Industrial Relations Commission New South Wales Medium Neutral Citation: Nash v Glennies Creek Coal Management Pty Ltd (No 5) [2013] NSWIRComm 99 Hearing dates: 15 November 2013 Decision date: 19 November 2013 Before: Boland J, President Decision: (1) Annexure B to the judgment of Nash v Glennies Creek Coal Management Pty Ltd (No 4) [2013] NSWIRComm 80 is amended by adding the following question to the list of questions in section 4 of that Annexure: (vii) Was it open to me to find that, by reason of the letter of 12 July 2013, there was disclosure of the substance of legal advice received by the prosecutor for the purposes of s 122 Evidence Act 1995 and the common law? (2) I direct that a copy of this judgment be provided to the Full Bench. (3) Costs are reserved. Catchwords: REFERENCE - Interlocutory proceedings - Application by Director General, Department of Trade and Investment, Regional Infrastructure and Services and Prosecutor for reference of a further question to be joined to the six questions of law already referred to the Full Bench by the President - Whether application constituted an abuse of process - Whether the question formulated was a "question of law" Legislation Cited: Criminal Appeal Act 1912 Evidence Act 1995 (NSW) Industrial Relations Act 1996 Local Government Act 1919 Cases Cited: Adelaide Steamship Pty Ltd v Spalvins (1998) 81 FCR 360 Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1996) 40 NSWLR 12 Director General, Department of Trade and Investment, Regional Infrastructure and Services v Glennies Creek Coal Management Pty Ltd [2013] NSWCA 371 Hope v Bathurst City Council (1980) 144 CLR 1 Meltend Pty Ltd & Ors v Restoration Clinics of Australia Pty Ltd & Ors (1997) 145 ALR 391 Nash v Glennies Creek Coal Management Pty Ltd (No 2) [2013] NSWIRComm 67 Nash v Glennies Creek Coal Management Pty Ltd (No 4) [2013] NSWIRComm 80 NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509 Osland v Secretary, Department of Justice (Vic) [2008] HCA 37; 234 CLR 275 Sovereign v Bevillesta [2000] NSWSC 521 Category: Interlocutory applications Parties: Director General, Department of Trade and Investment, Regional Infrastructure and Services (Applicant on the Motion) Jennifer Anne Nash (Prosecutor in the substantive proceedings) Glennies Creek Coal Management Pty Ltd and Integra Coal Operations Pty Ltd (Respondents on the Motion/Defendants in the substantive proceedings) Representation: Counsel: Mr S Odgers SC (Applicant on Motion) Mr J Agius SC (Prosecutor) Mr A Moses SC (Respondents on the Motion/Defendants in the substantive proceedings) Solicitors: I V Knight, Crown Solicitor (Applicant on the Motion) I V Knight, Crown Solicitor (Prosecutor) Ashurst Australia (First and Second Respondents on the Motion) File Number(s): IRC 315 and 316 of 2011 INTERLOCUTORY Judgment 1In Nash v Glennies Creek Coal Management Pty Ltd (No 4) [2013] NSWIRComm 80, the Court submitted six questions of law to the Full Bench pursuant to s 196 of the Industrial Relations Act 1996 and s 5AE of the Criminal Appeal Act 1912. However, the Court declined to submit three other questions proposed by the applicant (Director General, Department of Trade and Investment, Regional Infrastructure and Services) and the prosecutor (Jennifer Nash). One of those three questions was the following question: (i) Did I err in law in holding that an inference drawn from a document, that certain legal advice was given, could constitute disclosure of that legal advice for the purposes of s 122 Evidence Act and the common law relating to waiver of legal professional privilege (see Judgment, paragraphs [156], [160], [165])? 2In Director General, Department of Trade and Investment, Regional Infrastructure and Services v Glennies Creek Coal Management Pty Ltd [2013] NSWCA 371 (8 November 2013) ("Glennies Creek (CA)") the Court of Appeal dismissed a summons seeking orders quashing the refusal to submit that question and an order to compel this Court to submit that question to the Full Bench of the Industrial Court. 3On 12 November 2013 the applicant and prosecutor ("the applicants") filed a notice of motion in this Court seeking the following orders: 1. The Court refer questions of law to a Full Bench of the Court pursuant to s 5AE of the Criminal Appeal Act 1912 as applied by s 196 of the Industrial Relations Act 1996, as contained in Annexure A to this motion. 2. The referral of the two (sic) further questions to be joined to the six questions of law already referred to the Full Bench by the President. 3. That the costs of this Notice of Motion be reserved ... 