March 2011. 27The defendants also contend that they require production of certain of the documents they seek to understand if the prosecutor was aware of the need to legislate to retrospectively cure an invalid appointment and did not disclose this to the defendants. If that were the case, the defendants contend a question of abuse of process arises providing grounds to permanently stay the proceedings. Legitimate forensic purpose 28The Department submitted the defendants were engaged in a fishing expedition and the call for the documents in the First Summons had no legitimate forensic purpose. That is a submission I do not accept. 29I considered the test to be applied to the question of whether a legitimate forensic purpose exists in seeking access to those documents in Inspector Estriech v Leon [2012] NSWIRComm 84 particularly at [19]-[32]. I concluded, in that respect, as follows: [32] Accordingly, for my purposes, I consider the correct test is that determined in Saleam [R v Saleam [1999] NSWCCA 86] and confirmed in Chidgey [Attorney-General (NSW) v Chidgey [2008] NSWCCA 65], namely: Before access is granted (or an order to produce made) the applicant must (i) identify a legitimate forensic purpose for which access is sought; and (ii) establish that it is 'on the cards' that the documents will materially assist his case. 30On the face of the material I have referred to, namely, the Application for Order, affidavit in support, the schedule to the Bill seeking to retrospectively validate appointments and the "2006 instrument of appointment", the defendants were entitled to seek to go behind that material in order to determine whether, in fact and in law, Mr Regan had authority to bring the prosecution against them. If there was no such authority an essential legal element of the offence was missing, the Application for Order rendered invalid and, on the defendants' submissions, not able to be cured. 31It is on the cards that the documents sought by the defendants in the First Summons would materially assist their case in relation to the capacity of Mr Regan to validly institute the proceedings against the defendants under section 106 of the OHS Act. Given the intention of the Bill is to retrospectively legislate to validate appointments, it is at least on the cards the documents would confirm that the 2006 instrument of appointment was invalid and, therefore, Mr Regan had no authority to prosecute, contrary to what he stated in his affidavit in support of the Application for Order. 32In respect of Mr Freeman, he purported to exercise powers under s 62 of the OHS Act in order to investigate the alleged breaches of that Act by the defendants. The information, evidence and documents he obtained from the defendants and other persons, by the purported exercise of those powers under the OHS Act, was relied upon by Mr Regan to institute the proceedings against the defendants, and certain of those documents are now sought to be tendered by the prosecutor in evidence in the proceedings. 33It is on the cards the records called for will materially assist the case of the defendants, concerning whether the evidence relied upon by the prosecutor to prove its case against the defendants was lawfully obtained by Mr Freeman. 34Moreover, I note from correspondence from the Crown Solicitor to the defendants' solicitors dated 12 July 2013 that Ms Nash, the prosecutor, was aware of the difficulty in relation to the purported appointment of Mr Regan as Chief Inspector on 22 December 2006 and knew about this as early as June 2012. However, the letter indicated that Ms Nash took the view, based on information she received from officers in the Department, that Mr Regan had authority to commence and continue prosecutions under s 47A of the OHS Act as a consequence of his appointment as an inspector under that Act. Therefore, having that belief, she considered there was no issue regarding the validity of Mr Regan's authority to commence and continue prosecutions. 35That is all very well, but the fact is the Application for Order and affidavit of Mr Regan in support relies fundamentally on his appointment as a government official (Chief Inspector) under s 145(1)(a) of the CMHS Act and it is by virtue of that appointment that he may be regarded as an inspector under the OHS Act, not by virtue of the fact that under some other instrument of appointment he may have been appointed as an inspector pursuant to s 47A of the OHS Act. 36I note from the correspondence that Ms Nash, in supporting the amendments to the CMHS Act, understood they would have the effect of validating Mr Regan's actions in the commencement and continuation of prosecutions under the OHS Act. However, she thought that this effect was consequential and was for more abundant caution because she believed the proposed amendments were primarily directed to the functions and powers of the Chief Inspector and inspectors, investigators and mine safety officers under the CMHS Act rather than under the OHS Act. 37However, that does not explain why the defendants were not advised of Ms Nash's beliefs and of the intention to legislate to retrospectively validate appointments. Regardless of what the primary purpose of the amendment was it will clearly have an implication for Mr Regan's authority as a deemed inspector under the OHS Act. In the absence of that knowledge, the defendants and the Court would have proceeded, possibly wrongly, on the basis that the prosecution had been brought by Mr Regan in his capacity as an inspector under the OHS Act, but only by virtue of his potentially invalid appointment as a Chief Inspector under the CMHS Act. In the absence of that knowledge the defendants may have been deprived of the opportunity to challenge the validity of the charge. 38The defendants have a legitimate forensic purpose in seeking documents in circumstances where it is on the cards such documents will materially assist their case regarding abuse of process. It is on the cards the documents would reveal why it was Ms Nash did not advise the defendants of her belief that, notwithstanding the reliance in the Application for Order and the affidavit in support on Mr Regan's appointment as a Chief Inspector under the CMHS Act, that was irrelevant because reliance was now placed on a different alleged appointment under s 47A of the OHS Act, and why the defendants were not advised by the prosecutor of the intention to amend the CMHS Act to retrospectively validate appointments. 39No satisfactory reason has been provided as to why the defendants were not advised of the proposed amendment to the CHMS Act. If the documents sought reveal the reason was improper - and I am not suggesting in any way it was - that is obviously a matter that might materially assist the defendants in any case based on abuse of process. I do not regard the call for documents as a fishing expedition because the circumstances raise a serious question as to why the defendants were kept in the dark. In the absence of a satisfactory explanation it is on the cards that the reason for that was improper. 40It is established that the defendants had a legitimate forensic purpose in calling for the documents in the First Summons and in the Second Notice to Produce. Given the documents in the Second Summons and Third Notice are caught by the First Summons, the Second Summons and Third Notice lack a legitimate forensic purpose and are, therefore, set aside. Public Interest Immunity 41The Department has claimed public interest immunity ("PII") in relation to a large number of documents that would otherwise be caught by the First and/or Second Summonses and second Notice to Produce. Ms Kumar of counsel for the Department initially summarised the classes of documents over which PII was claimed. However, leave was given to the Department to amend its position regarding its immunity and privilege claims. The summary of its amended claims appears in the following table: Name Contents Basis of claim Category A Draft and final instructions to the Office of Parliamentary Counsel in respect of the preparation of the Petroleum (Onshore) Amendment Bill 2013. Client legal privilege and PII Confidential (Two folders marked MPA(1) and MPA(2) ss 131A, 118, 130 Exhibit MP-A Category B Drafts of the Petroleum (Onshore Amendment Bill 2013)(and attached correspondence created by Departmental staff or staff of the Office of Parliamentary Counsel. including emails and memoranda forwarding and/or commenting on same. Client legal privilege and PII Confidential Exhibit MP-B (Four folders marked MPB(1) to MP(2) ss 131A, 118, 130 Category C Briefing Memoranda to the Minister for Trade and Investment, Regional Infrastructure and Services regarding the Petroleum (Onshore) Act 1991 and the Petroleum (Onshore) Amendment Bill 2013, including attachments to such Memoranda such as draft 'Speaking Points' and emails and memoranda forwarding and/or commenting on same. Client legal privilege and PII Confidential (One folder marked MP-C) ss 131A, 118, 130 Exhibit MP-C Category D Draft 'Speaking Points' prepared for the Minister for Trade and Investment, Regional Infrastructure and Services to use in Cabinet and 'Issue briefs' prepared to assist him to respond to issues arising in Parliament, including attached correspondence forwarding and/or commenting on same. (One folder marked MP-D) Public interest immunity Confidential and client legal privilege Exhibit MP-D ss 131A, 130, 118 Category E Draft Cabinet Minutes regarding proposed amendments to the Petroleum (Onshore) Act 1991 and the Petroleum (Onshore) Amendment Bill 2013 (and attached correspondence. including emails and memoranda forwarding and/or commenting on same. Public interest immunity Confidential (Three folders marked MPE (1) to MPE(3) ) and client legal privilege Exhibit MP E ss 131A, 130, 118 Confidential Exhibit RF-1 Category F Final Cabinet Minutes and Cabinet Decisions regarding proposed (and attached correspondence including emails and memoranda forwarding and/or commenting on same Public interest immunity Confidential Exhibit MP F (One folder marked MP-F) and client legal privilege Confidential Exhibit RF-2 ss 131A, 130, 118 Exhibit JMM1 Documents the subject of client legal advice Client legal privilege and PII ss 131A, 118 (includes Confidential Exhibit MP-A and MP-B) 42The effect of the Department's amendment to its claim was to extend the PII claim to Categories A and B (which initially was limited to a claim for client legal privilege), extend the PII claim in respect of Categories C and D to include client legal privilege and extend the PII claim in respect of Categories E and F to one that also included client legal privilege. 43JMM-1 identifies all of the documents over which client legal privilege is claimed. For example, PII is claimed in respect of all of the documents in Category A and JMM-1 identifies those documents in Category A (as well as B to F) where privilege is also claimed. Application of Evidence Act 44The Department's submission may be accepted that the PII claims in the Department's application are governed by s 130 of the Evidence Act 1995 due to s 131A of that Act. Section 130 provides: 130 Exclusion of evidence of matters of state (1) If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence. (2) The court may give such a direction either on its own initiative or on the application of any person (whether or not the person is a party). (3) In deciding whether to give such a direction, the court may inform itself in any way it thinks fit. (4) Without limiting the circumstances in which information or a document may be taken for the purposes of subsection (1) to relate to matters of state, the information or document is taken for the purposes of that subsection to relate to matters of state if adducing it as evidence would: (a) prejudice the security, defence or international relations of Australia, or (b) damage relations between the Commonwealth and a State or between 2 or more States, or (c) prejudice the prevention, investigation or prosecution of an offence, or (d) prejudice the prevention or investigation of, or the conduct of proceedings for recovery of civil penalties brought with respect to, other contraventions of the law, or (e) disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State, or (f) prejudice the proper functioning of the government of the Commonwealth or a State. (5) Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to take into account the following matters: (a) the importance of the information or the document in the proceeding, (b) if the proceeding is a criminal proceeding-whether the party seeking to adduce evidence of the information or document is a defendant or the prosecutor, (c) the nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding, (d) the likely effect of adducing evidence of the information or document, and the means available to limit its publication, (e) whether the substance of the information or document has already been published, (f) if the proceeding is a criminal proceeding and the party seeking to adduce evidence of the information or document is a defendant-whether the direction is to be made subject to the condition that the prosecution be stayed. (6) A reference in this section to a State includes a reference to a Territory. 45Section 131A of the Evidence Act provides: 131A Application of Part to preliminary proceedings of courts (1) If: (a) a person is required by a disclosure requirement to give information, or to produce a document, which would result in the disclosure of a communication, a document or its contents or other information of a kind referred to in Division 1, 1A, 1C or 3, and (b) the person objects to giving that information or providing that document, the court must determine the objection by applying the provisions of this Part (other than sections 123 and 128) with any necessary modifications as if the objection to giving information or producing the document were an objection to the giving or adducing of evidence. (2) In this section, disclosure requirement means a process or order of a court that requires the disclosure of information or a document and includes the following: (a) a summons or subpoena to produce documents or give evidence, (b) pre-trial discovery, (c) non-party discovery, (d) interrogatories, (e) a notice to produce, (f) a request to produce a document under Division 1 of Part 4.6. 46The subject of the Department's claim is information that relates to a 'matter of state' as defined in s 130(4)(f). It has been held that the authoritative statements in the common law assist in understanding this phrase: State of New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60 at [49] per Allsop P, Hodgson JA and Sackville AJA agreeing. It was also observed by Allsop P at [43] that: The reasons of the majority (Mason CJ, Brennan J, Deane J, Dawson J, Gaudron J and McHugh J) in Commonwealth v Northern Land Council [1993] HCA 24; 176 CLR 604 (" NLC ") at 614-619 lay out the principles to be applied in the operation of the common law of public interest immunity. It has been accepted that those principles assist in informing of the content and operation of the Evidence Act, s 130: Eastman v The Queen (1997) 76 FCR 9 at 63 (per curiam); Chapman v Luminis Pty Ltd (No 2) [2000] FCA 1010; 100 FCR 229 at 246 (von Doussa J). 47In relation to the common law principles relevant to a claim for PII, Ms Kumar referred to a number of authorities including: Jacobsen v Rogers [1995] HCA 6; (1995) 182 CLR 572 at 588; Rogers v Home Secretary [1973] AC 388 at 406 and 407; Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 at 38-39; Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404 at 412 and 434; Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales and Director General, Department of Premier and Cabinet [2010] NSWIRComm 21 at [36]; Young v Quin (1985) 4 FCR 483 at 487 per Bowen CJ; Egan v Chadwick (1999) 46 NSWLR 563 at [51] and [56]-[57] per Spigelman CJ; Commonwealth v Northern Land Council [1993] HCA 24; (1993) 176 CLR 604 at 616, 617-618; Australian National Airlines Commission v The Commonwealth [1993] HCA 33; (1975) 132 CLR 582 at 591; D v National Society for the Prevention of Cruelty to Children [1978] AC 171 at 230; Conway v Rimmer [1968] AC 910 at 952; Lanyon Pty Ltd v The Commonwealth [1974] HCA 11; (1974) 129 CLR 650 at 653; and Re Howard v Treasurer of the Commonwealth of Australia (1985) 7 ALD 628 at 634-635. New South Wales v Public Transport Ticketing Corporation 48In State of New South Wales v Public Transport Ticketing Corporation, Allsop P reviewed the principles applicable to a consideration of public interest immunity, relying particularly on The Commonwealth v Northern Land Council ("NLC"). A summary of that review is set out below: (a) Both the common law and s 130 require two broad stages of analysis: first the assessment of the character of the information or document (as state papers or as relating to a matter of state) and secondly a weighing or balancing exercise to assess the public interest on whether disclosure would prejudice the proper functioning of the government: (at [42]); (b) It is in the public interest that deliberations of Cabinet, including the decisions made by Cabinet, should remain confidential in support of the collective responsibility of Cabinet government: NLC at 615 (at [45]); (c) It is the position of the body as responsible for the creation of state policy at the highest level that engenders the need for protection: NLC at 615 (at [45]); (d) Thus, an important consideration is the protection of deliberations leading to the formulation of state policy, though this proposition should not be taken to mean that only formulation of policy is to be protected. The threat of disclosure may impede or mute free and vigorous exchange in Cabinet: NLC at 615 (at [45]); (e) Decision-making and policy development by Cabinet is to be uninhibited: NLC at 616 (at [45]); (f) The division of claims into "class" and "contents" claims is rough, but acceptable, to differentiate types of documents, the disclosure of which would injure the public interest, irrespective of contents, and those which ought not to be disclosed because of their contents: NLC at 616. Documents revealing Cabinet deliberations and decisions fall within the former class, but their immunity is not absolute: NLC at 616. The immunity must be weighed against the public interest in the administration of justice: NLC at 616 (at [45]); (g) The currency or controversiality of the subject matter is relevant to the balancing process: NLC at 617 (at [48]); (h) The character of the subject matter is, implicitly, important (at [48]); (i) Immunity of documents of Cabinet deliberations and Cabinet documents (ordinarily attracted irrespective of contents) is not absolute: NLC at 617-618 (at [48]); (j) A court will initially lean against disclosure: NLC at 618. Whether circumstances are sufficient to displace the immunity depends in part on the nature of the class: NLC at 618 (at [48]); (k) Cabinet documents in the form of documents recording the matters put to Cabinet for discussion (such as minutes for the consideration of Cabinet) have been held to be in the same position as records of the deliberations or decisions of Cabinet: Commonwealth v Construction, Forestry, Mining and Energy Union [2000] FCA 453; 98 FCR 31 at 42-43 [42]-[45]; Egan v Chadwick [1999] NSWCA 176; 46 NSWLR 563 at 573 [69] and J D Heydon, Cross on Evidence (LexisNexis Butterworths, 8 th Australian ed, 2010) at p 961 [27065]. Thus, broadly, records of Cabinet deliberations and decisions and documents revealing the deliberations of