Charteris v General Manager, Leichhardt Municipal Council

[2001] NSWADTAP 12

Appeal Panel

CITATION:	Charteris v. General Manager, Leichhardt Municipal Council (GD) [2001] NSWADTAP 12
PARTIES:	APPELLANT Geoffrey Ivan Charteris RESPONDENT General Manager, Leichhardt Municipal Council
FILE NUMBER:	009030
HEARING DATES:	05/12/2000
SUBMISSIONS CLOSED:	12/24/2000
DATE OF DECISION:	05/17/2001
DECISION UNDER APPEAL:	Review of refusal of access to documents; ruling as to costs
BEFORE:	O'Connor K - DCJ (President) at 1; Goode P - Judicial Member at 1; Mapperson K - Member at 1
CATCHWORDS:	application of common law test - costs - leave to appeal out of time - statutory interpretation
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	993259
DATE OF DECISION UNDER APPEAL:	06/22/2000
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 District Court Act 1973 Evidence Act Freedom of Information Act 1989 Roads Act 1993
CASES CITED:	Mangoplah Pastoral Company Pty Ltd v Great Southern Energy [1999] NSWADT 93 Daykin v SAS Trustee Corporation [2000] NSWADT 51 Grant v Downs (1976) 135 CLR 674 Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67 Chief Executive, SAS Trustee Corporation v Dayking [2000] NSWADTAP 20 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Yates Property Corporation Pty Ltd (In Liq) v Darling Harbour Authority (1991) 24 NSWLR 156 Huntsman Chemical v International Pools (1995) 36 NSWLR 242 Gallo v Dawson (1990) 64 ALJR 458 Lloyd v Veterinary Surgeons Investigating Committee [1999] NSWADTAP 2 R v A & B [1999] NSWADTAP 3 Graham v Director General, Department of Community Services [2001] NSWADTAP 4 KBRV Resort Operations v Chilcott [2001] NSWCA 116
REPRESENTATION:	APPLICANT P Singleton, barrister RESPONDENT C Ronalds, barrister
ORDERS:	1 The decision of the Tribunal is affirmed with the following exception; 2 The Tribunal's decision in relation to Documents 1, 27 and 54 be set aside The respondent is directed after 28 days to release those documents; 3 Registrar directed to ascertain from the parties what procedure is preferred for the remaining matter (the costs appeal)

1 This appeal arises from a Tribunal decision upholding in part a local council’s refusal to release documents to an applicant for access pursuant to the Freedom of Information Act 1989 (FOI Act): Charteris v General Manager, Leichhardt Municipal Council [2000] NSWADT 81 (22 June 2000). The applicant applied for an award of costs. That application was unsuccessful: Charteris v General Manager, Leichhardt Municipal Council [2000] NSWADT 109 (11 August 2000).

2 The applicant for access (the appellant) has appealed against that part of the decision which was unfavourable to his application for review. He has also appealed against the Tribunal’s decision in relation to costs. The council (the respondent) has replied to the appellant’s appeals, but it has not cross-appealed against those elements of the decision that were adverse to it.

3 This is a not unfamiliar type of FOI dispute. The appellant is a ratepayer who has made applications for development consents relating to the family home. Those development applications have caused the respondent to obtain legal advice. Decisions have been made adverse to the appellant’s applications. Litigation has ensued. Advice has been generated in that context. The ratepayer/development-applicant has then sought access to all documents relating to the dispute. The council has refused to release some documents on the ground of legal professional privilege.

4 An appeal to the Appeal Panel is confined to questions of law, unless the Appeal Panel gives leave to extend the appeal to the merits: Administrative Decisions Tribunal Act1997 (the Tribunal Act) s 113.

Grounds of Appeal

5 In the notice of appeal the appellant asserted that the Tribunal erred in law in finding that all documents in respect of which the respondent’s claim of legal professional privilege was upheld were so privileged.

6 The second ground was that the Tribunal erred in law in failing to find that there were special circumstances that warranted an order that the respondent pay the applicant’s costs of the proceedings.

7 Alternatively, it was asserted that the Tribunal erred in law in failing to find that there were special circumstances that warranted an order that the respondent pay the appellant’s costs of the proceedings on 5 and 6 June 2000.

8 At the hearing the basis of the appeal as it related to the substantive decision delivered on 22 June 2000 became somewhat clearer and could fairly be summarised as follows:

(i) that the Tribunal had misdirected itself as to the proper interpretation of the legal professional privilege exemption

(ii) if it did, contrary to this submission, properly interpret the exemption, it had no evidence upon which to base its conclusion that the documents in issue met all the elements required to establish legal professional privilege, in particular the requirement that the communications be ones made confidentially.
9 Because of an objection being made by the respondent on the question of whether the Appeal Panel had any jurisdiction in respect of costs appeals, the substantive questions raised in relation to the costs appeal were not reached.

Preliminary Issues

10 In this case the respondent objected to the appeal being entertained on the ground that it was lodged out of time. The first question was whether the notice of appeal was lodged out of time. That was resolved against the appellant. Consequently the appellant applied for grant of leave to appeal out of time. That application was opposed by the respondent. Leave to appeal out of time was granted. The rulings in relation to these matters are set out at the end of these reasons for decision.

11 As already noted, there was a further question as to whether the Appeal Panel had jurisdiction to entertain an appeal as to the Tribunal’s decision in relation to the costs application of the applicant. That question was the subject of written submissions after the appeal hearing was completed. The ruling on that question, that the Appeal Panel is competent to entertain an appeal on a question relating to costs, is also set out at the end of these reasons.

Background

12 It is helpful in this decision to outline the sequence of applications and the respondent’s decisions. For a fuller account see the original Tribunal’s decision at paras [5] to [17].

13 The appellant and his wife in 1991 purchased a house with the address 5 Punch Street Balmain. It is located on the Sydney Harbour foreshore in the Birchgrove area of Balmain. Though maps show Punch Street as running along the western boundary of the property, that part of the street has never been constructed. It is referred to at different points in the decision below as being ‘unformed’ and being ‘unmade’. The land on which the house is situated is set back from the made portion and does not enjoy vehicular access to it. This case flows from attempts made by the appellant to obtain respondent approval for a development application permitting the building of an access driveway to the house across the unmade area.