4The questions of law were framed as follows: (i) Was it open to me to find that, in the circumstances of the case, there was disclosure of the substance of legal advice received by the prosecutor for the purposes of s 122 Evidence Act 1995 (NSW) and the common law? (ii) Was it open to me to find that, in the circumstances of the case, there had been waiver of client legal privilege for the purposes of s 122 Evidence Act 1995 (NSW) and the common law? (iii) Did I apply the correct legal principles in determining whether there was disclosure of the substance of legal advice received by the prosecutor for the purposes of s 122 Evidence Act 1995 (NSW) and the common law? (iv) Did I apply the correct legal principles in determining whether there had been waiver of client legal privilege for the purposes of s 122 Evidence Act 1995 (NSW) and the common law? 5At the hearing of the motion senior counsel for the applicants indicated that it was only question (i) that was sought to be referred to the Full Bench, that is: (i) Was it open to me to find that, in the circumstances of the case, there was disclosure of the substance of legal advice received by the prosecutor for the purposes of s 122 Evidence Act 1995 (NSW) and the common law? 6If I were to grant the applicants' application it would mean a referral of an additional question to the Full Bench, making a total of seven questions arising out of my judgment in Nash v Glennies Creek Coal Management Pty Ltd (No 2) [2013] NSWIRComm 67 (Glennies Creek (No 2)") where I disallowed certain claims by the applicants of public interest immunity and client legal privilege. 7The respondents, Glennies Creek Coal Management Pty Ltd and Integra Coal Operations Pty Ltd, opposed the motion. 8In Glennies Creek (No 4) I sought to explain my reasons for refusing to refer the question that the applicants now seek to reformulate and I commenced with quoting what I had said in [126], [160] and [165] of Nash (No 2): [15] Paragraphs [156], [160] and [165] of Nash (No 2) were in the following terms: [156] The 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. [160] In 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. [165] I 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. [16] The Department and prosecutor contended that: [I]t was not permissible for the Court to determine what might be inferred from the document for the purposes of deciding what had been "disclosed" by the document. The question of law raised is whether, in determining what has been "disclosed" by a document, a court may draw inferences from the contents of that document. [17] I think, with respect, that contention and the proposed question itself misconstrues my finding at [156]. The "clear inference" I made was not from the 12 July 2013 letter. That is to say, I did not infer from the letter that Ms Nash disclosed the gist of legal advice she received. If one has regard to the preceding paragraph ([155]) and the following paragraph ([157]) it is apparent that the inference I made was that having had discussions with Mr Bennett, Principal Legal Officer, and "others in the Department", and "information she was given" Ms Nash received legal advice. The substance of the legal advice was plain from the terms of the letter: see, for example [126], [160] and [165] of Nash (No 2). [18] Accordingly, question 4(i) is not a question of law "arising at or in reference to the proceedings". 9The effect of what I found in Glennies Creek (No 2) was that a letter written by Ms M Rizzo of the Crown Solicitor's Office, on instructions from Ms Nash, and which was in evidence, disclosed the substance of certain legal advice provided to Ms Nash. Accordingly, I found client legal privilege had been waived in respect of that legal advice. 10In Glennies Creek (CA), Basten JA, who gave the leading judgment (Ward JA and Sackville AJA agreeing), after referring (at [30]-[32]) to Osland v Secretary, Department of Justice (Vic) [2008] HCA 37; 234 CLR 275 and Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1996) 40 NSWLR 12, stated at [33]: [33] There may be a real question as to whether the statements in Ms Rizzo's letter in the present case could constitute a waiver for the purposes of s 122 of the Evidence Act, in the light of these authorities. That could amount to a question of law, if a question asked whether it was open to the trial judge to find that there had been waiver in the circumstances of the case, or if it asked whether the trial judge had applied the correct legal principles in determining the question. 11His Honour then stated at [34]: The problem in the present case is that no such question was formulated by the appellants, either for referral to a Full Bench, or for the purposes of the application in this Court.... Applicants' submissions 12It was submitted for the applicants that the additional question they seek to have referred to the Full Bench is a question of law "arising at or in reference to the proceedings" which, if a request to submit the questions is made by the Crown, "must" be submitted to the Full Bench. 13Senior counsel submitted that a finding of "disclosure" of the "substance of the legal advice" was made at [160] in Glennies Creek (No 2) and a finding of waiver was made at [165]. 