Chief Executive, SAS Trustee Corporation v Daykin

[2000] NSWADTAP 20

Appeal Panel

CITATION:	Chief Executive, SAS Trustee Corporation -v- Daykin (GD) [2000] NSWADTAP 20
PARTIES:	APPLICANT Chief Executive, SAS Trustee Corporation RESPONDENT Adam Shane Daykin
FILE NUMBER:	009015
HEARING DATES:	27/07/2000 16/08/2000
SUBMISSIONS CLOSED:	08/16/2000
DATE OF DECISION:	11/08/2000
DECISION UNDER APPEAL:	Principal matter
BEFORE:	O'Connor K - DCJ (President); Goode P - Judicial Member; Bolt M - Member
CATCHWORDS:	no evidence - opportunity to be heard - statutory interpretation
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	993275
DATE OF DECISION UNDER APPEAL:	05/01/2000
LEGISLATION CITED:	Freedom of Information Act 1989
CASES CITED:	Daykin v SAS Trustee Corporation [2000] NSWADT 51 Australian Trade Commission v Disktravel (1999) 91 FCR 374 Parker Pen (Australia) Ltd v Export Development Grants Board (1983) 67 FLR 234 Commissioner for the Australian Capital Territory v Alphaphone (1994) 127 ALR 699 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985) 162 CLR 24 Haoucher v Minister for Immigration (1993) 42 FCR 287 Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 R v Bell, ex parte Lees (1980) 146 CLR 141 Egan v Chadwick [1999] NSWCA 176 Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 Mangoplah Pastoral Company Pty Ltd v Great Southern Energy [1999] NSWADT 93 Secretary, Dept of Premier and Cabinet v Hulls [1999] VSCA 117 DPP v Smith [1991] 1 VR 63
REPRESENTATION:	APPELLANT M G Sexton SC with K T Nonchang, barristers RESPONDENT M J Walsh, barrister
ORDERS:	That the decision under appeal be set aside, and the respondent's application for review be remitted to the Tribunal, differently constituted, for reconsideration.

Reasons for Decision

1 This is an appeal by the SAS Trustee Corporation (STC) against a decision of the General Division of the Tribunal (Judicial Member Smith) ordering release of a document to Adam Shane Daykin, an FOI applicant for access under the Freedom of Information Act 1989 (the Act): Daykin v SAS Trustee Corporation [2000] NSWADT 51. One document is in issue - a medical report relating to the condition of the FOI applicant procured by STC in connection with a claim made on one of the public sector superannuation schemes administered by STC: as to which see generally Superannuation Administration Act 1996 and the decision under appeal. For convenience in these reasons the appellant will be referred to as STC and the respondent, Mr Daykin, will be referred to as the ‘FOI applicant’.

2 STC refused access to the document on the ground that it was an exempt document protected by legal professional privilege. The context in which the document is sought is that of an ongoing dispute between the FOI applicant and STC over the level of pension to which the FOI applicant is entitled in respect of his discharge from the Police Force because of incapacity arising from being hurt on duty. See generally Police Regulation (Superannuation) Act 1906 and the decision under appeal.

3 The reasoning in the decision under appeal had two components. One, there was the issue of whether the document was properly the subject of a claim for legal professional privilege. The Tribunal held that it was not privileged. Two, the Tribunal went on to consider whether if the document, contrary to its view, was an exempt document, it should nonetheless be released. In that regard it invoked the discretion given to an agency to release an exempt document, conferred by s 25 of the Act; and concluded that the ‘over-ride’ discretion should be exercised in favour of release. (Materially to this case, s 25(1) provides: ‘An agency may refuse access to a document: (a) if it is an exempt document’; emphasis added.)

4 The appeal has two legs. One, it challenges the finding that the document is not protected by legal professional privilege. Two, it goes on to argue that the decision under appeal is wrong in finding that the circumstances are such that the ‘over-ride’ discretion conferred by s 25 should be exercised in favour of release. In this regard, STC argues that the circumstances would be rare when the public interest in the due administration of justice (the objective which legal professional privilege seeks to uphold) would be subordinated to the public interest in access to information.

