The High Court on waiver of privilege

15 August 2008

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The recent High Court decision in Osland v Secretary to the Department of Justice [2008] HCA 37 has confirmed that disclosure of the conclusion of legal advice may not necessarily result in waiver of privilege. The result will differ depending on the State or Territory where the disclosure was made and the court determining the matter.

The facts

Mrs Osland was convicted of murdering her husband. She was sentenced to over 14 years jail, with a non-parole period of 9 and a half years. Many considered this to be a very severe sentence in light of a finding that Mrs Osland was a “battered wife” who had been subjected to repeated violence by her husband.

Mrs Osland petitioned the Governor of Victoria for a pardon. The Victorian government sought legal advice from three senior barristers. They jointly recommended that the petition be rejected. The petition was then denied, with a press release from the Victorian Attorney-General stating as follows:

… I appointed a panel of three senior counsel, Susan Crennan QC, Jack Rush QC and Paul Holdenson QC, to consider Mrs Osland’s petition.

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.

The Governor has accepted this advice and denied the petition [emphasis added].

Mrs Osland argued that the sentence emphasised above resulted in a waiver of legal professional privilege and that she was accordingly entitled to see the advice from the three barristers. The government refused her claims and withheld the advice.

The High Court’s decision

As the relevant events occurred in Victoria, the parties agreed that questions of waiver in the case were determined by common law principles, rather than by the uniform evidence legislation (ie the Evidence Act 1995 (Cth)).

Mrs Osland argued that the relevant test in determining whether privilege had been waived was whether the substance of the privileged communication was knowingly and voluntarily disclosed. Although not expressly determined, it was arguable that the press release had “disclosed the substance and gist of the joint advice and the conclusions reached in it”. If this was the case, this would constitute a waiver of privilege under the test propounded by Mrs Osland.

The High Court unanimously determined that the relevant test was not the one contended for by Mrs Osland. Rather, it confirmed instead that the test of waiver in the case was whether there was an inconsistency between the conduct of the party claiming the privilege and the maintenance of confidentiality. Therefore waiver would occur if the government’s press release was inconsistent with the government’s stance in maintaining confidentiality over the advice.

Noting that this required consideration of the circumstances of the particular case, the High Court decided that there was no such inconsistency here. Importance was attached to the government’s purpose in making the press release, which was merely to give information concerning the process leading up to the denial of the petition. It was concluded that no unfairness arose for Mrs Osland as the press release did not seek to, and did not actually, prejudice her position. Mrs Osland’s argument on the waiver issue therefore failed.

Significance

Where the uniform evidence legislation does apply - eg in matters before the NSW Supreme Court and the Federal Court - the relevant test is the one contended for by Mrs Osland.

For matters before the courts in States where the uniform evidence legislation does not apply – eg Victoria, Queensland and Western Australia – the High Court’s decision usefully reaffirms and illustrates the application of the relevant waiver of privilege test. It would also be authoritative in respect of any pre-trial waiver disputes in the Federal Court (as the Evidence Act 1995 (Cth) provisions governing privilege generally only apply in the actual trial of a Federal Court matter).

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