Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Director General, Department of Trade and Investment, Regional Infrastructure and Services v Glennies Creek Coal Management Pty Ltd [2013] NSWCA 371
• Hearing dates: 24 October 2013
• Decision date: 08 November 2013
• Before: Basten JA at [1]; Ward JA at [45]; Sackville AJA at [46]

Decision

Amended summons dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: ADMINISTRATIVE LAW - judicial review - Industrial Court - decision not to submit question of law - no discretion to decline to submit question of law to Full Bench - whether question put a question of law - whether Supreme Court has jurisdiction - requirement of jurisdictional error - appeal to Full Bench available - discretion to decline relief; CRIMINAL LAW - appeal by submission of question of law - prosecution under Occupational Health and Safety Act 2000 (NSW) - claim of abuse of process by prosecutor - production of documents - claim for client legal privilege rejected - Criminal Appeal Act 1912 (NSW), s 5AE - Industrial Relations Act 1996 (NSW), s 196; EVIDENCE - client legal privilege - imputed waiver by statement of reliance on legal advice - whether substance of legal advice disclosed - Evidence Act 1995 (NSW), s 122; WORDS AND PHRASES - "question of law arising at or in reference to the proceedings" - Criminal Appeal act 1912 (NSW), s 5AE
• Legislation Cited: Criminal Appeal Act 1912 (NSW), s 5AE; Criminal Procedure Act 1986 (NSW), s 16; Evidence Act 1995 (NSW), s 122; Industrial Relations Act 1996 (NSW), ss 179, 196; Ch 4, Pt 7; Occupational Health and Safety Act 2000 (NSW), ss 47A, 47B, 106; Supreme Court Act 1970 (NSW), s 69
• Cases Cited: Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1996) 40 NSWLR 12; Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531; Mann v Carnell [1999] HCA 66; 201 CLR 1; Nash v Glennies Creek Coal Management Pty Ltd (No 2) [2013] NSWIRComm 67; Nash v Glennies Creek Coal Management Pty Ltd (No 4) [2013] NSWIRComm 80; Nine Films and Television Pty Ltd v Ninox Television Ltd [2005] 65 IPR 442; Osland v Secretary, Department of Justice (Vic) [2008] HCA 37; 234 CLR 275; Re Van Der Lubbe (1949) 49 SR(NSW) 309
• Category: Principal judgment
• Parties: Director General, Department of Trade and Investment, Regional Infrastructure and Services (First Applicant); Jennifer Ann Nash (Second Applicant); Glennies Creek Coal Management Pty Ltd (First Respondent); Integra coal Operations Pty Ltd (Second Respondent); Industrial Court of New South Wales (Third Respondent)
• Representation: Mr S J Odgers SC/Ms M A Kumar (First Applicant); Mr C T Magee (Second Applicant); Mr A R Moses SC/Ms R L Gall (First and Second Respondents); Submitting appearance (Third Respondent); I V Knight, Crown Solicitor (First and Second Applicants); Ashurst Australia (First and Second Respondents); I V Knight, Crown Solicitor (Third Respondent)
• File Number(s): CA 2013/291697

Decision under appeal

• Jurisdiction: 9105
• Citation: Nash v Glennies Creek Coal Management Pty Ltd (No 4) [2013] NSWIRComm 80
• Date of Decision: 2013-09-18 00:00:00
• Before: Boland J, President
• File Number(s): IRC 315, 316 of 2011

Judgment

1 BASTEN JA: On 4 April 2009 a coal miner died at a mine operated by the respondent, Glennies Creek Coal Management Pty Ltd. The matter now before the Court does not concern the circumstances of his death: even his name appears to be absent from the voluminous material before this Court. It concerns the refusal of the trial judge in the Industrial Court to refer a question of law relating to client legal privilege to a Full Bench.

Procedural background

2 On 31 March 2011 proceedings were commenced against the respondents under the Occupational Health and Safety Act 2000 (NSW) with respect to alleged contraventions of that Act, presumably relating to the circumstances of the miner's death. (The documents commencing those proceedings are not before the Court.) As is commonplace, the proceedings were commenced only days prior to the expiration of the two year limitation period within which a prosecution was required to commence.