14It was further submitted that is was apparent from the judgment of Basten JA that there are important questions arising in the present case, including the following: (a) whether the sentence in the letter of 12 July 2013 "During the later part of August 2012 as a result of discussions with others in the Department and of information she was given, Ms Nash formed the view that amendments should be progressed to the CMHS Act" was capable of constituting a waiver of lawyer-client privilege ..." (Basten JA at [23]); (b) whether it was open to the trial judge to find that "Ms Rizzo's letter disclosed 'the substance' of any legal advice" (Basten JA at [28]); (c) whether the statements in the letter of 12 July 2013 could constitute a waiver (Basten JA at [33]); (d) whether, where a person states his or her beliefs which are said to be based upon legal advice, an inference can reasonably be drawn as to the substance of the advice (Basten JA at [37]). 15To assist the Court, senior counsel submitted [I]t may be also helpful to note that, at [33], Basten JA referred to "a real question as to whether the statements in Ms Rizzo's letter in the present case could constitute a waiver ...". An alternative formulation of question[s] (i)... would provide more specificity by replacing the words "in the circumstances of the case," with the words "by reason of the letter of 12 July 2013". This alternative formulation is advanced in compliance with the obligation noted by Basten JA at [43] for any "reformulation" or "refinement" to be "sought in terms". Respondents' submissions 16In opposing the applicant's application to refer the question the respondents submitted: (a) What the applicants were seeking to do was, in substance, to re-litigate an application which had already been determined by this Court and the Court of Appeal. It was not in the interests of justice that the respondents be put to the further expense and time of having interlocutory matters re-litigated, now for the third time, when there has been no change in the evidence or any other material circumstances: see Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 at 46 per McLelland J; Wentworth v Rogers (Sperling J, 28 April 1995, Supreme Court of NSW, unreported); Nominal Defendant v Manning (2000) 50 NSWLR 139 at 142-143 per Mason P and at 156 per Heydon JA; R v Taylor [2007] NSWCCA 104, (2007) 169 A Crim R 543 at 550 per Hidden J; (b) The application amounts to an abuse of process because: (i) there is no fresh evidence (and nor could there be any on such an application); (ii) there are no new principles of law which have subsequently been delivered by a superior court since the first litigation. The statement by Basten JA at [33] of Glennies Creek (No 2) is obiter. Moreover, whilst Basten JA stated at [43] that "... the respondents conceded that an appropriately worded question of law could have been, and might even now be, submitted to the Full Bench", this was in the context of his Honour referring to the possibility of an express and single question being referred to the Full Bench as to whether I had erred in deciding not to refer the question (i) concerning disclosure waiver which the Prosecutor and Department had requested be referred. There was no discussion before the Court, or any proposition put by the Court or the applicants, that further (new) questions concerning disclosure waiver could be referred to the Full Bench; (iii) the applicants have at no time in the proceedings before the Court of Appeal, the Full Bench of the Industrial Court, or subsequent to the delivery of the judgment in Glennies Creek (No 4), in this Court, indicated any intention to apply to have any further, new, questions of law be referred to the Full Bench; (iv) there will be further substantial time and resources invested by the applicants (involving the expenditure of public moneys), this Court, and the respondents, in proceedings before the Court in dealing with a further motion to agitate issues which have already been agitated before this Court on two occasions, and before the Court of Appeal. (c) The Court has power to manage cases in the interests of justice and the public, including to dismiss applications which are unmeritorious or amount to an abuse of process: see State Pollution Control Commission v Australian Iron & Steel Pty Ltd (No 2) (1992) 29 NSWLR 487 at 493-4 per Gleeson CJ: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [98] and [114]; Chevalley v Inspector Morrison [2012] NSWIRComm 18; (2012) 219 IR 193 at [52]; (d) By parity of reasoning with the judgments in State Pollution Control Commission v Australian Iron & Steel Pty Ltd (No 2), Aon Risk Services Australia Ltd v Australian National University, Chevalley v Inspector Morrison the Court should not permit its limited resources to be taken up, and the substantive criminal proceedings before the Court further disrupted and delayed, by the applicants seeking to "fight over again a battle which has already been fought" (Buckley LJ in Chanel Ltd v F W Woolworth & Co Ltd [1981] 1 WLR 485 at 492). 