Cabinet will be regarded as attracting the protection conferred by public interest immunity or by that afforded to matters of state, subject to the balancing of the competing interests. The public interest in preserving the secrecy of such documents will ordinarily be given considerable weight in the balancing process (at [50]); (l) Conformably with the weighing or balancing process discussed in NLC and inhering within s 130, relevant considerations to take into account are whether the documents concern policy, the currency and contemporaneous controversiality of the subject matter, the character of the subject matter otherwise, for instance whether national security or high policy and the forensic relevance of the documents: see the Full Court in Commonwealth v Northern Land Council (1991) 30 FCR 1 at 38; North Australian Aboriginal Legal Aid Service Inc v Bradley [2001] FCA 1080 at [16] (Wilcox J); Betfair Pty Ltd v Racing New South Wales (No 7) [2009] FCA 1140; 181 FCR 66 at [34] (Jagot J); and RP Data v Western Australian Land Information Authority [2010] FCA 922; 188 FCR 378 at [23] (Barker J) (at [52]); and (m) The word "policy" should be recognised as a broad concept (at [53]). Spencer v Commonwealth of Australia 49Ms Kumar referred to Spencer v Commonwealth of Australia [2012] FCAFC 169. In that case the Full Court of the Federal Court heard an appeal from a single judge who had declined to order production and to make an inspection of certain documents over which a claim for PII had been made. The Full Court dismissed the appeal. In doing so it stated: [31] In State of New South Wales v Ryan the Full Court allowed an appeal on the basis that the judge at first instance had erred in not following the principle explained in Northern Land Council that "it is not enough to weigh (and find wanting) the importance to the government of disclosure of the particular facts which would be revealed by production of the cabinet material in question. Only a sufficient demand of justice can outweigh the protection to which Cabinet documents are entitled in virtue of their nature, irrespective of those facts. Furthermore, the authorities also require weight to be given to the government's claim that disclosure of the document would be harmful, and it is simply not correct that disclosure of recommendations couched in broad terms, or which are implicit rather than express, could not justify this claim" (at 252). [32] This summary, which accurately reflects the reasoning in Lanyon, Sankey v Whitlam and Northern Land Council, discloses that the approach advocated by the applicant is fundamentally inconsistent with authority. True it is that documents recording deliberations of Cabinet have "a pre-eminent claim to confidentiality". But other documents including "papers brought into existence for the purpose of preparing a submission to Cabinet" and "documents and communications passing between a Minister and the head of his department relating to Cabinet proceedings and material prepared for Cabinet" are recognised classes prima facie entitled to protection on the grounds of public interest immunity. And as State of New South Wales v Ryan makes clear, the question in respect of both classes is "whether the relevance of the material to the proceedings in which disclosure is sought is sufficient ... to justify disclosure". [33] It follows that if there is cogent evidence of the grounds for the making of the claim for immunity of the class of documents, a matter to be assessed giving due "weight to the assertion of a responsible representative of government that there is a public interest which would be placed in jeopardy by the production of the document" and no apparent basis for concluding a "sufficient demand of justice" for disclosure of the document having regard to its importance to the resolution of the proceedings, there will be no warrant for inspection of the documents by the judge resolving the claim; the prima facie position of protection from disclosure will prevail. In such a case it is only if there is a sufficient basis for concluding that documents within these recognised classes are of "such significance that the interests of justice call for" them to be produced (New South Wales v Ryan at 250) that production might be required albeit recognising that, first, it will be difficult if not impossible for the requisite level of significance to be achieved in respect of documents recording the deliberations of Cabinet on any current topic or topic which remains controversial and, second, if the requisite level of significance of the documents to the case is demonstrated having regard to the "degree of protection against disclosure which is called for by the nature of [the] class", it will then be appropriate for the judge to inspect the documents, not for the purpose the applicant proposed (simply to test the strength of the claim for immunity) but rather to test whether the apparent significance of the documents to the proceedings truly justifies disclosure having regard to the strength of the claim for immunity. 50At [57], the Full Court referred to State of New South Wales v Public Transport Ticketing Corp, where the Court of Appeal did take the step of inspecting the documents: Accordingly, the primary judge made no error in reaching the conclusion he did at [42]. The primary judge's dealing with this matter was not "perfunctory" if, by that, the applicant meant insufficient or inappropriate. The point was given the treatment it deserved by the primary judge having regard to the state of the evidence. Contrary to the applicant's submissions, State of New South Wales v Public Transport Ticketing Corp [2011] NSWCA 60 does not adopt a different approach. As the reasons for judgment of Allsop P at [48], [52] and [65] make plain the currency or controversy of the subject with which the documents dealt was seen as the touchstone which is consistent with the approach of the primary judge in the present case. Evidence regarding nature of the documents called for 51Counsel for the Department submitted that it was a matter for the Court as to whether it should inspect the documents that are the subject of the claim for PII. In that respect, counsel quite properly pointed to s 130(3) of the Evidence Act, which provides that in deciding whether to give a direction about whether PII applies, the court may inform itself in any way it thinks fit. 52In referring to the documents over which he claimed PII, Mr Paterson stated in his first affidavit (which referred to Categories C, D, E and F in respect of the PII claim) that they were "confidential documents relating to the development of important high-level government policy by way of the implementation of legislation." Further, that: The disclosure of the documents contained in Confidential Exhibit MP-C and Confidential Exhibit MP-D would be contrary to the public interest. Confidential Exhibit MP- C relates to documents prepared for a Minister to present to Cabinet and to Parliament. Although Speaking Notes are not records of deliberations or decisions of Cabinet they are, like minutes for submission to Cabinet, documents which tend to disclose what was put to Cabinet. Disclosure would therefore harm the public interest as it would reveal matters before Cabinet and the subject of its deliberation. The Issues Briefs also refer to issues that are current and controversial, including the proposed Bill. Confidential Exhibit MP-D contains documents that reveal submissions to the Minister, and related documents, regarding the proposed introduction of the Bill. These matters are current and controversial. Disclosure could harm the functioning of government because the reveal the position of the Minister as finally put to Cabinet. I also say that the disclosure of draft Cabinet Minutes contained in Confidential Exhibit MP-E and the final Cabinet Minutes and copies of Cabinet Decisions contained in Confidential Exhibit MP-F would also be contrary to the public interest. The Cabinet is constituted by the Ministers of the State of New South Wales. It is the principal policy-making and administrative institution of the Executive of the Government of New South Wales. Therefore it is a forum for the consideration and discussion of significant and sensitive issues of public policy and administration. The proceedings of the Cabinet are conducted in secret and all New South Wales' Cabinets have required strict confidentiality procedures for the handling of Cabinet documents. For example, all copies of all Cabinet Minutes are individually numbered and their distribution recorded, and copying of them is restricted. A Cabinet Minute is a submission made to Cabinet or a Committee of Cabinet by the Minster responsible for the subject matter in the Minute. The Minute is the Minister's principal communication with Cabinet to assist in its deliberations. The Minute is the primary source of information before the Cabinet. A Cabinet Minute is a recognised and readily identifiable form of document of State setting out a proposal, the objectives of the proposal, supporting arguments, alternative options considered (if any), and recommendations for an appropriate course of action in relation to the proposal. It therefore sets out the views of the Minister who presents the Cabinet Minute to Cabinet. Cabinet does not necessarily adopt the recommendation(s) made in the Cabinet Minute. Cabinet Minutes are generally prepared by officers in the department or agency of the sponsoring Minister. Whilst one officer may prepare a first draft of a Cabinet Minute, the draft is usually circulated to a number of officers within the relevant department or agency as well as to a number of officers from other Government departments or agencies that may be affected by or have input in relation to the matters being discussed in the Cabinet Minute. This is done to ensure that the advice given to Cabinet is comprehensive and that any proposals put to Cabinet are workable for the whole of Government. The correspondence usually discloses the contents of the Cabinet Minute and discloses the different proposals being put before Cabinet for its consideration. Whilst drafts of Cabinet Minutes may be changed they would generally tend to disclose the substance of the matters that were put before Cabinet for consideration. They also generally tend to reveal the substance of the views expressed by the sponsoring Minister on the particular issues. Disclosure of draft Cabinet Minutes or related correspondence that reveal the substance of the Cabinet Minutes would therefore tend to result in an indirect disclosure of the deliberations of Cabinet and for that reason would tend to mute and impede Cabinet discussions and deliberations on future matters, including unrelated matters. Further, if drafts of Cabinet Minutes, even drafts that are not ultimately provided to Cabinet, were liable to being produced then either: (i) the Minister may not request their preparation; or (ii) the person preparing the draft will present the information in such a way as to minimise controversy in the event that the document is revealed by either omitting discussion of any options that may be controversial or couching the discussion in very vague terms so as to avoid criticism. In either scenario the result will be that Cabinet and Ministers will no longer have a reliable and comprehensive form of written advice to consider on important matters of public policy and administration. Disclosure of draft Cabinet Minutes or of parts of documents that disclose the substance of the draft Cabinet Minutes would therefore be contrary to the public interest in the proper administration of Government. Disclosure of the documents would reveal deliberations and discussions regarding the formulation of policy that would ultimately be a matter for the consideration and decision of the Minister and/or Cabinet. The public interest is in maintaining the confidentiality of the decision making process of government and the formulation of policy within government departments. It is vital to the development of public policy and to the effective administration of the affairs of the State that Ministers and those advising them be able to commission and receive confidential advice on matters, including the matters considered in the documents contained in the Confidential Exhibits. In order to achieve this, it is necessary that Ministers and those advising them are able to be confident that advice which it or they commission or receive will remain confidential. Candour by public officials could be discouraged if there were the threat of disclosure of discussion. Further, disclosure of any final version of Cabinet Minutes and Cabinet Decision would contrary to the public interest because it would tend to undermine the principle of the collective responsibility of Cabinet. The operations of the Cabinet and Committees of Cabinet are governed by the principle of collective responsibility. Ministers are expected to accept and express support for decisions made by Cabinet. This is especially so in the case of the Minister responsible for administering the decision. From time to time, the advice of the Minister contained in a Cabinet Minute or other document submitted to Cabinet is rejected. Even in such cases, the Minister is, subject to law, expected to accept and defend the decision or resign from Cabinet. Confidentiality is necessary to support the collective responsibility of all members of the Cabinet for its decisions. If records of Cabinet meetings or other documents that are submitted to Cabinet for deliberation were made public, this could show that a particular Minister had argued against the ultimate decision of Cabinet, thereby undermining the collective responsibility of Ministers. The decisions made by Cabinet often involve matters of controversy and complexity. Good decision-making is only possible if all Ministers can freely express their views and can freely explore relevant issues. It would inhibit Ministers' capacity to do this if their communications - which from time to time may be inconsistent with the final decision made by Cabinet - were liable to disclosure. It is vital that Ministers feel able to include in Cabinet Minutes and other documents that are submitted to Cabinet by Ministers, without inhibition, such matters as they consider appropriate. Ministers, and the Departments for which those Ministers take responsibility, should not be placed in a position where they must draft documents for consideration by Cabinet taking into account the consequences that may flow from publication of those documents. I am concerned that Ministers' capacity to freely express their views and explore relevant issues would be impacted on should documents placed before Cabinet be released, applies equally to any draft Cabinet Minutes, draft Schedules to Cabinet Minutes and any communications entered into between public servants exchanging other information brought into existence for consideration in formulating such Minutes to Cabinet. In my opinion it is vital to the development of public policy and to the good administration of the government of the State that the Cabinet be able to receive confidential advice and strategy on the matters that come before it for consideration. In order to achieve this, it is necessary that the Cabinet and its Ministers be able to be confident that advice and strategy that Ministers and senior Departmental officers put before Cabinet will remain confidential. From my experience, I would expect that the disclosure of Cabinet's deliberations, including any documents that are the subject of such deliberations such as the Cabinet Minutes in this case, would tend to result in an indirect disclosure of the deliberations of Cabinet and for that reason would tend to mute and impede Cabinet discussions and deliberations on future matters, including unrelated matters. In addition, if drafts of Cabinet Minutes, even drafts that are not ultimately provided to Cabinet, were liable to being produced then the person preparing the draft may present the information in such a way as to minimise controversy in the event that the document is revealed by either omitting discussion of any options that may be controversial or couching the discussion in vague terms so as to avoid criticism. The result would be that Cabinet and Ministers would no longer have a reliable and comprehensive form of written advice to consider on important matters of public policy and administration. Further, Cabinet Minutes by their nature fall into a class of documents that are accorded a high level of protection and in respect of which it is accepted ought not to be disclosed until such time as they are only of historical interest. I do not consider that the Cabinet Minutes or Cabinet Decisions are now only of historical interest. These documents were created for use at the highest level of government. Disclosure of Cabinet minutes (both draft and actual) and Cabinet Decisions would seriously damage the proper working of government at the highest level. The threat of disclosure may impede or mute free and vigorous discussion in Cabinet. Further information and reasons in relation to the claims of public interest immunity made in this affidavit can be provided by way of further affidavit and/or confidential affidavit if required by the Court. 53Ms Falkingham also claimed PII over those documents categorised as MP-E and MP-F (Ms Falkingham referred to these documents in her affidavit as RF-1 and RF-2) and her reasons for doing so were essentially a repeat of Mr Paterson's reasons. 