3 The proceedings in this Court have nothing to do with the merits of the prosecution. Rather, a question was raised by the respondents as to the authority of the person who instituted prosecution, for the purposes of s 106 of the Occupational Health and Safety Act. An officer who had been appointed as an inspector under the Coal Mine Health and Safety Act 2002 (NSW) was authorised to exercise functions under the Occupational Health and Safety Act with respect to a coal workplace: Occupational Health and Safety Act, s 47B. A person appointed under the Mine Health and Safety Act 2004 (NSW) is taken to have been appointed as an inspector under the Occupational Health and Safety Act: s 47A. It appears that the prosecution was commenced by a Mr Regan, whose authority depended on the operation of either s 47A or s 47B (or both). However, a question was raised as to the validity of his appointment.

4 The issue was whether the Minister who had authority to make such appointments, had properly delegated that authority to the Deputy Director-General, pursuant to legislation which commenced on 23 December 2006, by delegation dated 28 December 2006. The appointment itself was apparently dated 22 December 2006, although it was not published in the Government Gazette until 12 January 2007, after the power was conferred.

5 On 7 March 2012, an order was made, by consent, substituting Ms Jennifer Nash, in place of Mr Regan, as the prosecutor in the proceedings. Although the legal issue appears not to have been formulated by way of a pleading, the respondents seek to establish the state of knowledge of Ms Nash at the time at which she sought to replace Mr Regan. Their apparent purpose is to establish that she was aware of factors raising doubt as to the validity of Mr Regan's appointment, which she failed to disclose to the respondents when seeking their consent to the substitution of the prosecutor. That, it will be alleged, constituted an abuse of process, with consequences which have not been identified before this Court. On 10 July 2013 the solicitors for the respondents wrote to the Crown Solicitor's Office, for the attention of Ms Marina Rizzo, seeking information as to a number of aspects of the proceedings, including Ms Nash's state of knowledge of the difficulties in relation to the impugned appointment of Mr Regan.

6 In response to that letter, Ms Rizzo replied, maintaining the position that the prosecutions were validly commenced and that Mr Regan had been validity appointed for the purposes of ss 47A and 47B of the Occupational Health and Safety Act. Reliance was also sought to be placed upon s 16 of the Criminal Procedure Act 1986 (NSW), no doubt to support the validity of the prosecutions. In the part of the letter relied upon by the respondents, Ms Rizzo acknowledged that Ms Nash had become aware of "issues of some form" concerning Mr Regan's appointments and that she had been a party to a telephone conversation with the principal legal officer of the Department "about possible issues/difficulties with certain aspects of Mr Regan's appointments arising from the prosecution of Southern Colliery Maintenance Pty Ltd which was on foot at the time". Two further statements contained in the letter were relied upon by the respondents as indicating that legal advice had been given, the substance of which had been disclosed. These were 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.

...

During the later part of August 2012 as a result of discussions with others in the Department and of information she was given, Ms Nash formed the view that amendment should be progressed to CMHS Act. Ms Nash's belief was that the proposed amendments were primarily directed to the functions and powers of the chief inspector and inspectors, investigators and mine safety officers under the CMHS Act itself rather than under the OHS Act."

7 The respondents issued both a summons and a notice to produce (indeed more than one of each) seeking, amongst other things, documents relating to the preparation and prosecution of the draft legislation designed to rectify any problem which may have arisen. A dispute arose in relation to a claim by the appellants that certain documents should not be disclosed on the basis of client legal privilege and public interest immunity. Even that issue is not before the Court. On 13 August 2013 the President of the Industrial Commission (Boland J) disallowed claims of privilege with respect to certain documents, giving lengthy reasons for his rulings: Nash v Glennies Creek Coal Management Pty Ltd (No 2) [2013] NSWIRComm 67 ("Judgment (No 2)"). Relevantly for present purposes, all the documents in respect of which client legal privilege was claimed were referred to in a confidential exhibit JMM-1: Judgment (No 2) at [41] and [43].

8 The appellants then requested the trial judge to submit a number of questions of law to a Full Bench of the Industrial Court, being a form of interlocutory appeal against the disclosure rulings. The trial judge was required to submit any question of law "arising at or in reference to" the proceedings: s 5AE of the Criminal Appeal Act 1912 (NSW), as applied to prosecutions in the Court by the Industrial Relations Act 1996 (NSW), s 196.

9 The trial judge submitted six questions of law to the Full Bench, but declined to submit three other questions proposed by the applicants: Nash v Glennies Creek Coal Management Pty Ltd (No 4) [2013] NSWIRComm 80 ("Judgment (No 4)").