5 STC was represented at the hearing by a solicitor in its employ, Mr Matthews, who has the job title, Manager, Disputes and Appeals. On that occasion the FOI applicant appeared in person. He was represented by counsel at the appeal hearing. His counsel submits that the decision involves an unexceptional exercise where STC failed to meet its onus (s 61 of the FOI Act) to satisfy the Tribunal that the exemption was properly invoked in relation to the document in issue. The FOI applicant’s submission, in essence, is that STC simply did not prove its case to the satisfaction of the Tribunal; and that there was no error of law. The decision was, it was submitted, one made reasonably on the evidence before the Tribunal at the hearing and should not be disturbed.

6 Certainly there was no contest on the part of STC in relation to the Tribunal’s understanding of the doctrine of legal professional privilege. At the first day of the appeal hearing (on 27 July 2000) STC applied, through counsel, to introduce further factual material (an advice from counsel for the agency given in relation to Industrial Relations Commission (IRC) proceedings on foot in relation to the superannuation claim). The Appeal Panel rejected the application, as the material had been available and not tendered at the original hearing. As to this matter, the transcript of the original hearing reveals that during the hearing the presiding Member discussed the existence of counsel’s advice with Mr Matthews and alluded to its potential significance in relation to his decision on the question of legal professional privilege. Mr Matthews explained that he did not have the advice with him. He did not take any steps, then or subsequently, to tender it. Consequently it was not in evidence before the Tribunal.

7 At the second session of the appeal, held several days after the first session so as to permit the Solicitor-General the opportunity to make submissions on behalf of STC, the application to tender fresh evidence was not renewed.

8 We now turn to the question of the conduct of the proceedings in the Tribunal below. In keeping with the goals of the legislation establishing the Tribunal (see s 73 of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act)), the proceedings before the Tribunal below took on a relatively informal character. The Judicial Member received an affidavit sworn by Mr Matthews in which the claim for legal professional privilege was asserted. The Member engaged in a discussion with Mr Matthews in which he sought and received additional information. He received sworn evidence and submissions from the FOI applicant.

9 At the conclusion of the hearing, the Member had before him the following information which could reasonably be regarded as the material upon which any decision might be based:

1. The affidavit of Mr Matthews. Mr Matthews referred to the FOI applicant’s application in March 1997 for discharge from the Police Service on medical grounds, the general principles and procedures that apply to medical application discharges and the calculation of pension payable if the application is successful. He also referred to the procedures followed in this case, the basis upon which the FOI applicant’s application was successful, the lodgment of an appeal against the scope of the favourable determination, and the subsequent decision of STC to procure a medical report from Dr Stephenson. Dr Stephenson was the doctor who had examined the FOI applicant in the course of the process leading to STC’s original decision. (It is access to this medical report which is in issue in these proceedings. The earlier medical report of Dr Stephenson had been released to the FOI applicant.) The affidavit also referred to and annexed a letter dated 5 March from Mr Matthews to the FOI applicant’s solicitor referring to the request for the FOI applicant to make a further visit to Dr Stephenson for the purposes of the IRC hearing.
2. The affidavit of the FOI applicant in which the FOI applicant essentially presented submissions to the effect that the second report was supplemental to the first report and therefore like the first report should be released.
3. Transcript of part-heard appeal proceedings before the IRC in Court Session (before Kavanagh J) where at a directions hearing (1 November 1999) counsel for STC indicated that it did not produce the second report, relying on legal professional privilege.
4. The decision of the IRC partly upholding the FOI applicant’s appeal, finding that one further ground for discharge had been established, a decision itself on appeal to the Full Bench of the IRC, due to be heard later in the year, STC being the appellant.
5. Oral information from Mr Matthews as to the history of the dispute over the contents of the discharge certificate, the IRC proceedings and the structure of the superannuation dispute resolution system.
6. The contents of the document in dispute and the letter from Mr Matthews requesting the report, both received confidentially by the Member.
7. Sworn oral evidence from the FOI applicant.
8. Further oral statements made by Mr Matthews in the course of presenting submissions and legal argument, in which Mr Matthews was pressed by the Member as to his intention in procuring the second medical report, the document in issue (see transcript of the hearing, 28 March 2000 (‘ts’) 37-38).
9. In particular, the presiding Member received into evidence an oral statement from Mr Matthews that the dominant purpose for obtaining the report was to prepare for the IRC hearing (ts 38:47).