54In his second affidavit, which was directed to a PII claim in respect of Categories A and B, Mr Paterson stated: All of the documents in "Confidential Exhibit MP-A" to "Confidential Exhibit MP-B" over which a claim of public interest immunity is made are concerned with matters of important public policy and the conduct of the affairs of State in respect of matters of high importance, namely the regulatory framework that applies to mineral exploration in New South Wales. I say that disclosure of the documents would harm the proper functioning of Government on current and controversial matters. As indicated in paragraphs 19 - 23 of my affidavit affirmed 23 July 2013, following the approval by Cabinet, on 8 October 2012, the preparation of legislation to amend a range of legislation applicable to the mining industry including the Petroleum (Onshore) Act 1991 and the Coal Mine Health and Safety Act 2002, the New South Wales Office of Parliamentary Counsel ("Parliamentary Counsel") was instructed by the Government to draft the Petroleum (Onshore) Amendment Bill ("the Bill") for introduction into Parliament. Drafting instructions were forwarded to Parliamentary Counsel throughout March, April and May 2013. Following advice being obtained by Parliamentary Counsel and a 'Bill Minute' being submitted by the Minister for Resources and Energy, New South Wales ("the Minister") to Cabinet, Cabinet approved the instruction of the Petroleum (Onshore) Amendment Bill 2013 into Parliament on 20 May 2013. As indicated in particular in paragraph 21 of my affidavit affirmed 23 July 2013 ordinarily all drafts of legislation are in draft form and subject to change prior to their introduction into Parliament, subject to consistency with Cabinet's approval in the case of legislation. These preliminary documents represent and reveal the internal Government processes that lead up to a finalised document that the Minister takes to Cabinet. However, the process of drafting legislation may continue even after the introduction of legislation into parliament, as may well be the case with this Bill insofar it is yet to be considered by the Legislative Council, which will next sit in August of 2013. I say that any disclosure of the documents contained in "Confidential Exhibit MP-A" to "Confidential Exhibit MP-B", which are associated with the drafting process and include drafting instructions and comments on iterations of the draft Bill, would tend to reveal the confidential internal discussions and deliberations among public officials involved in drafting the legislation. Such disclosure would also tend to reveal the advice given to the Minister by officers of the Department and/or from the Parliamentary Counsel in relation to the proposed legislation. For similar reasons as the claim of public interest immunity I made over other communications that form part of the legislative process at paragraphs 26 to 46 of my affidavit affirmed 23 July 2013, including the preparation of Cabinet Minutes for the Minister to submit to Cabinet in support of the introduction of the Bill, a claim is also made regarding copies of the draft Bill. In circumstances where legislation has not been finally made, and is still open to debate, there is a strong public interest in maintaining the confidentiality of earlier versions, disclosure of which would tend, albeit perhaps indirectly, to expose the Government's deliberations, including its rejection of options presented to it, and thereby inhibit future deliberations. It is in the public interest in enabling those involved in the formulation of government policy, whether by way of policy development or the implementation of legislation to enact such policy, to be uninhibited in their task in the sense of both being free from concerns about future disclosure and of disclosure at a time when to do so might risk premature, distracting, ill-informed or misdirected comment. The process of drafting legislation, would be substantially inhibited if public disclosure of drafts were to be permitted, as would the free flow of information between those responsible for the policy and the drafters who are responsible for formulating that policy in legislative language. While one would expect that the Office of Parliamentary Counsel should not be inhibited or lacking in candour in any future advice to Government in respect of this Bill or any other Bill, I say that nonetheless, the release of any draft legislation, and communications in respect of such draft legislation, may have a real constraining effect on the future communications in respect of the Bill, including any future instructions provided by the Department's policy and legal officers to Parliamentary Counsel on further amendments to the Bill. Documents inspected 55As it was observed in Sankey v Whitlam, the Court must balance the public interest in withholding the production of a document, against the public interest in ensuring that courts performing the functions of justice should have access to relevant evidence. In my opinion, both aspects of the public interest in these proceedings require consideration. On the one hand there is the high public interest in the confidentiality of documents relating to Cabinet deliberations. On the other hand, there is the high public interest in determining whether prosecutions against the defendants, in criminal proceedings with high maximum penalties if the offences are made out, were lawfully instituted and whether in maintaining the prosecutions there has been an abuse of process that may provide the foundation for the proceedings to be permanently stayed. 56The Court must be satisfied that the materials sought are crucial to the proper determination of the proceedings: Commonwealth v Northern Land Council at 619. It would appear that there is considerable doubt over the validity of Mr Regan's appointment as a Chief Inspector under the CHMS Act, although the prosecutor has not admitted it is invalid. The prosecutor appears now to rely on an appointment of Mr Regan as an inspector under s 47A of the OHS Act to maintain the prosecutions, notwithstanding no application has been made to amend the Applications for Order. In addition, whilst the prosecutor knew there were "difficulties/problems" with Mr Regan's appointment under the CHMS Act at least as early as August 2012 and resolved to maintain the prosecutions relying on an appointment of Mr Regan under the OHS Act, Ms Nash did not advise the defence of this. In the meantime, a decision was made to amend the CHMS Act to retrospectively validate Mr Regan's appointment. The defence was also not advised of this development. 57It appears to me there are important unanswered questions relating to criminal prosecutions for serious OHS offences involving the death of a miner. I regard the materials sought as crucial to the proper determination of the proceedings. 58Given the balancing exercise I am required to undertake, and noting s 130(3) of the Evidence Act, I decided I should inspect the documents called for. No balancing exercise was required in Spencer. Accordingly, the approach taken there is distinguishable from the present proceedings. Moreover, the defendants submitted the prosecutor had waived the privilege under PII. Whether documents current and controversial 59A further reason why I decided to inspect the documents was to answer the question as to whether the documents were current and controversial. This arises because of what was said in NLC and the doubt there expressed about "whether the disclosure of the records of Cabinet deliberations upon matters which remain current or controversial would ever be warranted in civil proceedings." In Spencer, the Full Court of the Federal Court, in dismissing the appeal against the primary judge's decision not to inspect the documents, distinguished the proceedings it was dealing with from State of New South Wales v Public Transport Ticketing Corporation on the basis that, in that case, currency and controversy were not key considerations and would not offend NLC. Therefore, it was open to the Court of Appeal to inspect the documents. 60It was the evidence of Mr Paterson and Ms Falkingham that because the Bill is current the documents the subject of the PII claim are about current and controversial matters and there is continuing relevance of the subject matter to which the Bill relates. Why it was controversial was not explained and so presumably I am expected to simply give weight to statements by senior public servants rather than be better informed, even if only in the limited manner described in State of New South Wales v Public Transport Ticketing Corporation at [66]. 61Nevertheless, it may be accepted that the Bill, dealing as it does, inter alia, with the rights of landholders, is current and deals with matters that are controversial in sections of the community and about which Ministers may have had different views. But Schedule 2.1 has nothing to do with these wider issues. In this respect, the Bill appears to be merely a convenient vehicle by which to amend the CMHS Act to retrospectively validate certain appointments of the Chief Inspector, an inspector, a mine safety officer or an investigator by the 2006 instrument of appointment, that is, the instrument of appointment under the CMHS Act, dated 22 December 2006, published in Gazette No 5 of 12 January 2007 at page 102. 62Accordingly, in considering the claim for PII, it is open to the Court to consider whether Schedule 2.1 can be severed from the remainder of the Bill and the relevant tests governing PII applied in that context. That is the approach I have taken. 63In doing so, I have considered whether the material sought relates to current and controversial matters. When one so considers, it is to be in the context of Cabinet deliberations. The fact that the Legislative Council is yet to consider the Bill, including Schedule 2.1, is not, in my opinion, something that makes the Schedule controversial in the context of how that notion was discussed in NLC. 64I found it difficult, in the absence of any specific evidence, to understand how Schedule 2.1, which seemed to be merely a mechanical exercise of legislative power, could be considered controversial such that revealing Cabinet deliberations about it might inhibit decision-making and policy development by Cabinet. Categories of documents 65I turn to the categories in the Paterson affidavits. I propose to first deal with Categories C to F inclusive. I will then deal with Categories A and B and JMM-1. Category C 66Confidential exhibit MP-C contains briefing memoranda to the Minister for Trade and Investment, Regional Infrastructure and Services regarding the Petroleum (Onshore) Act 1991 and the Petroleum (Onshore) Amendment Bill 2013, including attachments to such Memoranda such as draft 'Speaking Points' and emails and memoranda forwarding and/or commenting on the same. Some of the material is simply reiteration, containing a series of drafts prepared over time. Most of the material does not come close to being relevant to these proceedings as it is concerned with subject matter relevant to the Petroleum (Onshore) Act and the Bill and not the subject matter of Schedule 2.1. 67The documents in Confidential exhibit MP-C are not documents recording the actual deliberations of Cabinet. However, they are documents brought into existence within the Department that, inter alia, recommend the position the Minister might take in Cabinet, including in relation to Schedule 2.1, and what the Minister proposes to recommend that Cabinet should adopt. There is no doubt that, prima facie, these are documents entitled to protection on the grounds of PII: see Lanyon at 653 per Menzies J; New South Wales v Ryan (1998) 101 LGERA 246 at 250-251. 68As I said earlier, whether the documents in MP-C should be disclosed requires the Court to undertake a balancing exercise. In this respect, I am guided by what Allsop P observed in State of New South Wales v Public Transport Ticketing Corporation at [52]: Conformably with the weighing or balancing process discussed in NLC and inhering within s 130, relevant considerations to take into account are whether the documents concern policy, the currency and contemporaneous controversiality of the subject matter, the character of the subject matter otherwise, for instance whether national security or high policy and the forensic relevance of the documents: see the Full Court in Commonwealth v Northern Land Council (1991) 30 FCR 1 at 38; North Australian Aboriginal Legal Aid Service Inc v Bradley [2001] FCA 1080 at [16] (Wilcox J); Betfair Pty Ltd v Racing New South Wales (No 7) [2009] FCA 1140; 181 FCR 66 at [34] (Jagot J); and RP Data v Western Australian Land Information Authority [2010] FCA 922; 188 FCR 378 at [23] (Barker J). To his Honour's list of considerations might be added whether the proceeding is a criminal proceedings, which in this case it is. 69Do the documents as they relate to Schedule 2.1 concern policy? Whilst it may be accepted that a legislative amendment is an expression of government policy, one has to consider the subject matter of the amendment. Schedule 2.2 is simply a mechanical exercise aimed at retrospectively validating appointments. Schedule 2.1 has nothing to do with the formulation of State policy at a high level such as to warrant non-disclosure. 70Is the subject matter of the documents as they relate to Schedule 2.1 current and controversial? I have no indication that Schedule 2.1 is controversial other than it is contained in a Bill yet to be passed by the Parliament. The Bill, including Schedule 2.1, passed without amendment in the Legislative Assembly on 28 May 2013. It is yet to be passed by the Legislative Council and is expected to be considered by the Legislative Council during the next sitting of Parliament in August 2013. The only potential controversy is that the Schedule, or part of it, might be opposed in the Legislative Council. But I do not think this was the type of controversy the High Court had in mind in NLC. 71In NLC the High Court was concerned with "Cabinet deliberations upon current or controversial matters". The underlying concern being to ensure the disclosure or threat of disclosure of Cabinet consideration of a current controversial issue did not impede free and vigorous exchange and that decision-making and policy development by Cabinet was uninhibited. As the majority stated at 615: Moreover, the disclosure of the deliberations of the body responsible for the creation of state policy at the highest level, whether under the Westminster system or otherwise, is liable to subject the members of that body to criticism of a premature, ill-informed or misdirected nature and to divert the process from its proper course. The mere threat of disclosure is likely to be sufficient to impede those deliberations by muting a free and vigorous exchange of views or by encouraging lengthy discourse engaged in with an eye to subsequent public scrutiny. 72There seems to me to be a complete lack of controversiality associated with Schedule 2.1, insofar as Cabinet consideration of it is concerned, and, apart from general assertions, there is nothing to suggest that disclosure of the contents of the documents relating to Schedule 2.1 would inhibit free and vigorous discourse within Cabinet. 73A further consideration, however, arises from what the majority said in NLC at 614-615 regarding "documents prepared outside Cabinet, such as reports or submissions, for the assistance of Cabinet", which is what the documents are in MP-C. The majority stated: Documents of that kind are often referred to as Cabinet documents. When immunity is claimed for Cabinet documents as a class and not in reliance upon the particular contents, it is generally upon the basis that disclosure would discourage candour on the part of public officials in their communications with those responsible for making policy decisions and would for that reason be against the public interest. The discouragement of candour on the part of public officials has been questioned as a sufficient, or even valid, basis upon which to claim immunity. On the other hand, Lord Wilberforce has expressed the view that, in recent years, this consideration has `received an excessive dose of cold water' [see Burmah Oil Co Ltd v Bank of England [1979] UKHL 4; [1980] AC 1090 at 1112]. 74In North Australian Aboriginal Legal Aid Service Inc v Bradley [2001] FCA 1080, having referred to what the majority said in NLC, Wilcox J considered whether PII should apply to three categories of documents that his Honour described at [13]: First, there are memoranda between officers of the Northern Territory government concerning two subjects: proposed amendments to the Magistrates Act (NT) and the powers of the Administrator in relation to determination of the remuneration of the Chief Magistrate. The second category comprises various drafts, and the final version, of a Cabinet submission to amend the Magistrates Act in particular respects. Departmental comments are noted on some drafts. Third, there are memoranda from officers of the Department of Attorney-General to the Attorney-General submitting to him the various drafts, and the final version, of the Cabinet Submission. 75The similarity between the nature of the documents considered by Wilcox J and those that are the subject of the present proceedings is obvious: both concern amendments to legislation, both include communications between departmental officers concerning the amendments, both include drafts of a Cabinet submission to amend legislation, and the claim for immunity in both cases involved a "class" claim. 76 Wilcox J at [16] accepted that: [T]here are situations where a belief, or fear, that their words may be revealed to others might discourage public officers from expressing views with candour. Any such discouragement would be inimical to the public interest. 77However, his Honour stated (at [16]-[18]): [E]verything must depend upon the nature, and subject matter, of the documents. It is difficult to believe that a writer of a memorandum concerning proposals to amend a particular statute, or discussing the powers of the Administrator in relation to a particular matter, would feel inhibited by the possibility of his or her views reaching an unintended audience. Nothing in any of the subject memoranda would embarrass its author, even if the relevant memorandum was published in the media. The same statement may be made about the memoranda forwarding the various versions of the Cabinet submission to the Attorney-General. [17] The Cabinet submission shows what was put before Cabinet. A person who read the drafts of this document, and the departmental comments upon them, might obtain some understanding of the position on particular matters of particular departments. However, it accords little credit to the integrity of senior departmental officers to think they might be influenced, in the expression of their department's view about proposed legislation, by the possibility that someone might learn the department held that view. [18] A person who read the final Cabinet submission, and compared it with the Cabinet decision, would learn whether, and if so to what extent, Cabinet departed from the submission. However, the person would have no information about the reasons for, or circumstances of, that departure. The person would not learn whether the departure was controversial or unanimous or at whose instigation it occurred. Even reading the two documents together, they provide no information about Cabinet's deliberations. This point is of crucial importance. It distinguishes the case, not only from Northern Land Council, but also from other recent cases in which a claim for immunity was upheld on the basis that disclosure of the document would reveal the internal deliberations of a Cabinet: see Egan v Chadwick [1999] NSWCA 176; (1999) NSWLR 563 at 576, Commonwealth of Australia v Construction, Forestry, Mining and Energy Union [2000] FCA 453 at paras 42 and 43 and National Tertiary Education Industry Union v Commonwealth of Australia [2001] FCA 610 at paras 70 and 77. Egan v Chadwick is distinguishable upon the additional ground that it concerned production of documents to a House of Parliament, in relation to which matter different principles apply. 78The nature of the documents in the present proceedings may be distinguished from those in Commonwealth of Australia v Construction, Forestry, Mining and Energy Union where the document was accepted by the Court as relating to "high level government policy in relation to workplace relations issues". They may also be distinguished from the documents that were the subject of proceedings in National Tertiary Education Industry Union v Commonwealth of Australia where the documents were current and controversial and not crucial to the applicant's case. The documents in Egan v Chadwick revealed the internal deliberations of Cabinet. 79Insofar as the forensic relevance of some of the contents of the documents in MP-C relating to Schedule 2.1 is concerned, the contents in that respect are relevant. Accordingly, in all the circumstances, I am unable to see why I should not follow the approach of Wilcox J in North Australian Aboriginal Legal Aid Service Inc v Bradley. 80A claim in respect of client legal privilege was made in connection with documents in MP-C. The documents that are the subject of the claim are identified in JMM-1. The privilege claim will need to be addressed before determining whether access to documents in MP-C may be granted to the defendant in light of my decision regarding PII. Category D 81Confidential exhibit MP-D contains draft 'Speaking Points' prepared for the Minister to use in Cabinet and 'Issue briefs' prepared to assist him to respond to issues arising in Parliament, including attached correspondence forwarding and/or commenting on same. Most of the material in this class or category of documents is not relevant. However, there are references in the 'Issue briefs' that are relevant. 