10 Not content with that result, the appellants commenced proceedings in this Court, pursuant to s 69 of the Supreme Court Act 1970 (NSW), seeking orders quashing the refusal of the trial judge to submit one particular question and an order to compel him to submit that question to a Full Bench. The question in issue was formulated in the following terms:

"Did I err in law in holding that an inference drawn from a document, that certain legal advice was given, could constitute disclosure of that legal advice for the purposes of s 122 Evidence Act and the common law relating to waiver of legal professional privilege (see judgment, paragraphs [156, 160, 165])?"

11 In this Court, the appellants were anxious to concede that they were not wedded to any particular formulation of the question: it was the substance of the issue which was sought to be submitted to the Full Bench. However, the question did not clearly identify the legal issue. The form adopted, commencing "Did I err in law in holding", was inauspicious. It is likely to require reference to a particular finding in order to be given content. That finding will, almost inevitably, involve questions of both fact and law. However, the attempt to isolate a question of law without reference to the finding may (as in this case) lead to a proposition stated at a level of generality which is unhelpful in giving practical assistance in the circumstances of the case and may not satisfy the test in s 5AE.

12 The submission that the appellants sought to advance in the present case was that waiver of client legal privilege could not occur in circumstances where the terms of the advice had not been expressly revealed in a separate document, even though the content of the advice could be inferred from statements made in that other document.

Supervisory jurisdiction of this Court

13 It may be accepted that the trial judge had no discretion to decline to refer a "question of law arising at or in reference to the proceedings". However, whether a particular question, formulated by the appellants, was indeed a question of law and did indeed arise at or in reference to the proceedings, were matters for evaluative judgment. The appellants accepted that to obtain the relief sought in this Court, they had to demonstrate jurisdictional error on the part of the trial judge, in accordance with the principles established in Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531.

14 On one view, this case gives rise to an issue which was not directly addressed in Kirk. The privative clause to be found in s 179 of the Industrial Relations Act purports to provide an absolute bar on challenges to decisions of the Commission, however constituted. That prohibition is subject to two exclusions. One, which must be read as subject to an exception for jurisdictional error of any kind, permits review of a decision of the Full Bench of the Commission on an issue of jurisdiction. No decision of the Full Bench is involved in the present case. The second exception allows for the exercise of a right of appeal to the Full Bench conferred by the Industrial Relations Act or any other Act or law: s 179(6).

15 Appeals are dealt with in Ch 4, Pt 7 of the Industrial Relations Act. Section 196 provides for the method of appeal in respect of criminal proceedings taken before a judicial member of the Commission, by invoking the relevant provisions of the Criminal Appeal Act.

16 If there is an appeal under a provision of the Criminal Appeal Act, applied by s 196 to proceedings in the Industrial Court, it would have been appropriate for the appellants to avail themselves of that avenue of appeal, rather than invoking the jurisdiction of this Court. Furthermore, in order to invoke the jurisdiction of this Court, it was necessary for the prosecutor to demonstrate that the Court was not precluded by s 179 from reviewing an interlocutory decision of a judicial member of the Commission sitting alone. There is a large question as to whether Kirk prevents a State parliament legislating to ensure that, where statutory appeals are provided, that procedure must be followed, prior to a party invoking the constitutionally protected supervisory jurisdiction of this Court.

17 If satisfied that such an appeal is available, this Court should decline to exercise whatever jurisdiction it might have, without determining that question, given that there are criminal proceedings presently pending before a judicial member of the Industrial Court.

Scope of orders

18 The order made by the trial judge on 13 August 2013 was in the following terms (so far as relevant):

"(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 statements or statements made in a document referred to in JMM-1 directed to:

(a) any alleged defect in, or the validity of, the instrument of appointment, under the Coal Mine Health and Safety Act 2002 dated 22 December 2006, published in the NSW Government Gazette No 5 of 12 January 2007 at page 102;

(b) clause 2.1 of Schedule 2 of the Petroleum (On-Shore) Amendment Bill 2013, which concerns the proposed amendment to the Coal Mine Health and Safety Act 2002 by the insertion of a new clause 25A.

(3) In respect of the documents in MP-A, MP-B, MP-C and MP-D and the documents referred to in JMM-1, the Department shall prepare a schedule or table, in date order, identifying the following:

(a) where the document contains a statement or statements referred to in Order (1) hereof:

(i) the nature of the document ...; 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) [sic] hereof, the whole of the documents may be reduced in redacted form if redaction is necessary."

