Industrial Relations Commission New South Wales Medium Neutral Citation: Nash v Glennies Creek Coal Management Pty Ltd (No 6) [2014] NSWIRComm 36 Hearing dates: 19 December 2013; 24 January 2014;written submissions 29 January 2014 Decision date: 09 July 2014 Jurisdiction: Industrial Court of NSW Before: Walton J, President; Staff J; Backman J Decision: The matter is remitted to the trial judge with the following answers to the questions referred: Question (i): yes; Question (ii): yes; Question (iii): yes; Question (iv): not necessary to answer; Question (v): not appropriate to answer; Question (vi): not appropriate to answer; Question (vii): no Catchwords: STATED CASE - reference of seven questions to Full Bench under s 5AE of the Criminal Appeal Act 1912 - whether questions referred are questions of law - waiver of client legal privilege - whether client legal privilege waived by the disclosure of the substance of legal advice under s 122(3) of the Evidence Act 1995 - whether client legal privilege waived by party claiming privilege putting in issue in the proceedings the prosecutor's state of mind thereby giving rise to an inconsistency between the conduct of the party claiming privilege and maintenance of the confidentiality which the privilege is intended to protect (s 122(2) of the Evidence Act) - public interest immunity - principles to be applied - whether s 130(5)(a) of the Evidence Act followed - four questions answered - one question not necessary to answer - two questions not appropriate to answer - matter remitted Legislation Cited: Coal Mine Health and Safety Act 2002 Criminal Appeal Act 1912 Evidence Act 1995 Industrial Relations Act 1996 Occupational Health and Safety Act 2000 Cases Cited: Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1996) 137 ALR 28; 70 ALJR 603 Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1996) 40 NSWLR 12 Attorney General for New South Wales v X (2000) NSWLR 653 Australian Competition & Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526; 153 ALR 393 Bennett v Chief Executive Officer of the Australian Custom Service [2004] FCAFC 237; (2004) 140 FCR 101 BT Australasia Pty Ltd v NSW (No 7) (1998) 153 ALR 722 BT Australasia Pty Ltd v NSW (No 8) (1998) 154 ALR 202 Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86; (2006) 151 FLR 341 Commonwealth v Temwood Holdings Pty Ltd [2002] WASC 107 Department of Trade and Investment, Regional Infrastructure and Services v Glennies Creek Coal Management Pty Ltd [2013] NSWCA 371 Elias v Director of Public Prosecutions (NSW) (2012) 222 ACrimR 286 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46; 303 ALR 199 Hope v Bathurst City Council (1980) 144 CLR 1 In the matter of Idoport Pty Ltd (in liq)(recs apptd); National Australia Bank Limited (& Ors) v John Sheahan (& Ors) [2012] NSWSC 58 Lillicrap v Nalder & Son (a firm) [1993] 1 All ER 724; [1993] 1 WLR 94 Mann v Carnell (1999) 201 CLR 1 Nash v Glennies Creek Coal Management Pty Ltd [2013] NSWIRComm 60 Nash v Glennies Coal Management Pty Ltd (No 2) [2013] NSWIRComm 67 Nash v Glennies Creek Coal Management (No 3) [2013] NSWIRComm 72 Nash v Glennies Creek Coal Management Pty Ltd (No 4) [2013] NSWIRComm 80 Nash v Glennies Creek Coal Management Pty Ltd (No 5) [2013] NSWIRComm 99 Nine Films and Television Pty Ltd v Ninox Television Ltd (2005) 65 IR 442 Osland v Secretary, Department of Justice (2008) 234 CLR 275 Parkview Qld Pty Limited v Commonwealth Bank of Australia [2012] NSWSC 1599 R v Madden (1995) 85 A Crim R 367 R v Porter (2004) 141 A Crim R 593RinRim Pty Ltd v Deutsche Bank Australia Limited & Ors [2013] NSWSC 1654 Robinson v Woolworths Ltd (T/As Woolworths Plus Petrol Werrington) (2005) 64 NSWLR 612 Rockdale Beef Pty Ltd v Industrial Relations Commission of NSW (2007) 65 IR 7 Sasterawan v Morris (2007) 69 NSWLR 547 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Southern Cross Airlines Holdings Ltd (in liq) v Arthur Andersen & Co (1998) 84 FCR 472 Spencer v Commonwealth of Australia [2012] FCAFC 169 State of New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60 SVI Systems Pty Ltd v Best & Less Pty Ltd [2000] FCA 1507 The Commonwealth of Australia v Northern Land Council [1993] HCA 24; (1993) 176 CLR 604 Towercom Pty Ltd v Moustafa Fahour [2011] VSC 455 Wainohu v State of New South Wales (2011) 243 LLR 181 Category: Separate question Parties: Department of Trade and Investment, Regional Infrastructure and Services (Applicant) Jennifer Anne Nash (Prosecutor) Glennies Creek Coal Management Pty Ltd and Integra Coal Operations Pty Ltd (Respondents/Defendants in the substantive proceedings) Representation: Mr S Odgers SC with Ms M Kumar of counsel (Department of Trade and Investment, Regional Infrastructure and Services - Applicant) Mr J Agius, SC with Mr C Magee of counsel (Prosecutor) Mr A Moses, SC (Respondents) I V Knight, Crown Solicitor's Office (Applicant and Prosecutor) Ashurst Australia (Respondents) File Number(s): IRC 780 of 2013 JUDGMENT 1These proceedings, which arise pursuant to s 196 of the Industrial Relations Act 1996 ("the IR Act") and s 5AE of the Criminal Appeal Act 1912 ("the CA Act"), require the determination, by the Full Bench of the Industrial Court of New South Wales, of a stated case. It is convenient at the outset to summarise the history of the proceedings. 2On 31 March 2011, Robert William Regan, filed applications for order charging Glennies Creek Coal Management Pty Ltd (315 of 2011) ("Glennies Creek") and Integra Coal Operations Pty Ltd (316 of 2011) ("Integra Coal") with contraventions of the Occupational Health and Safety Act 2000 ("the OHS Act"). Glennies Creek was charged with contravening s 8(1) of the OHS Act and Integra Coal with contravening s 8(2) of that Act: Nash v Glennies Creek Coal Management Pty Ltd [2013] NSWIRComm 60 at [1] and [2]. 3Mr Regan stated in the applications for order and deposed in the affidavits 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 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. 4On 7 March 2012, by consent, the applications for order were amended to substitute Jennifer Anne Nash for Mr Regan as prosecutor. 5From April 2009, until the commencement of the proceedings against the respondents (the defendants in the substantive proceedings), Mark William Freeman, an officer of the Department of Trade and Investment Regional Infrastructure and Services ("the Department"), had the conduct of an investigation into the alleged breaches of the OHS Act by the defendants. 6The respondents challenge whether the proceedings against them have been validly commenced by a person authorised under s 106 of the OHS Act and whether the absence of prosecution disclosure regarding proposed amendments to the CMHS Act, has resulted in an abuse of process. 7On 10 July 2013, the respondents served summonses and Notices to Produce on the Department and the prosecutor. 8On 13 August 2013, Boland J, in an interlocutory judgment, determined Notices of Motion filed by the Department seeking to set aside the summonses and Notices to Produce on various grounds, including that the summonses and the notices sought documents which were the subject of a claim for public interest immunity and/or client legal privilege: Nash v Glennies Coal Management Pty Ltd (No 2) [2013] NSWIRComm 67 ("Nash (No 2)"). 9His Honour made orders in Nash (No 2) at [172] as follows: The 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. 10Following the decision in Nash (No 2) the Department made an application to refer questions of law to a Full Bench pursuant to s 5AE of the CA Act. Boland J declined to refer the questions: Nash v Glennies Creek Coal Management (No 3) [2013] NSWIRComm 72 at [46] ("Nash (No 3)"). 11At the outset of the hearing of the application to refer questions of law the prosecutor indicated to Boland J that she joined in the reference: Nash (No 3) at [8]. 12On 29 August 2013 the Department, again supported by the prosecutor, filed a document proposing the terms of a case to be stated by Boland J to the Full Bench of questions of law arising from Nash (No 2): see Nash v Glennies Creek Coal Management Pty Ltd (No 4) [2013] NSWIRComm 80 ("Nash (No 4)") at [4]. 13On 18 September 2013, pursuant to s 196 of the IR Act and s 5AE of the CA Act, Boland J stated a case to the Full Bench of the Industrial Court of New South Wales: Nash (No 4) at [58]. In the stated case, six questions were referred to the Full Bench for determination. These questions were: (i) Did I err in law in holding that an assertion that a state of mind was formed after the receipt of legal advice, in response to a request to provide information as to when that state of mind was formed, could put in issue that state of mind for the purposes of s 122 Evidence Act and the common law relating to waiver of legal professional privilege and thereby waive privilege in respect of that advice (see Nash No 2, paragraphs [123], [125], [170] - [171])? (ii) Did I err in law in holding that a prosecutor's assertion in correspondence with a defendant, that she formed a particular state of mind with regard to an issue in the proceedings on the basis of legal advice, could put in issue that state of mind for the purposes of s 122 Evidence Act and the common law relating to waiver of legal professional privilege and thereby waive privilege in respect of that advice (see Nash No 2, paragraphs [170] - [171])? (iii) Did I err in deciding the claim of public interest immunity by failing to determine whether, taking into account the contents of each document in respect of which a claim was made, each document was crucial to, or at least important for, the proper determination of the proceedings (see Nash No 2, paragraph [79], [82], [90])? (iv) Was I required as a matter of law to give reasons for finding that, taking into account the contents of each document in respect of which a claim was made, each document was crucial to the proper determination of the proceedings? (v) Was it open to me as a matter of law to find that, taking into account the contents of each document in respect of which I disallowed the claim of public interest immunity, all of those documents were crucial to the proper determination of the proceedings? (vi) Was it open to me as a matter of law to allow the claim of public interest immunity with respect to Confidential Exhibits MP-A and MP-B only in relation to those documents or pages of documents marked "Cabinet in Confidence" (see Nash No 2, paragraph [90])? 14His Honour declined to submit three additional questions proposed by the Department and the prosecutor. 15Relevantly, one of the three questions was: 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 of the Evidence Act and the common law relating to waiver of legal professional privilege (see judgment [156], [160], [165])? 16The Department challenged his Honour's refusal to submit this question and sought an order from the New South Wales Court of Appeal to compel his Honour to submit this question to the Full Bench. 17The Court of Appeal dismissed the summons seeking the above order: Department of Trade and Investment, Regional Infrastructure and Services v Glennies Creek Coal Management Pty Ltd [2013] NSWCA 371 ("Glennies Creek"). 18On 12 November 2013, the Department and the prosecutor filed a further Notice of Motion 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. 19The 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? 20In Nash v Glennies Creek Coal Management Pty Ltd (No 5) [2013] NSWIRComm 99 ("Nash (No 5)"), Boland J made the following orders at [30]: (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. 