82The nature and subject matter of documents in Category D, as they relate to Schedule 2.1 of the Bill, do not, for the reasons I have stated in relation to Category C, attract public interest immunity. 83A claim in respect of client legal privilege was made in connection with documents in MP-D. The documents that are the subject of the claim are identified in JMM-1. The privilege claim will need to be addressed before determining whether access to documents in MP-D may be granted to the defendant in light of my decision regarding PII. Categories E and F 84Confidential exhibit MP-E, consisting of three volumes of materials (and RF-1), contains draft Cabinet Minutes regarding proposed amendments to the Petroleum (Onshore) Act and Bill and attached correspondence including emails and memoranda forwarding and/or commenting on same. Confidential exhibit MP-F (and RF-2) contains final Cabinet minutes and Cabinet decisions regarding proposed and attached correspondence including emails and memoranda forwarding and/or commenting on same. 85The fact that these last two classes of documents deal with draft and final Cabinet minutes and decisions takes them outside the realm of what was considered in North Australian Aboriginal Legal Aid Service Inc v Bradley. As the authorities show, there are strong considerations militating against the disclosure of these documents regardless of their contents; they are documents "with a pre-eminent claim to confidentiality" and only in quite exceptional situations would they be disclosed: NLC. 86It may be arguable that, for the reasons I have found no immunity attaches to other documents I have considered, an exceptional situation exists in respect of the draft and final Cabinet minutes and decisions and they too should be disclosed. However, what is contained in the documents in classes MP-E and MP-F relating to Schedule 2.1 is not crucial to the defendants' case. No purpose would be served in disturbing the immunity. Categories A and B 87As Mr Paterson's second affidavit states, Confidential exhibits MP-A and MP-B contain draft and final instructions to the Office of Parliamentary Counsel in respect of the preparation and drafts of the Billand attached correspondence created by Departmental staff or staff of the Office of Parliamentary Counsel, including emails and memoranda forwarding and/or commenting on same. 88Mr Paterson deposed that whilst it may be expected that the Office of Parliamentary Counsel should not be inhibited or lacking in candour in any future advice to Government in respect of bills such as the one subject to these proceedings, he nonetheless stated the release of any draft legislation, and communications in respect of such draft legislation, "may have a real constraining effect on the future communications in respect of the Bill, including any future instructions provided by the Department's policy and legal officers to Parliamentary Counsel on further amendments to the Bill." 89As I earlier indicated, I regard the amendment to the CHMS Act, which is proposed cl 25A, to be a mere mechanical exercise not only of legislative power, but also of parliamentary drafting. I do not accept that revelation of that exercise could embarrass or cause lawyers in the Office of Parliamentary Counsel or officers in the Department to feel constrained. 90As Wilcox J observed in Bradley, "[E]verything must depend upon the nature, and subject matter, of the documents." The nature and subject matter of documents in Categories A and B as they relate to Schedule 2.1 of the Bill do not, for the reasons I have stated in relation to Category C and for the reasons stated immediately above, attract public interest immunity except in relation to those documents or pages of documents marked "Cabinet in Confidence". 91A claim for privilege applies to documents in Categories A and B, which will need to be addressed before determining whether access to relevant parts of the documents may be granted to the defendant in light of my decision regarding PII. JMM-1 92The final category of documents in respect of which PII is claimed is JMM-1. JMM-1 is an exhibit to Ms Moore's affidavit. It indexes all documents over which a claim of client legal privilege is made. Referred to in JMM-1 are documents also to be found in Categories A to F, the subject of Mr Paterson's second affidavit in which he claims PII. Accordingly, I consider I have dealt with the documents referred to in JMM-1 in relation to the claim for PII. However, as there is also a claim for privilege that claim will need to be determined before I am able to determine the disposition of the documents. Waiver 93Given my findings regarding PII it is unnecessary to consider the parties' submissions regarding waiver of PII. Client legal privilege 94The Department claimed client legal privilege in respect of: (a) documents produced to the court in answer to paragraph 1 and 2 of the First Summons; (b) documents that are caught by paragraph 5 of the First Summons; and (c) documents in answer to the Second Notice to Produce. 95All of the documents in respect of which privilege is claimed are identified in the exhibit marked JMM-1 to Ms Moore's affidavit filed on 2 August 2013. JMM-1 contains a table which sets out the following: (a) 169 documents in response to paragraph 5 of the First Summons over which privilege is claimed. These are tabulated and show the author and recipient of the document; (b) 2 documents in response to paragraphs 1 and 2 of the First Summons. These are identified under tabs 1 and 2 of a folder referred to as "volume 6"; (c) 21 documents in response to the Second Notice. These are in a single folder and identified by tabs marked 1 to 21; (d) 158 documents in the Confidential Exhibits marked MP-A to MP-F in respect of which there is also a claim for PII. 96The Department's claims in respect of privilege are supported by affidavits deposed by Mr Paterson and Ms Moore. In addition, there are affidavits of Ms Moore, Ms Gill, Ms Solomon, Mr Holmes and Mr Bennett that address the issue of the independence of legal officers of the Department. 97The claim for privilege in respect of the two documents produced on 16 July 2013 (in answer to paragraphs 1 and 2 of the schedule to the First Summons) is made as an objection to inspection. The privilege claim is raised to prevent the defendants from accessing the documents that have been produced (an objection to inspection). The claim of privilege in respect of the documents is governed by the provisions of the Evidence Act (ss 117 and 118) due to s 131A of that Act. 98The claim for privilege in respect of documents caught by paragraph 5 of the schedule to the First Summons is raised to avoid the production of documents to the court by seeking an order that documents need not be produced: order 5 in the Notice of Motion filed on 15 July 2013. This claim is also governed by the Evidence Act (ss 117 and 118) due to s 131A. 99The common law applies to the Second Notice to Produce, as the prosecutor was the person required to disclose, however the Department is objecting to production. 100Section 118 of the Evidence Act provides: 118 Legal advice Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of: (a) a confidential communication made between the client and a lawyer, or (b) a confidential communication made between 2 or more lawyers acting for the client, or (c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person, for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client. 101Client legal privilege attaches to confidential communications (either oral or in writing). The communications can be between a lawyer and a client; or it can be a communication between a lawyer and a third party; or the privilege can attach to a third party communication. The communication or document will be privileged if it was created for the dominant purpose of legal advice. The privilege is the client's and the client is the person who can waive it (Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 at [28]), noting that waiver of client legal privilege may be by implication or imputation of law (Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475 at 487-488; Goldberg v Ng Hango Holdings Pty Ltd [1995] HCA 39; (1995) 185 CLR 83 at 95-96). 102Young J, in AWB v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30 at [44], summarised the relevant principles governing client legal privilege at common law and, with respect, I adopt his Honour's summary: (1) The party claiming privilege carries the onus of proving that the communication was undertaken, or the document was brought into existence, for the dominant purpose of giving or obtaining legal advice. The onus might be discharged by evidence as to the circumstances and context in which the communications occurred or the documents were brought into existence, or by evidence as to the purposes of the person who made the communication, or authored the document, or procured its creation. It might also be discharged by reference to the nature of the documents, supported by argument or submissions: see Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 ('Grant v Downs') at 689; Commissioner of Taxation v Pratt Holdings Pty Ltd [2005] 225 ALR 266 at 278 [30] ('FCT v Pratt Holdings'); and AWB v Cole at [63]. (2) The purpose for which a document is brought into existence is a question of fact that must be determined objectively. Evidence of the intention of the document's maker, or of the person who authorised or procured it, is not necessarily conclusive. It may be necessary to examine the evidence concerning the purpose of other persons involved in the hierarchy of decision-making or consultation that led to the creation of the document and its subsequent communication: see AWB v Cole at [110]. (3) The existence of legal professional privilege is not established merely by the use of verbal formula: Grant v Downs at 689 per Stephen, Mason and Murphy JJ. Nor is a claim of privilege established by mere assertion that privilege applies to particular communications or that communications are undertaken for the purpose of obtaining or giving 'legal advice': National Crime Authority v S (1991) 29 FCR 203 at 211-212 per Lockhart J; Candacal Pty Ltd v Industry Research & Development Board [2005] FCA 649; (2005) 223 ALR 284 ('Candacal') at 298 [70]; Seven Network Limited v News Limited [2005] FCA 142 ar [6]-[8]. If assertions of that kind are received in evidence in support of the privilege claim, their conclusionary nature can leave unclear what advice was really being sought. There will be cases in which a claim of privilege will not be sustainable in the absence of evidence identifying the circumstances in which the relevant communication took place and the topics to which the instructions or advice were directed: Kennedy v Wallace [2004] FCAFC 337; (2004) 142 FCR 185 ('Kennedy v Wallace') at 189-190 [12]-[17] per Black CJ and Emmett J and at 211-212 [144]-[145] and at 215-216 [166]-[171] per Allsop J; see also Southern Equities Corporation Ltd (in liq) v Arthur Andersen & Co (No 6) [2001] SASC 398. (4) Where communications take place between a client and his or her independent legal advisers, or between a client's in-house lawyers and those legal advisers, it may be appropriate to assume that legitimate legal advice was being sought, absent any contrary indications: Kennedy v Wallace [2004] FCA 332; (2004) 208 ALR 424 at 442 [65] per Gyles J; affirmed on appeal, Kennedy v Wallace at 191-192 [23]-[27] per Black CJ and Emmett J. In Kennedy v Wallace, Black CJ and Emmett J inclined to the view that in the ordinary case of a client consulting a lawyer about a legal problem in uncontroversial circumstances, proof of those facts alone will provide a sufficient basis for a conclusion that legitimate legal advice is being sought or given. (5) A 'dominant purpose' is one that predominates over other purposes; it is the prevailing or paramount purpose: AWB v Cole at [105]-[106]; FCT v Pratt Holdings at 279-280 [30] per Kenny J. (6) An appropriate starting point when applying the dominant purpose test is to ask what was the intended use or uses of the document which accounted for it being brought into existence: Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122; (2004) 136 FCR 357 at 366 [35] per Finn J. (7) The concept of legal advice is fairly wide. It extends to professional advice as to what a party should prudently or sensibly do in the relevant legal context; but it does not extend to advice that is purely commercial or of a public relations character: Balabel v Air India [1988] 1 Ch 317 ('Balabel') at 323 and 330; Nederlandse Reassurantie Groep Holding NV v Bacon and Woodrow [1995] 1 All ER 976 ('Nederlandse') at 983; Three Rivers District Council v Governor and Company of the Bank of England (No 6) [2004] UKHL 48; [2005] 1 AC ('Three Rivers') at 652-653 [43]-[44], 657-658 [59]-[60], 681 [114] and 683 [120]; Dalleagles Pty Ltd v Australian Securities Commission (1991) 4 WAR 325 ('Dalleagles') at 332-333; DSE (Holdings) Pty Ltd v Intertan Inc [2003 FCA 1191; (2003) 135 FCR 151 ('DSE') at 161-173 [25]-[71]; and AWB v Cole at [100]-[101]. (8) Legal professional privilege protects the disclosure of documents that record legal work carried out by the lawyer for the benefit of the client, such as research memoranda, collations and summaries of documents, chronologies and the like, whether or not they are actually provided to the client: Daniels at 563 [44] per McHugh J; Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 ('Propend') at 550 per McHugh J; Dalleagles at 333-334 per Anderson J; Trade Practices Commission v Sterling [1979] FCA 33; (1979) 36 FLR 244 ('Stirling') at 245-246 per Lockhart J; and Kennedy v Lyell (1883) 23 Ch D 387 at 407; Lyell v Kennedy (1884) 27 Ch D 1 at 31 per Bowen LJ; Propend Finance Pty Ltd v Commissioner of Australian Federal Police (1995) 58 FCR 224 at 266 per Lindgren J. (9) Subject to meeting the dominant purpose test, legal professional privilege extends to notes, memoranda or other documents made by officers or employees of the client that relate to information sought by the client's legal adviser to enable him or her to advise: Stirling at 246. The privilege extends to drafts, notes and other material brought into existence by the client for the purpose of communication to the lawyer, whether or not they are themselves actually communicated to the lawyer: Saunders v Commissioner of Australian Federal Police (1998) 160 ALR 469 at 472. (10) Legal professional privilege is capable of attaching to communications between a salaried legal adviser and his or her employer, provided that the legal adviser is consulted in a professional capacity in relation to a professional matter and the communications are made in confidence and arise from the relationship of lawyer and client: Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54 at 96 per Dawson J; see also Deane J at 79-82. Some cases have added a requirement that the lawyer who provided the advice must be admitted to practice: see Dawson J in Waterford at 96; GSA Industries (Aust) Pty Ltd v Constable [2001] QSC 180; (2002) 2 Qd R 146 at 150; Glengallan Investments Pty Ltd v Arthur Andersen [2001] QCA 115; (2002) 1 Qd R 233 at 245. However, in Commonwealth v Vance [2005] ACTCA 35; (2005) 158 ACTR 47, the Full Court (Gray, Connolly and Tamberlin JJ) did not regard the possession of a current practising certificate as an essential precondition to the availability of client legal privilege: at [23]-[35]. The same view was taken by Lee J in Candacal at 303 [99], by Gillard J in Australian Hospital Care (Pindara) Pty Ltd v Duggan [1999] VSC 131 at [111], and by Downes J in Re McKinnon and Secretary, Department of Foreign Affairs and Trade [2004] AATA 1365; (2004) 86 ALD 780 at 785 [51]. (11) Legal professional privilege protects communications rather than documents, as the test for privilege is anchored to the purpose for which the document was brought into existence. Consequently, legal professional privilege can attach to copies of non-privileged documents if the purpose of bringing the copy into existence satisfies the dominant purpose test: Propend at 507 per Brennan CJ, 544 per Gaudron J, 553-554 per McHugh J, 571-572 per Gummow J, and 587 per Kirby J. In Propend at 512, Brennan CJ added a qualification to this principle: if an original unprivileged document is not in existence or its location is not disclosed or is not accessible to the persons seeking to execute the warrant, and if no unprivileged copy or other admissible evidence is made available to prove the contents of the original, the otherwise privileged copy loses its protection. (12) The Court has power to examine documents over which legal professional privilege is claimed. Where there is a disputed claim, the High Court has said that the court should not be hesitant to exercise such a power: Esso; see also Grant v Downs at 689. If the power is exercised, the court will need to recognise that it does not have the benefit of submissions or evidence that might place the document in its proper context. The essential purpose of such an inspection is to determine whether, on its face, the nature and content of the document supports the claim for client legal privilege. 103In Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd [1996] HCA 15; (1996) 137 ALR 28 at 33, Kirby J said of legal professional privilege: The law of legal professional privilege is an important branch of the law protecting the basic rights of persons in a society such as ours. Those rights include the right to approach lawyers without concern that matters disclosed, and advice received, in confidence will ordinarily enjoy the protection of the law. Increasingly, in recent years, this Court and other courts of high authority, have described such rights in the language of basic civic rights. They have also been explained as rights pertinent to the just operation of the adversarial system rather than, as they have sometimes been explained in older or other authorities, as rules of evidence or procedure. Within this Court, there have been divisions of opinion on this point. However, generally speaking, I consider that the trend of recent authority supports the submission that legal professional privilege constitutes an important civic right to be defended, as such, by the law.There is no doubt that legal professional privilege may be extinguished by clear statutory provision. It may also be waived by decision of the client. Department's submissions 104In relation to the documents in Confidential Exhibits MP-A and MP-B over which privilege is claimed, the Department relied on State of New South Wales v Betfair Pty Ltd [2009] FCAFC 160, [21] - [24], [40]-[41] and Sportsbet Pty Limited v State of New South Wales (No 3) [2009] FCA 1283. 