14 The first formal application for approval was made in December 1996.

15 The respondent replied in May 1997 that it had concluded that the proposal constituted a prohibited development. It had received legal advice from its solicitor, Mr Taylor, prior to replying.

16 That led to discussions between the appellant and the respondent about the possibility of rezoning the land affected by the original application. Various internal memorandums were generated within the respondent including ones referring to Mr Taylor’s advice.

17 In December 1997 the appellant made new formal applications, one for consent to build a driveway over the unmade section of Punch Street driveway, one for rezoning to permit subdivision of the site into two lots and one to build a dwelling on the new lower lot.

18 The appellant is a practising barrister (a matter which the Tribunal below saw as relevant to its findings). In relation to the December 1997 applications, he furnished the respondent with advices from a barrister experienced in planning law as to the lawfulness of his new applications. The respondent sought further legal advice from Mr Taylor.

19 These applications were considered by the elected respondent at its meeting on 24 February 1998. The advice from Mr Taylor was among material it considered. The respondent resolved to refuse the applications.

20 As to the position since, the Tribunal observed at para [10] - ‘It would seem that the elected councillors have never been asked to reconsider these resolutions, and that the resolutions have provided the policy which Respondent staff have subsequently applied in their own decision-making.’

21 After the decision of February 1998, the appellant commenced proceedings to review the respondent decisions in the Land and Environment Court as they related to the rezoning application and the building application.

22 That gave rise to the respondent officers revisiting the applications and this time they obtained a second opinion in the form of legal advice from Pike Pike & Fenwick in relation to the matters addressed by Mr Taylor in his two previous advices. There was also correspondence at this time formally instructing Pike Pike & Fenwick to act in the Land and Environment Court proceedings.

23 The documents in dispute contain various documents connected with the respondent’s defence of that litigation.

24 Ultimately there were orders by the Court made on 13 January 1999 negative to the appellant in respect of both the rezoning and subdivision applications.

25 The appellant had also made an application under the Roads Act 1993 to obtain permission to use the roadway. The respondent also resolved at its meeting on 24 February 1998 to close the unmade section of Punch Street over which the appellant had sought permission to build. The Tribunal’s comment on this aspect of the dispute at [16] was ‘it would seem that this Roads Act application has not been formally determined and has lapsed.’ That process of decision-making also led to the creation of internal memorandums that were among the documents in dispute before the Tribunal below.

Exemptions Relied Upon

26 Two exemptions were relied on by the respondent to justify non-disclosure of the documents in dispute before the Tribunal. The legal professional privilege exemption was cited in relation to all the documents in dispute (cl 10 of Schedule 1 to the FOI Act). The internal working documents exemption was cited as to some of them (cl 9 of Schedule 1 of the FOI Act).

27 As only cl 10 (the legal professional privilege exemption) is relevant to this appeal, it is set out below.

‘Documents subject to legal professional privilege

(1) A document is an exempt document if it contains matter that would be privileged from production in legal proceedings on the ground of legal professional privilege.

(2) A document is not an exempt document by virtue of this clause merely because it contains matter that appears in an agency's policy document.’

Approach adopted by Tribunal

28 The respondent numbered the documents over which it claimed exemption into 1 to 72 for the purpose of the Tribunal proceedings. The Tribunal collated these documents into groups for the purpose of its decision. The Tribunal said at [18] - ‘The above groupings are mine, but they enable me to give short reasons for deciding the respondent’s initial claims for exemptions in relation to each of the documents in contention.’

29 The following table sets out the categories, and the decision of the Tribunal referring to the exemptions in issue and the Tribunal’s conclusion:

Group A: Documents 64-69, correspondence between the respondent and Mr Taylor, solicitor, January to April 1997.

Decision : Respondent decision affirmed. Legal professional privilege exemption (cl 10) applicable.

Group B: Documents 59, 61-63, series of internal documents in which respondent officers discussed the zoning of the land and the appellant’s problems, and which included references to Mr Taylor’s advice, May to October 1997.

Decision: Respondent decision set aside in case of all documents (59, 61, 63) with one document to be released with deletions (62). Internal working documents (cl 9) not applicable as not satisfied that disclosure would be contrary to the public interest. Legal professional privilege exemptions not applicable, with the exception of a portion of document 62 to which the legal professional privilege exemption is applicable.

Group C: Document 60, an advice related to a different problem from different solicitors, Pike Pike & Fenwick dated September 1997. (Seen by the respondent as relevant though it concerned a parking problem at Harold Park Raceway.)

Decision: Respondent decision affirmed. Legal professional privilege exemption applicable.

Group D: Documents 54-58 and 72: correspondence between respondent and Mr Taylor seeking further advice, including the second advice given on 24 February 1998.

Decision: Respondent decision affirmed. Legal professional privilege exemption applicable.

Group E: Documents 27, 39, 40, 42, 53: communications concerning the request for legal advice from Pike, Pike and Fenwick on the legal matters previously addressed by Mr Taylor in his two advices, March 1998.

Decision: Respondent decision affirmed. Legal professional privilege exemption applicable.

Group EE: Document 70, Internal report dated 26 March 1998 referring to advice given on 17 March 1998.

Decision: Respondent decision set aside and document to be released with deletions. Internal working documents (cl 9) not applicable as not satisfied that disclosure would be contrary to the public interest. Legal professional privilege exemption only partly applicable.

Group F: Document 43 and all remaining Documents in contention, March 1998 to February 1999: Instructions to Pike, Pike & Fenwick in respect of the Land and Environment Court litigation and subsequent documentation and the concluding solicitors’ report on the outcome plus bill of costs dated 26 February 1999.

Decision: Respondent decision affirmed (‘all the normal and expected communications between solicitor and client in such proceedings’: Tribunal at para [13]). Legal professional privilege exemption applicable.

Group G: Documents 23 and 52: internal memorandum relating to the road closure issue dated 23 February 1998 which refers to the Pike Pike & Fenwick advice of 17 March 1998 which is in Group E.