21It follows that seven questions have been referred for consideration by the Full Bench which, in substance, emerge from Notices of Motion filed or applications made by the Department and the prosecutor. Relevant statutory provisions 22The relevant statutory provisions are s 196 of the IR Act (now repealed) and s 5AE of the CA Act. 23Section 196 of the IR Act provides as follows: 196 Appeals from and references by members of Commission in criminal proceedings (1) This section applies (and the other provisions of this Part do not apply) to appeals and references to the Full Bench of the Commission in Court Session in respect of criminal proceedings taken before a judicial member of the Commission. (2) The Criminal Appeal Act 1912 applies to any such appeal or reference in the same way as it applies to an appeal or reference to the Court of Criminal Appeal in respect of criminal proceedings taken before a Judge of the Supreme Court in its summary jurisdiction. (3) For the purposes of subsection (2), a reference (however expressed) in the Criminal Appeal Act 1912: (a) to the Court of Criminal Appeal-is taken to be a reference to a Full Bench of the Commission in Court Session, and (b) to the Supreme Court-is taken to be a reference to the Commission in Court Session, and (c) to rules-is taken to be a reference to rules of the Commission, and (d) to the Attorney General-is taken to include a reference to the Minister, and (e) to the Director of Public Prosecutions-is taken to include a reference to the prosecutor in the proceedings before the Commission in Court Session, and (f) to the registrar-is taken to be a reference to the Industrial Registrar. (4) Subsection (2) does not apply to any provision of the Criminal Appeal Act 1912 relating to costs. 24Section 5AE of the CA Act provides as follows: 5AE Point of law stated during summary proceedings (1) At any time before the completion of proceedings before the Supreme Court in its summary jurisdiction, the Land and Environment Court in its summary jurisdiction, the Industrial Relations Commission in Court Session in its summary jurisdiction, the District Court in its summary jurisdiction or a Court of Coal Mines Regulation in its summary jurisdiction, the judge hearing the proceedings may, or if requested by the Crown must, submit any question of law arising at or in reference to the proceedings to the Court of Criminal Appeal for determination. (2) The Court of Criminal Appeal may make any such order or give any such direction to the court concerned as it thinks fit. 25As we have noted, the application before Boland J to refer the questions of law was made jointly by the Department and by the prosecutor. Before the Full Bench, the prosecutor, in addition to submitting written submissions, adopts and relies upon the whole of the submissions of the Department. Questions (i), (ii) and (vii): Waiver of client legal privilege 26The Department claimed client legal privilege in respect of certain documents which Boland J found met the description of confidential communications (and were therefore privileged): Nash (No 2) at [121]. However, his Honour held that there had been an implied waiver of privilege in respect of legal advice given to the prosecutor, Ms Nash, as a result of a letter written on 12 July 2013 by the Crown Solicitor's Office, on behalf of Ms Nash, to solicitors for the respondents. In that regard his Honour said (in Nash (No 2) at [160]) that the 12 July letter revealed, "the gist of the legal advice", received by Ms Nash, and, "by disclosing the substance of the legal advice that led Ms Nash to reach certain conclusions, there had been an implied waiver of privilege" (Nash (No 2) at [165]). His Honour also found that, as a result of what was put in issue by the letter of 12 July 2013, there had been waiver of privilege: (Nash (No 2) at [171]). 27It is convenient to commence consideration of the group of questions which deal with waiver of client legal privilege by first considering Question (vii). This was the approach adopted by the Department without demur from the respondents. We see no reason to depart from that approach since, according to the Department, if there is a finding to the effect that there has not been disclosure of the substance of legal advice (the issue which arises in relation to Question (vii)) there may still be waiver of client legal privilege on the basis of what is conventionally called "issue waiver" (the subject of Questions (i) and (ii)). Question (vii) 28The respondents contended that Question (vii) is not a question of law under s 5AE of the CA Act. Considerable reliance for this proposition was placed on a line of cases commencing with the High Court decision in Hope v Bathurst City Council (1980) 144 CLR 1. The critical passages from the judgment of Mason J appear at pp 7 and 8 as follows: Many authorities can be found to sustain the proposition that the question whether facts fully found fall within the provisions of a statutory enactment properly construed is a question of law. One example is the judgment of Fullagar J. in Hayes v. Federal Commissioner of Taxation, where his Honour quoted the comment of Lord Parker of Waddington in Farmer v. Cotton's Trustees, which was adopted by Latham C.J. in Commissioner of Taxation v. Miller, that where all the material facts are fully found, and the only question is whether the facts are such as to bring the case within the provisions properly construed of some statutory enactment, the question is one of law only. Fullagar J. then said: " ... this seems to me to be the only reasonable view. The distinction between the two classes of question is, I think, greatly simplified, if we bear in mind the distinction, so clearly drawn by Wigmore, between the factum probandum (the ultimate fact in issue) and facta probantia (the facts adduced to prove or disprove that ultimate fact). The 'facts' referred to by Lord Parker ... are the facta probantia. Where the factum probandum involves a term used in a statute, the question whether the accepted facta probantia establish that factum probandum will generally-so far as I can see, always-be a question of law." ... 29According to the respondents, the proposition enunciated by the High Court in Hope v Bathurst City Council (a question of law could arise as to whether facts fully found come within the meaning of words in a statute) is subject to a very critical qualification which was expressed by a Full Court of the Federal Court in Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 288 as follows: This principle is qualified when a statute uses words according to their ordinary meaning and the question is whether the facts as found fall within those words. Where it is reasonably open to hold that they do, then the question whether they do or not is one of fact: Hope v Bathurst City Council at 8. Mason J there cited the observation of Kitto J in New South Wales Associated Blue-Metal Quarries Ltd v Commissioner of Taxation (Cth) (supra) at 512: "The next question must be whether the material before the Court reasonably admits of different conclusions as to whether the ... operations fall within the ordinary meaning of the words as so determined; and that is a question of law ... If different conclusions are reasonably possible, it is necessary to decide which is the correct conclusion; and that is a question of fact ... " 30In the present proceedings the issue raised by Question (vii) is whether it was open to Boland J to find that there was disclosure of the substance of legal advice for the purposes of s 122 of the Evidence Act 1995 (and the common law). The respondents' contention is that the words "disclosure" and "substance" have their ordinary meanings within s 122 and therefore the determination of whether "facts fully found" (as referred to in Hope v Bathurst City Council) fall within the meaning of the words used in s 122 is a question of fact. 31On this issue, however, we agree with the Department's submission that the respondents' reliance on the remarks of the Full Federal Court in Pozzolanic, extracted above, is misconceived. It seems clear to us that the passage extracted above from Pozzolanic by the respondents may be read as establishing two propositions: first, the question, whether it is reasonably open to hold that the facts fall within statutory words, is a question of law. Secondly, if it is reasonably open to hold that they do, the question whether they do or not is a question of fact. 32The matter was touched upon by Basten JA in Elias v Director of Public Prosecutions (NSW) (2012) 222 ACrimR 286 where his Honour said (at [19]): The ordinary meaning of a non-technical word is a question of fact: whether facts found are capable of falling within the meaning may be a question of law, and that may be the case whether or not the word is to be given its ordinary meaning: Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 395. 33In Glennies Creek, the Department sought an order quashing orders made by Boland J and an order to compel his Honour to submit one question of law to a Full Bench of this Court. The question in issue was formulated as follows: 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? 34During the course of reasons Basten JA considered whether the question as formulated was a question of law. His Honour at [27] and [28] said: The respondents, in submissions as to whether the question involved a question of law at all, referred to the remarks in the joint reasons in Osland v Secretary, Department of Justice (Vic) [2008] HCA 37; 234 CLR 275 that "questions of waiver are matters of fact and degree": at [49], adopting a statement of Tamberlin J in Nine Films and Television Pty Ltd v Ninox Television Ltd [2005] 65 IPR 442 at [26]. The Court noted that the comment was made in the context of common law principles of waiver and not by reference to s 122 of the Evidence Act 1995 (NSW), which was the relevant point of reference in the present case. While context will be critical and questions of fact will undoubtedly arise in relation to what may constitute an "imputed" waiver, because it may arise in circumstances where there is no conscious intention to waive privilege the exercise is governed by legal principles. The question for the trial judge in the present case had been whether Ms Rizzo's letter disclosed "the substance" of any legal advice. It acknowledged that Ms Nash had had a telephone conversation with the principal legal officer and that it was "likely" that he said something about the relevant issues in the conversation. However, the purpose of the letter was to set out what Ms Nash "understood and believed" as a result, in part, of receiving legal advice. 35His Honour continued (at [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. 36Basten JA's reformulation of the question bears some similarity to the question which is before us for consideration as Question (vii). In our view Question (vii) is directed to an inquiry as to whether the facts or material disclosed in the letter of 12 July 2013 are capable of, or can amount to, a disclosure of the substance of the legal advice. So understood, Question (vii) is a question of law. 37Question (vii) raises a species of waiver referred to as "disclosure waiver". "Disclosure waiver" will occur pursuant to s 122(3) of the Evidence Act where "the substance of the evidence" is "disclosed" in accordance with the terms of that provision. There appeared to be no dispute between the parties that pre-trial processes (as here) apply derivatively to s 122 of the Evidence Act by virtue of s 131A of that Act. For present purposes subs 122(1) to (3) inclusive are relevant. They provide: 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. 38It may be noted that pursuant to s 122(3) there is no requirement that the "client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of evidence" (s 122(2)). The Department explained that if there is disclosure within the terms of s 122(3) this will be deemed to constitute inconsistent conduct. The position at common law is different. Disclosure is not enough - there must be inconsistency between the conduct of the client and maintenance of the confidentiality which the privilege is intended to protect: Mann v Carnell (1999) 201 CLR 1 at [29]; Osland v Secretary, Department of Justice (2008) 234 CLR 275 at [45]. Notwithstanding the distinction, it was accepted by the parties in these proceedings that if there was disclosure of the substance of the advice it was open to find waiver. We intend to adopt this approach in our consideration of Question (vii). 39In Nash (No 2) Boland J concluded that the substance of the legal advice had been disclosed by the letter of 12 July 2013. At [126] of that decision Boland J summarised what was "disclosed" by the letter. The parties take no issue with that summary. For convenience the paragraph is extracted in full below: The 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". 40Boland J's reasons for his conclusion that the substance of the legal advice had been disclosed by the letter of 12 July 2013 are set out in Nash (No 2) commencing at [123]. The critical passages are set out in [155], [156], [157] and [160]. For convenience these passages are extracted below: Ms 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". 