10 Mr Matthews had the opportunity to tender counsel’s advice but declined to do so, and thereby confined the evidence in support of STC’s claim that the second report was privileged to his statement of intention, the first report and the letter to Dr Stephenson for the second report (see ts 16:10-48).

11 As the Tribunal explained in its decision, the dispute between the FOI applicant and STC in relation to the medical grounds of discharge has a bearing on the rate of pension entitlement. At present the FOI applicant receives the base pension entitlement (72.75 per cent of salary) based on the ground of psychological stress. The judgment of the IRC now under appeal ruled that an additional ground, to do with his knee, should be added to the STC certificate. The FOI applicant is also seeking to have added a third ground, to do with his back, a claim which has so far not met with any success. The establishment of additional grounds of discharge would enable him to claim an increase of up to 12.25 per cent, to a maximum of 85 per cent of salary.

12 The fundamental dispute in this appeal is whether on the evidence the Tribunal could have concluded that the document in dispute was subject to legal professional privilege, i.e. whether the document in relation to which the privilege is claimed was brought into existence for the ‘dominant purpose’ of use in legal proceedings.

13 Findings of fact can not ordinarily be challenged on error of law grounds. STC contends that the Tribunal only had evidence before it which supported its case. It had no evidence which controverted that conclusion. Consequently the Tribunal’s finding that the document was not protected by legal professional privilege involved an error of law in that it is required as a matter of law that there be evidence to support a finding.

14 In making this submission STC draws the line at the point the Tribunal concluded the hearing. At that point STC says that the Tribunal had before it:

• an uncontroverted statement of intention from STC’s solicitor, Mr Matthews, as to why the second medical report was procured. (Mr Matthews was responsible for managing STC’s case in the litigation before the IRC); and
• that statement was to the effect that the report had been obtained for the purpose of the litigation in the IRC, and this was the dominant purpose.

15 It is apparent from the reasons for decision of the Tribunal that it was not satisfied with this evidence which it described as ‘subjective’. It contrasted that evidence with other, more ‘objective’ evidence upon which it relied. The Tribunal said:

‘39 In his affidavit, Mr Matthews said: "Following receipt of the notice of appeal I briefed counsel and requested advice as to the steps needed to prepare for the hearing of the appeal. In the light of counsel's advice I arranged for a further medical examination of Mr Daykin by Dr B Stephenson." He did not reveal to me the contents of counsel's advice, which was apparently in writing. I am not prepared to infer that it was more than that STC should consider obtaining an up-dating or second report from Dr Stephenson on the opinions expressed in his first report.
40 Mr Matthews did not depose to the purposes for which he requested the second report from Dr Stephenson. When I suggested to him that the mere chronology in which he wrote to Dr Stephenson may not carry a clear inference that the dominant purpose of obtaining the report was its use by STC's legal representatives in the pending proceedings, he said that in his mind this was the dominant purpose. However, his present assertion is not conclusive on this issue, and "objective facts are usually more reliable than mere protestations of purpose" (c.f. Australian Trade Commission v Disktravel (1999) 91 FCR 374 at 387, citing Lockhart J in Parker Pen (Australia) Ltd v Export Development Grants Board (1983) 67 FLR 234).
41 In my view better evidence of the purposes for which Dr Stephenson's opinion was obtained by STC is found in the terms of Mr Matthews' request to the doctor and of the doctor's response, when read in the context of the legislative scheme and the events which I have narrated above. I accept that the receipt of advice from counsel provided the occasion in which Mr Matthews decided to request a second report. However, the terms of the request to Dr Stephenson reveal, in my opinion, that a report was sought which would serve multiple purposes when received by STC. The terms of the request and of the resultant report are the subject of a confidentiality order, and I cannot reveal their contents. However, of the two matters on which Dr Stephenson's opinions were expressly sought in Mr Matthews' letter, only the second related to an issue which was relevant to the Commission proceedings. The first matter had relevance to STC decision-making distinct from the issues arising in those proceedings.
42 Moreover, given that Dr Stephenson's first report had addressed medical issues going far beyond the issues relevant to certification under s 10B(1) and had done so in a provisional manner, the general tenor of the request to re-examine and provide a second report suggests that a significant purpose for requesting the report was the obtaining of Dr Stephenson's reconsidered opinions on the whole range of medical issues arising under the PRS Act in the course of STC's determination of the FOI applicant's entitlements for his claimed orthopaedic disabilities. Certainly, this is how Dr Stephenson has read the request, since he has responded by canvassing all the issues covered in his first report - and in much more decided terms. As I have indicated above, the issue of fitness for police duties was but one of the many issues addressed in his first report. In its contents, the report therefore served purposes of which use in the pending Commission proceedings was a significant but, in my opinion, not a dominant one.
43 Finally, I find it significant that the request to the doctor makes no mention of the pending proceedings in the Commission, and carries no suggestion that Dr Stephenson's opinions were being sought in relation to those or any other legal proceedings. The letter merely reads as a request by an officer of STC that the doctor "provide a report to SAS Trustee Corporation".
44 On all the evidence, I am not satisfied that the present document was brought into existence with "the dominant purpose" of it being used by STC's legal representatives in relation to the pending proceedings in the Commission. The onus in this respect lies on STC under s 61 of the FOI Act. I am therefore not satisfied that the document is an "exempt document" and, in the absence of any other ground for refusing access, it must be released to the FOI applicant.’