105In Betfair the Full Court of the Federal Court (Kenny, Stone and Middleton JJ) stated: [21] Similarly with preparing draft legislation, either in the form of an Act of Parliament or a regulation. Parliamentary Counsel do not merely type or format the legislation. Parliamentary Counsel apply legal skill and knowledge to give written expression to the policy underlying the proposed legislation. Parliamentary Counsel would be expected, and perhaps under a duty, to advise upon the legality or effectiveness of the legislation being sought by the instructors. In the case of subordinate legislation, if regarded as beyond power, Parliamentary Counsel would presumably advise of this view. Similarly, if an Act of Parliament was considered unconstitutional, or inconsistent with another Act of Parliament, this is a matter Parliamentary Counsel would be expected to advise upon, even if the only express instruction was to draft the legislation. [22] Where no problem of this kind arises, Parliamentary Counsel, in drafting the legislation and presenting the draft to the government agency, is in effect advising that the draft legislation is in accordance with the instructions given and gives legal effect to those instructions. The draft itself is not the legal advice, but the communication in providing the draft legislation contains implicitly the advice of Parliamentary Counsel endorsing the draft legislation as being effective and valid. [23] It is impossible to disentangle the creation of the draft legislation and the giving of advice in these circumstances. It is not a matter of there being multiple concurrent purposes. Undoubtedly if there were purposes of equal weight, then neither would be dominant, and a claim for privilege would fail. However, there is only one purpose here - to obtain the advice of Parliamentary Counsel, and the communicating of that advice is given in the form of draft legislation. [24] Therefore, the purpose of the government agency providing instructions to Parliamentary Counsel is to obtain effective and valid draft legislation that is in accord with the instructions. The provision of draft legislation without more necessarily involves Parliamentary Counsel implicitly advising that the draft legislation provided is effective and valid. ... [40] The distinction that Betfair urged us to make is an entirely artificial one. In our view, the case for privilege attaching to the communications at issue is at least as strong as, perhaps stronger than, in Pratt Holdings. Supposing OLGR [NSW Office of Liquor, Gaming and Racing] and the Working Group [included representatives of the OLGR and racing bodies, including Racing NSW and Harness Racing NSW. The purpose of the working group was to assist OLGR in developing legislative drafting instructions for Parliamentary Counsel] were seated at a table in the same room for the purpose of working out together the drafting instructions that OLGR was to provide to Parliamentary Counsel. The entire record of that meeting would be privileged. It could not sensibly be suggested that the communications from members of the Working Group were protected, but the communications from OLGR were not. In the present case, emailed communications created a virtual meeting room in which OLGR and the Working Group were present. For the purposes of legal professional privilege, there can be no sensible distinction between emailed communications emanating from OLGR and sent to the members of the Working Group and emailed communications from Working Group members to OLGR. The rationale for legal professional privilege as outlined in Pratt Holdings would not support such an artificial distinction. Provided a communication is made with the dominant purpose of the client seeking or obtaining legal advice, we see no reason why privilege should not protect communications between the client and third parties whose knowledge is desirable or necessary for the client to obtain the legal advice the client desires, as in this case. Accordingly, we rejected Betfair's submissions as to the inapplicability of Pratt Holdings. [41] For these reasons, we substantially accepted the submissions of the State of New South Wales in support of the appeal. In this event, however, it became necessary for us to consider the argument as to waiver raised by Betfair since Betfair also sought, by its notice of contention, to support her Honour's judgment on this alternative ground. 106The Department submitted that each of the communications over which privilege was claimed was made in the course of a client-solicitor relationship. The client, it was submitted, was the Department. In the more significant relationship, the lawyer was Parliamentary Counsel - the lawyer who, with his colleagues in the Parliamentary Counsel's Office, is the State's primary advisor regarding the drafting of legislation, including statutes and regulations. In this respect, counsel for the Department referred to General Manager, WorkCover Authority (NSW) v Law Society (NSW) [2006] NSWCA 84;(2006) 65 NSWLR 502, where McColl JA noted (at [74]) the acceptance by the parties in that case that the effective administration of justice at the heart of the rationale for client legal privilege included, in the government context, advice on the application and operation of laws, proposed laws, and their drafting. Her Honour noted that this position was consistent with Three Rivers District Council v Bank of England (No 6) [2005] 1 AC 610 at [40]-[41] per Lord Scott of Foscote. McColl JA also stated at [69]: [69] Waterford v The Commonwealth of Australia [1987] HCA 25; (1987) 163 CLR 54 confirmed that legal professional privilege extends to confidential professional communications between government agencies and their legal representatives if made with the requisite purpose. In that case, after referring to the "much-cited passage" in Grant v Downs identifying the rationale of the privilege which I have already set out, Mason and Wilson JJ said (at 61-64): "To our minds it is clearly in the public interest that those in government who bear the responsibility of making decisions should have free and ready confidential access to their legal advisers. Whether in any particular case the relationship is such as to give rise to the privilege will be a question of fact. It must be a professional relationship which secures to the advice an independent character notwithstanding the employment. ... The common law, in the view that we have taken, recognizes that legal professional privilege attaches to confidential, professional communications between government agencies and their salaried legal officers undertaken for the sole purpose of seeking or giving legal advice or in connexion with anticipated or pending litigation. Provided that the sole purpose test enunciated in Grant v Downs is satisfied, there is no warrant to draw an arbitrary line through the functions of government in order to exclude the privilege from those described as of an administrative nature. All the functions of the executive government may be so described. No distinction can be drawn between a decision to grant a pension and a decision whether to defend a claim in tort or contract. The growing complexity of the legal framework within which government must be carried on renders the rationale of the privilege, as expressed in Grant v Downs, increasingly compelling when applied to decision-makers in the public sector. The wisdom of the centuries is that the existence of the privilege encourages resort to those skilled in the law and that this makes for a better legal system. Government officers need that encouragement, albeit, perhaps, for reasons different to those which might be expected to motivate the citizen." (emphasis added) Their Honours' application of the "sole purpose" test must now be read in the light of Esso Australia Resources Ltd v Commissioner of Taxation in which (at [61]) the majority of the High Court (Gleeson CJ, Gaudron and Gummow JJ) preferred a dominant purpose test. 107However, I also note that, at [94], McColl JA stated: While, as I have earlier stated, it might be accepted that legal professional privilege can attach to communications made on the operation and application of laws, proposed laws and their drafting, it is essential to ensure, particularly in the government context, that the purpose for which a document was brought into existence was one which related to legal advice as opposed to operational, administrative or policy matters. As Lord Scott emphasised in Three Rivers (No 6) (at [38]) in order for privilege to apply advice must be given in "the relevant legal context". 108Counsel for the Department submitted that, in this case, the communications over which the State was claiming privilege were made in circumstances of confidentiality: the communications between the Department and its lawyers and the Parliamentary Counsel's Office all took place on the confidential basis that usually attends the lawyer/client relationship. Counsel referred again to Betfair where it was stated: [31] Stone J explained that, in recognizing that the privilege covered a confidential communication brought into existence by third parties provided the dominant purpose requirement was met, the Court was protecting the policy at the heart of the privilege. Her Honour said at 381 [86]: If, however, the policy implicit in the rationale for legal professional privilege is not to be subverted, the dominant purpose criterion must be applied recognising that the situations in which people need legal advice are increasingly complex and that the client may need the assistance of third party experts if he or she is to be able to instruct the legal adviser appropriately. [32] These observations are no less apposite in the present context. The formulation of appropriate instructions to Parliamentary Counsel is virtually indispensable if the State is to obtain effective legal advice from that quarter. The public interest that it does so is self-evidently high. Given the complexity of many matters attracting legislative action, it can reasonably be expected that the difficulty of drafting such instructions in many situations is likely to be greatly increased without the assistance of informed third parties. 109It was further submitted by counsel for the Department: The purpose of each of the communications over which privilege was claimed was the obtaining or imparting of legal advice. Most particularly, advice was sought with respect to the drafting of legislation. The dominant purpose of the communications was to secure that advice. Some communications-for example, the submitting to Parliamentary Counsel of drafting instructions and the submitting by Parliamentary Counsel of his advice-were obvious examples of communications made for that purpose (namely for legal advice): Betfair at [21]-[24], [32] Such obvious examples, however, are not the limit of the communications that were made in this case for the dominant purpose of obtaining advice and that are within the scope of the privilege. The process of formulating the drafting instructions required many communications. The Department/State is not a natural person. It relies on its agents both to make its decisions and to communicate with its lawyers. The communications of two employees of the one corporation-made confidentially for the purpose of obtaining legal advice (e.g., a discussion about what questions need to be asked of, and what facts need to be told to, the lawyer)-will be privileged (see TPC v Sterling (1979) 36 FLR 244 at 246 per Lockhart J; Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357 at [22] per Finn J). But it is not necessary that both of the interlocutors be employees: the important thing is that they be the agents of the corporation (see Sterling at 245 per Lockhart J; Australian Rugby Union Group v Hospitality Group Pty Ltd (1999) 165 ALR 253 at [27], [29] per Sackville J; DSE Holdings v Intertan at [94]-[96] per Allsop J; Betfair at [38]). So it is with the State. The State may appoint agents to act on its behalf in the formulating of legislation and, in particular, to communicate on its behalf with its lawyers. Often, those agents will be public servants but the State is not limited to them. Moreover, once the State has appointed its agents they are free to conduct privileged communications amongst themselves for the purpose of obtaining legal advice, in particular of formulating relevant instructions. That some of the agents are not public servants makes no difference. Where the ultimate purpose is the obtaining of legal advice on the drafting of legislation, an essential part of getting that advice is the formulation of the drafting instructions that must be submitted to Parliamentary Counsel. Confidential communications made for the purpose of developing the drafting instructions will be privileged on the basis that they are communications between the employees of the client. The claims of privilege must be measured, ultimately on a document by document basis, against the fundamental rules of the privilege. If the disclosure of a document (or part thereof) would breach the confidentiality of a communication that was confidential, was made in the context of a client-lawyer relationship, and was made for the dominant purpose of obtaining or giving legal advice, then (save for some supervening factor) the disclosure can be resisted on the basis of privilege. 110It was further submitted any disclosure of documents in MP-A and MP-B, which were associated with the drafting process and included drafting instructions and comments on iterations of draft legislation, would tend to reveal the confidential internal discussions and deliberations amongst public officials involved in drafting the legislation. Such disclosure also would tend to reveal the advice given to the Minister by officers of the Department and/or from the Parliamentary Counsel in relation to the proposed legislation. Defendants' submissions 111After referring to relevant authorities, the defendants' submissions may be summarised as follows: (a) The authorities emphasise the need for focussed and specific evidence in order to ground a claim for legal professional privilege; (b) Evidence led in support of a privilege claim should address the substance of the claim for privilege by identifying the circumstances in which the relevant communications took place and the topics to which the instructions or advice were directed; (c) It is not enough for a person to "merely assert a claim for privilege". What must be done is to expose the facts from which the Court is able to make an informed decision as to whether the claim is supportable; (d) The Court should be assisted by evidence of "the thought processes behind, or the nature and purpose of advice being sought in respect of, each particular document" for which privilege is asserted; (e) The affidavits filed by the Department do not establish the independence of the employed legal officers over which a claim for privilege is made. It is to be noted that the legal advice over which legal professional privilege is claimed appears to have been provided by legal officers employed by the Department. In the 12 July 2013 Letter, the Crown Solicitor's Office referred to discussion between the Prosecutor, Jennifer Ann Nash, and Kevin Bennett (Principal Legal Officer - Prosecutions Litigations and Advisings Unit, Legal Services Branch, NSW Department of Trade and Investment, Regional Infrastructure and Services). There is no general rule that legal professional privilege can be claimed in respect of advice provided by in-house counsel. The issue is not as simplistic as the Department seeks to advance and requires such a claim to be underpinned by evidence; (f) In Seven Network Ltd v News Ltd [2005] FCA 142 at [15] Graham J found that, as a general proposition, an in-house counsel did not possess the requisite independence to make such claim. See also Telstra Corporation Ltd v Minister for Communications, Information Technology and the Arts (No 2) [2007] FCA 1445 at [36]; (g) Brennan J in Waterford v Commonwealth (1987) 163 CLR 5 at 70-73 also cast serious doubt upon the practice of in-house lawyers being involved in a privilege claim; (h) Branson J in Rich v Harrington [2007] FCA 1987 agreed with Brennan J that a legal adviser needs to be "professionally detached" in giving advice in order for the relevant communication to give rise to client legal privilege; (i) Spigelman CJ in Sydney Airport Corporation Ltd v Singapore Airlines Ltd & Qantas Airways Ltd [2005] NSWCA 47 at [24] highlighted the likelihood of in-house counsel performing functions that were unrelated to legal proceedings, thereby affecting their ability to hold the requisite measure of independence; (j) Gyles J in Arrow Pharmaceuticals Limited v Merck & Co., Inc. [2004] FCA 1131 at [14] indicated that the question of whether an in-house lawyer could claim privilege may warrant further consideration due to the "potential of abuse which exists"; (k) The affidavits filed by the Department do not contain any evidence that demonstrates the independence of the legal officers employed in the Legal Services Branch of the Department, nor is there any evidence from the description of the documents that they must be documents for which privilege is properly claimed. Accordingly, there is nothing to indicate that the legal officers do not fall within the description of in-house lawyers expressed by Graham J in Seven Network and Telstra, and hold the requisite measure of independence from the Department; (l) It follows that any advice given by the employed legal officers cannot be the subject of a claim for legal professional privilege; (m) The Court should dismiss the Notices of Motion filed by the Department. The documents sought go to the heart of issues concerning the defence to be relied upon by the Defendants as well as the jurisdiction of the Court to hear these criminal proceedings; (n) If, however, the Department is successful in its claim of public interest immunity, the substantive hearing in the prosecution proceedings must be stayed due to the practical unfairness to the Defendants arising from their inability to access the documents that are the subject of these proceedings: see Assistant Commissioner Michael James Condon v Pompano Pty Ltd [2013] HCA 7 at [192], [204] and [212] per Gageler J. Consideration of privilege claim 112It may be seen that the defendants' main attack on the privilege claim was directed at the independence of lawyers employed within the Department. In support of its case that lawyers within the Department were independent, the Department relied on the affidavits of Messrs Bennett and Holmes and Ms Moore, Ms Gill and Ms Solomon. In the light of cases referred to by the defendants such as Waterford, Seven Network, Telstra and Rich v Harrington, I did express some reservations regarding what might be seen as equivocation in the affidavits by the persons I have just named. For example, Ms Gill stated "Solicitors in the Legal Services Branch, including myself, are expected to provide independent legal advice to their clients..." and that "I am personally aware when giving legal advice that I am being consulted in my professional capacity as a solicitor and must give advice that is detached from my own personal loyalties, duties or interests." 113These statements were repeated word for word by the other deponents other than Ms Moore, who repeated the second statement quoted above. The statements caused me to wonder why it was not simply stated, "I provide independent legal advice..." and "the advice I give is detached from my own personal loyalties, duties or interests...". 114As Graham J said in Seven Network: [A]n in-house lawyer will lack the requisite measure of independence if his advice is at risk of being compromised by virtue of the nature of his employment relationship with his employer. On the other hand, if the personal loyalties, duties and interests of the in-house lawyer do not influence the professional legal advice which he gives, the requirement for independence will be satisfied. 