17In further written submissions filed on 18 November 2013, the respondents addressed in particular, whether the question sought to be referred was a question of law. It was submitted to the contrary because: (a) despite reliance by the applicants on what Basten JA said at [33], it was merely obiter and his Honour did not specifically identify an appropriate question of law that might be referred; (b) on the basis of comments made by Sackville A-JA in the course of the proceedings, the applicants formulated a question making reference to section 122 of the Evidence Act, but used the phrase "disclosure of the substance of legal advice", which does not appear in s 122. Instead, the section refers to "the substance of the evidence"; (c) the words "disclosure" and "substance" have their ordinary meanings within section 122 of the Evidence Act. Neither of those terms is defined within the Dictionary, under section 3, to that Act. The determination of whether the "undisputed material" (as referred to by Sackville A-JA in the course of the proceedings before the Court of Appeal) or "facts fully found"(as referred to in Hope v Bathurst City Council (1980) 144 CLR 1) fall within the meaning of the words used in section 122 of the Evidence Act, is a question of fact or at best a mixed question of fact and law: NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 309 at 511-2 per Kitto J; (d) the exercise which was undertaken by the Court in Nash v Glennies Creek Coal Management Pty Ltd (No 2) [2013] NSWIRComm 67 (Nash No 2) was an assessment of the contents of the letter of 12 July 2013, against the documents over which client legal privilege has been claimed by the Department. The question therefore seeks, effectively, for the findings of fact to be reviewed and further, that their application to legal issues under the common law, is then subsequently reviewed. At best, the question is one of mixed fact and law. The question seeks to utilise section 5AE of the CA Act as an appeal of the findings of the Court in Nash No 2. Such an approach is not permissible. (e) it is difficult to identify what "undisputed material" (as referred to by Sackville A-JA) or "fully found facts "there are in the present case, which would be the subject of analysis under question (i). The relevant "materials" or "facts" which must be considered are: (i) the letter of 12 July 2013, of which only a summary has been included in the case stated to the Full Bench; and (ii) the documents over which client legal privilege has been claimed in confidential exhibits MP-A through MP-F, and Exhibit JMM-1, which have not been provided the Full Bench. It is these "materials" which were examined by the Court in Nash No 2 to determine whether the letter dated 12 July 2013 disclosed the substance of legal advice contained in the documents within Exhibits MP-A to MP-F and/or JMM1. Such evidence is not before the Full Bench. Consideration 18It is, indeed, regrettable, as the applicants conceded that this is the third application made in these proceedings for submission of questions of law to the Full Bench. The first application was completely unsuccessful, the second application was successful to the extent six out of nine questions of law proposed by the applicants were referred to the Full Bench and the third application became necessary because this Court and the Court of Appeal found that a critical question posed in the second application was not a question of law within the meaning of s 5AE of the Criminal Appeal Act. The exercise has undoubtedly consumed a good deal of time and public money, including the Courts' time. 19Whilst the question sought to be referred might be described as a "reformulation" of the original flawed question, it must also be accepted that if the reformulated question is a question of law, it is a new question. This is because the original question was found not to be a question of law and did not meet the requirements of s 5AE. If the reformulated question is a question of law it is, for the purposes of s 5AE, a question of an entirely different character and, therefore, a new question. 20Whilst I have not had the advantage of full legal argument, especially regarding the respondents' submissions that the question posed is a question of fact, I have come to the view, with some reservations, that subject to an amendment, the question is a question of law. The amendment involves deleting the words "in the circumstances of the case" and substituting the words "by reason of the letter of 12 July 2013". To use the words "in the circumstances of the case" would require the Full Bench to have before it the whole of the evidence and to engage in fact finding regarding the circumstances of the case when it has not been provided with all of the factual evidence. By using the phrase "by reason of the letter of 12 July 2013" the Full Bench will only need to have regard to the facts relating to that letter as I have found them in Nash (No 2) and, if necessary, the summary of facts in Annexure B to that judgment. 21Whilst the question refers to the "substance of legal advice" and not the "substance of the evidence", nothing turns on the distinction. The evidence that may be adduced according to my decision in Nash (No 2) is the legal advice: see Nash (No 2) at [152], [160], [165]. 