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. What 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. ... 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. 41According to the Department, it was apparent from these passages that his Honour's reasoning was as follows: (i) The letter of 12 July disclosed that Ms Nash formed certain views about Mr Regan's authority to commence and continue the prosecutions and the desirability of amendments to the CMHS Act. (ii) Those views were formed "as a result of discussions with others in the Department and of information she was given". (iii) It was "highly probable" that the "others" were lawyers and the "information" she received came from lawyers. (iv) The inference was drawn that Ms Nash received legal advice to the same effect as the views that Ms Nash formed and that were disclosed in the letter. (v) Therefore, the letter disclosed the substance of the legal advice received by Ms Nash. 42The Department advanced four points in support of its submission that it was not open to Boland J to find that by reason of the letter of 12 July 2013 there was disclosure of the substance of the legal advice received by Ms Nash. 43First, according to the Department, a mere reference to the existence of legal advice cannot amount to disclosure of the substance of that advice. The proposition cannot be doubted and indeed is well established: see for example Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1996) 137 ALR 28; 70 ALJR 603 at 607 per Kirby J; BT Australasia Pty Ltd v NSW (No 7) (1998) 153 ALR 722; BT Australasia Pty Ltd v NSW (No 8) (1998) 154 ALR 202; Australian Competition & Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526; 153 ALR 393 at 569 - 571; Southern Cross Airlines Holdings Ltd (in liq) v Arthur Andersen & Co (1998) 84 FCR 472 at 479F. 44Secondly, the Department contended that Boland J engaged in mere speculation regarding the substance of legal advice received by Ms Nash. In support of this contention the Department called in aid comments made by Basten JA in Glennies Creek. In Glennies Creek his Honour referred to a particular sentence in the letter of 12 July 2013 which was expressed as follows: During the later part of August 2010 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. 45Basten JA's comments on the sentence appear at [23]: This sentence does not in terms refer to legal advice: nor does it identify any document containing legal advice. It is incapable in its terms of constituting a waiver of lawyer-client privilege in respect of a particular (unknown) document. Indeed, it is not possible to infer from this statement that any relevant document existed, let alone what were the contents of the document. 46His Honour continued his commentary (at [37]): The person may have misunderstood or mistaken the advice; or other material relied upon may have led to a belief which only partly accepted the advice, or indeed rejected it. Given such possibilities, it might be arguable that no inference could reasonably be drawn as to the substance of the advice having been disclosed in that communication, ... 47In oral submissions, the Department sought to explain that Basten JA's observations although not binding were being utilised by it in support of the proposition maintained by the Department that what the author of the 12 July 2013 letter said on behalf of Ms Nash was essentially a matter of speculation. In support of this the Department directed attention to a second sentence in the 12 July 2013 letter which was expressed as follows: As a result of discussions with others in the Department and of information she was given by mid-August, Ms Nash understood and believed that there was no legal issue regarding Mr Regan's authority to commence or continue prosecutions under the OHS Act. 48Based on both sentences the Department made the following points: i) neither sentence was capable of revealing the existence of any document let alone the substance of the contents of any document; ii) it could not be inferred that, if there was a document containing legal advice, it contained advice to the same effect as the view formed by Ms Nash. There might be a variety of opinions expressed in legal advice which Ms Nash took into account. Further, it may be that in forming her views, Ms Nash misconstrued or misunderstood any legal advice that she received; iii) to take the example of the view that there should be an amendment to the CMHS Act, the legal advice might have stated that the appointment was invalid and needed to be validated, or there was doubt about the validity of the appointment, or there was no doubt about the validity of the appointment but legal costs would be saved if the legislation were passed. To choose between these possibilities involves mere speculation. It was not open to infer the substance of the legal advice from the views formed by Ms Nash. 49The Department's contentions in support of its second point have considerable force, however, there are obvious difficulties in confining the analysis essentially to two sentences extracted from the 12 July 2013 letter. The Department put its four points in the alternative. We propose to consider the Department's third and fourth points before coming to any concluded view in relation to Question (vii). 50The Department's third point relies upon the distinction drawn by the authorities between a person's statement of his or her views said to be based on legal advice and a statement of the substance of that advice. According to the Department, the letter of 12 July 2013 discloses only Ms Nash's views and opinions, not the substance of the legal advice. 51In Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1996) 40 NSWLR 12 ("Ampolex"), the following statement was made at p 58 of a document which was the subject of privilege: Ampolex's views as to the likely outcome of the Convertible Note litigation. The views set out below have regard to the pleadings, the evidence available to Ampolex and the advice of the barristers and the solicitors engaged by Ampolex for the purposes of the litigation, as at 1 May 1996. Ampolex considers that: (a) it is likely that Ampolex will be successful in establishing the conversion ratio for the Convertible Notes as one Ordinary Share for each Convertible Note and, if so, it is unlikely that there would be any further substantial claim against Ampolex in respect of the conversion ratio of the Convertible Notes by any Convertible Noteholder not party to the litigation; (b) it is unlikely that there will be any substantial effect on Ampolex resulting from the cross-claims made in the litigation; and (c) if Ampolex is unsuccessful in establishing the ratio for the Convertible Notes as one Ordinary Share for each Convertible Note it has a strong claim against Mallesons for damages for professional negligence in respect of any loss it may suffer arising out of issues raised in the present proceedings, subject to the cross-claim by Mallesons against Ampolex for contributory negligence. 52Rolfe J held that the statement did not constitute a disclosure of the substance of legal advice of the barrister and solicitors engaged by Ampolex for the purpose of the litigation. His Honour's reasons for so finding are set out in Ampolex at 17 to 18: ... In my view, on a fair reading of what appears at 58 of exhibit 4 and 6D 94 in the context of all the other material in it, the words are a statement of Ampolex's view of the likely outcome of the litigation and they are not a statement of either the substance or effect of the advice. Those seeking disclosure point, of course, to the fact that the view is based, inter alia, on the advice. I do not think it could be suggested that the advice did not play a part in the formation of Ampolex's view. However, the question is whether the statement of Ampolex's view, albeit based on the material to which Ampolex refers, is a disclosure of Ampolex's view or a disclosure of the material on which that view was based. Section 122(2) of the Evidence Act 1995 requires a disclosure of the substance of the legal advice. I do not regard the statement of Ampolex's view as constituting a disclosure of the legal advice. It may be that in forming its opinion Ampolex has misconstrued or misunderstood the advice. However that may be, the statement does not rise above a statement of Ampolex's view and it does not purport to state the advice, or its substance or effect and, therefore, it does not amount to a disclosure of the advice. ... 53In SVI Systems Pty Ltd v Best & Less Pty Ltd [2000] FCA 1507, Einfeld J considered (at [2]) whether s 122(2) of the Evidence Act supported an argument that in a fax of 20 October 1998, referring to a telephone conversation of five days earlier, it had been disclosed that, in determining not to proceed with the roll out, the new Best and Less parties relied upon legal advice which was obtained from their solicitors Abbott Tout on or about the day on which the decision not to continue with the roll out was taken. His Honour found in effect that there had been no disclosure of the substance of the legal advice, "merely because its recipient told his opponent that he was relying on legal advice in taking a particular stance on a particular disputed matter between them" (at [5]). 54In Towercom Pty Ltd v Moustafa Fahour [2011] VSC 455, Towercom in its claim against the defendant pleaded as an integer in its particulars of loss that the market value of land was between $1.525 and $1.85 million. The foundation for that pleading was a valuer's opinion. The defendant sought access to the opinion on the basis that any privilege attached to the opinion had been waived by Towercom. In holding that Towercom had not consensually disclosed the substance of the evidence to the defendant (and therefore there was no express or implied waiver of the privilege) Macauley J said (at [19]): I do not hold that view because of any absence of consent, or because the plaintiff has acted under compulsion in having to plead market value to properly particularise its loss, as was argued for Towercom. Rather, it is because the assertion of market value in the particulars of loss is not disclosure of the substance of evidence or the substance of a document, and does not purport to be. It is the assertion of a fact for which it was once assumed, and now must be certified, there is a proper basis for the making of it. The evidentiary basis for the assertion of the fact, for which the solicitor certifies there is a proper basis, remains to be seen. 55The Department relied on these authorities to support its contention that a statement of a person's views said to be based on legal advice does not constitute a disclosure of the substance of the legal advice. The language employed in the 12 July 2013 letter in our view is substantially similar to the statements made at p 58 of the document which was the subject of consideration in Ampolex. By way of example, according to the letter of 12 July 2013, Ms Nash became aware of "possible issue/difficulties" with aspects of Mr Regan's appointment although she could not recall anything that was said about the validity of Mr Regan's appointment but it was "likely" that Mr Bennett said "something" (about that). It was also "likely" that they discussed legislative amendments. The letter continued, that as a result of discussions with "others in the Department" and of "information she was given" by mid-August 2012, Ms Nash "understood and believed" that there was no legal issue regarding Mr Regan's authority to commence and continue prosecutions under the OHS Act. Ms Nash is said to have, "formed the view" that amendments should be proposed to the CMHS Act. She "believed" that the proposed amendments to the CMHS Act were primarily directed to the functions and powers of the Chief Inspector etc. She was "still of the view" that Mr Regan had authority to commence and continue prosecutions under the OHS Act. She "understood" that the proposed amendments to the CMHS Act would also have the effect of validating Mr Regan's actions in commencing and continuing the prosecutions under the OHS Act although she "believed" that the effect was consequential and was for abundant caution. She "maintains her view" that Mr Regan had authority to commence and continue prosecutions under the OHS Act. 56It is apparent to us from the above examples that the letter consisted, primarily, of expressions of Ms Nash's views, her beliefs and understanding as to certain matters. It was also vague and speculative in its references to unspecified "others" and in its failure to recall the content of discussions, instead seeking refuge in the likelihood of an event having occurred. On no reasonable basis, in our view, can the contents of the letter constitute disclosure of the substance of legal advice. Moreover, there was no express statement in the letter of any legal advice having been received. 