Cicolini v Spencer & Anor [2005] QSC 338

SUPREME COURT OF QUEENSLAND CITATION: Cicolini v Spencer & Anor [2005] QSC 338 PARTIES: CLIFFORD ROGER CICOLINI and SHARYN LOUISE CICOLINI (Applicants) v ROBERT SPENCER (First Respondent) COMMISSIONER OF POLICE (Second Respondent) FILE NO/S: 279,280 of 2005 DIVISION: Trial PROCEEDING: Application ORIGINATING COURT: Supreme Court, Cairns DELIVERED ON: 27 October 2005 DELIVERED AT: Cairns HEARING DATE: 2 September 2005 JUDGE: Jones J ORDER: 1. The application is dismissed. 2. The applicants pay the respondents’ costs of and incidental to the application, to be assessed on the standard basis. CATCHWORDS: MISCELLANEOUS MATTERS – OTHER MATTERS – where applicants claimed legal professional privilege in respect of a conversation at committal proceedings – where magistrate ruled the claim for privilege was not made out – applicants sought review of Magistrate’s decision under Judicial Review Act 1991 (Qld) – the conversation did not give rise to legal professional privilege, and if it did the privilege was waived – the decision of the magistrate did not affect any substantive legal right because it would not be binding on any court that will ultimately hear the matter Judicial Review Act 1991 (Qld) Attorney-General (NT) v Maurice (1986) 161 CLR 475 ACCC v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526 R v Braham & Mason [1976] VR 547 Esso Resources Ltd v Federal Commissioner of Taxation -- 1 of 7 -- 2 (1999) 201 CLR 49 Griffith University v Tang [2005] HCA 7 Mann v Carwell (2000) 201 CLR 1 COUNSEL: Mr P Butler SC for the applicant Mr P Davis for the respondents SOLICITORS: William Royds Lawyers for the applicants Queensland Police Solicitor for the respondents [1] By this application, the applicants seek a Statutory Order of Review of the decision of the first respondent, a Stipendiary Magistrate, who presided over committal proceedings in respect of charges of fraud brought by the second respondent against the applicants. The decision made by the respondent which is sought to be reviewed was to the effect that the evidence of a witness, Mr John Hill, was not protected by legal professional privilege. Background [2] In early 2002 the National Australia Bank (“NAB”) granted finance to the applicants to complete the purchase of a large grazing property in Cape York. As part of the security for that finance the applicants granted mortgages over realty, chattels and stock. The transaction on behalf of NAB was arranged by Mr Peter Anderson who was the Agri-business Manager located at Atherton. [3] On 27 April 2002 Mr Anderson received a call from the applicants asking to see him “to bring [him] up to date with what was happening”.1 Prior to receiving this call Mr Anderson had been given information from police officers attached to the Stock Squad to the effect that stock over which the mortgages had been granted did not exist. [4] An arrangement was made for the applicants to meet with Mr Anderson at the bank premises on 28 April 2002. Soon after the applicants arrived arrangements were made for Mr Anderson to contact the applicants’ solicitor Mr Hill. I infer that the applicants had made prior arrangements with Mr Hill for him to be available. Mr Hill had participated in the discussion by means of a speaker phone. [5] According to Mr Anderson, during the course of the discussion the applicants advised him that they had knowingly provided incorrect information about the number of cattle they owned with the effect that they did not own as many cattle as they had stated in the stock mortgage. This information formed part of the basis upon which the applicants were being prosecuted. [6] The committal proceedings commenced on 21 March 2005. Mr Anderson gave evidence of his version of the admission referred to above. At that stage there was no challenge that the discussion was subject to legal professional privilege by reason of the involvement of Mr Hill. Mr Anderson was examined quite 1 Depositions 52/58 Ex CS1 to affidavit of Colin Strofield sworn 19 August 2005. -- 2 of 7 -- 3 extensively about the terms of the conversation.2 The meeting was not said to have been conducted on a ‘without prejudice’ basis. [7] The police prosecutor then sought to call Mr Hill to give evidence of his recollection of the discussions. At this point Mr Hill raised the issue of whether the discussion was protected by legal professional privilege. Before ruling on this matter the first respondent established the basis upon which Mr Hill participated in the discussion. Mr Hill described his role “as a legal advisor, as a mentor, and an intervenor”.3 He elaborated further on this in following statement – “My purpose was – to give advice to my clients if necessary. To explain things to Mr Anderson if it was appropriate to do so…so that’s the legal advice side. On the intervening side and when I say “as mentor”, to look after as best I could the wellbeing of my client.”4 [8] Against that background, and having considered a number of authorities, the first respondent determined that the claim for legal professional privilege was not made out for the reasons – (i) The dominant purpose for Mr Hill’s presence was not to give legal advice with reference to actual, or contemplated, litigation. (ii) The applicants made a conscious decision to include Mr Hill in the meeting after they had had a confidential communication with him prior to the discussions with Mr Anderson. (iii) If legal professional privilege did apply it has been waived by conduct. [9] Statutory review of this decision is now sought. Judicial Review [10] Reviews of this kind are governed by the Judicial Review Act 1991 (Qld). Section 20(1) provides: A person who is aggrieved by a decision to which this Act applies may apply to the court for a statutory order of review in relation to the decision. [11] Section 4 defines a “decision to which this Act applies” as a “decision of an administrative character made…under an enactment (whether or