Dear all

Thank you very much for your various responses and my apologies that I
am only able to reply now. I must say I found Katie's comments
especially instructive and agree with much that she says, for whatever
that's worth.

In particular, I do not understand how privilege may remain extant in
documents that are no longer confidential or at least subject to a
right to confidentiality (even if they have been disclosed, by
accident or unconscientious conduct by a third party) and I am
surprised that point was not at least adverted to in the judgment,
though I appreciate it was heard on demurrer and that the procedural
context may have been influential.

I have to say it still surprises me that Glencore did not argue that
the documents ought to be treated as confidential and privileged by
the Court because:

1. Everyone, including the Commissioner, knows the documents and
information derived from them were obtained through unauthorised
disclosure. So their consciences are or ought in my view to be
impressed with an obligation of confidence. If I received a
confidential document that a third party had stolen from a lawyer,
knowing that document to have been stolen, I would expect the party
who has a right to confidence would (subject to the usual equitable
defences) be entitled to an injunction to restrain me from using that
document or information derived from that document. Is it to be said
that because here the stolen documents and information derived from
them have been widely publicized and may have passed through many
hands before they reach me, my behavior in using the documents and
information (which I know to have been confidential and know to have
been stolen) is somehow no longer unconscientious? Perhaps this is an
absolutist view and I have missed something fundamental here?

2. Unless it is said that the Australian Commissioner's statutory
powers over-rowed even legal professional privilege (which would
surprise me in light of the language of the section), I do not see how
they would have been a bar to an argument that an injunction should be
granted to prevent the Commissioner using documents if those documents
were both confidential and privileged. For the same reason, I would
have thought that a public interest defence should not be available on
principle, if the documents are both confidential and privileged. (I
accept both the statutory and public interest defences would be
available, if the documents were merely confidential but privilege
adds another dimention, in light in particular of R v Derby
Magistrates Court Ex Parte B and the authorities that have followed
it.) If the position is otherwise, it would mean that:
A. If a party must seek inspection of documents which are
confidential and privileged, she will not get an order for inspection
if the documents are privileged. Public interest will not be
considered, unless she can establish that they fall within the
crime/fraud exception, so that privilege is lost. That is fairly
exceptional; but
B. If she somehow obtains those documents, without her counter-party
having waived privilege or confidentiality, the Court will consider
public interest in deciding whether she is precluded from using the
documents.

The distinction is unjustifiable in principle and (I think) contrary
to authority - certainly cases concerning whether to grant an
injunction where privileged documents have been disclosed
inadvertantly have not been argued and decided on a public interest
balancing test, so far as I know.

I agree with Andrew Higgins's observations also.

I found the reasons of the Court conclusory because to say that legal
professional privilege is a privilege rather than a right ought to be
the start and not the end of the analysis. The Court does not seem to
me to explain why LPP should not be a legal right, save to say that it
is regarded as a privilege in the authorities. Respectfully, I do not
think that is persuasive, having regard in particular to the
development of our understanding of the concept of legal professional
privilege over the past few decades. To say that what is being argued
for is a tort of privacy seems to me not to engage with this
fundamental question either. Indeed, a decision in Glencore's favour
would not have created, at most, a cause of action for misuse of
privileged documents, not some broader tort.

In this jurisdiction, there is a constitutional right to privacy and a
somewhat ill-defined constitutional tort derived from it. If Glencore
could not show that they had a right to have the documents treated as
confidential, I do not believe they could have succeeded in an action
for breach of privacy however, either under our Constitution or the
European Convention.

Perhaps all of my concerns arise because I do not think LPP can exist
in the absence of confidentiality and in fairness, it may be, that the
HCA's failure to affirm that basic proposition of law derives from the
procedural context in which the case was argued and decided.