57According to the respondents there was an implied disclosure of legal advice found in the communications between Ms Nash and Mr Bennett, and with "others in the Department", and as a result of "information she was given". The content of those communications are set out in the respondents' written submissions, extracted below: 2.26 In the 12 July Letter the following facts and matters are disclosed: ... (b) On or about 26 or 27 June 2013, Ms Nash had a telephone discussion with Kevin Bennett, Principal Legal Officer Prosecutions Litigation and Advisings Unit Legal Services Branch NSW Department of Trade and Investment, Regional Infrastructure and Services. As part of this discussion, Ms Nash and Mr Bennett discussed: (i) "possible issues/difficulties with certain aspects of Mr Regan's appointment arising from the prosecutions of Southern Colliery Maintenance Pty Limited which was on foot at the time"; (ii) "the validity of Mr Regan's purported appointment as Chief Inspector on 22 December 2006"; (iii) "legislative amendments of some form in relation to appointment/s" of Mr Regan; (c) In or around "mid-August" 2012, Ms Nash "understood" that there were "no legal issues regarding Mr Regan's authority to commence or continue prosecutions" against the Defendants under the Occupational Health and Safety Act 2000 (NSW). This understanding was formed on the basis of: (i) "discussions with others in the Department" (ie. other than the discussion with Mr Bennett in or about 26 or 27 June 2012); and (ii) "information she was given". (d) 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" (ie. other than the discussion with Mr Bennett in or about 26 or 27 June 2012); and (ii) "information she was given". 58The respondents' submission takes the matter no further. The communications set out above constitute a repetition of the expressions of Ms Nash's views, beliefs and understanding based on what "others" have told her and on "information she has received". As we have indicated, this did not amount to disclosure, express or implied, of the substance of legal advice. It represented no more than a statement of the views of Ms Nash based on advice she had received but without revealing the content or substance of that advice. 59This brings us to the Department's fourth point which rests on a distinction between disclosure and inferences drawn from what is disclosed. According to the Department, Boland J erred in holding that matters which might be inferred from matters disclosed in a communication may themselves be treated as disclosed for the purpose of determining whether privilege had been waived. As we apprehend this particular point, it is the Department's contention that Boland J in Nash (No 2) at [156] erred by holding that an inference may be drawn that Ms Nash received legal advice to the same effect as the views she formed and that were disclosed in the 12 July 2013 letter. 60A number of authorities are relied upon by the Department in support of the distinction. Principal among them is Osland, in which the High Court considered a press release which contained the following three sentences (see Gleeson CJ, Gummow, Heydon and Kiefel JJ at [15]): This week I received a memorandum of joint advice from the panel in relation to the petition. The joint advice recommends on every ground that the petition should be denied. After carefully considering the joint advice, I have recommended to the Premier that the Governor be advised to deny the petition. 61The majority held (at [45] (and see [16])) that it was "undoubtedly correct" that, if the press release had not included the second sentence, privilege would not have been waived. According to the Department there was no suggestion that, in the absence of the second sentence, the substance of the legal advice might be inferred from the third sentence. The respondents contended on this particular issue that Osland is not authority for the proposition advanced by the Department in support of its fourth point. We do not agree. As we have found there is no express statement in the letter of 12 July of any legal advice having been received, let alone any statement which might have revealed what was recommended by any legal advice. All the letter reveals is the prosecutor's views, beliefs and understandings. Just as the author of the press release in Osland (third sentence) could have considered the joint advice and simply ignored it and come to his or her own view (that the Governor should deny the petition), Ms Nash upon receipt of the legal advice could have simply ignored the advice and formed her own views. 62The point is also illustrated by reference to RinRim Pty Ltd v Deutsche Bank Australia Limited & Ors [2013] NSWSC 1654. In that decision the statement, "Counsel had recommended seeking preliminary discovery" was said not to constitute disclosure of legal advice. In holding that the disclosure of the recommendation of counsel did not amount to disclosure of the substance of legal advice within s 122(3) of the Evidence Act, Darke J said (at [43]): There has been no disclosure of counsel's opinion as to prospects of success. It may be inferred from the recommendation itself that the opinion of counsel was that an application for preliminary discovery had at least reasonable prospects of success. However, there is no disclosure of counsel's opinion in that respect. Assuming that counsel expressed such an opinion in the Advice, that opinion may have been that the prospects were excellent, good, fair or only reasonably arguable. Where the opinion lay on that spectrum was not disclosed. 63It remains to consider whether, consistent with the Department's submission, Boland J fell into error by impermissibly inferring disclosure of the substance of the legal advice received by Ms Nash from the assertions made in the 12 July 2013 letter. The paragraph in Nash (No 2) said to demonstrate the error is [156] which we have extracted earlier. In Nash (No 4) Boland J was confronted with the same contention raised here by the Department, namely, that it was impermissible for the Court to determine what might be inferred from the 12 July 2013 letter for the purposes of deciding what had been disclosed in that letter. Boland J (at [17]) dealt with the contention by explaining his finding in Nash (No 2) at [156]: 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). 64In the passage Boland J clearly says that he did not infer disclosure of the substance of the legal advice from the contents of the 12 July 2013 letter. His Honour, therefore, did not fall into error in the way suggested by the Department. All his Honour did was infer that Ms Nash received legal advice. There is no challenge, nor could there be, to the drawing of such an inference. It follows from these findings that the Department has not succeeded on its fourth point. The Department's four points raised in respect to Question (vii) were put in the alternative. We have already found that Ms Nash's views, beliefs and understanding expressed in the 12 July 2013 letter as being "based on", "founded on" or having "had regard to" legal advice, did not constitute disclosure of the substance of the legal advice. The Department therefore succeeds on its third point. 65We should mention one further contention advanced by the respondents. According to the respondents, it is clear from the letter of 12 July 2013 that Ms Nash's understanding, beliefs and views were formed, "as a result of" the legal advice she received from Mr Bennett and "others" in the Department. There is said to be a direct connection between the discussion had with, and the information provided to, Ms Nash (which was legal advice), and the beliefs she then formed and the actions she subsequently took. Put another way, the respondents contended that the words, "as a result of" which appear in the letter of 12 July 2013, create a causal connection between the advice on the one hand and the views formed and the steps taken on the other hand. We note that there is no dispute that there is a causal connection between the advice and the views formed and steps taken by Ms Nash. However, as the Department points out that is quite a different proposition from a finding that Ms Nash disclosed the substance of the legal advice. 66It follows from what we have said that Boland J's conclusion that the letter of 12 July 2013 "disclosed" the substance of the legal advice received by Ms Nash for the purposes of s 122 of the Evidence Act was not open. Question (vii) should be answered, "no". Questions (i) and (ii) 67Questions (i) and (ii) concerned similar issues and may be dealt with together. Question (i) has a more narrow focus, namely, whether it is open to say that a party (the Department) who has provided a response to a request from another party (here the respondents) has by that conduct put in issue it's state of mind. 68The respondents submitted that neither question is a question of law under s 5AE of the CA Act. In relation to Question (i) (although presumably the same contentions are intended to apply to Question (ii)), the respondents contended that it is not a question of law because: (a) the formulation of the question referring to "holding" that a "state of mind" was formed, involves a finding of fact; (b) the question relates to a decision as to whether privilege in a particular document was waived, which is a question of fact: see Bennett v Chief Executive Officer, Australian Customs Service (2004) 140 FCR 101; (c) there is no identification of any legal test in question (i); (d) the question in truth seeks to impermissibly challenge the ultimate factual finding made: R v Madden (1995) 85 A Crim R 367; R v Porter (2004) 141 A Crim R 593 at [30]; (e) it seeks to circumvent the operation of the IR Act and the CA Act in relation to criminal appeals because it in essence seeks to challenge a finding of fact in an interlocutory decision; and (f) the question is not directed at assisting the trial judge to apply the correct law. 69The contentions were not developed to any extent although the respondents in written submissions placed reliance upon a number of authorities said to establish certain propositions applicable to the primary argument that the questions are not questions of law. One contention advanced by the respondents was that the question of waiver of legal privilege has been held to be a question of fact or, at least, mixed fact and law. Osland at [49] was cited in support of the contention. In that paragraph the High Court approved a statement made by Tamberlin J in Nine Films and Television Pty Ltd v Ninox Television Ltd (2005) 65 IR 442 at 447 that, "questions of waiver are matters of fact and degree". The High Court's comments were made in the context of examining whether a limited disclosure of legal advice is inconsistent with maintaining confidentiality in the terms of the advice, which the High Court noted, "depends upon the circumstances of the case". This is undoubtedly correct however it provides little support for the respondents' contention. 70The respondents also relied on authorities in which difficulties have been expressed with the formulation of a proposed question of law which commences with the words "Did I err in finding [x] ...". Questions (i) and (ii) commence with similar wording, namely, "Did I err in holding that ...". One authority relied upon by the respondents was Sasterawan v Morris (2007) 69 NSWLR 547. In that case, the Court of Appeal heard an application for an extension of time to appeal by way of a case stated under s 5B(3) of the CA Act (at [3]). Three questions were referred under s 5B(2). Each question commenced with, or contained within it, the phrase, "Did I err in law in accepting that ...". Basten JA suggested that there was, "some awkwardness in formulating questions in this way". At [15] his Honour said: ... The questions in the present case seek to ask Did I err in law, which does not leave open the possibility of other forms of error, but, at the same time, does not identify any specific question of law for determination by this Court. (This form of question seems not uncommon, but is not therefore appropriate: see Garrett v Freeman (2006) 68 NSWLR 729 at 735 [43].) 