19 Judgment (No 2) stated:

"[155] 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'.

[156] The very clear inference can be made that in the process of determining what to do about the 'possible issues/difficulties with certain aspects of Mr Regan's appointments' Ms Nash received legal advice to the effect that it was open to proceed with the prosecutions of the defendants on the basis of Mr Regan's appointment as an inspector under s 47A of the OHS Act, but that the CHMS Act should be amended to retrospectively validate Mr Regan's purported appointment as Chief Inspector on 22 December 2006.

...

[165] I find that by disclosing the substance of the legal advice that led Ms Nash to conclude that:

(a) it was open to proceed with the prosecutions of the defendants on the basis of Mr Regan's appointment as an inspector of [sic] s 47A of the OHS Act, and

(b) the CMHS Act should be amended to retrospectively validate Mr Regan's purported appointment as Chief Inspector on 22 December 2006,

there has been an implied waiver of client legal privilege."

20 In Judgment (No 4), the trial judge returned to [165] in discussing one of the proposed questions for reference to a Full Bench. He stated at [20]:

"The Department and prosecutor observed, correctly, that at [165] it was held that, as a result of 'disclosing the substance of the legal advice ...' there was 'an implied waiver of client legal privilege'. It was noted that it was not stated by me what material that waiver applied to. However, it was further noted the defendants had claimed (see [145]) that, as a result of disclosure waiver, privilege was lost in respect of 'any record in connection with' the validity of Mr Regan's appointment and the (anticipated) issue of alleged abuse of process."

21 The trial judge then noted that the defendants' claim was not limited to legal advice "received by" Ms Nash and that the question arose as to whether it was correct to hold that all legal advice relating to the identified issues had been waived, including advice not received by Ms Nash. The trial judge referred to earlier paragraphs in Judgment (No 2) and continued:

"[24] Perhaps I should have been clearer in Nash (No 2). My intention was to convey a finding that privilege had been waived in respect of the legal advice referred to in the 12 July 2013 letter. That is, any legal advice received by the prosecutor in connection with the validity of Mr Regan's appointment and the (anticipated) issue of alleged abuse of process. In that respect, I note Ms Nash referred to 'information she was given'. If that information was provided by a lawyer, whether Departmental or otherwise, privilege has been waived.

[25] If there was other legal advice in connection with the validity of Mr Regan's appointment and the (anticipated) issue of alleged abuse of process, but which was not received by Ms Nash, I did not know what that advice was so I was in no position to make a ruling about whether or not privilege had been waived in respect of it.

[26] If there did exist other legal advice on the issues referred to in the 12 July 2013 letter, but which was not received by Ms Nash, I do not think it could be successfully contended that there had been partial disclosure and that the tests of inconsistency and fairness required that other legal advice to be produced (see Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1). The other legal advice would clearly be severable. It could not be said Ms Nash was acting inconsistently with the maintenance of privilege in respect of communications she had not received."

22 The purport of [25] of Judgment (No 4) set out above is somewhat obscure. If Ms Nash did not have the advice, and its contents were therefore not disclosed in the letter, there can have been no waiver: the fact that the trial judge did not know what the advice was, was irrelevant to the question of waiver, except to the extent that it cannot have been disclosed. However, the purpose of the paragraphs was, in effect, to clarify that waiver had been inferred from the disclosures contained in the letter of 12 July 2013. The notices to produce sought documents: the letter did not in terms identify any document. The letter stated that the prosecutor had been "a party to telephone conversations" and had formed views as a result of "discussions". The one sentence to which the trial judge referred read as follows:

"During the later part of August 2012 as a result of discussions with others in the Department and of information she was given, Ms Nash formed a view that amendments should be progressed to the CMHS Act."

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.

24 The matter proceeded on the basis that there was a document or documents covered by the claim, which would need to be produced, although the uncertainty as to the precise scope of the trial judge's order remained.

25 Three views were open. The first and narrowest is that the waiver extended only to any document recording the legal advice given by the principal legal officer in the course of a telephone conversation on or about 26 or 27 June 2012. A second view is that the waiver extended to any legal advice given in the course of discussions and through the supply of legal advice during "discussions with others in the Department and ... information she was given by mid-August" together with "similar discussions and information given in the later part of August 2012". The third view is that the waiver extended to any legal advice held by officers of the Department, relating to these issues, whether or not it was ever shown to Ms Nash.