16 As the above reasons indicate, the Tribunal gave considerable emphasis in reaching its conclusions to factors that it regarded as more objective than Mr Matthews’ opinion which (unavoidably) had a self-serving character. In particular the Tribunal examined the contents of the second medical report, and derived conclusions from that examination bearing on whether it could be said that the medical report was brought into existence for the dominant purpose of use in litigation.

17 The Tribunal also gave weight to an analysis it engaged in as to the role of medical advice within the scheme for assessing and determining claims set out in the legislation. The relevant portion of the decision, paras 45 and following is set out at [24] below.

18 As is noted in the primary decision the onus of proof in proceedings under the FOI Act lies on the agency (s 61). Viewing the material before him as a whole, the presiding Member reached the conclusion that the material did not satisfy the onus.

19 The Member was entitled, we consider, to seek to look behind Mr Matthew’s statement as to why the second medical report was brought into existence, and to have regard to other material such as Mr Matthew’s communication with Dr Stephenson and the contents of Dr Stephenson’s report. He was also entitled to have regard to the decision-making process set down by the legislation as a way of seeking to ascertain what truly was the purpose or purposes that the second medical report was to serve.

20 But the difficulty we have with the course adopted relates to considerations of procedural fairness.

21 While the process of review of an administrative decision in the Tribunal should not be unnecessarily formal and should have as its aim the ascertainment of what is the correct and preferable decision (having regard to any onus of proof, as applies in FOI cases), it is critical that the parties to the review process have clarity as to what material is to be taken into account as ‘evidence’ and that they be given an opportunity to make submissions as to the weight or otherwise to be given to that evidence.

22 In this case the presiding Member, we consider, erred in not providing the parties, in particular STC, with an opportunity to respond to his conclusions in relation to the purposes served by Dr Stephenson’s second report. The process of deliberation that routinely occurs after the hearing of a matter miscarried, we consider, in this instance in that ‘evidence’ was in effect ‘gathered’ by the presiding Member in the absence of the parties.

23 We are not therefore suggesting that the deliberative process or the provisional conclusions of a tribunal should be placed before the parties. That would distort the decision-making process. We see as relevant for present purposes the comments of the Full Federal Court in Commissioner for the Australian Capital Territory v Alphaphone (1994) 127 ALR 699 at 715, albeit comments made in the context of agency decision-making affecting an individual:

‘When the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of the outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify the further information, and comment by way of submission, upon adverse material from other sources which is put before the decision maker. It also extends to require the decision maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.’