115The other concern about the affidavits related to the way in which privilege was asserted. For example, Ms Gill stated: At the time of preparing this affidavit, I read the Department's list of privileged documents contained in exhibit JMM-1 to the affidavit of Jacqueleine Moore filed on 2 August 2013. In respect of the documents in that list, I can say that those communications to which I was a party were made in confidence and for the purpose of the Department receiving independent legal advice. Due to time constraints it has not been possible to enumerate each of the documents in this affidavit. 116Ms Gill's approach, and that of the other deponents, reminds one of what the Full Court of the Federal Court said in Barnes v Commissioner of Taxation [2007] FCAFC 88; (2007) 242 ALR 641 at [16] and [18]: [16] This affidavit falls far short of providing any adequate basis for claiming privilege in respect of any individual document. It consists of assertions, conclusions and generalised comments. The documents referred to are from a number of sources.... In this context, the fact that Mr Barnes' affidavit does not clarify the reason why any specific document came into existence means that the Court is left to consider the documents on their face and determine as best it can whether the documents are privileged. This is unsatisfactory. ... [18] The authorities emphasise the need for focused and specific evidence in order to ground a claim for legal professional privilege. In Kennedy v Wallace [2004] FCAFC 337; (2004) 142 FCR 185 at 189, Black CJ and Emmett J reiterated the principles that verbal formulae and bare conclusory assertions of purpose are not sufficient to make out a claim for privilege: see also National Crime Authority v S (1991) 29 FCR 203 at 211 (per Lockhart J); Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 at 689 (per Stephen, Mason and Murphy JJ). Where possible the Court should be assisted by evidence of the thought processes behind, or the nature and purpose of advice being sought in respect of, each particular document. The fact that generalised evidence is not challenged in cross-examination does not mean that such evidence must be accepted, particularly when it is as manifestly inadequate as it is in this case. As in Kennedy v Wallace, mere general assertions of the purpose of creation of the documents are insufficient to discharge this onus.... 117Notwithstanding these criticisms, the generalised statements in the affidavits were admitted and the Court undertook the inspection of the relevant documents. 118Regarding the question of independence, the courts have developed a requirement of a lawyer having professional independence when giving legal advice: see Commonwealth v Vance [2005] ACTCA 35; (2005) ACTR 47 at [20] and [30]. Despite my reservations, I accept the lawyers asserting privilege were independent. I have come to that view because: (a) all are admitted solicitors and hold current practising certificates; (b) all are subject to a duty to maintain professional standards as officers of the Court and must abide by their obligations under the Legal Profession Act 2004, the Legal Profession Regulation 2005 and the amended Professional Conduct and Practice Rules (Solicitors' Rules); (c) all were expected to provide objectively independent legal advice to their clients who comprise the Minister, Director General and/or departmental officers requesting legal advice and/or legal representation; (d) all did not perform policy or other functions that would affect their independence when acting as legal officers when providing legal advice and representation to their clients; and (e) as I noted earlier, where communications take place between a client and his or her independent legal advisers, or between a client's in-house lawyers and those legal advisers, it may be appropriate to assume that legitimate legal advice was being sought, absent any contrary indications. In the present proceedings there is no evidence of contrary indications. 119All deponents expressed the somewhat equivocal statement that they were "personally aware when giving legal advice that I am being consulted in my professional capacity as a solicitor and must give advice that is detached from my own personal loyalties, duties or interests". I am prepared to accept that as officers of the Court the deponents were not intending to mislead by stating that although they were aware they must give advice that is detached from their own personal loyalties, duties or interests, and by leaving unstated this was not necessarily the case in practice. Rather, I am prepared to accept that, indeed, their advice is given in an independent professional capacity and their personal loyalties, duties to their employer and personal ambitions do not interfere with the giving of that advice. 120In relation to the generalised assertions regarding privilege, it falls to the Court to inspect the documents and make its own judgment as to whether privilege applies (see the approach in Barnes v Commissioner of Taxation) having regard to the relevant principles cited earlier. 121Having inspected all of the documents over which privilege is claimed I am satisfied the documents meet one or more of the following descriptions: (a) A confidential communication between a lawyer for the Department and the Department (or between officers of the Department) for the dominant purpose of either: (i) providing legal advice; (ii) disseminating legal advice within the Department; (iii) providing instructions for the provision of legal advice; or (iv) drafts of legal advice. (b) A confidential communication between: (i) a third party; and (ii) a lawyer advising the Department or the prosecutor, for the dominant purpose of providing instructions to the lawyer for the provision of legal advice to the Department or the prosecutor. (c) A confidential communication between the Department or the prosecutor and their legal advisors for the dominant purpose of preparing documents or providing legal services in relation to actual or anticipated legal proceedings. Waiver of client legal privilege 122The defendants have made extensive submissions, supported by the affidavit of Mr Sebbens, asserting that there has been a waiver of client legal privilege. 123The waiver is said to arise as a result of the contents of the letter from the Crown Solicitor's Office ("CSO"), as solicitors for the prosecutor, to the defendant's solicitors on 12 July 2013 ("the 12 July Letter"). That letter was a response to a letter to the CSO from the defendants' solicitors dated 10 July 2013 in which a series of questions were put regarding the appointment relied upon by Mr Regan to make the Application for Order on 31 March 2011 and the state of the prosecutor's (Ms Nash's) knowledge in relation to the purported appointment of Mr Regan as a Chief Inspector on 22 December 2006. 124To explain again: the defendants are of the firm view that Mr Regan's purported appointment on 22 December 2006 was invalid. The defendants in their 10 July 2013 letter were seeking information as to whether, in those circumstances, the prosecutor intended to discontinue the proceedings and, if not, whether leave would be sought to amend the Application for Order and, if not, the legal basis upon which the prosecutor relied to maintain the present proceedings. 125In relation to the prosecutor's knowledge about issues concerning Mr Regan's appointment as Chief Inspector on 22 December 2006, the defendants were interested in knowing when Ms Nash became aware of any difficulty concerning the appointment, when Ms Nash became aware of the proposed amendment that is Schedule 2.1, whether Ms Nash provided instructions to the CSO concerning the difficulty in relation to Mr Regan's purported appointment, and, if Ms Nash was aware of the difficulty, why she did not instruct her lawyers to disclose this to the defendants' solicitors. These matters obviously go to the duties of a prosecutor and the issue of whether there was an abuse of process warranting a permanent stay of proceedings. 126The 12 July Letter disclosed the following matters: (a) the prosecutor intended to rely on Mr Regan's appointment as an inspector under s 47A of the OHS Act or, in the alternative, that as a result of Schedule 2, cl 5 of the Coal Mine Health and Safety Regulation 2006 Mr Regan was an inspector under the CMHS Act and therefore a government official under that Act and therefore taken to be an inspector under s 47B of the OHS Act. The prosecutor saw no need to seek leave to amend the Application for Order. The prosecutor also relied on s 16 of the Criminal Procedure Act 1986; (b) on or around 26 June 2012, Ms Nash "became aware of issues of some form concerning Mr Regan's appointment/" [sic] both as an inspector under the OHS Act and the CMHS Act"; (c) on or about 26 or 27 June 2012, Ms Nash was a party to a telephone discussion with Kevin Bennett, Principal Legal Officer, Prosecutions Litigation and Advisings Unit Legal Services Branch of the Department. As part of this discussion: (i) Ms Nash and Mr Bennett discussed "possible issues/difficulties with certain aspects of Mr Regan's appointment arising from the prosecution of Southern Colliery Maintenance Pty Limited which was on foot at the time"; (ii) whilst Ms Nash could not recall, it was likely Mr Bennett said something about "the validity of Mr Regan's purported appointment as Chief Inspector on 22 December 2006 or the validity of the instrument of appointment"; and (iii) it was likely Ms Nash and Mr Bennett discussed "legislative amendments of some form in relation to appointment/s" of Mr Regan. (d) In or around "mid-August" 2012, Ms Nash "understood" that there was "no legal issues regarding Mr Regan's authority to commence or continue prosecutions" against the defendants under the OHS Act. This understanding was formed on the basis of: (i) "discussions with others in the Department" (i.e. other than the discussion with Mr Bennett on or about 26 or 27 June 2012); and (ii) "information she was given"; (e) in the "later part of August 2012", Ms Nash "formed the view" that "amendments should be progressed to the CMHS Act", which view was formed as a result of: (i) "discussions with others in the Department" (i.e. other than the discussion with Mr Bennett on or about 26 or 27 June 2012); and (ii) "information she was given". (f) the view formed by Ms Nash in the "later part of August 2012", to progress amendments to the CMHS Act was on the "belief" that: (i) the proposed amendments to the CMHS Act: (A) "were primarily directed to the functions and powers of the Chief Inspector [Mr Regan] and inspectors, investigators [including Mr Mark Freeman] and mine safety officers under the CMHS Act itself"; and (B) "would also have the effect of validating Mr Regan's actions in the commencement and continuation of prosecutions under the OHS Act"; (ii) there was no legal issue concerning Mr Regan's authority to commence and continue prosecutions under the OHS Act; and (iii) the proposed amendments were for "more abundant caution"; (g) At the date of the 12 July Letter, Ms Nash "maintained" the view that: (i) Mr Regan had authority to commence and continue prosecutions under the OHS Act as a consequence of his appointment as an inspector under section 47A of the OHS Act in November 2006; and (ii) the appointment of Mr Regan in November 2006 under the OHS Act "endures to this day". 127Relying on Mr Sebbens' affidavit, the defendants submitted that the prosecutor, Ms Nash, was an employee and agent of the Department, holding the position of Director - Mine Safety Performance, and in the Amended Application for Order purported to have been appointed as an "investigator" under the CMHS Act. Further, that reporting to Ms Nash, in her role, was the Manager, Policy and Legislation and the Manager, Investigations Unit, and that in her role Ms Nash was responsible for: (a) managing prosecutions under the OHS Act; and (b) developing policy and legislation in respect of matters concerning mine safety. 128It was further submitted for the defendants that there was no evidence, nor could there properly be such evidence in respect of the 12 July Letter, that: (a) the letter was prepared by the CSO and sent to the solicitors for the Defendants, Ashurst Australia, without instructions from Ms Nash; (b) Ms Nash had no actual or ostensible authority, as the Prosecutor, and in her role as Director - Mine Safety Performance of the Department, to make the disclosures contained in the letter; or (c) the disclosures in the letter were mistaken, inadvertent or were not voluntary. Application of Evidence Act 129By virtue of s 131A of the Evidence Act, s 130 of that Act applies in respect of claims for client legal privilege made by the Department in respect of documents produced in answer to the First Summons for Production. The common law applies to claims for client legal privilege made in respect of the Second Notice served on the prosecutor, but in respect of which the Department makes claims of privilege. In this respect, I prefer to follow the judgment of White J in Singtel Optus Pty Limited v Weston [2011] NSWSC 1083; (2011) 81 NSWLR 526 rather than other judgments that appear to be inconsistent with his Honour's view (namely, Waugh Asset Management v Merrill Lynch [2010] NSWSC 197; d'Apice v Gutkovich (No.1) [2010] NSWSC 1336 at [10]; and Alderman v Zurich [2011] NSWSC 754 at [12]). 130In Singtel Optus, White J stated at [27]-[28]: [27] The doubt as to the scope of s 131A having been raised in TransGrid v Members of Lloyd's Syndicate 3210 , I think that I am justified in not following the earlier line of decisions (including my own), all of which were delivered ex tempore. In my view, where the objection to inspection is taken by the person required to produce the document on subpoena or notice to produce, the Evidence Act, and not the common law, applies. [28] However, as Allsop P held in State of New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60 at [32] and as the terms of s 131A clearly provide, the section only applies where the person objecting to disclosure on the ground of privilege is the same person who was required to produce the document. The section does not apply when a claim for privilege is made by persons other than the person required to produce the documents. In such cases the common law applies. Defendants' submissions 131The defendants' submissions regarding the relevant law applying to waiver of client legal privilege may be summarised as follows: (a) There will be an implied waiver of privilege if there is an inconsistency between the conduct of a party and maintenance of the confidentiality of a communication which the privilege is intended to protect: s 122(2) of the Evidence Act, which applies the same principle established at common law by Mann v Carnell (1999) 201 CLR 1 at [28] and [29] per Gleeson CJ, Gaudron, Gummow and Callinan JJ; (b) Where an inconsistency arises, it does not matter that the privilege holder did not subjectively intend to lose the benefit of the privilege: Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341 at [43]; (c) Questions of waiver are matters of fact and degree so that, whether "in a given context, a limited disclosure of the existence, and the effect, of legal advice is inconsistent with maintaining confidentiality in the terms of advice will depend upon the circumstances of the case": Osland v Secretary, Dept of Justice (2008) 234 CLR 275 per Gleeson CJ, Gummow, Heydon and Kiefel JJ at [49]; (e) The voluntary disclosure of the gist or conclusion of the legal advice amounts to waiver in respect of the whole of the advice to which reference is made including the reasons for the conclusion: see Bennett v Chief Executive Officer of the Australian Customs Service (2004) 140 FCR 101 (at [68]), Gyles J (Tamberlin J agreeing); Ashfield Municipal Council v Roads & Traffic Authority (NSW) [2007] NSWSC 917; (f) In order to ensure that the opposing litigant is not misled by an inaccurate perception of the disclosed communication, fairness will usually require that waiver as to one part of a protected communication should result in waiver as to the rest of the communication on that subject-matter: Attorney-General (NT) v Maurice (1986) 161 CLR 475 Mason and Brennan JJ at 487-488; section 122, Evidence Act; (g) Where a party relies on a course of action, an element of which is the party's state of mind, the party is taken to have waived privilege in respect of legal advice which the party had, before or at the time of the relevant events, which is material to the formation of that state of mind. By bringing (or maintaining) the proceeding, the party is taken to have consented to the use of the privileged material, or to have waived reliance on the privilege, which would otherwise attach to such material. Reliance on the privileged nature of the material would, in the circumstances, be unjust and would inhibit the proper functioning of the legal process: Telstra Corporation Ltd v BT Australasia Pty Ltd (1998) 85 FCR 152 at 166-167 per Branson and Lehane JJ; DSE (Holdings) Pty Limited v Intertan Inc [2003] FCA 384; 127 FCR 499] at [58] per Allsop J; Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341); (h) Section 126 of the Evidence Act is to a similar effect to the common law principle of implied waiver; (i) If legal professional privilege in a document or communication has been lost because of the application of one or more of ss 121 to 125, in respect of an otherwise privileged communication or document, the waiver extends to such associated documents as are reasonably necessary to enable a proper understanding of that communication or document. The test is an objective one. That requires a consideration of the document or communication of which the "proper understanding" is sought, and of the circumstances in which, and purposes for which, it is required: Sugden v Sugden [2007] NSWCA 312 at [95]-[96]; and (j) The expression "proper understanding", in s 126, is not a narrow one, and includes a "complete or thorough" understanding. If a privileged document or communication is voluntarily disclosed for forensic purposes, and a thorough apprehension or appreciation of the character, significance or implications of that document or communication requires disclosure of source documents or communications, otherwise protected by client legal privilege, access to those document or communications ought to be provided under the section: Towney v Minister for Land and Water Conservation for New South Wales (1997) 147 ALR 402 per Sackville J at 413. 132It was the defendants' submission that the prosecutor, by the 12 July Letter, had disclosed: (a) the nature and content of the discussions with Mr Bennett on or about 26 or 27 June 2012; (b) that she had discussions with "others" in the Department, about issues concerning the validity of Mr Regan's appointment, in the period after her discussion with Mr Bennett up to mid-August 2012; (c) that based on her communications with Mr Bennett and other discussions and information she was provided by "others" in the Department, she formed a view that the proceedings had been properly instituted and maintained by Mr Regan; and (d) notwithstanding having formed the view in (c) she also formed the (apparently inconsistent) view that amendments should be progressed to the CMHS Act which would have the effect of "validating" the institution and continuation of prosecution proceedings by Mr Regan. 