Decision: Respondent decision set aside in respect of both documents, with both to be released with deletions (23, 52). Internal working documents (cl 9) not applicable as not satisfied that disclosure would be contrary to the public interest. Legal professional privilege exemption not applicable except for one passage that appears in both documents.

Group H: Documents 19, 22: Advice and draft letter from Pike Pike & Fenwick in relation to query from appellant as to existing roadway uses: September-October 1998.

Decision: Respondent decision affirmed. Legal professional privilege exemption applicable.

30 The Tribunal summarised its decision as follows:

‘35. For all the above reasons, I consider that the decision under review should be affirmed except in relation to documents number 18, 23, 32, 52, 59, 61, 62, 63 and 70. I consider that the appellant should be given access to the whole of 18, 32, 59, 61 and 63 and to such parts of documents 23, 52, 70 as are not to be deleted and withheld in accordance with these reasons.’

[Documents 18 and 32 mentioned in this summary are not discussed in the decision. The Appeal Panel has inspected the bundle of documents over which the respondent claimed exemption (Confidential Exhibit 5 in the Tribunal) and ascertained that these documents were marked within the bundle as no longer being subject to a claim for exemption. Document 18 is a fax cover sheet dated 19 October 1998 with no substantive content to Pike Pike & Fenwick, document 32 is also a fax cover sheet to a solicitor with that firm dated 11 June 1998 with no substantive content.]
Appeal Ground 1: The Interpretation of Legal Professional Privilege

31 In the decision the Tribunal did not state in terms what criteria needed to be satisfied in order to show that a document was affected by legal professional privilege. Instead it adopted reasoning contained in other Tribunal decisions on this subject: Mangoplah Pastoral Company Pty Ltd v Great Southern Energy [1999] NSWADT 93 and Daykin v SAS Trustee Corporation [2000] NSWADT 51.

32 It is plain that the Tribunal was aware of the current common law test for legal professional privilege. It also referred to the provisions of the Evidence Act 1995, and noted distinctions between the formulation found in the Evidence Act as to client legal privilege (see Evidence Act, Part 3.10, Div 1, Client legal privilege (ss 117-126)) and that of the common law.

33 It regarded both standards as potentially applicable to the documents, and found that applying either test the documents in issue were privileged: see para [19] of the decision.

Developments in the Law on Legal Professional Privilege

34 The Judicial Member constituting the Tribunal (Mr M Smith) also constituted the Tribunal in the Mangoplah case. At the time of that decision there was disagreement as between the New South Wales Court of Appeal and the Federal Court of Australia as to whether the common law doctrine of legal professional privilege (the ‘sole purpose’ test as articulated by the majority in Grant v Downs (1976) 135 CLR 674) should be reinterpreted in a way that rendered it consistent with what were seen as the otherwise inconsistent provisions contained in the Evidence Act (the New South Wales view); or that the Evidence Act did not affect the operation of legal professional privilege at common law as it was not inconsistent with it (the Federal Court view).

35 At that time Smith JM in Mangoplah considered that the New South Wales position should be followed by the Tribunal in interpreting the scope of the legal professional privilege exemption. He said:

‘23 The difficulty arising from the provisions [contained in Part 3.10, Div 1 of the Evidence Act on client legal privilege] is they "make significant changes to the law of evidence in relation to client legal privilege" and that in their terms they are "relevantly confined to the adducing of evidence, and that this expression does not in its ordinary and natural meaning extend to ancillary processes involving the pre-trial gathering of evidence" (Akins v Abigroup Ltd (1998) 43 NSWLR 539 at 545). The solution adopted by the Court of Appeal in Akins at 546 is that "the principles of the Act touching client legal privilege apply derivatively to ancillary processes involving the pre-trial gathering of evidence. I acknowledge that this entails recognition that the common law is modified so as to accord with the Evidence Act in this area.". It is clear from the judgment that "the common law" doctrine which is suggested in this passage to have been "derivatively" modified, is the "doctrine of legal professional privilege".

24 That there has been a modification of common law doctrine, was not accepted in the Federal Court in Esso Australia Resources Ltd v Commissioner of Taxation (1998) 83 FCR 511, and this case is currently the subject of appeal to the High Court. It was doubted by James J in R v Young [1999] NSWCCA 166 at [344-5], and has received underpinning by the introduction of rules of court which legislate for the application of the Evidence Act tests to pre-trial processes. However, I consider that I am bound to accept that the common law is now as enunciated in Akins' Case and that I should not await the outcome of the appeal from Esso's Case . I am confirmed in this approach because, as will appear, the rules on legal professional privilege upon which I have decided the case are those espoused by the respondent, whose claims for exemption I am rejecting. Moreover, I am doing so by application of a principle common to both s 119 and the common law as enunciated prior to the Evidence Act.

25 Akins produces a situation where the common law privilege articulated in Grant v Downs (1976) 135 CLR 674, which was applied at all stages of legal proceedings at the time that the FOI Act was enacted, has now altered in content and is applied in proceedings only at stages when the Evidence Act privilege does not apply either of its own force or pursuant to special rules of court. The question then arises: is cl 10 to Sch 1 of the FOI Act to be interpreted as requiring me to address only the tests of common law privilege, and, if so, as articulated now or as it was articulated at the date of the FOI Act?

26 The appellant did not take the position that cl 10 was devoid of effect because no NSW Court would apply the ground of legal professional privilege as articulated at the time of its enactment. Instead, it argued that cl 10 required me to approach the exemption as if questions of legal professional privilege were being decided in notional legal proceedings conducted before the enactment of the Evidence Act. This may have been the construction of the same words in the ACT FOI exemption taken in Re Spier and ACT Electoral Commissioner (1995) 41 ALD 374.