22The respondents submitted that the determination of whether the "undisputed material" or "facts fully found" fall within the meaning of the words used in section 122 of the Evidence Act was a question of fact or, at best, a mixed question of fact and law. This was because, according to the respondents, "disclosure" and "substance" had their ordinary meaning within s 122. Reliance was place on what Mason J stated in Hope v Bathurst City Council at 7, where the question was whether the word "business" in the Local Government Act 1919 (NSW) was a word used according to its common understanding. Mason J found (Gibbs, Stephen and Aickin JJ agreeing) this was so and was, therefore, a question of fact. As such, it was an exception to the rule that the question whether facts fully found fall within the provisions of a statutory enactment properly construed was a question of law. 23If the respondents are correct it would mean that the determination of whether "facts fully found" fell within the meaning of the words in s 122 could never be a question of law for the purposes of s 5AE of the Criminal Appeal Act. It does not seem to me that was the legislature's intention. The purpose of s 5AE is to permit a single judge of the Court to obtain advice from the Full Bench of the Court upon questions of law that will assist that judge in determining how the matter should be finally disposed of. 24There are important issues to be determined including whether it was open to me to find that "Ms Rizzo's letter disclosed 'the substance' of any legal advice" (Basten JA at [28]); whether, where a person states his or her beliefs which are said to be based upon legal advice, an inference can reasonably be drawn as to the substance of the advice (Basten JA at [37]). 25If the respondents are correct I am unable to be provided with the advice of the Full Bench on these fundamental questions going to the operation of s 122 and the common law. 26In my view the word "substance" as it is used in s 122 is a word whose meaning or interpretation is to be determined from its context: Ampolex Ltd v Perpetual Trustee Company (Canberra) Ltd (1996) 40 NSWLR 12 at 18, 19, which in the present case would appear to raise a question of law, including, whether, where a person states his or her beliefs which are said to be based upon legal advice, an inference can reasonably be drawn as to the substance of the advice. Moreover, the word "substance" has been given a meaning: Adelaide Steamship Pty Ltd v Spalvins (1998) 81 FCR 360 at 371, 375, so I am not required to determine whether it has its ordinary meaning. 27As to the word "disclosure" or "disclosed" as used in s 122, those words cannot be considered in isolation, but are qualified. For example, in s 122(2) privilege may be lost if a client or party has "knowingly and voluntarily disclosed" to another person the substance of the evidence. I do not think the statute uses the words according to how they might be understood in ordinary speech. A consideration of the words in s 122 is not akin to determining whether grazing is a business (Hope v Bathurst City Council) or whether the quarrying of blue metal is a mining operation (NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509). Determining whether a client or party "knowingly and voluntarily disclosed" the substance of evidence will require the context to be considered and as the authorities reveal may involve such questions of a legal nature as whether mistaken disclosure is knowing and voluntary disclosure (Meltend Pty Ltd v Restoration Clinics of Australia Pty Ltd (1997) 145 ALR 391), accidental disclosure (Sovereign v Bevillesta [2000] NSWSC 521), whether certain conduct was inconsistent with the maintenance of the confidentiality that the privilege claimed, or whether there has been a waiver of legal professional privilege in respect of the legal advice as a whole. 28In the present case an issue arises as to whether information provided by Ms Rizzo to the respondents in the 12 July 2013 letter in response to a request from the respondents for further information amounted to knowing and voluntary disclosure. That would seem to me to be a question of law. 29If I had found the new question was not a question of law it may have been open to me to accept the respondents' submission that what the applicants were seeking was a "re-litigation of a matter already determined" and that the application was an abuse of process. However, because I have determined that the question is a question of law I am bound, by virtue of s 5AE(1) of the Criminal Appeal Act, to refer the question to the Full Bench and there is no discretion to do otherwise. There is no statutory limit, it would appear, on the time in which such questions are to be submitted under s 5AE or on the number of times the Court may be requested to submit a question or reformulation of a question. Orders 30The Court makes the following orders: (1) Annexure B to the judgment of Nash v Glennies Creek Coal Management Pty Ltd (No 4) [2013] NSWIRComm 80 is amended by adding the following question to the list of questions in section 4 of that Annexure: (vii) Was it open to me to find that, by reason of the letter of 12 July 2013, there was disclosure of the substance of legal advice received by the prosecutor for the purposes of s 122 Evidence Act 1995 and the common law? (2) I direct that a copy of this judgment be provided to the Full Bench. (3) Costs are reserved. ********** 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: 19 November 2013