Kind regards

Ger

On 8/15/19, Frederick Wilmot-Smith
<frederick.wilmot-smith@all-souls.ox.ac.uk> wrote:
> As I recall, in oral argument, Edelman J said that what the applicants
> really sought was for the law to recognise a privacy tort, as in Campbell,
> and an injunction in support of that right. I agree; but they had not argued
> for that (and, hence, had not considered the consequences of the development
> of the tort). So, for what little it’s worth, I also think it was right that
> they failed.
>
> F
>
> On 15 Aug 2019, at 05:52, Robert Stevens
> <robert.stevens@law.ox.ac.uk<mailto:robert.stevens@law.ox.ac.uk>> wrote:
>
> Ubi ius ibi remedium is, in my view, false. The converse is true, at least
> as a matter of justice. The injunction has got to reflect some kind of
> underlying right. True everywhere, not just Australia. Otherwise the judges
> have got a kind of free form power to create new rights out of the air.
> Which is contrary to the rule of law.
>
> If, on these facts, we try to expand somehow the professional privilege in
> order to construct some kind of right, it looks identical to the right to
> confidential information, which is ruled out on other grounds.
>
> From: Andrew Higgins
> <andrew.higgins@law.ox.ac.uk<mailto:andrew.higgins@law.ox.ac.uk>>
> Sent: 15 August 2019 12:34
> To: Robert Stevens
> <robert.stevens@law.ox.ac.uk<mailto:robert.stevens@law.ox.ac.uk>>
> Cc: Tettenborn A.M.
> <a.m.tettenborn@swansea.ac.uk<mailto:a.m.tettenborn@swansea.ac.uk>>; Gerard
> Sadlier <gerard.sadlier@gmail.com<mailto:gerard.sadlier@gmail.com>>;
> obligations <obligations@uwo.ca<mailto:obligations@uwo.ca>>
> Subject: Re: Privilege without Confidentiality in the HCA
>
> I don't think the outcome of the case is as straightforward as Rob suggests.
> Accepting that there is no claim right here, we are still left with the
> question: a privilege against what?
> The traditional view that privilege is an immunity only against compulsory
> disclosure was implicitly rejected by the High Court in Expense Reduction,
> where the Court accepted that privilege continued to exist in
> (inadvertently) disclosed documents because the privilege had not been
> waived, and it used its case management powers to prevent use of the
> documents. The Privy Council in B v Auckland District Law Society also
> accepted that the privilege continued to subsist notwithstanding the
> documents had already been disclosed (To paraphrase ‘A cat is still a cat –
> it can be put back in the bag’).
> So if the privilege is not confined to a privilege against compulsory
> disclosure (and the law of confidence cannot be relied upon either, which it
> couldn’t be here because of the statutory powers of the tax office) we are
> left with two main possibilities: a privilege against admissibility in legal
> proceedings or a privilege against use of the document in determining the
> legal rights and obligations (in this case to pay tax) of the privilege
> holder. Hoffmann provides some limited support for the latter interpretation
> in Morgan Grenfell where he stated the purpose of the privilege was to
> prevent disclosure and use of lawyer-client communications to the prejudice
> of the privilege holder.
> A case can be made for the broader approach which Glencore advocated, given
> it is accepted that the privilege can be exercised outside of legal
> proceedings including in investigations by regulators. The practical
> question becomes how to give effect to a privilege against use in
> determining legal rights and obligations where the documents fall into the
> hands of a person who has the power to make such determinations? Glencore
> unsurprisingly opted for an equitable injunction, and it is not obvious to
> me why you can have an injunction in support of a claim right, but not an
> injunction in support of a privilege. The typical questions about knowledge
> and damage, or the burdens imposed by injunctions, that naturally concern
> obligations lawyers, would not arise.
> To my mind, reasoning from the nature of the privilege would be a more
> satisfactory way of determining privilege disputes (in a world where data
> leaks and hacks are a major problem) then relying exclusively on, and
> stretching, the law of confidence to ascertain how public the information on
> the internet was (as was the case in Wee Shuo Woon v HT SRL [2017] 2 SLR 94)
> or treating documents blowing out of the window as confidential whoever
> picks them up as Katy notes.
> Of course unauthorised disclosure of privilege material might also give rise
> to a breach of confidence claim. There are also good reasons why, in some
> circumstances, we might want regulators to be able to take into account
> otherwise privileged information, but these are different questions.
> Best,
> Andrew
> --
> Andrew Higgins
> Associate Professor of Civil Procedure
> Faculty of Law and Mansfield College
> University of Oxford
> https://www.law.ox.ac.uk/people/andrew-higgins
>
> General Editor, Civil Justice Quarterly