not in the exercise of a discretion)…” [12] There exists a great deal of high authority on the interpretation of the Judicial Review Act and its Federal counterpart. Most recently, the High Court in Griffith 2 Ibid depositions pp 78-82 3 Ibid deposition 106/50 4 Ibid p 108/55-109/2 -- 3 of 7 -- 4 University v Tang5 clarified the ambit of s 4. In order for a decision to be a decision to which the Act applies, the decision must pass a two-limbed test. Per Gummow, Callinan and Heydon JJ: There is a line of authority in the Federal Court…which assists in fixing the proper construction of the phrase "decision of an administrative character made ... under an enactment". As noted earlier in these reasons, the presence in the definition in the ADJR Act of the words "(whether in the exercise of a discretion or not ...)" indicates that the decision be either required or authorised by the enactment. Mayer shows that this requirement or authority may appear sufficiently as a matter of necessary implication. However, whilst this requirement or authority is a necessary condition for the operation of the definition, it is not, by itself, sufficient. The decision so required or authorised must be "of an administrative character". This element of the definition casts some light on the force to be given by the phrase "under an enactment". What is it, in the course of administration, that flows from or arises out of the decision taken so as to give that significance which has merited the legislative conferral of a right of judicial review upon those aggrieved? The answer in general terms is the affecting of legal rights and obligations. Do legal rights or duties owe in an immediate sense their existence to the decision, or depend upon the presence of the decision for their enforcement?...does the decision in question derive from the enactment the capacity to affect legal rights and obligations? [13] Here it is not disputed that the ruling of the first respondent was at least impliedly authorised by an enactment. What is disputed in this case is whether this was a decision which affected substantive legal rights or obligations, as required by Tang. [14] Mr Butler of Senior Counsel for the applicant argues that the decision has caused the loss of legal professional privilege. The privilege is a substantive legal right: Attorney-General (NT) v Maurice.6 Once lost, the applicant submits, the privilege is irretrievable. That places it, he submits, in a different category than for example a decision of a Magistrate to commit to trial. A decision of this sort, affecting a substantive legal right, satisfies the second limb of the test in Tang. [15] Mr Davis of Counsel for the respondents concedes that if a right to legal professional privilege existed in this case – and that right was destroyed by a decision of a Magistrate – then that decision is one which would satisfy the second limb of Tang. However he submits that in this case, the circumstances of the meeting on 28 April 2002 gave rise to no such right to legal professional privilege. It is convenient to deal with this preliminary point at this stage. The test for legal professional privilege 5 [2005] HCA 7 6 (1986) 161 CLR 475 at 490 per Deane J -- 4 of 7 -- 5 [16] Legal professional privilege is a common law right that protects from disclosure oral or written communications that have passed between a person and his/her legal advisers for the dominant purpose of either obtaining legal advice, or for use in actual, pending or reasonably anticipated legal proceedings.7 The privilege is not confined to judicial proceedings. Legal professional privilege is a substantive general principle of the common law. Attorney-General (NT) v Maurice.8 The privilege attaches to communications and documents. [17] Three elements must be proven to establish the privilege over communications passing between lawyer and client. The onus for claiming the privilege rests upon the person making the claim.9 Firstly, the communication in question must be referrable to the professional relationship of lawyer and client. The reason for granting the privilege is – “that the proper functioning of the legal system depends on a freedom of consultation between legal advisers and their clients, and, to use the words of Wigmore on Evidence (McNaughton rev., 1961), vol. 8, par. 2291, p. 545:- “In order to promote freedom of consultation of legal advisers by clients, the apprehension of compelled disclosure by the legal advisers must be removed; hence the law must prohibit such disclosure except on the client’s consent.”10 [18] The purpose behind the meeting on 28 April 2002 was to allow the applicants to have a discussion with Mr Anderson. The lawyer’s presence was incidental to that. I do not believe that the discussions in question could be characterised as a consultation between lawyer and client, but I will first consider the other elements. [19] The second element is that the communication must be confidential.11 Relevant to the case at hand is the situation where a communication takes place in the presence of a third party. The presence of a third party may indicate that the communication was not meant to be confidential, and privilege does not apply: R v Braham & Mason [1976] VR 547. However (per Lush J): I am unable to accept…that the presence of a third party will always destroy privilege and that privilege can only exist when the solicitor and client are alone. It appears to me that any particular situation must be examined a good deal more subtly than that… In my opinion, each case must be examined to see whether the communication was one which should be classed as confidential. The fact of the presence of a third party should be examined to see whether that presence indicates that the communication was not intended to be confidential, or whether the presence of the third party was caused by some necessity or some circumstances which did not 7 See Halsbury’s Laws of Australia 16.7 [7] – [38] 8 (1986) 161 