71Despite expressing reservations about the form of the questions, Basten JA granted the application to extend time and proceeded to determine the questions (at [37]). 72A further authority relied upon by the respondents to support the contention that Questions (i) and (ii) are not questions of law was Robinson v Woolworths Ltd (T/As Woolworths Plus Petrol Werrington) (2005) 64 NSWLR 612. In Robinson, the Court of Appeal had before it three questions referred by way of a case stated under s 5B of the CA Act. Question 1 commenced with the words, "Did I err in holding ...". In commenting on the form of the question Basten JA said (at [8]): The awkwardness of the procedure adopted is reflected in the formulation of these questions. For example, the first question asks whether his Honour erred in reaching a conclusion as to the appropriate characterisation of the conduct of the prosecutor. The reference to the prosecutor is imprecise because, as will appear below, there was no assertion that Dr Robinson acted improperly. Putting to one side difficulties with the use of the term "prosecutor" in this context, the conclusion reached would appear to be an inference drawn from the facts, although the reasoning process may involve mixed questions of fact and law. The principal question might better have been formulated: "On the findings of fact [identified in the case stated] was the conduct capable of constituting 'improper' conduct for the purposes of s 138(1) of the Evidence Act?" 73Again, despite expressing reservations about whether the question was a question of law, his Honour proceeded to determine the question (at [50]). 74Based on the approach taken in the foregoing authorities Questions (i) and (ii) as presently formulated would not be precluded, necessarily, by reason of some awkwardness in drafting, from being treated as questions of law and determined under s 5AE. However in our view both questions are properly characterised as questions of law. Question (i) is directed, broadly, to whether Boland J erred in law in holding that the assertions in the letter of 12 July that the prosecutor's state of mind was formed upon the receipt of legal advice constituted issue waiver in circumstances where the assertions were in response to a request to provide information as to when that state of mind was formed. Question (ii) is directed, broadly, to whether Boland J erred in law in holding that the assertions in the letter of 12 July that the prosecutor's state of mind was formed on the basis of legal advice constituted issue waiver. It is not correct, in our view, as suggested by the respondents, that the formulation of the questions, referring to "holding" that a state of mind was formed, involves a question of fact. Rather, the questions of law arise, as suggested by the Department, on the basis that there was such a holding by Boland J in Nash (No 2) at [170] and [171]. 75A further basis upon which the respondents contended that Question (i) is not a question of law is that the question is said to impermissibly challenge the ultimate fact finding made. Two authorities are relied upon in support of the contention: R v Madden (1995) 85 A Crim R 367; and R v Porter (2004) 141 A Crim R 593 at [30]. In R v Madden Hunt CJ at CL found that a question referred under s5B of the CA Act which asked, "Did I err in law in holding that the offence had been proved?" was, "in form no more than an attempt to exercise a right of appeal": at 370. We fail to see any analogy at all to the form of the question posed in Madden and the form of Question (i) in these proceedings. Certainly Question (i) does not in terms seek to challenge "the ultimate fact finding made". Madden in our view provides little support for the respondents' contention. Question (i) is, as we have found, a specific question of law directed toward a discrete issue unlike the question considered by HHhHHunt CJ at CL which was worded generally and failed to identify a question of law (see also R v Porter at [30]). 76Section 122(2) of the Evidence Act, which we have extracted earlier, provides that client legal privilege will be waived where, "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". As the Department points out, under the common law, the test is expressed slightly differently - there must be inconsistency between the conduct of the client and maintenance of the confidentiality which the privilege is intended to protect. However the High Court clarified in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46; 303 ALR 199, that the principles recognised in Mann v Carnell, "articulated in relation to waiver at common law, apply with equal force in relation to the statutory question posed by s 122(2) of the Evidence Act, and made applicable by s 131A of that Act to the determination of a question of waiver of client legal privilege arising in the context of pretrial discovery": French CJ, Kiefel, Bell, Gageler and Keane JJ at [32]. 77The finding of Boland J relevant to the determination of Question (i), is found in Nash (No 2) at [171], extracted below: In 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. 78The Department's primary contention with regard to Question (i) is that a response to a request to provide information about a state of mind cannot put in issue that state of mind. Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86; (2006) 151 FLR 341 was relied upon to establish the contention. According to the Department, the Full Court of the Federal Court held in that decision (at [62] to [65]) that the Commissioner of Taxation ("the Commissioner") had not raised an issue in the substantive proceedings as to the state of mind in circumstances where the taxpayer had first challenged that state of mind. Thus, the prosecutor in the present case could not "put in issue" her state of mind (for the purposes of the law of waiver of client legal privilege) when she answered questions from the respondents regarding that state of mind. 79In Rio Tinto, the Commissioner issued three notices to Rio Tinto (then called CRA Ltd) in which a payment of some $100,000 was assessed as assessable income. Rio Tinto objected to the notices and the Commissioner substantially rejected the objections. Rio Tinto filed three applications in the Federal Court appealing against the Commissioner's objection decisions. At the time of filing the applications the Federal Court Rules ("the Rules") required the Commissioner to file and serve, "a statement outlining succinctly the Commissioner's contentions and the facts and issues in the appeal as the Commissioner perceives them" ("SFIC"). The Commissioner duly filed the SFIC. Following a successful objection to the sufficiency of an amended version of the SFIC, the Commissioner filed a new SFIC in relation to which Rio Tinto complained, in a letter to the Commissioner, that it was not adequate and further sought more details including, relevantly, the identification of the person who revealed the required state of satisfaction on behalf of the Commissioner and the identification of any documents taken into consideration by that person in reaching the state of satisfaction. 80In subsequent correspondence the Commissioner identified the person as "Mr P Alemis" and disclosed that the, "matters, things, circumstances and events", taken into consideration by Mr Alemis, "are to the best of his recollection those evidenced by the documents listed in (Schedules A, B, C and D attached)". When the application came before the docket judge his Honour held that the Commissioner had acted inconsistently with the maintenance of privilege in respect of the privileged scheduled documents. Although the Full Court found that there was no error in his Honour's ultimate disposition of the application before him, the Full Court found (at [62]) that his Honour had fallen into error in taking into consideration in reaching his ultimate conclusion that the Commissioner by his SFIC had raised an issue in the substantive proceedings as to his state of mind. At [64] the Full Court explained: The fact that the Rules require the Commissioner to file a SFIC before the taxpayer does not alter this analysis. In this statement the Commissioner must outline his or her position, including the issues as he perceives them on the appeal. It must be borne in mind, however, that prior to the formulation of any SFIC, the taxpayer, by objection, has already challenged the Commissioner's assessment, and requisite state of satisfaction and exercises of discretion. Against this background, to say that by formulating a SFIC stating a state of satisfaction that is a condition of the assessment, the Commissioner has put this state of satisfaction or exercise of discretion in issue is to over-simplify the position. In truth, the Commissioner's state of satisfaction is before the court because the taxpayer challenges the relevant assessment, on objection and appeal, on Avon Downs grounds. The Commissioner's assertion about his or her satisfaction or discretion is not in issue unless the taxpayer challenges it, under cover of an objection, as having been reached or exercised other than according to law. The institution of the taxpayer's appeal maintains the taxpayer's challenge. In requiring the Commissioner to file a SFIC the Rules recognise the exigencies of litigation: see Dalco at 625 per Brennan J; Bailey v Commissioner of Taxation [1977] HCA 11; (1977) 136 CLR 214 at 217 per Barwick CJ, 219 per Gibbs J, 221 per Mason J, 221 per Jacobs J and 227 per Aickin J. This requirement does not, however, alter the fundamental character of a taxation appeal. 81Significantly, the Full Court said that even if the Commissioner had raised an issue in the substantive proceedings as to his state of mind this alone would not provide a proper basis for "issue waiver". The Full Court said on this matter (at [65]): In any event, even if his Honour was correct in holding that, by the SFIC, the Commissioner raised an issue in the substantive proceeding as to his states of mind, this alone would not provide a proper basis for 'issue waiver'. As the previous examination of the authorities shows, the question is not whether the Commissioner has put his state of mind in issue but whether he has directly or indirectly put the contents of the otherwise privileged communications in issue in the litigation, either in making a claim or by way of defence. Put another way, to adapt Allsop J's language in DSE, has the Commissioner (being the privilege holder) made an assertion as part of his or her case in the litigation that lays open the privileged documents to scrutiny, with the consequence that an inconsistency arises between the making of the assertion and the maintenance of the privilege? 82Applying the test set out at [65] the Full Court found that the Commissioner, by stating that he had taken into account the matters "evidenced" by the scheduled documents, including the privileged documents, had made an assertion that put the contents of the privileged documents in issue, or necessarily laid them open to scrutiny, with the consequence that there was an inconsistency between the making of the assertion and the maintenance of the privilege: at [72]. 83In developing its primary contention with regard to Question (i) the Department submitted that it is not 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; In the matter of Idoport Pty Ltd (in liq)(recs apptd); National Australia Bank Limited (& Ors) v John Sheahan (& Ors) [2012] NSWSC 58, Ward J at [67] (proposition 3). 84The principle relied upon by the Department is succinctly stated in Temwood Holdings at [10] per Wheeler J: It is to be noted, however, that 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. 