26 The "second question", to which this discussion was referable, was not referred to the Full Bench. There was no challenge to that decision, no doubt because the reasoning set out above clarified, satisfactorily to the applicants, the concern sought to be raised by that question. The respondents did not dispute that their success with respect to waiver of client legal privilege was limited in the way explained by the trial judge in Judgment (No 4). Accordingly, it may not matter that the orders made in Judgment (No 2) were not corrected to reflect that understanding. Nevertheless, it would be preferable if that course were taken. For present purposes, this Court should act on the basis that the finding of waiver was limited in the manner described in the passage from Judgment (No 4) set out at [21] above.

Identifying a question of law

27 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.

28 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.

29 In Osland, the issue of waiver was said to arise in circumstances where the Minister had issued a press release with respect to the refusal of a petition for mercy, which release stated that identified senior counsel had been appointed to consider Mrs Osland's petition and had given a memorandum of joint advice which recommended that, on every ground, the petition should be denied. The press release continued:

"After carefully considering the joint advice, I have recommended to the Premier that the Governor be advised to deny the petition." [Osland at [15].]

30 By reference to principles derived from the judgment in Mann v Carnell [1999] HCA 66; 201 CLR 1, Maxwell P, in the Victorian Court of Appeal in Osland, in reasons set out extensively in the judgment in the High Court at [35], stated:

"The evident purpose of the Attorney-General's disclosure was to inform the public that the recommendation he had made to the Governor - that the petition for mercy be denied - was based on independent legal advice, advice which recommended that each ground advanced in the petition should be rejected. ... In the language of Carnell, this was a disclosure 'for the purpose of explaining or justifying' the Attorney-General's actions. The purpose was similar to that of the disclosure in Carnell itself, where the Chief Minister wished to satisfy the relevant Member of Parliament that the ACT Government 'had acted responsibly and in accordance with legal advice'.

In my opinion, there was no inconsistency between disclosing the fact of, and the conclusions, the independent advice for that purpose, and wishing to maintain the confidentiality of the advice itself. This was not a case of a party to litigation 'deploying' a partial disclosure for forensic advantage while seeking unfairly to deny the other party an opportunity to see the full text of the privileged communication. Nor was it 'the laying open of the confidential communication to necessary scrutiny'."

31 In the course of the hearing in this Court, attention was drawn to the judgment of Rolfe J in Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1996) 40 NSWLR 12. The case involved a proposed acquisition by Mobil Exploration and Producing Australia Pty Ltd ("Mobil") of shares in Ampolex. Mobil had issued a Part A statement and Ampolex had responded with a Part B statement. There was an issue as to the likely outcome and effect of litigation in which Ampolex was involved, known as the "Convertible Note litigation", on the share price of Ampolex, which was depressed at the time Mobil launched its bid. The Part B statement read in part (p 14D):

"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 ...:

(a) it is likely that Ampolex will be successful in establishing [its claim] and, if so, it is unlikely that there would be any further substantial claim against Ampolex ...."

32 Rolfe J rejected the proposition that this statement constituted disclosure of the substance of the legal advice for the purposes of s 122 of the Evidence Act. He stated at 17-18:

"In my view, on a fair reading of what appears [in the passage partly set out above] in the context of all the other material in it, the words are 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. ... 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."

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.

34 The problem in the present case is that no such question was formulated by the appellants, either for referral to a Full Bench, or for the purposes of the application in this Court. The trial judge identified the submission made by the appellants before him in the following terms at [16]:

"[I]t was not permissible for the Court to determine what might be inferred from the document for the purposes of deciding what had been 'disclosed' by the document. The question of law raised is whether, in determining what has been 'disclosed' by a document, a court may draw inferences from the contents of that document."

35 The thrust of the submission was by no means clear. On one view, it might be thought to refer to a case of express waiver, though that was not this case. The response of the trial judge, which immediately followed at [17], was:

"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)."

36 There did not seem to be any suggestion that Ms Nash had disclosed the legal advice she received, although the trial judge separately found that Ms Nash had given instructions to Ms Rizzo to write the letter in terms which were "inconsistent with the maintenance of the confidentiality that the privilege claimed was intended to protect": at [160]. The next proposition, that Ms Nash had received legal advice, was not in dispute. The final proposition that the substance of the advice was "plain from the terms of the letter", as opposed to being a "very clear inference", may have been a proposition which was not reasonably open, but that was not the distinction to which the appellants' question was directed. (It may also be that the trial judge misread his own reasons at [156], by effectively ending the first sentence after "Ms Nash received legal advice", thereby suggesting that the "very clear inference" did not, as otherwise appeared from the syntax, extend to the terms which followed, namely the effect of the advice.)