27 I reject this argument. I do not read the reference to "on the ground of legal professional privilege" as a reference to the precise tests of privilege applied at the date of enactment of the FOI Act, or as at the date of enactment of the Commonwealth FOI Act upon which this provision seems to have been modelled. Plainly the legislature intended to refer to the tests of common law privilege which, at the time of enactment, were labelled and applied by judges under the term "legal professional privilege". However, Parliament must have appreciated that the continuous process of articulation of common law meant that the doctrine might change in its labelling and its content. The clear object of the exemption in cl 10 was to allow the refusal of access to those documents which would contemporaneously be protected by courts when applying the then current tests of privilege. An ambulatory reading of the reference to "ground of legal professional privilege" is therefore to be preferred (c.f. Attorney-General (NSW) v Brewery Employees Union of NSW (1908 6 CLR 469 at 501, 521,531, 610; Barker v The Queen (1983) 153 CLR 338 at 356; and Brown v The Queen (1986) 160 CLR 171 at 190).

28 I therefore read the reference as being one, at least, to the grounds of common law legal professional privilege articulated in NSW courts as at the date of the determination of the exemption. It may be that an ambulatory interpretation can be taken further, so that the reference also covers new statutory privileges which supersede or serve the same function as the common law privilege and are applied in NSW legal proceedings at any stage. However, I need not decide this.

29 I have therefore accepted the submission of the respondent that whether the documents came within s 10 should be determined by reference to the tests of client legal privilege found in the Evidence Act.’

36 In Daykin v SAS Trustee Corporation [2000] NSWADT 51 Smith JM was again faced with a legal professional privilege claim, with the High Court decision now having been given: Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67.

37 He referred to his discussion in Mangoplah and said:

‘The legal professional privilege exemption

35 For the reasons given in Mangoplah (supra) at [27] I consider that the reference in cl 10 to Sch 1 of the FOI Act to "the ground of legal professional privilege" should be given an ambulatory construction, as a reference to the common law and statutory tests which would be applied by a NSW court when deciding questions of privilege "in legal proceedings" notionally conducted at the time when the FOI application is determined, i.e. at first instance or on review by the Tribunal. Moreover, the breadth of the term "in legal proceedings" encompasses all stages of legal proceedings, so that, if current laws require different tests to be applied at interlocutory stages and at the hearing, the exemption will arise under whichever test gives the broadest privilege applicable in the particular circumstances. I note that an ambulatory construction of a "secrecy provisions" exemption was taken by the Victorian Court of Appeal in Department of Premier and Cabinet v Hulls [1999] VSCA 117 at [40].

36 In Mangoplah I applied common law tests of privilege in accordance with Akins v Abigroup Ltd (1998) 43 NSWLR 539. The High Court has now in Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67 rejected the opinion that there is a "derivative" application of the Evidence Act to pre-trial processes, but has restated the common law so as to prefer the opinion given by Barwick CJ in Grant v Downs (1976) 135 CLR 674 at 677:

"a document which was produced or brought into existence either with the dominant purpose of its author, or of the person or authority under whose direction, whether particular or general, it was produced or brought into existence, of using it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation, at the time of its production in reasonable prospect, should be privileged and excluded from inspection."

37 In the present case, I consider that there are no material differences between this test and the terms of s 119 of the Evidence Act, which is also relied upon by STC. That section applies to:

"a confidential communication between a lawyer acting for the client and another person, that was made ... for the dominant purpose of the client being provided with professional legal services relating to an Australian ... proceeding ... in which the client is... a party".’

38 We respectfully agree with the above analysis. (The decision was set aside on other grounds: Chief Executive, SAS Trustee Corporation -v- Daykin [2000] NSWADTAP 20, 8 November 2000).)

Is the Common Law Test the FOI Test?

39 The FOI legal professional privilege exemption in sub-cl (1) of cl 10 provides that a document is an exempt document ‘if it contains matter that would be privileged from production in legal proceedings on the ground of legal professional privilege’. Counsel for the appellant focused on the word ‘production’. In that regard he referred in turn to the (now clear) delineation that has been made by the High Court to the circumstances in which the Evidence Act protections apply - to the adduction of evidence at trial - and to the circumstances to which they are not applicable, and where necessarily the common law continues to apply unaffected by the Evidence Act - the pre-hearing, interlocutory stages. He argued that ‘production’ of documents is a term of art used to describe the processes connected with discovery, inspection and summonsing of documents. Consequently there should be no reference to the Evidence Act in a case such as the present where the documents in dispute were not part of any material formally admitted into evidence.

40 This analysis was not contested by the respondent. Its position simply was that the Tribunal had not committed itself exclusively to the ‘Evidence Act’ test. It had also employed the ‘common law’ test when examining the documents and applied that standard.

41 It is not unusual for courts or tribunals to make a decision on alternative premises. That course was open to the Tribunal to adopt in this course.

42 This case is typical of a class of FOI disputes. The FOI application has been made as a consequence of a wider dispute that has given rise to litigation. The FOI Act is frequently used tactically by a person anticipating or involved in litigation with a government agency as a way of obtaining documents prior to commencing action or because they may not be susceptible to release on discovery.

43 The FOI legal professional privilege exemption has to be seen in the overall context of the balances sought to be struck in the FOI Act. The general policy that citizens in a democracy should be entitled to see all documents held by government is qualified by exemptions and exclusions addressed to numerous countervailing public interests to do with ensuring the effective functioning of government. The legislation through cl 10 recognises the right of government agencies to have the same protection that all litigants (and those preparing to undertake or defend proceedings) enjoy in relation to the strict confidentiality of the communications that pass between the client and legal advisers.

Preferred Approach

44 We do not favour an unduly mechanical approach to interpreting cl 10. We are not convinced at this stage that different outcomes would flow in a particular case from application of the Evidence Act tests to documents in dispute in an FOI case, as compared with the common law test. At some point the Tribunal may be required to resolve this issue more conclusively if the potential for different results is realised.

45 At this stage, we would not wish to foster a situation where agencies dealing with FOI requests were forced to divide documents in dispute into documents generated in anticipation of litigation, or documents that were ‘producible’ and those that were actually received into evidence. In ordinary circumstances it should be acceptable to apply either test, even if technically the Evidence Act provisions have no application to circumstances other than those where a document is being formally adduced in evidence in proceedings.

46 In any case we agree with the submission of counsel for the respondent that the Tribunal satisfied itself to that extent that any difference in outcome might flow by applying both tests.