85It was the Department's contention that by putting in issue prosecutorial misconduct in order to obtain a permanent stay on the basis of abuse of process that the respondents, not the prosecutor, raised an issue with regard to the prosecutor's "state of mind". The prosecutor, simply by complying with her duty of disclosure and making assertions about her state of mind in the letter of 12 July 2013, did not put in issue her state of mind. To suggest otherwise would mean that every time a party to litigation wrote to another party asking that party to explain her or his state of mind on some issue, privilege would be waived in respect of any legal advice that was given relating to that state of mind. The respondents, according to the Department, attempted to force the waiver by writing the letter of 10 July 2013 in which Ms Nash was asked about her state of mind. 86The respondents also relied upon the above passage from Temwood Holdings to draw an analogy to the present proceedings, namely that the relevant conduct of the prosecutor (Ms Nash) was in instructing the lawyer acting for her to prepare and send the letter dated 12 July 2013 to the respondents' lawyers. The respondents submitted that it was open to the prosecutor to prepare and send a letter, "so as not to refer to the legal advice she had received". According to the respondents the prosecutor chose to respond in the manner she did and in doing so, by her own conduct she waived client legal privilege. As the Department points out, however, Ms Nash was asked by the respondents in the letter of 10 July 2013 why she did not instruct her lawyers to disclose the "difficulty" in relation to Mr Regan to the respondents' solicitors and she answered this by explaining her state of mind at the time, which was, that having obtained legal advice, she believed there was no difficulty regarding Mr Regan's authority to commence or continue prosecutions which she was required to disclose. The reason she had that belief was, at least in part, because of the legal advice she had received. That was the answer to the question she was asked. Merely by making assertions about her state of mind in correspondence the prosecutor did not "put in issue" her state of mind. Moreover, according to the Department the prosecutor did not rely on her state of mind to advance the prosecution of the respondents in these proceedings. 87We also add that contrary to the respondents' contention (that it was open to Ms Nash to prepare and send a letter "so as not to refer to the legal advice she had received"), the mere reference to legal advice does not amount to conduct inconsistent with the maintenance of privilege. Rio Tinto at [71] provides a useful statement of this proposition: 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. 88As we sought to explain in our consideration of Question (vii), the letter of 12 July 2013 consists primarily of expressions of the prosecutor's views, beliefs and understanding based on advice she had received but without revealing the content or substance of that advice. Placing those findings in the present context, the views of Ms Nash based on legal advice do not and cannot amount to conduct inconsistent with the maintenance of the privilege. These observations apply irrespective of which party raised an issue in the substantive proceedings as to the prosecutor's state of mind: see Rio Tinto at [62] and [65]. 89Turning to Question (ii) the Department explained that the question has a broader basis than Question (i). It raises a question of law which does not relate to the fact that the letter of 12 July was in response to the respondents' letter of 10 July 2013. Boland J erred in law in relation to Question (ii), according to the Department, for four reasons. First, the Department submitted that an assertion that a state of mind by a party in correspondence with another party cannot "put in issue" that state of mind for the purpose of the law of waiver of client legal privilege. According to the Department current authority indicated that the issue of waiver arises where a party raises an issue in the proceedings by pleadings, particulars or some comparable curial process. That is the conventional way in which a party puts a fact in issue in the proceedings. The Department relied upon Mann v Carnell to illustrate this point (at [28]) where the High Court stated, relevantly: It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege. Examples include disclosure by a client of the client's version of a communication with a lawyer, which entitles the lawyer to give his or her account of the communication, or the institution of proceedings for professional negligence against a lawyer, in which the lawyer's evidence as to advice given to the client will be received. 90The Department also placed some reliance on the judgment in Lillicrap v Nalder & Son (a firm) [1993] 1 All ER 724; [1993] 1 WLR 94 in which the Court of Appeal held that when a client brings proceedings against its former solicitors for professional negligence, implied waiver of privilege will normally extend to facts and documents material to the cause of action upon which the plaintiff brings and to the defendant's proper defence to that cause of action. According to the Department in such a case the bringing of an action for negligence against the lawyers raises an issue as to the contents of the advice given by the lawyers to the client, creating an inconsistency between the raising of that issue and the maintenance of the confidentiality of the advice. 91The following statements made in Rio Tinto (extracted from [54] and [61] respectively) were also relied upon in support of the Department's contentions advanced in relation to the first reason why Boland J was said to have fallen into error: ... waiver comes about because the privilege holder's conduct is inconsistent with the continued confidentiality of the communication because he or she has put in issue the character or contents of the communication in pursuing a right or claim, or has created a situation where another party must reasonably do so by way of a defence. ... 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. 92Rio Tinto concerned the provision of particulars in the proceedings by the Commissioner of Taxation in which an assertion was made as part of the Commissioner's case that put the contents of the privileged documents in issue. The sequence of events in Rio Tinto which gave rise to that particular course of action was that after the respondents wrote to the Commissioner of Taxation complaining that the new SFIC was not adequate they chose to request particulars rather than make an application to the docket judge for an order that the Commissioner supply a further SFIC (Rio Tinto at [13]). There was no suggestion that the exchange of correspondence was not part of the curial process. 93The present proceedings, in our view, present a not dissimilar set of circumstances in that the respondents in their letter of 10 July 2013 requested a response from the prosecutor's solicitors in relation to information concerning the prosecutor's knowledge of "the invalid appointment of Mr Regan". The response was provided in the letter of 13 July 2013. It seems to us, on any reasonable analysis, that this exchange of correspondence could be seen as having taken place as part of, or within, the curial process. 94The second reason advanced by the Department as to why it says Boland J fell into error is that, in essence, his Honour is said to have asked the wrong question or addressed the wrong issue when he concluded in Nash (No 2) at [171] (second sentence): "accordingly (Ms Nash's) 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". According to the Department a passage from Rio Tinto (at [65]), which we have extracted earlier, sets out the correct question, or the correct issue, which needed to be addressed; namely, "... the question is not whether the Commissioner has put his state of mind in issue but whether he has directly or indirectly put the contents of the otherwise privileged communications in issue in the litigation, either in making a claim or by way of defence". 95In our view it is not at all accurate to suggest that Boland J was not guided by, or not fully cognisant of, the correct approach to the issue or that his Honour failed to ask the correct question. When the passages from [170] and [171] of Nash (No 2) (extracted earlier) are considered together it seems reasonably clear that his Honour, consistent with the remarks in Rio Tinto at [65], correctly approached the issue on the basis of whether Ms Nash in the letter of 12 July 2013 had put the contents of otherwise privileged legal advice in issue in the litigation. 96The Department's third reason as to why Boland J fell into error relied on the proposition, said to be supported in Rio Tinto, that an assertion that certain action was taken in reliance on legal advice cannot, of itself, result in a conclusion of waiver. In support of the proposition the Department relied on [67] in Rio Tinto which we have referred to earlier in our discussion of the issues said to arise in relation to Question (i). In that paragraph the Full Court stated that, in exposing his state of mind and the basis for it, the Commissioner of Taxation would not ordinarily act in a manner inconsistent with the maintenance of privilege. In contrast, the Full Court noted in the same paragraph that the situation might be otherwise if the decision-maker puts the contents of the legal advice in issue by, "specifically relying on the contents of the advice (and not merely the fact of the advice) to vindicate his claimed state of satisfaction or exercise of discretion". 97The Department did not seek to illustrate the proposition for which it contended by reference to the facts in this case. However, we have already dealt with the particular issue in our discussion of "disclosure waiver" which was the subject of Question (vii). We found, and we find here, that the letter of 12 July 2013, rather than revealing the substance or content of the legal advice, consisted primarily of expressions of the prosecutor's views, beliefs and understandings based on advice she had received. As we said in relation to Question (i) this does not and cannot amount to conduct inconsistent with the maintenance of privilege. 98In Rio Tinto at [67] the Full Court said that the mere reference to confidential communications is not inconsistent with the maintenance of the privilege because the decision-maker would not put such legal advice in issue merely by saying that the advice was relevant or contributed to the decision. We find nothing in the letter of 12 July 2013 which could rise above the bare fact of asserting reliance on a privileged communication. The letter does not reveal anything about the content of the legal advice received by Ms Nash. The letter does not reveal what Mr Bennett or the unspecified "others" told or advised Ms Nash. To the extent that Boland J held otherwise, his Honour fell into error. 99The respondents contended that, in the letter of 12 July 2013, there was a deployment of legal advice for the forensic purpose of explaining the conduct of the prosecutor in maintaining privilege. The Department disagreed, submitting that it could not be said that there had been an attempt to deploy the advice for any forensic purpose since all the prosecutor did was simply answer questions asked by the respondents regarding why she did not instruct her lawyers to disclose to the respondents' solicitors, "the difficulty in relation to Mr Regan's purported appointment" and "when [she] became aware of the proposed amendment" (see letter of 10 July 2013). 100The test for determining whether there has been a deployment of legal advice (otherwise privileged) for a forensic or commercial purpose in the context of waiver of the privilege was adverted to by Gyles J (Tamberlin J agreeing) in Bennett v Chief Executive Officer of the Australian Custom Service [2004] FCAFC 237; (2004) 140 FCR 101 at [68] where his Honour said: The authorities to which I have referred show that it is well established that for a client to deploy the substance or effect of legal advice for forensic or commercial purposes is inconsistent with the maintenance of the confidentiality that attracts legal professional privilege. 101In the context of "issue waiver" and the inconsistency principle, Black J in Parkview Qld Pty Limited v Commonwealth Bank of Australia [2012] NSWSC 1599, said (at [11]): The relevant inconsistency is established, both at general law and for the purposes of Evidence Act s 122(2) where a plaintiff directly or by necessary implication puts the legal advice it received in issue, in order to establish its cause of action, for example where the plaintiff has to prove that it had or did not have knowledge of its legal rights or the content of that knowledge: Thomson v Campbelltown Municipal Council (1939) 39 SR NSW 347. 