24 We hold similar reservations to these in relation to the use made of Mr Matthew’s communication with Dr Stephenson and the content of Dr Stephenson’s report in relation to the conclusions formed by the Member in relation to the operation of the statutory scheme. The presiding Member said:

‘45 There is, in my opinion, a further reason why the document is not one which "would be privileged from production in legal proceedings on the ground of legal professional privilege". This arises from the statutory provision in s 10B(1) and (2C)(b) of the PRS Act and the circumstances, referred to above, under which Dr Stephenson was nominated by the STC to provide statutory "medical advice" to which STC was bound to have regard when considering whether to certify that a specified condition existed and incapacitated the FOI applicant from discharging duties.
46 In my opinion, these provisions must encompass the "advice" given by the nominated expert in a second or supplementary report which canvasses the same issues on which opinions were given in a first report, and must require STC to take into account and give weight to the second report. If this were not so, the Act would allow STC to form a mistaken impression as to the current opinions of the nominated expert, and to act on false or incomplete information. A legal requirement that the decision-maker must take account of up-to-date information which is in his possession is a normal implication, and this construction of the Act should be preferred (see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985) 162 CLR 24, at 30.3, 45.5, 67.2, 70, 71, Haoucher v Minister for Immigration (1993) 42 FCR 287 at 296-8).
47 In my opinion it follows from this construction that, on appeal from the STC under s 88 of the SA Act, the Commission also must take into account all the reports obtained by STC from its statutory source of "medical advice" when "standing in the shoes" of STC. This is expressly indicated in s 88(4), which states that "the Commission is to have regard to this Act and any other relevant provisions regulating the superannuation scheme concerned", and it is also a normal implication of a merits review of an administrative decision whether or not carried out by an administrative or judicial appeal body. Each has the duty to "give what it considers to be the correct or preferable decision" (c.f. Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 at 18). I find nothing inconsistent with this opinion in the two authorities cited by Mr Matthews: Portch v State Authorities Superannuation Board (unreported Industrial Court of NSW, Cullen J, 29 March 1993 at p.2, and Ford v State Authorities Superannuation Board (supra) at p.7.
48 It seems to me to follow, even assuming that STC in fact obtained the second report with the dominant purpose of using it as an aid in the conduct of the appeal in the Commission, that the PRS Act must be taken to have given the report a character of a document or communication that must be disclosed to the Commission, and that it is necessarily a document incapable of attracting a right in STC to claim legal professional privilege whether in the proceedings before the Commission or in other legal proceedings. In other words, it was by force of the PRS Act from its inception a document required to be produced to a third party (i.e. the Commission) in the course of legal proceedings and therefore was excluded from the ambit of legal professional privilege.
49 This conclusion may be reconciled to the provisions of the Evidence Act in three ways. First, the report could not be a "confidential document" as defined in s 117 if its disclosure to the Commission was mandatory. Secondly (and hesitantly), the report might be "a communication or document that affects a right of a person" within s 121(3), on the analysis that the Commission's duty to take account of the report raises a correlative right in either party to compel its production. Thirdly, s 8 of the Evidence Act expressly preserves the over-riding operation of the PRS Act in relation to the document, that operation being inconsistent with the privilege provided in s 119.
50 Similar reasoning would reconcile this conclusion with the common-law doctrine of legal professional privilege, which recognises that documents may be excluded from privilege by reason of special duties of disclosure (c.f. R v Bell, ex parte Lees (1980) 146 CLR 141 at 145; and Egan v Chadwick [1999] NSWCA 176 at [81]), and that the privilege may be over-ridden by statute ( Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 582).’

25 (There is a helpful discussion of the law bearing on the question of the duty of disclosure owed by tribunals and administrators in Aronson & Dyer, Judicial Review of Administrative Action (1996) at 531-549. We do not see this as the occasion to develop a broader treatment of this issue as it applies to proceedings in the General Division of this Tribunal.)

26 While there was some discussion of the matters canvassed in the above passage between the Tribunal and STC’s solicitor at the hearing, it is not apparent to the Appeal Panel from a perusal of the transcript that that discussion had evidentiary significance, so as to found conclusions to which weight would be attached in forming a view of the critical question of whether the second medical report served purposes other than use in litigation. While the observations quoted above relate to the content of legislation, their object is to form conclusions of a factual nature bearing on the question of what were the purposes served by the second report.

