ACT Chief Minister Kate Carnell has won a High Court appeal brought by a former Canberra medical practitioner, Dr Arnold Mann.
Dr Mann asserted he had been defamed by Mrs Carnell in correspondence she sent to Independent MLA Michael Moore in 1997.
The correspondence was in reply to a query by Mr Moore as to whether the ACT Government had wasted money in the conduct and settlement of earlier litigation by Dr Mann against the ACT and some public officials and other practitioners for breach of contract and defamation.
Mr Moore made his query after Dr Mann had suggested that the conduct and settlement had been a waste of time and money.
Mrs Carnell attached legal opinions about the settlement in her correspondence.
The High Court ruled that was “”an understandable and natural response”. It ruled that the documents did not lose their status of being legally privileged just because they had been passed to Mr Moore in his capacity as an MLA. Under ACT Supreme Court rules there was no obligation on Mrs Carnell to produce the documents.
After receiving the correspondence from Mrs Carnell, Mr Moore formed the opinion that there was no justification to take the matter further.
Five of the six judges ruled in favour of Mrs Carnell.
Justice Michael McHugh, dissenting, said the separation of powers meant that the disclosure to Mr Moore, a member of the legislature, by Mrs Carnell, acting for the Executive, was in effect a waiver of the privilege which would otherwise have prevented the enforced disclosure of the legal opinions to Dr Mann.
The majority (Justices Glesson, Gaudron, Gummow and Callinan in a joint judgment and Justice Kirby in a separate judgment) disagreed.
Justice Kirby said the common law would permit the disclosure in confidence of material about matters of government by the Executive to a member of the legislature without the Executive having to pay the price of loss of legal professional privilege (the right to keep the documents confidential against litigants and others).
Justice Kirby said the alternative would be that members of the legislature would force the disclosure of the documents in the open chamber if the Executive refused disclosure because it might lose privilege, and there would be no redress for anyone defamed in them.
Dr Mann will now not get access to the documents that he says defame him.