102Based on these authorities we find that there has been no deployment of the substance of the legal advice received by Ms Nash (and referred to, by implication, in the letter of 12 July 2013) for a forensic or commercial purpose. We agree with the Department in this respect that all the letter of 12 July 2013 was attempting to do, on behalf of Ms Nash, was to answer the questions posed by the respondents. 103According to the respondents the prosecutor in the letter of 12 July 2013 deployed the substance of legal advice for the forensic purpose of asserting to the respondents that there was no issue with the validity of the appointment of Mr Regan (the original prosecutor), and therefore the proceedings had been validly instituted. 104In our view the contention lacks merit. The respondents' letter of 10 July 2013 sought a response from the solicitors acting for the prosecutor to the question: (iv) If Ms Nash was aware of the difficulty in relation to the purported appointment of Mr Regan on 22 December 2006, why did Ms Nash not provide instructions to the lawyers acting for her in these proceedings to disclose to the solicitors for the Defendants the difficulty in relation to the purported appointment of Mr Regan as Chief Inspector on 22 December 2006 prior to 8 July 2013? 105The letter of 12 July 2013 answered this question in the following way: iv. Up until 8 July 2013 Ms Nash was of the firm belief and understanding that there was no longer any issue regarding the validity of Mr Regan's authority to commence and continue prosecutions based on information received during the course of her role within the Department of Trade and Investment. 106We are not persuaded that the answer to the question posed by the respondents amounted to a deployment of the prosecutor's state of mind for the purpose of maintaining the prosecution's case against the respondents. The prosecutor could not put in issue her state of mind simply by making assertions about her state of mind in correspondence with the respondents. Moreover, and in any event, as the Department in written submissions sought to emphasise, the prosecutor did not rely on her state of mind to advance the prosecution of the respondents. 107In conclusion, Question (i) raised the issue as to whether a response to a request to provide information about a state of mind could put in issue that state of mind. As we have found, the mere making of assertions about the prosecutor's state of mind in the letter of 12 July 2013 did not put in issue that state of mind. Question (i) should be answered, "yes". Question (ii) was primarily directed to the issue whether an assertion that certain action was taken in reliance on legal advice could of itself result in a conclusion of waiver. We found in relation to that issue that there was no revelation of the substance or content of the legal advice received by Ms Nash in the letter of 12 July 2013 and, that to the extent Boland J held otherwise, his Honour fell into error. Question (ii) should also be answered, "yes". Questions (iii), (iv) and (v) 108Questions (iii), (iv) and (v) are inter-related. They each deal with the question whether certain documents, over which a claim of public interest immunity has been made, are "crucial" to the proper determination of the proceedings. It is appropriate therefore that they be considered together. 109The respondents submitted that Questions (iii), (iv) and (v) are not questions of law because they effectively require the Full Bench to determine that it was not open to Boland J to exercise, "the balancing test" in the manner in which he did. That is not a question of law according to the respondents but a mixed question of law and fact. 110Determining whether documents and information relating to matters of State are immune from disclosure is governed by s 130 of the Evidence Act. Section 130 is set out in full below: 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. 111In Nash (No 2) at [46] Boland J accepted that the documents the subject of the Department's claim related to a "matter of state" as defined in s 130(4)(f) of the Evidence Act. In that regard his Honour said: The 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). 112It appears that the parties accepted that conclusion. 113Section 130(1) requires the Court to engage in a process of balancing competing public interests. Such a process has been held not to involve a question of law: see for example Attorney General for New South Wales v X (2000) NSWLR 653 at [55] per Spigelman CJ. However, as the Department contended, no general challenge was made to the balancing exercise in s 130. Rather, the Department's contention underpinning Question (iii) was that Boland J erred in failing to assess the importance of the contents of each individual document (as required by s 130(5)(a)). The Department's contention underpinning Question (v) was that it was not open to Boland J to find that any of the documents reached the level of importance ("crucial to the proceedings") which his Honour accepted was necessary for immunity to be lost. 114In our view Questions (iii) and (iv), at least, are properly characterised as questions of law. Question (v) will be considered shortly. With regard to Question (iii) we agree with Boland J in Nash (No 4) that it is a question of law. In that respect his Honour said at [50] and [51]: The question raises the issue of whether I was required to inspect the contents of each document and make a finding about those contents as to whether they were crucial to, or at least important for, the proper determination of the proceedings. The question is a proper question of law and I propose to refer it to the Full Bench. 115Question (iv) proceeds upon an assumption that, if Boland J made findings that each document was "crucial" to the proceedings (the subject of Question (iii)), then the question becomes: was his Honour required to give reasons for the findings? That is also a question of law. It is a well established proposition that a court is required to give adequate reasons for its decision: see for example Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Wainohu v State of New South Wales (2011) 243 LLR 181 per French CJ and Kiefel J at [58]. 116Question (v) asks whether it was open to find that all of the documents (each and every one of them) were crucial to the proper determination of the proceedings. In our view Question (v) is not a question of law. Two central issues fell to be determined in the proceedings by Boland J. These were first whether the proceedings had been lawfully instituted; and, secondly, whether the absence of prosecutorial disclosure regarding proposed amendments to the CHMS Act resulted in an abuse of process. At the heart of Question (v) rests the Department's assumption that, if Boland J had considered the question (whether each document was crucial to the proceedings), his Honour would have been compelled to conclude that none of the documents were crucial to the proceedings. This issue could only be determined by us if we were to inspect the documents ourselves and make our own findings as to whether the documents could be said to have been "crucial" to the proceedings before Boland J. 117The respondents also contended that Questions (iii) to (v) are, in essence, appeal grounds and therefore not appropriate to be answered by the Full Bench. Madden and Porter were relied upon in support of the contention. For reasons which will become apparent shortly it is only necessary to consider the contention in relation to Question (iii). The issue has already been addressed in relation to Question (i). The findings we made in that respect apply with equal force to Question (iii). It is a specific question of law which, on its face, and in the absence of any further developed contentions by the respondents, does not purport to challenge the ultimate determination. This was the difficulty identified by Hunt CJ at CL in Madden in the passage relied upon by the respondents (at 370) in relation to the question posed for the Court's determination in that matter. 118We turn to consider Questions (iii) and (iv). 119In Nash (No 2) at [56] Boland J adopted the test (that the Court must be satisfied that the materials sought are "crucial" to the proper determination of the proceedings) from the findings of the High Court in The Commonwealth of Australia v Northern Land Council [1993] HCA 24; (1993) 176 CLR 604 at 619: ... Having regard to the strength of the claim for immunity, a judge ought not order the disclosure of the contents of documents of that class unless the judge is satisfied that the materials are crucial to the proper determination of the proceedings. 120It follows from Boland J's adoption of the test that his Honour accepted that having regard to the strength of the claim for immunity of the documents, the same requirement would have to be met. 121The Department claimed public interest immunity in relation to a large number of documents. The categories and classes of documents, of which there are six numbered A to F inclusive, are summarised in a table extracted in Nash (No 2) at [41]. All of the documents were tendered as confidential exhibits to the affidavits of Mark Paterson AO and Rebecca Falkingham, in support of the Department's claim. Notwithstanding the fact all of the documents were tendered, the respondents submitted that the claim for public interest immunity, "is made on a general basis by reference to classes of documents". The Department explained that public interest immunity claims conventionally fall into two categories, referred to as "class claims" and "content claims". We note that the distinction between the two type of claims was referred to in The Commonwealth v Northern Land Council (at 616): The classification of claims for public interest immunity in relation to documents into "class" claims and "contents" claims has been described as "rough but accepted" ((8) See Burmah Oil Co. Ltd. v. Bank of England (1980) AC, per Lord Wilberforce at p 1111). It serves to differentiate those documents the disclosure of which would be injurious to the public interest, whatever the contents, from those documents which ought not to be disclosed because of the particular contents. 122According to the Department, if a class claim failed the Court must inspect each document in order to determine whether the balance falls for or against disclosure. The Department contended that this was the approach it advocated before Boland J. In submissions the Department developed the point for the purpose of rebutting one of the respondents' contentions in relation to Questions (iii), (iv) and (v). The contention was that the three questions in issue contradicted the Department's approach before Boland J, which was that the documents should be dealt with as classes. By way of explanation, the Department relied upon Nash (No 2) at [49] which set out various paragraphs from Spencer v Commonwealth of Australia [2012] FCAFC 169. With the aid of transcript references, the Department noted that it had first placed reliance on Spencer v The Commonwealth for the proposition that Boland J would not need to inspect the documents due to the documents belonging to a class where the balance was so highly in favour of non-disclosure that a conclusion of immunity should be reached. However, the Department also submitted before Boland J that, if his Honour was not persuaded that there was immunity without inspecting the documents, and proceeded to inspect the documents, then the approach in State of New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60 was the correct approach (namely, the inspection of each document to determine whether the balance was in favour of disclosure or non-disclosure). 123It is abundantly clear to us that what Boland J did in Nash (No 2) was to inspect each document within the six categories of documents tendered by the Department as confidential exhibits (see Nash (No 2) at [45] to [92]). In doing so his Honour acknowledged that he was required to undertake the balancing exercise in accordance with s 130 of the Evidence Act (Nash (No 2) at [68]). His Honour was also influenced by what was said in The Commonwealth v Northern Land Council, in relation to the principles applicable to a consideration of public interest immunity. Those principles were collected and summarised by Allsop P in State of New South Wales v Public Transport Ticketing Corporation and extracted by Boland J in Nash (No 2) at [48]. They included the principle that, "The currency or controversiality of the subject matter is relevant to the balancing process". In a section of the judgment in Nash (No 2) (see [59] to [64]) Boland J considered whether the material sought related to current and controversial matters, finding that the material in question (Schedule 2.1 of the Petroleum (On-Shore) Amendment Bill 2013 (NSW)) was not controversial. 