37 It is possible, although the submissions were not clearly expressed in these terms, that the appellants' question was designed to draw a distinction between the view, belief or understanding expressed in the document and the opinion contained in the legal advice. As explained by Rolfe J in Ampolex, there is a significant difference between a person's statement of his or her beliefs, said to be based upon legal advice, and a statement of the content of the advice. 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, unless the person had access to the actual advice given.

38 Further, as revealed by the circumstances outlined in Osland, it may be far more difficult to infer the substance of the advice where the result is the rejection of a claim by a third party, rather than an affirmative step taken by the recipient of the advice. Indeed, the very fact that the statement was made in response to a demand by the other party is likely to be a significant factor in support of the conclusion that a limited disclosure had been made in circumstances which are not "inconsistent with the client or party objecting to the adducing of the evidence": s 122(2). The proposition that it would in some way be "unfair" to deprive the respondents of access to legal advice, just because they had asked for it, in order no doubt to contradict other information with respect to the opinions held by Ms Nash, may itself not have been a reasonable opinion available in the circumstances.

39 The purpose of this examination is not to seek to identify a course which could have been taken, but to explain why the question as formulated by the appellants did not clearly identify any possibly available question of law. The proceedings in this Court must fail for that reason.

Other matters

40 Even if the appellants had succeeded in their contention that the question which the trial judge refused to refer did indeed involve a "question of law arising at or in reference to the proceedings", they would have faced other difficulties. First, on their own concession, it was necessary to identify jurisdictional error in order to obtain relief in this Court. It is, of course, not fruitful to consider whether a question which did not itself raise a question of law could demonstrate jurisdictional error on the part of the trial judge in failing to submit it to the Full Bench.

41 Secondly, it was necessary for the appellants to demonstrate why, if there had been legal error on the part of the trial judge, that warranted the intervention of this Court. It would require the conclusion that the privative clause did not operate to oblige the appellants to pursue their remedies before a Full Bench. On the assumption that a relevant question of law had been identified and not submitted to the Full Bench, in circumstances which might otherwise give rise to a complaint of jurisdictional error, there would seem to be a question of law which could itself be submitted to the Full Bench pursuant to s 5AE of the Criminal Appeal Act, and which, on the motion of the appellants, had to be submitted.

42 Thirdly, if such relief were available, it would be almost inevitable that, in the discretion of the Court, relief under s 69 of the Supreme Court Act would be refused. Such an outcome is at least highly likely in circumstances where, as in the present case, the respondents conceded that an appropriately worded question of law could have been, and might even now be, submitted to the Full Bench.

43 Finally, it is necessary to reject the relevance of the proposition, apparently raised below and repeated in this Court, that the appellants were 'not wedded' to the terms in which the question was presented. The obligation enlivened by s 5AE of the Criminal Appeal Act, which required that a question of law arising at or in reference to the proceedings be referred to the Court of Criminal Appeal if requested "by the Crown" (which includes the prosecutor in the present case) contemplates a request in relation to a particular question of law. That is not to say that the judge has no role to play in the process of formulating or refining the question, but unless some obvious and straightforward reformulation or refinement is apparent and sought in terms, it is not open to the prosecutor to come to this Court and suggest that some other question might appropriately have been submitted. The respondents properly drew attention to the statement in the judgment of the Court, delivered by Jordan CJ, in Re Van Der Lubbe (1949) 49 SR(NSW) 309 at 312 that "[i]t is not proper to ask whether, as a matter of law, the Chairman, on the facts found by him, was entitled to find the appellant guilty of the offence charged, leaving the Court of Criminal Appeal to grope through the case stated and try to discover for itself what are the specific questions of law involved". While the present case did not involve such an extreme dereliction, once the particular question relied upon by the appellants was found to have been properly rejected, the result was similar.

Conclusion

44 The amended summons filed by the applicants must be dismissed. No reason was suggested why costs should not follow the event; accordingly, the appellants must pay the respondents' costs in this Court.

45 WARD JA: I agree with Basten JA.

46 SACKVILLE AJA: I agree with Basten JA.

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Decision last updated: 08 November 2013