47 This is not a case of misapplication of the appropriate legal test. There is no error of law.

Appeal Ground Two: Degree of Specificity of the Fact-Finding Process

48 The second ground of appeal essentially involves an attack on the lack of specificity of the fact finding process undertaken by the Tribunal. As noted, in applying the tests to the documents in issue the Tribunal took a global approach. It reviewed the documents in each of the categories that it established based on the history of the planning dispute. It made general findings as to the application of the criteria for legal professional privilege to each of these groups. It did not engage in a document by document analysis.

49 Counsel for the appellant took issue with this approach. He contended that the findings were insufficiently precise and that the better approach would have been to have made a finding in respect of each document. In terms of the errors of law said to have arisen, they could be characterised as a failure to give adequate reasons and in relation to some aspects of the application of the exemption to the facts, a failure to base findings on evidence. Attention was also drawn to three documents which by their description in the schedule appeared not to fall within the scope of documents protected by legal professional privilege.

The No Evidence Argument and Proof Requirements

50 The appellant’s objection is that there was no proof that the advices had been given ‘in confidence’. Certainly there was no finding specific to that issue; instead a global finding was simply made that the requirements of legal professional privilege were satisfied.

51 The respondent’s counsel pointed out, and appellant’s counsel agreed, that no cross examination was directed to this matter. But appellant’s counsel’s position was that this was no answer to a failure on the part of a respondent agency to discharge its burden of proof in relation to justifying reliance on the exemption. Section 61 of the FOI Act provides:

‘Burden of proof

In any proceedings concerning a determination made under this Act by an agency or Minister, the burden of establishing that the determination is justified lies on the agency or Minister.’
52 This is the position of an adversarial litigator. Merits review applications, even in hotly contested environments, should admit of approaches that have as their goal the ascertainment of the ‘correct and preferable’ decision.

53 Here we have an instance where the ordinary understanding of informed parties, especially an appellant who is an experienced barrister who is in turn represented by an experienced practitioner, would be that the communications that pass between a legal practitioner and his or her client are confidential; and that it is the client’s privilege unless waived by the client. There were in fact submissions in the case, rejected by the Tribunal, that waiver had occurred in relation to some documents: see, for example, para [20].

54 We are satisfied that on the material before the presiding member (himself also an experienced legal practitioner) it was open to him to conclude that this was a case where the normal client privilege applied and continued to be asserted. There was sufficient evidence before him for this purpose, most importantly the documents themselves. (The position would be different if additional evidence were introduced into the reasoning process without any opportunity to the parties to comment on it: see further Daykin v SAS Trustee Corporation [2001] NSWADTAP 7.)

55 The obligation to give reasons, especially in a Tribunal context, does not, we consider, require a document by document analysis in all FOI cases, though that will often be the prudent course to adopt. It is permissible, we consider, to proceed on a category-by-category basis, as occurred here. But it must be possible to link the category-by-category approach to a reference that lists the documents item by item. In this instance that reference was the schedule prepared by the council, which the Tribunal felt for its purposes could be reorganised into categories. The decision of the Tribunal needs to be read in conjunction with the council’s schedule.

56 This is not a case in our view where there was an absence of proper reasons (as to which see generally Tribunal Act, s 89) of such a degree that it amounted to an error of law. As Kirby P noted in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259 in reference to Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156:

‘This decision does not require of trial judges a tedious examination of detailed evidence or minute explanation of every step in the reasoning process that leads to a judge’s conclusion. But the judicial obligation to give reasons, and not to frustrate the legislative facility of appeal on questions of law, at least obliges the judge to state generally and briefly the grounds which have led him or her to the conclusions reached concerning disputed factual questions and to list the findings on the principal contested issues. Only if this is done can this Court discharge its functions if an appeal is brought to it. Where nothing exists but an assertion of satisfaction on undifferentiated evidence the judicial obligation has not been discharged.’

57 See also per Mahoney JA at 269-273 and per McHugh JA at 280. See further Yates Property Corporation Pty Ltd (In Liq) v Darling Harbour Authority (1991) 24 NSWLR 156 per Handley JA at 189, and Huntsman Chemical v International Pools (1995) 36 NSWLR 242 per Mahoney JA at 256.

58 We do not think that the global, or category-based, approach adopted by the Tribunal was so defective as to fail to disclose adequately the Tribunal’s reasoning process.

59 The Tribunal had the following material before it: an affidavit as to circumstances from the general manager of the respondent, oral evidence from the general manager and all of the documents affected by the request including those already released (many of which were simply items of correspondence that had passed between the parties).

60 In FOI cases appellants are unavoidably at a disadvantage in that they have not had access to the documents in dispute which are known to the respondent agency and may be inspected by the Tribunal in its processes of deliberation. The Tribunal in FOI matters is proceeding in a relatively inquisitorial way. The Tribunal must to a significant extent proceed by satisfying itself as to whether the exemptions have been properly invoked.

61 The appellant criticised what it saw as the failure of the respondent to give any evidence on the question of the extent of confidentiality of the advice. As already noted, the privilege is one that protects from disclosure communications made in confidence for the purpose of legal advice or to conduct or aid in the conduct of litigation. The appellant’s submission raises issues as to the extent to which agencies must go in satisfying the Tribunal that they are entitled to invoke an exemption and show that they have discharged the burden of proof found in s 61.

62 Though desirable, it is not in our view always necessary for an agency to reiterate by oral evidence from the general manager what it has already asserted in its notices refusing the request. In this instance, documents which on their face would ordinarily be regarded as confidential were asserted by it to be confidential. We do not accept that in these circumstances there is any error in the Tribunal proceeding without receiving formal sworn evidence to the effect that the documents were generated in confidence. The documentary material before it was substantial, and provided an adequate basis upon which to make findings. The Tribunal had before it, for example, two sworn statements from Ms Lyons, the respondent’s Executive Officer. It also had before it as confidential exhibits, the documents in dispute. The appellant and the respondent were represented by counsel.

63 We are not disposed to intervene generally in relation to the decision. But there is one aspect of the decision below where we consider an error has been identified.