> www.sweetandmaxwell.co.uk/civiljusticequarterly<http://www.sweetandmaxwell.co.uk/civiljusticequarterly>
>
>
> On Thu, Aug 15, 2019 at 10:14 AM Robert Stevens
> <robert.stevens@law.ox.ac.uk<mailto:robert.stevens@law.ox.ac.uk>> wrote:
> A privilege is a privilege. Not a claim-right. Straighforwardly correct.
>
> From: Tettenborn A.M.
> <a.m.tettenborn@swansea.ac.uk<mailto:a.m.tettenborn@swansea.ac.uk>>
> Sent: 15 August 2019 08:37
> To: Gerard Sadlier
> <gerard.sadlier@gmail.com<mailto:gerard.sadlier@gmail.com>>; obligations
> <obligations@uwo.ca<mailto:obligations@uwo.ca>>
> Subject: Re: Privilege without Confidentiality in the HCA
>
>
> I agree that it's a bit odd that there should be no confidence here (unless
> disclosure was in the public interest).
>
> Absent confidence, howeveer, I'm a bit unhappy about granting injunctions to
> those with no rights to protect or duties to enforce. Injunctions are
> drastic remedies, involving the judge (as Tony Weir once put it) taking off
> his wig and donning a helmet; if I'm not breaking a duty owed to anyone I
> shouldn't on principle be liable to be bossed around. The increasingly wide
> interpretation attached to s.37 of our Senior Courts Act and its analogues
> elsewhere is in my view worrying.
>
> I should add that in the European field I'm equally unhappty about the
> morphing of the ECHR into a sourse of rights against anyone other than the
> state, and decry the trigger-happy use of injunctions in that connection
> too.
>
>
>
> Andrew
>
>
> On 15/08/19 00:32, Gerard Sadlier wrote:
>
> Dear all
>
>
>
> Some of you will be aware of the High Court of Australia's judgment in
>
> Glencore International AG v Commissioner of Taxation [2019] HCA 26 (14
>
> August 2019)
> http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA//2019/26.html<http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2019/26.html>
>
>
>
> In brief, the applicant sought an injunction to restrain use by the
>
> Commissioner of Taxation of documents over which the applicant claimed
>
> legal professional privilege and which had been disclosed as part of
>
> the so-called Paradise Papers leak. The applicant argued that
>
> privilege was in itself sufficient to justify the grant of an
>
> injunction and that it did not have to rely on the law of
>
> confidentiality for this purpose.
>
>
>
> The Court held the privilege is an immunity, not a right which would
>
> justify the grant of an injunction, in the absence of confidentiality,
>
> which would justify the grant of injunctive relief.
>
>
>
> I must confess, with the utmost respect, that I find the reasoning
>
> conclusory at best. A number of questions do also seem to arise
>
> though:
>
> 1. The case was put on the basis that privilege would justify the
>
> grant of injunctive relief, without reference to the law of
>
> confidence. I am sure that I am missing something here but that seems
>
> to me a baffling concession. Whatever one's view of the Paradise
>
> Papers leak, the fact remains that confidential documents were
>
> disclosed without the consent of those like Glencore who had a right
>
> to that confidence. Everyone, including the Commissioner is presumably
>
> aware of how these documents became public. In those circumstances,
>
> why would the Commissioner not be impressed with an obligation to
>
> respect that confidence, as against Glencore, in much the same way as
>
> a third party is obliged by equity not to accept the disclosure of
>
> information which he knows is being provided by an employee in breach
>
> of confidence. Was there a concern that the Commissioner might
>
> successfully rely on a public interest or statutory defence?
>
>
>
> 2. Does the HCA's reasoning suggest that a different result would be
>
> reached where privilege is constitutionally protected or guaranteed by
>
> the European Convention on Human Rights? There, arguably at least, it
>
> is in reality a substantive legal right.
>
>
>
> 3. To ask 1 in another way, how can privilege be claimed at all by a
>
> party who cannot say either that (i) the documents are in fact be
>
> confidential or (ii) the documents should and would be confidential
>
> but for some wrongful act of the other side or of which the other side
>
> is on notice?
>
>
>
> Any comments would be most welcome as I have rarely left a judgment of
>
> the HCA so unsatisfied.
>
>
>
> Kind regards
>
>
>
> GEr
>
>
>
>
> --
> --
>
>
>
>
>
>
> Andrew Tettenborn
> Professor of Commercial Law, Swansea University
>
> Institute for International Shipping and Trade Law
> School of Law, University of Swansea
> Richard Price Building
> Singleton Park
> SWANSEA SA2 8PP
> Phone 01792-602724 / (int) +44-1792-602724
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>
> Andrew Tettenborn
> Athro yn y Gyfraith Fasnachol, Prifysgol Abertawe
>
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>
>
>
>
>
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>
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