133The defendants submitted it was apparent that Ms Nash instructed the solicitors acting for her to prepare the 12 July Letter and to send it to the solicitors for the defendants in answer to their correspondence, setting out the above disclosures, for the purpose of addressing issues which had been raised by the defendants concerning: (a) the capacity of Mr Regan to institute and maintain the prosecution proceedings; (b) Ms Nash's state of knowledge in respect of any issues relating to the capacity of Mr Regan to institute and maintain the prosecution proceedings; and (c) Ms Nash's decision to maintain the prosecution proceedings, as the prosecutor, from 11 May 2012 onwards. 134Senior counsel for the defendants contended that revealing the communications with Mr Bennett amounted to a "disclosure waiver" in respect of those communications with Mr Bennett. However, it was contended there had also been an "issue waiver" by the prosecutor disclosing her state of mind, and the decisions that she had made. According to the defendants, the prosecutor had thereby waived privilege over all communications and legal advice which were the basis of her state of mind and decision, as set out in the 12 July Letter. 135Having revealed those communications, her state of mind, and the decisions that she made, it was submitted it would be unfair for the prosecutor to now claim client legal privilege in respect of those communications and the legal advice that she received in forming her state of mind and making her decisions. 136The defendants submitted the prosecutor had not claimed, and it was not possible in the circumstances to claim, that there was any mistaken belief that there would be no loss of privilege by revealing the communications, state of mind and decisions. There could be no suggestion, it was submitted, any mistake had been made in the disclosure by the 12 July Letter, or that the disclosure had been inadvertent. The disclosure here in question was made upon instructions by the prosecutor's solicitors, which was a knowing and voluntary disclosure: see ss 122(3)(a), (4) and (5) of the Evidence Act. 137It was further submitted Ms Nash had actual or implied authority to make the disclosures in the 12 July Letter, as it was done in the course of her duties as prosecutor, which was a role she performed within the Department: Global Medical Imaging Management Ltd (in liq) v Australian Mezzanine Investments Pty Ltd [2003] NSWSC 430 per Einstein J at [18]-[19]. In these circumstances it would be unjust and would inhibit the proper functioning of the legal processes before the Court, to permit the prosecutor to claim privilege in relation to the relevant communications. Department's submission 138In responding to the defendants' submission regarding waiver of client legal privilege, it was submitted for the Department: (a) The 12 July Letter does not give rise to either "disclosure waiver" or "issue waiver". (b) The purpose of the 12 July Letter was to comply with the defendants' specific request for particulars. Disclosure is required under s 137 of the Criminal Procedure Act 1986. The prosecutor answered the defendants' request for information in compliance with her duties of disclosure. (c) there has been no waiver of privilege for five reasons: (i) Jennifer Nash was not authorised nor did she intend to waive client legal privilege: s 122(4). (ii) The 12 July Letter does not give rise to "disclosure waiver" because it does not disclose the "substance of the evidence", that is the substance of any legal advice: s 122(2) and (3). The Letter says nothing about legal advice. (iii) The 12 July Letter does not give rise to "issue waiver" because the Department has not put the prosecutor's state of mind in issue (rather, it is the defendants who have put the state of mind of the prosecutor in issue). The state of mind of the prosecutor is irrelevant to any fact in issue to prove the criminal charge. Put another way, the state of mind of the prosecutor is irrelevant to whether there was a valid authority to institute the proceedings. The Prosecutor does not rely on the letter, nor does she rely on her state of mind. There is no evidence in the Crown case to prove her state of mind. (iv) Even if the 12 July Letter has put the prosecutor's state of mind in issue, no assertions have been made about the contents of the privileged communications and hence there is no inconsistency between the maintenance of the privilege and the conduct necessary to give rise to an "issue waiver". The letter does not disclose nor does it make any reference to any legal advice. The Crown case does not rely on any legal advice in respect of the validity of the appointment. (v) Even if the Court finds that there has been as "issue waiver", which is strongly denied, the purpose of the 12 July Letter was to comply with the prosecutor's duty of disclosure. Waiver does not apply: s 122(5)(iii). An example of "compulsion of law" is compliance with disclosure requirements in a statute: Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1996) 40 NSWLR 12 at 22-3 (Corporations Law s 750 ); Akins & Others & Abigroup Ltd (1998) 43 NSWLR 539 at 551-552, 553; Buzzle Operations Pty Ltd v Apple Computer [2009] NSWSC 225 at [30]. 139In relation to issue waiver in particular, the Department referred to In the matter of Idoport Pty Ltd (in liq)(recs apptd); National Australia Bank Limited (& Ors) v John Sheahan (& Ors) [2012] NSWSC 58 ("Idoport") at [67] and relevant principles identified by Ward J distilled from authorities. Relying on those nine principles (set out below in italics) the Department submitted: Principle 1: the fact that documents over which privilege is claimed are materially relevant to a pleading of state of mind is not alone sufficient to compromise the assertion of privilege (DSE [2003] 384; (2003) 127 FCR 499; Seven Network Limited v News Limited (No. 10) [2005] FCA 1721). There is no "pleading of a state of mind" in this case. The only relevant pleading is that there is a valid authority. The validity of the authority is a question of law to be determined by the Court. The Prosecutor's state of mind is irrelevant to that legal question. Principle 2: where a party raises a positive case in which that party's state of mind is in issue (such as a case of undue influence or for rectification of a contract or to establish reliance on a representation or state of affairs) that behaviour is more likely to be considered inconsistent with the maintenance of privilege (Ampolex Ltd v Perpetual Trustee Company (Canberra) Ltd (1995) 37 NSWLR 405; Telstra; Fort Dodge Australia Pty Ltd v Nature Vet Pty Ltd [2002] FCA 501) particularly where the state of mind is an understanding of legal rights. the Prosecutor does not tender the 12 July 2013 letter. Nor is there any evidence that puts the state of mind of the Prosecutor in issue. This letter is tendered in the Defendants' case. The second principle means that the 12 July 2013 letter is less likely to be inconsistent with the maintenance privilege. Principle 3: Issue waiver is unlikely to be made out where the party alleging waiver is the party that put the state of mind into issue, as "it is the conduct of the party who possesses the privilege which is capable of waiving it. It is not apparently open to another party to litigation to force waiver of a party's legal professional privilege by making assertions about, or seeking to put in issue, that party's state of mind" (Commonwealth v Temwood Holdings Pty Ltd [2002] WASC 107 at [10] per Wheeler J). The Prosecutor does not put her state of mind in issue in accordance with the third principle. Therefore, the conduct of the Prosecutor by answering the Defendants' request for particulars does not waive any privilege over any legal advice. Principle 4: Where a particular state of mind is asserted against the party claiming privilege, merely joining issue and denying that state of mind does not amount to conduct inconsistent with the maintenance of privilege over documents which may be relevant to the formation of that state of mind ( DSE [2003] 384; (2003) 127 FCR 499). The Prosecutor's denial of a state of mind does not waive privilege of any material that may have led to the formation of her state of mind. Principle 5: merely putting a state of mind into issue, in the sense of referring to the formation of a particular view, is not, by itself, inconsistent with the maintenance of privilege over documents which may be relevant to the formation of that state of mind (Rio Tinto [Commissioner of Taxation v Rio Tinto Limited [2006] FCAFC 86], and see Rich v Harrington (2007) 245 ALR 106 at [25], where good faith and reasonableness were put in issue but there was no waiver in respect of legal advice in relation to the decisions in question). The letter does not disclose the substance of any legal advice received and relied upon in order to raise an issue. The Prosecutor's reference to her formation of a particular view about validity is not, by itself, inconsistent with the maintenance of privilege over documents which may be relevant to the formation of that state of mind. How is the 12 July 2013 letter inconsistent with the maintenance of the privilege over legal advice? It is not. Principle 6: nor is it enough, once state of mind is put in issue, to refer to the fact of privileged documents which may be relevant to the formation of the said state of mind (Rio Tinto). The 12 July 2013 letter's reference to the prosecutor's formation of a particular view is not, by itself, inconsistent with the maintenance of privilege over documents which may be relevant to the formation of that state of mind. The fact of privileged communications does not disclose the substance of them. Principle 7: if, in explaining or justifying the state of mind, a party puts into issue the content of communications such as by identifying the "bases of satisfaction and exercises of discretion as the matters evidenced in the scheduled documents", then such an assertion goes further than merely acknowledging their relevance to the issue and is inconsistent with the maintenance of privilege as "it necessarily lays them open to scrutiny" (Rio at [72] per curiam). The 12 July 2013 letter does not set out the "bases of satisfaction and exercises of discretion as the matters evidenced in the scheduled documents". It cannot be said that the content of the letter lays any confidential communication about legal advice "open to scrutiny". The letter does not refer to the content of any legal advice. The disclosure of the fact of and conclusions of legal advice does not disclose the advice itself: Osland v Secretary to the Department of Justice (2008) 234 CLR 275 at [49] per Gleeson CJ, Gummow, Heydon, Kiefel JJ. Principle 8: waiver of privilege over legal documents does not arise where there is insufficient connection between the belief asserted by the party and the legal advice concerned, such as where the belief asserted by the party is with respect to commercial considerations and primarily informed by commercial, rather than legal, advice (Australian Agricultural Company Limited v AMP Life Limited [2006] FCA 371). The 12 July 2013 letter does not establish a connection between the belief asserted by the party and any legal advice, how could it, it does not refer to the substance of legal advice. Principle 9: for completeness, although it is seemingly not relevant in the present case, even where privilege is waived in relation to documents which go to the formation of a state of mind, privilege may still be maintained over subsequent documents which, though related to or referring to that state of mind, had no part to play in the formation of the earlier state of mind (DSE [2003] 384; (2003) 127 FCR 499). The 12 July 2013 refers to a specific period of time 26 or 27 June, and late August 2012. The schedule of documents upon which a claim of client legal privilege is made covers an extensive time period. Consideration of waiver of client legal privilege 140As I earlier indicated, the Evidence Act applies in relation to material sought pursuant to the First Summons and the common law applies in respect of material called for in the Second Notice. Although the plurality said, in Mann v Carnell at [23], that s 122 of the Evidence Act has the effect that privilege may be lost in circumstances that are not identical to the circumstances in which privilege may be lost at common law, I did not understand the defendants or the Department to contend there was any relevant distinction between the common law and s 122 in so far as the matters that I am required to determine regarding waiver are concerned. 141Section 122 provides: 122 Loss of client legal privilege: consent and related matters (1) This Division does not prevent the adducing of evidence given with the consent of the client or party concerned. (2) Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120. (3) Without limiting subsection (2), a client or party is taken to have so acted if: (a) the client or party knowingly and voluntarily disclosed the substance of the evidence to another person, or (b) the substance of the evidence has been disclosed with the express or implied consent of the client or party. (4) The reference in subsection (3) (a) to a knowing and voluntary disclosure does not include a reference to a disclosure by a person who was, at the time of the disclosure, an employee or agent of the client or party, or of a lawyer of the client or party, unless the employee or agent was authorised by the client, party or lawyer to make the disclosure. (5) A client or party is not taken to have acted in a manner inconsistent with the client or party objecting to the adducing of the evidence merely because: (a) the substance of the evidence has been disclosed: (i) in the course of making a confidential communication or preparing a confidential document, or (ii) as a result of duress or deception, or (iii) under compulsion of law, or (iv) if the client or party is a body established by, or a person holding an office under, an Australian law-to the Minister, or the Minister of the Commonwealth, the State or Territory, administering the law, or part of the law, under which the body is established or the office is held, or (b) of a disclosure by a client to another person if the disclosure concerns a matter in relation to which the same lawyer is providing, or is to provide, professional legal services to both the client and the other person, or (c) of a disclosure to a person with whom the client or party had, at the time of the disclosure, a common interest relating to the proceeding or an anticipated or pending proceeding in an Australian court or a foreign court. (6) This Division does not prevent the adducing of evidence of a document that a witness has used to try to revive the witness's memory about a fact or opinion or has used as mentioned in section 32 (Attempts to revive memory in court) or 33 (Evidence given by police officers). 142In College of Law Limited v Australian National University [2013] FCA 492, Griffiths J considered the relevant principles to apply in determining both the subsistence of a claim for privilege and implied waiver. Reference was made to various authorities, including Mann v Carnell; Bennett v Chief Executive Officer, Australian Customs Service [2004] FCAFC 237; (2004) 140 FCR 101; AWB Limited v Cole (No 5); Osland v Secretary, Department of Justice [2008] HCA 37; (2008) 234 CLR 275; British American Tobacco Australia Ltd v Secretary, Department of Health and Ageing [2011] FCAFC 107; (2011) 195 FCR 123 and Cooper v Hobbs [2013] NSWCA 70. 143In relation to implied waiver of privilege (noting that it was common ground that the common law principles applied at the discovery stage of the proceedings and not the Evidence Act) his Honour summarised the relevant principles at [24] as follows: (a) privilege will be waived where the conduct of the person claiming it is inconsistent with the maintenance of the confidentiality in the relevant communication which the privilege is intended to protect; (b) the test for implied waiver is objective, thus where such inconsistency is found, privilege will be waived regardless of the subjective intention of the party claiming the privilege; (c) whether there is inconsistency is to be determined in the context and circumstances of the case and in the light of any considerations of fairness arising from that context and those circumstances; (d) the question of implied waivers raise matters of fact and degree; (e) disclosure of the gist, conclusion, substance or effect of a privileged communication does not necessarily effect a waiver of legal professional privilege in respect of the advice as a whole. Whether it does or not in a particular case depends on whether, in the circumstances of that case, the requisite inconsistency exists between the disclosure on the one hand and the maintenance of confidentiality on the other; (f) the context includes such matters as the nature of the matter in respect of which the advice was received, the evident purpose of the person making the disclosure, and the legal and practical consequences of limited, rather than complete, disclosure; and (g) where the party claiming privilege has disclosed or deployed the relevant information in order to achieve some forensic or other advantage for itself, or to disadvantage another person in a similar way, this may amount to conduct which is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. Accordingly, the purpose for which the partial disclosure was made is important. I respectfully adopt the foregoing summary of principles. 144In the present proceedings, the defendants are seeking information that would materially assist their case, namely, information about: (a) the capacity of Mr Regan to validly institute the proceedings against the defendants under s 106 of the OHS Act. Relevant to this issue is any alleged defect in, or the validity of, the instrument of appointment, under the CMHS Act dated 22 December 2006, and information about cl 2.1 of Schedule 2 of the Petroleum (On-Shore) Amendment Bill 2013 whereby it is proposed to retrospectively validate appointments under the 2006 instrument of appointment; (b) whether the prosecutor, Ms Nash, had complied with her obligations to disclose a matter within her possession, custody or control concerning a relevant issue to the defence as soon as she became aware of it, namely, any problem with the validity of Mr Regan's appointment, her decisions regarding that problem and the basis for any decision on her part to maintain the prosecution proceedings as the prosecutor from 11 May 2012 onwards. 145The Department has claimed client legal privilege over any record in connection with the foregoing matters. The defendants claim that by virtue of the 12 July Letter, privilege has been waived either because of implied disclosure waiver and/or issue waiver. 146The 12 July Letter was provided to the defendants in answer to a series of questions from the defendants' solicitors. The Letter was admitted into evidence in relation to the privilege issue without objection by the Department. 147The Department submitted three reasons why disclosure waiver had not occurred. The first was that Ms Nash was not authorised nor did she intend to waive client legal privilege: s 122(4) of the Evidence Act. Intention is not relevant: Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341 at [43]. As to authority, ss 122(3) and (4) apply. 