CLR 475 per Gibbs J at 480; per Deane J at 490. See also Baker v Campbell (1983) 153 CLR 52 at 66, 94, 114 9 National Crime Authority v S (1991) 29 FCR 203 10 Attorney-General (NT) v Kearney (1985) 158 CLR 500 at 511 11 Baker v Campbell (1983) 153 CLR 52 per Gibbs CJ at 67-68. -- 5 of 7 -- 6 affect the primary nature of the communication as confidential [emphasis mine] [20] In Braham & Mason, the accused communicated with his solicitor via telephone at a police station, in the presence of a police inspector. Those communications were held not to be privileged: the fact the communications were made in the presence of the police officer showed they were not confidential. See also R v Sharp.12 The meeting of 28 April was intended as a meeting between three parties - Messrs. Hill, Anderson and the applicants. The mere fact that Mr Hill was listening to or even participating in the meeting does not serve to automatically make the entire substance of the communications privileged. It is necessary to look closer at the context and likely substance of the communications, as revealed by the evidence. The purpose of the discussion was to bring Mr Anderson and his employer, the NAB, up to date. There could be no expectation that NAB would regard this new information as being confidential because it passed between the applicants and their agent in the presence of lawyers. [21] The third element necessary to give rise to the privilege is that the dominant purpose of the communication must have been the provision of legal advice, or legal services relating to actual or anticipated litigation: Esso Resources Ltd v Federal Commissioner of Taxation.13 [22] Even if I were satisfied the meeting was confidential, I agree with the first respondent that the dominant purpose of those communications between Mr Hill and the applicants was not for the applicants to obtain legal advice, nor was it with reference to litigation that was actual or anticipated. Rather the evidence indicates in my view that Mr Hill was present as an intermediary or supporter – in his words, as a “legal adviser, as a mentor, as an intervenor”. That view is reinforced by the overall effect of the evidence, which suggests to me that the meeting was largely made up of communications between Mr Anderson and the applicants. Mr Hill played a fairly minor role in the meeting. It is apparent that the applicants attended the meeting in order to speak to Mr Anderson, and that is what they did, albeit that Mr Hill listened and participated. [23] I also agree with the Magistrate in that the communications were not made with reference to actual or anticipated litigation. At that stage there was no actual litigation. As for anticipated litigation, Mr Hill stated litigation was a possible outcome, because he always anticipated such a possibility when he dealt with bank managers. That is not enough. Proceedings are “anticipated” when they are actually contemplated: ACCC v Australian Safeway Stores Pty Ltd.14 On the evidence, I am not satisfied they were actually contemplated here. This conclusion is supported by the applicant’s expressed understanding, that they were not in any trouble for making a misrepresentation; rather the bank needed to correct its paperwork. If this was their view, then it is not likely that litigation was actually contemplated at the meeting. 12 [2003] NSWSC 1117 13 (1999) 201 CLR 49 14 (1998) 81 FCR 526 -- 6 of 7 -- 7 [24] Can Mr Hill claim privilege in respect of communications made between he and Mr Anderson? The right belongs to the client not the client’s legal representative. The privilege can be waived but only by the client.15 From the depositions, Mr Hill purported to claim privilege. He was not at that time acting for the applicants. However, the claim appears to have been adopted by counsel acted on behalf of the applicants. By this time Mr Anderson had given evidence. The purpose of calling Mr Hill was to corroborate, qualify or disagree with whatever Mr Anderson said were the terms of the discussion. [25] The claim for privilege fails here on the basis that the communications between Messrs Hill and Anderson were not made for the dominant purpose of obtaining legal advice for actual or anticipated litigation, for the other reasons explained above. Waiver [26] Mr Anderson gave evidence of the discussion without any objection from the applicants’ legal representatives. He was then cross-examined about the terms of the discussion. If legal professional privilege existed at all, then it was clearly waived by this conduct. The touchstone for determining whether the privilege has been waived is inconsistency in the conduct of the client and maintenance of the confidentiality. Mann v Carwell.16 It would be both inconsistent and unfair to have cross-examined one participant to the discussion and seek to prevent other participants from being questioned. Conclusions [27] It is for the applicants to establish facts from which the court can make an informed judgment on whether the privilege was available. Here they have failed to do so. In my view Mr Hill’s claim to legal professional privilege in respect of any of the communications that made up the meeting of 28 April was unfounded. If I am wrong about that point, any legal professional privilege was clearly waived. [28] This application must fail. The decision of the first respondent did not destroy or affect any substantive legal right the applicants had because the so-called right they claim was infringed never in fact existed. Moreover, the decision did not affect any substantive right for the reason that the first respondent’s decision is not binding on any court that will ultimately hear the matter. The question of whether legal professional privilege arose can be re-agitated, for example, before a trial judge at a voir dire or pre-trial hearing. [29] The application is dismissed with costs. 15 Maurice supra at pp 480-1 16 Per Gleeson CJ (2000) 201 CLR 1 at paras [28], [29] -- 7 of 7 --