Apparent Errors

64 The appellant has highlighted two classes of documents listed in the schedule of documents for which exemption was claimed, and affirmed by the Tribunal, which it says on the face of it are difficult to justify by reference to the legal profession privilege exemption. It doubts that the Tribunal applied the law correctly to this material but it is not in a position to take its submission any further as it, necessarily, has not been able to see the documents.

65 The two classes of documents singled out for attention are one described in the schedule of documents as ‘costs disclosure’ statement; and two described as ‘bill of costs’. There are two bills of costs - Document no. 1 - statement of costs dated 26 February 1999; and Document no. 27 - statement of costs dated 17 June 1998. The ‘costs disclosure’ statement is Document no. 54 dated 11 March 1998.

66 Documents 1 and 27 fell into Group F (the residual group). Group F was dealt with briefly at para [13] and [20] of the Tribunal’s reasons for decision. There are no observations specifically referring to Documents 1 and 27. Document 54 fell into Group D, addressed at para [9] and [19].

67 A costs disclosure statement and bills of costs can not be regarded as documents prepared for the purposes of litigation. One is a statement required to be given to clients by the consumer protection provisions of legislation governing the legal profession. The others are accounts for fees. They are not documents created for the purpose of litigation.

68 We are satisfied that at least in respect of these three documents the Tribunal’s decision is defective. As no other ground of exemption was relied upon, we shall direct the release of those documents.

Other Matters

69 There were two matters that were the subject of oral rulings at the hearing. One ruling went to the question of when time begins to run for the purpose of the appeal period.

70 As a consequence of that ruling, it was necessary for the appellant to proceed with an application for leave to appeal out of time, which was opposed. The application was granted.

Timeliness of Appeal

71 The principal decision was handed down on 22 June 2000. There was a second decision on the question of costs on 11 August 2000. The appellant’s application for costs was refused. The notice of appeal was filed on 6 September 2000. It contained grounds of appeal in relation to both matters.

72 There was an issue as to whether the notice of appeal was filed within or outside the 28 day period provided for by the Tribunal Act. Section 113(3) provides that an ‘appeal must be made: (a) within 28 days after the Tribunal furnishes the party with written reasons for the appealable decision under section 89, or (b) within such further time as the Appeal Panel may allow.’

73 While the notice of appeal was in time in relation to the costs decision, it appeared to be out of time as to the principal decision. The respondent opposed grant of leave to appeal out of time in respect of the principal decision. As to the costs decision, the respondent submitted that this was not a decision to which the right of appeal applied. The respondent referred to s 112 of the Act. Section 112(1) relevantly provides that an ‘appealable decision’ is a ‘decision of the Tribunal made in proceedings for … (b) review of a reviewable decision.’

74 The appellant submitted that time did not begin to run for the purpose of calculating the appeal period until the whole of the application for review made by the appellant had been determined. In this instance the application had two components from the outset - a principal element seeking reversal of the respondent’s refusal to release the documents, and a second element applying for a costs order against the respondent. For the purpose of s 89 of the Tribunal Act it could be said not to have ‘determined the application’ until all elements of the application had been disposed of. Therefore time only commenced to run from 17 August 2000 and the appeal was not out of time.

75 In reply Ms Ronalds for the respondent drew attention to s 8 of the Tribunal Act and noted that a ‘reviewable decision’ was defined as ‘a decision of an administrator that the Tribunal has jurisdiction under an enactment to review.’ The ‘application’ to which s 89 refers, therefore, is the application for review of the reviewable decision. Once that application is disposed of the appeal period commences upon the delivery of reasons for decision.

76 Oral reasons for decision were delivered during the hearing on 5 December 2000, as follows:

‘The basic principle reflected in the Act is that an appeal is to be lodged within 28 days after the Tribunal furnishes its written reasons: s 113(3). In this case there are two decisions that have been made in the matter. The first dated 22 June 2000 and the second dated 11 August 2000.

The first decision disposed of the questions raised by the appellant, then the applicant, for review of various decisions to refuse access to documents made by the respondent, the Leichhardt Municipal Council. The second decision was a decision by the Tribunal to refuse an application for costs made by the appellant.

The Notice of Appeal was filed in the Tribunal on 6 September 2000 which was within 28 days of the second decision but more than 28 days after the first decision.

The argument of the appellant briefly put is that the date of the second decision on costs, the decision made 11 August 2000, is the trigger date for the purpose of determining when the time period for appeal commences to run under section 113 and the argument to the contrary put by the respondent is essentially that the decision that is principally an issue in these proceedings is the first decision and the date of that decision is the trigger date for the purpose of determining when the period for appeal commenced to run.

Now and in further support of that argument it is submitted that the language of the Act in respect of what is meant by ‘application for review of a reviewable decision’ is relevant. The appellant says on the one hand that an application was made from the outset in this case for costs to be ordered and that therefore it can reasonably be said that the application made by the appellant was not finally disposed of at the primary level of the Tribunal until the costs application was dealt with which was 11 August whereas the argument for the respondent is that the material application before the Tribunal was the application for review of a reviewable decision and that application was disposed of on 22 June and the decision in relation to that application is the decision that is under appeal primarily in these proceedings and at least in regard to that aspect of these proceedings leave is necessary in order for the appeal to proceed.

The arguments each have some strength. But it is the view of the Appeal Panel that the critical question is what is meant by an application for review of a reviewable decision, what does it embrace and more particularly, can it be said that the decision of 22 June disposed of the application for review of a reviewable decision. It is our view that that is in fact what occurred on 22 June in these proceedings. The application that was placed before the Tribunal was an application to have the Tribunal ascertain whether the agency had made a correct and preferable decision in terms of the Freedom of Information Act in respect of its refusal to release documents. That was the essence of the dispute between the parties. That matter was dealt with by Mr Smith and disposed of by the decision on 22 June. It can properly be said at that point that the application was dealt with.

It is the case that when appellants bring proceedings in this Tribunal they may be able to utilise the rights that the Act gives in respect of the award of costs; and equally that may apply to respondents. But that is not the reason that people are before the Tribunal; they are not here to ventilate arguments about costs; they are here to ventilate real grievances about administrative relationships. Once the matter is in the hands of the Tribunal then there is a protective element in the Act with respect to costs. It says that there may be ‘special circumstances’ brought to the attention of the Tribunal in the course of disposing of a matter which warrant an award of costs as an exception to the general rule that no costs are to be awarded.