148An affidavit of Ms Nash was tendered that purported to claim the prosecutor had no authority to waive privilege. Objection was taken to those parts of the affidavit where that claim was made. The basis of the claim was Ms Nash's understanding. The paragraphs to which objection was taken were struck out. To merely claim the prosecutor understood she had no authority to waive privilege fell far short of establishing that was the case. It did not provide a sufficient basis for the Court to find there was no authority; no foundation was provided for the understanding. No other evidence was adduced as to Ms Nash's lack of authority to waive privilege. 149On the other hand, Ms Nash is an employee and agent of the Department, holding the position of Director - Mine Safety Performance, and purportedly appointed as an "investigator" under the CMHS Act. In her role, Ms Nash is responsible for managing prosecutions under the OHS Act and developing policy and legislation in respect of matters concerning mine safety. 150If Ms Nash did not have authority to waive privilege, the Department had every opportunity to prove that by reference to policy instructions or evidence from more senior officers or something more concrete than merely Ms Nash's understanding. That was not done. 151In my opinion, it is open to conclude that Ms Nash had implied authority to waive privilege. 152The second reason why it was claimed disclosure waiver had not occurred was that the 12 July Letter did not disclose the "substance of the evidence", that is, the substance of any legal advice: s 122 (2) and (3). 153What the defendants seek to do is adduce evidence concerning the validity of Mr Regan's appointment and whether the prosecutor, Ms Nash, had complied with her obligations to disclose certain matters that I earlier identified. The Department claims client legal privilege in relation to that evidence. Does the 12 July Letter amount to a disclosure of the substance of that evidence? 154In their letter of 10 July 2013 (which led to the response which is the 12 July Letter) the defendants' solicitors, after contending Mr Regan's appointment was invalid, asked, in the event the prosecutor did not seek leave to discontinue the proceedings or to further amend the Applications for Order, "on what legal basis and by reference to what evidence, does the Prosecutor seek to maintain the present proceedings?" The answer to that question was that the prosecutor intended to rely on Mr Regan's appointment as an inspector under s 47A of the OHS Act. The 12 July Letter, which does not claim privilege in respect of its contents, provided further information regarding the validity of Mr Regan's appointment: it was disclosed that despite Ms Nash's view that Mr Regan had authority to commence and continue the prosecutions under the OHS Act, the CMHS Act was to be amended in the form of a Schedule to the Bill (the form of which Ms Nash was aware) to retrospectively validate Mr Regan's appointment "for more abundant caution". 155Ms Nash came to the view about relying on s 47A, and about the need to retrospectively validate Mr Regan's appointment, after discussions with Mr Bennett, Principal Legal Officer (which discussions concerned "possible issues/difficulties with certain aspects of Mr Regan's appointments..." and it was likely that Mr Bennett "said something" about the validity of Mr Regan's purported appointment as Chief Inspector on 22 December 2006) and as a result of discussions "with others in the Department" and "information she was given". 156The very clear inference can be made that in the process of determining what to do about the "possible issues/difficulties with certain aspects of Mr Regan's appointments" Ms Nash received legal advice to the effect that it was open to proceed with the prosecutions of the defendants on the basis of Mr Regan's appointment as an inspector under s 47A of the OHS Act, but that the CHMS Act should be amended to retrospectively validate Mr Regan's purported appointment as Chief Inspector on 22 December 2006. 157What was in issue were matters of a distinctly legal character not given to simple answers. The ambiguous reference to Ms Nash's discussions with "others" in the Department and "information she was given" cannot disguise the high probability that the "others" were lawyers and the "information" she received came from lawyers. 158In Mann v Carnell the majority stated: [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". This means that the law recognizes 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. ... [34]... Depending upon the circumstances of the case, considerations of fairness may be relevant to a determination of whether there is such inconsistency. 159In Adelaide Steamship Co Ltd v Spalvins (1998) 88 FCR 360 at 371, the Federal Court observed that the test to be applied as to "the substance of the evidence" was a quantitative one, which asks whether there has been sufficient disclosure to warrant loss of privilege". 160In my opinion, Ms Nash's conduct in providing instructions to the CSO to write to the defendants' solicitors in the terms of the 12 July Letter was inconsistent with the maintenance of the confidentiality that the privilege claimed was intended to protect. The 12 July Letter reveals the gist of the legal advice, which Ms Nash proceeded to implement. It would be unfair to the defendants to deprive them of the legal advice upon which Ms Nash acted in circumstances where they are endeavouring to discover whether the charges brought against them were lawfully instituted and maintained and where the 12 July Letter suggests there is some doubt about that. I also note there would appear to be an inconsistency between advice that there was no difficulty with Mr Regan's authority to institute the prosecutions (and apparently no need to advise the defence of any difficulty), but on the other hand that his appointment as a Chief Inspector be validated in the form of Schedule 2.1. The defendants are entitled to get to the bottom of that apparent inconsistency. 161The third reason put forward by the Department as to why disclosure waiver had not occurred was that Ms Nash was compelled by virtue of s 137 of the Criminal Procedure Act 1986 to provide the information in the 12 July Letter to the defence. Therefore, pursuant to s 122(5)(iii) of the Evidence Act, there was no disclosure. 162Section 137 of the Criminal Procedure Act provides: 137 Notice of prosecution case to be given to accused person (1) The prosecutor is to give to the accused person notice of the prosecution case that includes the following: (a) a copy of the indictment, (b) a statement of facts, (c) a copy of a statement of each witness whose evidence the prosecutor proposes to adduce at the trial, (d) a copy of each document, evidence of the contents of which the prosecutor proposes to adduce at the trial, (e) if the prosecutor proposes to adduce evidence at the trial in the form of a summary, a copy of the summary or, where the summary has not yet been prepared, an outline of the summary, (f) a copy of any exhibit that the prosecutor proposes to adduce at the trial, (g) a copy of any chart or explanatory material that the prosecutor proposes to adduce at the trial, (h) if any expert witness is proposed to be called at the trial by the prosecutor, a copy of each report by the witness that is relevant to the case, (i) a copy of any information, document or other thing provided by police officers to the prosecutor, or otherwise in the possession of the prosecutor, that may reasonably be regarded as relevant to the prosecution case or the defence case, and that has not otherwise been disclosed to the accused person, (j) a list identifying: (i) any information, document or other thing of which the prosecutor is aware and that would reasonably be regarded as being of relevance to the case but that is not in the prosecutor's possession and is not in the accused person's possession, and (ii) the place at which the prosecutor believes the information, document or other thing is situated, (k) a copy of any information in the possession of the prosecutor that is relevant to the reliability or credibility of a prosecution witness. (2) The regulations may make provision for or with respect to the form and content of a statement of facts for the purposes of subsection (1) (b). 163The Department did not identify which provision of s 137 was applicable, but presumably reliance was being placed on s 137(1)(i). I do not accept the Department is able to rely on that provision. The prosecutor did not regard the information in the 12 July Letter as being relevant to the prosecution case or the defence case in August 2012. According to the 12 July Letter, the view was taken by the prosecutor there was no problem with Mr Regan's authority to institute proceedings and, therefore, I presume Ms Nash took the view there was no need to advise the defence of any problem. 164Ms Nash cannot now claim she was compelled to provide the information in the 12 July Letter, which I note was given voluntarily without any reference to s 137. If Ms Nash maintains that she was compelled to provide the information, then she was compelled in August 2012, but failed to do so. That raises questions of breach of prosecutorial duty. 165I find that by disclosing the substance of the legal advice that led Ms Nash to conclude that: (a) it was open to proceed with the prosecutions of the defendants on the basis of Mr Regan's appointment as an inspector of s 47A of the OHS Act, and (b) the CHMS Act should be amended to retrospectively validate Mr Regan's purported appointment as Chief Inspector on 22 December 2006, there has been an implied waiver of client legal privilege. 166I turn to the question of issue waiver. The Department contended there was no issue waiver for the reasons I earlier outlined. In Telstra Corporation Ltd v BT Australasia Pty Ltd (1998) 85 FCR 152, the majority held that when a party pleads that they undertook certain action in reliance on a representation, such as legal advice, their state of mind is put in issue as an essential element of their claim. 167In Commissioner of Taxation v Rio Tinto Limited it was stated at [60], [61], [68], [71] and [72]: [60]...Hence, whether or not an applicant will waive privilege in alleging reliance on misleading or deceptive conduct will, as in every instance of waiver, depend very much on the particular character of the case and how it is conducted: compare Lombe v Pollak [2004] FCA 264 at [42]-[45] per Jacobson J. 61 Both before and after Mann, the governing principle required a fact-based inquiry as to whether, in effect, the privilege holder had directly or indirectly put the contents of an otherwise privileged communication in issue in litigation, either in making a claim or by way of defence. In DSE at 519 [58], Allsop J put the matter somewhat more descriptively, saying waiver arises when "the party entitled to the privilege makes an assertion (express or implied), or brings a case, which is either about the contents of the confidential communication or which necessarily lays open the confidential communication to scrutiny and, by such conduct, an inconsistency arises between the act and the maintenance of the confidence, informed partly by the forensic unfairness of allowing the claim to proceed without disclosure of the communication" (emphasis original). ... [68] The question is whether, by his particulars, the Commissioner made an assertion as part of his case that puts the contents of the privileged scheduled documents in issue, or necessarily lays them open to scrutiny, with the consequence that an inconsistency arises between the making of the assertion and the maintenance of the privilege. ... [71] By his answers to Rio's requests, the Commissioner disclosed that the eight privileged scheduled documents were relevant to reaching his state of satisfaction and exercising his discretions. Although the validity of his state of satisfaction and the exercises of his discretion are key issues in the substantive proceeding, as indicated earlier, the mere acknowledgement of the relevance of privileged documents to the key issues does not amount to an act inconsistent with the maintenance of privilege. As we have seen, so far as the Commissioner was concerned the relevant inquiry was whether, having regard to the material before the decision-maker, the contested decisions were vitiated on Avon Downs grounds. If the particulars merely disclosed that the Commissioner took into account legal advice in reaching his state of satisfaction and exercising his discretions, then that disclosure would not be inconsistent with the maintenance of privilege. [72] The Commissioner has not, however, simply said that the eight privileged scheduled communications were relevant to reaching his state of satisfaction or exercising his discretions. Nor has he said that he took them into account in so doing. We interpolate that a document may be relevant to a decision without evidencing any matter taken into consideration in the making of it (as, for example, an instrument conferring authority to make the decision). The Commissioner could have identified his bases for satisfaction and exercises of discretion by listing the matters he took into account in each case, but he did not do so. Instead, he identified his bases for satisfaction and exercises of discretion as the matters evidenced in the scheduled documents. In so doing, the Commissioner did more than make an assertion about the relevance of these communications. In his particulars, the Commissioner has said that he took into account the matters evidenced by numerous documents, including the eight privileged scheduled documents. In so doing, the Commissioner has made an assertion that puts the contents of these eight documents in issue, or necessarily lays them open to scrutiny, with the consequence that there is an inconsistency between the making of the assertion and the maintenance of the privilege. 168In the present proceedings, the defendants contended in interlocutory proceedings on 5 July 2013 that the appointment of Mr Regan was invalid. The prosecutor maintained, "Mr Regan (and Mr Freeman) was validly appointed as an inspector...". There followed a series of communications between the parties' solicitors concerning Mr Regan's appointment, including the defendants' letter of 10 July and the 12 July Letter. 169In proceedings on 25 July 2013, counsel for the Department did not object to the 12 July Letter being tendered by the defendants in so far as client legal privilege is concerned. 170According to the 12 July Letter, on the basis of certain advice and information she received, the prosecutor formed a particular belief about the validity of Mr Regan's appointment and his authority to commence and continue prosecutions under the OHS Act. Ms Nash also formed a particular belief about the need for amendments to the CMHS Act in order to validate the appointment of Chief Inspectors and others. It is apparent Ms Nash formed and acted on those beliefs for the forensic purpose of dealing with the possibility of any challenge to Mr Regan's authority, the very challenge that the defendants seek to make in these proceedings. 171In my opinion, the prosecutor asserted she undertook certain action in reliance on what I consider was legal advice. Accordingly, her state of mind was put in issue in respect of critical issues in the proceedings, with the consequence that an inconsistency arises between the making of the assertion and the maintenance of the privilege. The result is that client legal privilege was waived. I so find. Orders and directions 172The Court makes the following orders and directions: (1) The Second Summons and the First and Third Notices to Produce are set aside. (2) The claims by the Department of public interest immunity and client legal privilege are disallowed in respect of any statement made in Confidential exhibits MP-A to MP-D, inclusive and any statement or statements made in a document referred to in JMM-1 directed to: (a) any alleged defect in, or the validity of, the instrument of appointment, under the Coal Mine Health and Safety Act dated 22 December 2006, published in the NSW Government Gazette No 5 of 12 January 2007 at page 102; (b) clause 2.1 of Schedule 2 of the Petroleum (On-Shore) Amendment Bill 2013, which concerns the proposed amendment to the Coal Mine Health and Safety Act 2002 by the insertion of a new clause 25A. (3) In respect of the documents in MP-A, MP-B, MP-C and MP-D and the documents referred to in JMM-1, the Department shall prepare a schedule or table, in date order, identifying the following: (a) where the document contains a statement or statements referred to in Order (1) hereof: (i) the nature of the document (for example, "Ministerial Letter for Minister" or email), the author/s of the document and his or her position, to whom the document is directed, and the date of the document; and (ii) an extract of the whole of the statement or statements (including relevant headings). (4) In the alternative or in addition to Order (2) hereof, the whole of the documents may be produced in redacted form if redaction is necessary. (5) Where a document in MP-A to MP-D inclusive and a document referred to in JMM-1 contains a statement or statements referred to in Order (1) hereof and the statement is merely a reiteration of what is said in an earlier document of the same nature, there is no need to comply with Orders (2) and (3) hereof in relation to that document. Where there is any change in the wording from a previous document of the same nature, Orders (2) and (3) shall be complied with. (6) To avoid doubt, where the document contains a draft of schedule 2.1 or drafts of explanatory memoranda directly referring to schedule 2.1, it is unnecessary to provide other drafts that are in the same terms. Further, other than statements referred to in Order (1), it is not the Court's intention that any subject-matter related directly or indirectly to the Petroleum (Onshore) Amendment Bill 2013 be disclosed. (7) The Department shall, on or before 4.00pm Thursday 15 August 2013, produce the schedule or table referred to in Order (2) and/or the documents referred to in Order (3) hereof for inspection by the defendants. (8) The Department shall pay the defendants' costs of the motions in respect of public interest immunity and client legal privilege. Postscript 173Immediately following the pronouncement of the orders and directions in [172], an application was made by counsel for the Department that the orders and directions be stayed for 24 hours in order that counsel had the opportunity to obtain instructions regarding an appeal. The application was granted. 174Prior to the expiry of the 24 hour period the Department sought, by way of notice of motion, an extension of the stay "pending the determination of the Department's appeal". The Department relied on the affidavit of Leigh Plater, which detailed the process of consultation that was required to be undertaken in order to determine whether an appeal would be instituted. Ms Plater deposed that the Department would be in a better position to advise the Court of the Department's position by 9.30am on Friday 16 August 2013. 175The defendants proposed that any stay should only operate until 12 noon on 15 August 2013 because the substantive proceedings were listed for a further week commencing 19 August and given the matters were listed for directions at 9.30 am on Friday 16 August the defendants were entitled to know prior to that time what decision had been taken regarding an appeal. 176In the result I ordered that: (1) The judgment and orders made by the Court on 13 August 2013 be stayed until 4.00 pm on 15 August 2013. (2) Liberty to apply. ********** 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. Decision last updated: 14 August 2013