124The issue before us, however, is whether Boland J failed to determine that each document, "was crucial to and at least important for, the proper determination of the proceedings". The respondents submitted that Boland J did inspect each document and did, "determine that each was crucial to the proper determination of the proceedings". The Department did not cavil with the first proposition but it rejected the second on the basis it contended that Boland J did not say at any stage that he found any of the documents, after examining their contents, "crucial" to the proper determination of the proceedings. We find ourselves in agreement with the Department's submission on this issue. In Nash (No 2) at [56] to [58] Boland J stated: The 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. It 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. Given 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. 125Again in Nash (No 4) at [44] Boland J states: Because I regarded the materials sought by the defendants as crucial to the proper determination of the proceedings (why I so regarded the materials is explained at [55] and [56]) and because I was required to undertake the balancing exercise, I decided to inspect the documents in respect of which public interest immunity was claimed. Other reasons I indicated in the judgment for inspecting the documents were: s 130(3) of the Evidence Act; the question whether the documents were current and controversial; and whether the documents concerned government policy. 126When these paragraphs are considered together, it must be concluded that the approach taken by his Honour to inspecting each document was premised on the finding that the documents were "crucial" to the proper determination of the proceedings. Question (iii), as formulated, asks whether Boland J erred in failing to determine whether each document, "was crucial, or at least important for" the proper determination of the proceedings. The reference to "important" (for the proper determination) suggests that the expressions, "documents which are crucial" and, "documents which are important" are used interchangeably. The importance of a document is a matter the Court is required to take into account under s 130(5)(a) of the Evidence Act. It follows that Boland J made a finding that the material was "important" and "crucial" in the proceedings before he inspected the material. In so doing, his Honour fell into error. 127Before leaving this particular issue we should deal with one further matter. The respondents contended that the Court should reject the Department's contention that Boland J made a finding that the documents were "crucial" prior to inspecting them. In advancing the contention the respondents referred to the findings of Boland J that documents were "relevant", submitting that these findings constituted the same as an assessment of the "importance" of the documents, as required under s 130(5)(a) of the Evidence Act. Therefore, in determining that the documents are both "relevant" and "crucial", Boland J may be taken to have held that the documents will have a bearing on the respondents' case and that they are "very important" to that case. In support of the argument the respondents relied upon the following observations made in The Commonwealth of Australia v Northern Land Council at 616: The claim of public interest immunity must nonetheless be weighed against the competing public interest of the proper administration of justice, which may be impaired by the denial to a court of access to relevant and otherwise admissible evidence. 128According to the respondents a finding that the documents were "relevant" is similar to an assessment of the "importance" of those documents under s 130(5)(a). Apart from asserting the fact of similarity between the two terms the respondents offered little else by way of further explanation. According to the Department an assessment of the importance of the information in the document in the proceedings (under s 130(5)(a)) required more than a conclusion that the document was "relevant". It required an assessment of the relationship between the contents of the document and the issue in the proceedings. The Department's first proposition, at least, may be accepted, however it does little to help resolve the issue. We would observe that the validity of the original prosecutor's appointment may be both relevant and important "in the proceedings", however, there is no indication in the reasons of Boland J to suggest that his Honour was using the terms interchangeably or that when he made findings about the "forensic relevance" of documents, his Honour was engaged in an assessment of the "importance" of the documents in accordance with s 130(5)(a). 129We have found that Boland J fell into error by reason of the finding that the documentation was "important" and "crucial" in the proceedings which was made before the documentation was inspected. Question (iii) should be answered, "yes". 130Given our findings in relation to Question (iii), it becomes unnecessary to consider Question (iv). Question (v) we have found is not a question of law because it would have required us, in effect, to inspect the documentation and make our own findings as to whether the documents could be said to have been "crucial" to the proceedings. Such an exercise would have involved a descent into the facts, something which is not permitted under s 5AE of the CA Act which does not confer jurisdiction on the Full Bench to decide questions of fact: Rockdale Beef Pty Ltd v Industrial Relations Commission of NSW (2007) 65 IR 7 at [131]; see also Attorney-General v X per Spigelman CJ at [44]. Question (vi) 131In Nash (No 2) Boland J distinguished between documents that were the subject of a claim of public interest immunity on the basis of whether the "documents or pages of documents" were marked "Cabinet in Confidence". His Honour said at [90]: As 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". 132Question (vi) asks whether it was open to Boland J as a matter of law to apply the balancing test in such a way that the claim of public interest immunity was upheld in respect of documents that were marked in a particular way and not in respect of documents that were not so marked. 133The Department contended that Boland J's findings in Nash (No 2) at [90] constitute a clear breach of State of New South Wales v Public Transport Ticketing Corporation where it was held at [15] that the primary judge's actions in allowing a claim to immunity only if the document had stamped on it "Cabinet in Confidence" but otherwise disallowing the claim was, "an inadequate and arbitrary approach to a substantive question of law and fact ...". The Department contended that this is precisely what Boland J did in the present proceedings and accordingly his Honour erred in law. This characterisation of what his Honour did we note is very much at odds with the clear statements by his Honour (which we accept without qualification) that he inspected every single document. However, the real difficulty with Question (vi) was identified by Boland J in Nash (No 4) where his Honour commented on Question (vi) (or Question (ix) as it then was) at [57]: Notwithstanding the apparent pointless nature of the question in terms of how an answer to it could assist me in finally disposing of the proceedings and my reservation about it being a mixed question of fact and law, I propose to refer the question. 134In R v Madden Hunt CJ commented on the purpose underpinning s 5B of the CA Act 1912: The procedure provided by s 5B of the Criminal Appeal Act 1912 (NSW) is intended to permit the district court judge to obtain advice from this Court upon questions of law which will assist that judge in determining the fate of the appeal to that Court pursuant to s 122 of the Justices Act. 135Although his Honour's remarks were directed towards s 5B and the issue as to whether the question posed was appropriate in circumstances where it was in reality an attempt to exercise a right of appeal, the remarks are of equal application to Question (vi) as it has been formulated. An answer to the question would require in effect an inspection of all those documents which presumably were not marked "Cabinet in Confidence". In addition to this exercise, which involves a descent into the facts, we fail to see how an answer to the question could provide any assistance to the primary judge in determining the proceedings. It is therefore inappropriate to answer the question. Utility 136The respondents contended that there was no utility in answering the questions, in essence, because the questions were said to constitute an attempt to have a Full Bench conclude that Boland J fell into error in circumstances where the Full Bench did not have any power to compel that the orders made by Boland J in Nash (No 2) be set aside or varied in any respect. 137According to the Department the simple answer to the respondents' contention is that pursuant to s 5AE(2) the Full Bench may make any such order or give any such direction to the Court concerned as it thinks fit. If this Court were to find that Boland J erred in law the Department submitted that orders may be made quashing the orders made in Nash (No 2) and directing Boland J to determine the Department's Notice of Motion in light of the reasons of the Full Bench. 138In our view, it is unnecessary to come to a concluded view as to the ambit of s 5AE(2) and whether or not it contemplated the quashing of orders made in Nash (No 2) or giving directions as the Department suggested it does. Instead, we propose to adopt the alternative course raised by the Department which resolves effectively the dispute as to lack of utility in referring the questions. This alternative course is set out by Boland J in Nash (No 3) at [33] to [36] where his Honour said: The defendants submitted that, in any event, even if I were to find the questions were properly framed as questions of law there was no utility in referring them because I had made orders and the Full Bench had no power under s 5AE to amend or vary those orders. I do not think this is correct. The law is reasonably clear that the Court has power to vary or set aside its own interlocutory orders in appropriate circumstances, notwithstanding such orders may have been entered, but provided those orders have not decided rights of parties: see r 36.16(3) of the Uniform Civil Procedure Rules 2005; Wilkshire & Coffey v The Commonwealth (1976) 9 ALR 325 at 330 and Douglas v John Fairfax and Sons Ltd [1983] 3 NSWLR 126 at 134. In Amalgamated Television Services v Marsden [1999] NSWCA 313 the Court of Appeal referred at [38] with approval to the decision of McLelland J in Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 at 46, where his Honour stated: In the present case I am dealing with an interlocutory order of a substantive nature made after a contested hearing in contemplation that it would operate until the final disposition of the proceedings. In such a case the ordinary rule of practice is that an application to set aside, vary or discharge the order must be founded on a material change of circumstances since the original application was heard, or the discovery of new material which could not reasonably have been put before the court on the hearing of the original application. If the Full Bench were to find that I had committed error that would be a material change in circumstances providing the basis for the orders I had made to be set aside or varied. Orders 139For the reasons we have expressed, we remit the matter to the trial judge with the following answers to the questions referred: Question (i): yes; Question (ii): yes; Question (iii): yes; Question (iv): not necessary to answer; Question (v): not appropriate to answer; Question (vi): not appropriate to answer; Question (vii): no. ********** 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: 09 July 2014