So whilst it might be the case that the text of an application for review of a reviewable decision includes an element which is expressed to be an application for an order for costs, we do not see that as being material to the point that we have to deal with today. Our conclusion in light of the oral argument and after brief analysis of the statutory provisions is that the decision which is the subject of the principal appeal in this case is a decision made on 22 June. It was a final decision in respect of the substance of the matter brought before the Tribunal. It is the logical date from which time should be considered to have commenced to run in the matter.’

Application for Leave to Appeal

77 In light of the above ruling the applicant applied for leave to appeal. The ruling was as follows:

‘The ruling earlier today was to the effect that the Notice of Appeal in these proceedings was filed out of time and because time for the purpose commenced to run on the date that the decision was handed down which was 22 June. As a result we have heard submissions as to whether leave should be given by the Appeal Panel pursuant to section 113 to permit the appeal to be heard though it has been filed out of time.

We have received submissions going to the various factors which the Appeal Panel should have regard to and I have taken account of the observations of McHugh J in Gallo v Dawson (1990) 64 ALJR 458 and also referred to the discussion that is in the Supreme Court Practice at paragraph 51.5.4 to seek to make an assessment of the various factors that are relevant to the discussion. The primary consideration today it would seem and this is emphasised in the judgment McHugh J is to determine whether application of the rules requiring strict compliance with time requirements would work an injustice; if so, it is permitted to have regard to a number of factors.

The factor that remains of concern to me in respect of the applicant’s position is that it is not entirely clear as to why no appeal was lodged in the first 28 day period. It is said that the reason was that there was some uncertainty as to when the time for appeal commenced; and that the ruling that was made this morning was not available to the applicant at the time the 28 day period commenced. I see that as a matter that tends to militate against the application. The relevance of that is highlighted in the judgment of McHugh J where he was dealing with an unrepresented applicant who appears to have been challenging in some way the conduct of Dawson J of the High Court. McHugh J noted there that, to the extent that he could ascertain from her affidavit, the unrepresented applicant in that case had in effect made a conscious decision not to abide by the applicable 21 day time limit. She had chosen to undertake extensive research over 16 months before filing proceedings. The length of time that elapsed in that case between the appeal period and the lodgment of the appeal was extraordinarily long - 16 months compared to a 3 week appeal period. That factor is not in play to the same extent in this case. We have a situation where the appeal has been lodged 6 weeks after the time at which the appeal period expired; and the applicant would say less than 4 weeks after the second decision, the costs decision. So the degree to which the matter is out of time is not extreme; and certainly is well under some of the lengths of time that have been allowed on other occasions in this Tribunal’s Appeal Panel (whether on reflection all those decisions were necessarily good ones).

Now the other factors that McHugh J refers to: the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties of grant or refusal of the application. We have not been able to form a clear view on most of those matters. It is evident obviously from the decision under appeal that there is a highly contentious relationship between the applicants and the Council over this question of building a driveway in the vicinity of the applicant’s home and permitting vehicular access to the driveway. One gathers from the decision under appeal that the relationship continues to be a contentious one. We have material before us today via Exhibit A that indicates that there are now proceedings on foot in respect of development applications apart from the subject of today’s proceedings going to the building of the premises as well.

On the other hand I think we have to have regard to the particular matter that is the subject of this litigation - a request for access to documents under the Freedom of Information Act, in circumstances where the ordinary rule is that agencies should make available their material. I acknowledge in this case that a substantial amount of material has been made available both prior to the proceedings and as a consequence of the recent order. One matter I had difficulty in dealing with in the course of submissions (as I conveyed to counsel) is the question of the extent to which one should take account of the choices made by a respondent, in circumstances where an appellant does not appeal within the appeal period. The respondent acts on the order that has been made below after the appeal period expires; then finds that an appeal is to be lodged. In a sense it has lost the opportunity to revisit the considerations that led it to decide to respond to the order. Though this may not have been the intention of the submissions, they tended to convey the impression that one should give weight in exercising the discretion to what might have been called the tactical aspect of litigation. It seems to me that that would be an inappropriate matter for the Tribunal to take into account. The parties each have the opportunity to assess the decision and decide whether to act on it. Whilst this may seem to be a trite observation, it would appear to me not be appropriate to take into account whether or not one or the other side will appeal in relation to the decision. Each party can make their own choice in relation to that matter. Now the issue is complicated obviously when there is an appeal made out of time.

One of the factors that needed to be taken into account is the significance for the parties of grant or refusal of the application for extension of time. A consequence for the respondent as I understood it were partly in terms of this question of the lost opportunity to appeal; more importantly, in terms of the cost to the Council of continuing to have to deal with this application and also in a broader sense there is a consequence to the community (which the Council serves) arising from the lack of finality of the litigation - which is probably another aspect of the costs argument. The Council also has an interest in getting on with all the other business that it needs to get on with in relation to the affairs of the Council. It continues to be focused on this particular matter so resources that might be spent elsewhere are spent on this case - which I guess is another aspect of the cost argument. Now they are my considerations.

The due administration of government depends on finality in relation to litigation just as much as the due administration of justice depends on finality. So there are a number of factors weighing in favour of the respondent.

One of the additional factors that is referred to in the decision in Gallo v Dawson is the prospects of the applicant succeeding in the appeal. It is not our role at this stage to try and forecast an outcome in respect of an appeal but we have sought to form some view on this matter. We have scrutinised the decision under appeal and looked briefly at the material that is in the folders. We did encounter some difficulties (which reflect to some extent what was said to us by Mr Singleton): that is, it is difficult to ascertain from the decision precisely what legal doctrine was applied to the documents in issue, and I acknowledge that in the decision it is said that either applying the common law standard or the Evidence Act standard certain consequences follow. We did consider that the global approach to organising and analysing the material might make it difficult for a person affected by the decision to ascertain what the decision was in respect of each of the documents in issue. That does seem to have permitted some objections to be raised on the face of the material as to whether certain documents can possibly fall within the scope of the privilege.

So you can understand I think from those observations that our preliminary view and it is very much a preliminary view is that there does appear to be a arguable case in relation to the question of whether the law was applied properly to some of the documents in issue. I do not want to be it any higher than that because I think it is plain on any view of the material that much of it is within what might be called the general scope of the doctrine of legal professional privilege. Moreover it is really not our job here to merely deal with the question of merits; there must be some demonstrable link to an error of law or the process of applying the law to the material must itself amount to an error of law. But on balance, and we do see the issues as finely balanced, we are inclined to the view that leave to appeal should be granted.’

Jurisdiction to hear Appeals in relation to Costs

78 Written submissions were invited on this question, and the Tribunal agreed to make a ruling on the papers.

79 In the notice of appeal the appellant raised a second matter. He appealed against the decision of the Tribunal in Charteris (No 2) made on 11 August rejecting his application for costs. The appellant had sought costs of those proceedings, or in the alternative costs as to part of the proceedings.

80 The Appeal Panel’s jurisdiction with respect to appeals arising from decisions made in the Tribunal’s review jurisdiction is dealt with by s 112 of the Tribunal Act. The relevant provision for present purposes is sub-section (1) of s 112 which provides:

‘For the purposes of this Part, an appealable decision of the Tribunal is a decision of the Tribunal (or a decision that is taken to be a decision of the Tribunal) made in proceedings for:

(a) an original decision where the enactment under which the Tribunal has jurisdiction to make the decision expressly provides that the decision may be appealed to an Appeal Panel under this Part, or

(b) review of a reviewable decision.’

81 A reviewable decision is defined by s 8 as ‘a decision of an administrator that the Tribunal has jurisdiction under an enactment to review.’

82 The respondent notes correctly that s 88 confers power on the Tribunal to make awards of costs. The general rule is laid down in sub-section (1) - ‘Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that there are special circumstances warranting an award of costs.’ The FOI Act does not affect this rule.

83 The respondent also notes correctly that a decision on the question of costs made by the Tribunal in the course of its proceedings does not fall within the meaning of an original decision or a reviewable decision.

84 The real question is whether a decision as to costs falls within the definition of appealable decision given in s 112(1), in particular whether it is ‘a decision of the Tribunal … made in proceedings … for review of a reviewable decision.’

85 The respondent submits that the term ‘proceedings’ must be interpreted to relate to the application before the Tribunal rather than some general or widely operating proceedings. The respondent argues that all proceedings must be founded on an application. It is submitted that an application for costs is a separate application from the application for review. It would require express words, it is contended, for the Appeal Panel to have jurisdiction in relation to forms of application in the Tribunal other than the primary applications of applications to review reviewable decisions or applications for original decisions and orders.

86 The appellant submits that the word ‘proceedings’ encompasses a broader sphere than the word ‘application’. Therefore when the Tribunal Act makes appealable a decision of the Tribunal made in proceedings for review it applies to decisions generally, not merely the decisions that relate to the orders sought in respect of the reviewable decision in the application for review.

87 These arguments have significance beyond the issue of costs. The submissions do not hang on the distinction between the Tribunal’s review jurisdiction and its original decisions jurisdiction. If the respondent’s submissions are correct, then the Appeal Panel has no jurisdiction to deal with costs appeals from whichever side of the Tribunal they arise.

88 To date the Appeal Panel has dealt on several occasions with appeals on interlocutory or costs decisions, without jurisdiction being challenged: for example, refusal to make non-publication order (Lloyd v Veterinary Surgeons Investigating Committee [1999] NSWADTAP 2), order in relation to scope of summons for production of documents (R v A & B [1999] NSWADTAP 3), refusal of costs application (Graham v Director General, Department of Community Services [2001] NSWADTAP 4).

89 There is, in our opinion, no substance in the respondent’s objection. The term ‘proceedings’ is clearly intended to encompass the whole of the hearing that occurs before the Tribunal at the primary level. Inevitably there will be many rulings in the course of those proceedings which will be significant in relation to the scope of the evidence and other procedural matters. Those decisions are appealable.

(Since reaching these conclusions a decision of the Court of Appeal addressing the meaning of ‘proceedings’ as used in the District Court Act 1973 has come to notice. While the statutory context is a different one, a similarly broad view of the meaning of ‘proceedings’ is adopted there: see KBRV Resort Operations v Chilcott [2001] NSWCA 116 per Sheller JA at [31]-[32].)

90 The power to award costs is circumscribed. In keeping with the position found in many modern statutory tribunals, the usual rule is that costs are not to be awarded. This is a measure that has at least two objectives - one, to remove an impediment to the exercise of important rights that the Tribunal has been established to see protected where appropriate; two, to discourage the use of lawyers. In these ways the goals of affordable, accessible justice are seen as being supported. But circumstances can arise in proceedings where a party should be given some compensation by way of a costs order. The ‘special circumstances’ power allows the Tribunal to take that action.

91 There will be cases where no application for costs is made at the outset as part of the application for review of a reviewable decision or application for an original decision. The circumstances that might justify a ‘special circumstances’ award of costs will often only be able to be identified after the proceedings have commenced, or may arise from some unexpected development during the proceedings.

92 The broad words used to define the Appeal Panel’s powers were, we consider, intended to convey the point that all decisions made by the Tribunal in its hearing of a matter were subject to appeal on question of law to the Appeal Panel. We agree with the appellant that there can be no separate or independent proceedings for costs. The application in this instance can not be construed as independent or separate proceedings. This corresponds to the usual understanding and practice.

93 We are satisfied that decisions in relation to costs made in the course of proceedings, as here, are appealable to the Appeal Panel.

94 The Appeal Panel has not heard oral submissions on the costs appeal.

Decision

1. The decision of the Tribunal is affirmed with the following exception.

2. The Tribunal’s decision in relation to Documents 1, 27 and 54 be set aside. The respondent is directed after 28 days to release those documents.

3. Registrar directed to ascertain from the parties what procedure is preferred for hearing of the remaining matter (the costs appeal).