27 As a matter of procedural fairness, before the Tribunal could take these steps it was, we consider, necessary for the Tribunal to convey to the parties, in this instance most importantly STC, that it proposed to give evidentiary weight to:

• the contents of the second medical report as an ‘objective factor’ going to the question of ‘dominant purpose’; and also
• to its conclusions in respect of the role of medical advices as a further ‘objective factor’ going to the question of ‘dominant purpose’.

28 It was not, we consider, open to the Tribunal to take account of those factors without giving the parties, in particular STC, an opportunity to respond. That evidence could not properly be taken into account.

29 The main submission put to the Appeal Panel by STC was that the only evidence that the Member had before him was the uncontroverted evidence of STC’s solicitor as to the dominant purpose for which he procured the second medical report. The submission was that there was no evidence before the Tribunal enabling it to reach the conclusion that it did. As will be seen from the reasons already given, we agree with that analysis in the sense that the additional evidence which it took into account was not properly before it.

30 Had the Member confined his attention to the material that was, on our view, properly before him, it is not clear whether he would have concluded that it was sufficient to meet the onus lying on the agency. In this regard we do not regard the position as being as clear-cut as the agency suggested. It is clear that the Member had some reservations about accepting the evidence provided by affidavit and orally by Mr Matthews. It is not clear whether he would have found that sufficient to meet the onus lying on the agency.

31 There was a further application in the event that the appeal on question of law was successful, for the Appeal Panel to go on and dispose of the matter on the merits. The most appropriate course, we consider, is to remit the matter for further hearing at an early date before a differently constituted Tribunal rather than go on to give leave for the appeal to extend to the merits.

32 We have reached this conclusion with some hesitation, as it has the effect of delivering to STC the windfall of now being able to have taken into account the advice from counsel, in circumstances where it chose not to put that advice in evidence in the original proceedings. But it is preferable in administrative review proceedings that all relevant evidence be able to be considered.

33 While the Tribunal below found that legal professional privilege did not apply to the document in issue, it went on to consider the question of whether if it was wrong in that conclusion and legal professional privilege did apply, it would nonetheless permit release of the document on the basis of the ‘over-ride’ discretion (s 25). The Tribunal explained that it would have in that event applied the ‘over-ride’ discretion in the circumstances of the case. It was particularly influenced in coming to that conclusion by the nature of the administrative decision-making process that is involved in assessing claims.

34 In light of our decision it is not strictly necessary to go on to address those observations which themselves were obiter in the context of the decision of the Tribunal below. But as the matters raised are significant ones, and were the subject of detailed submissions, we will on this occasion make some limited comments.

35 As noted earlier, there was no contest between the parties as to an agency having under the scheme of the FOI Act a discretion nonetheless to release documents to which an exemption is applicable, and that such a discretion consequently is capable of exercise by the Tribunal on external review.

36 In this case, the Member cited an earlier decision of his where the Tribunal undertook the first detailed examination of the nature of this discretion: Mangoplah Pastoral Company Pty Ltd v Great Southern Energy [1999] NSWADT 93 at [903-05]. While the Appeal Panel generally accepts the observations made in Mangoplah, we have some difficulty with the views expressed in the present case.

37 In a case where a document was exempt on the ground of legal professional privilege, the Solicitor-General submitted that the ‘over-ride’ discretion should only be exercised in relatively extreme circumstances. The approach which he submitted was to be taken in weighing the competing factors was as follows. The first public interest to be taken into account is that which is reflected in the conferral of exempt status on the document. For that public interest to be outweighed, there must be countervailing considerations of even higher public importance.

38 In the instance of a document protected by legal professional privilege, he submitted that it was necessary to give close regard to the specific public interests supported by the privilege. He referred to the well known expositions of the central role of the privilege in preserving the ability of parties to obtain advice and present their case in litigation. He suggested that it would rarely, if ever, be appropriate to exercise the discretion in favour of release in situations where a document protected by legal professional privilege was the subject of an access application by a party to pending or current litigation between the requester and STC in possession of the document which is subject to the privilege.

39 We agree in principle with this mode of analysis and acknowledge, as counsel did, that the weight to be accorded to competing considerations might be different in a situation where the litigation was completed or long past.

40 This analysis is not dissimilar to that adopted by the Victorian Court of Appeal in Secretary, Dept of Premier and Cabinet v Hulls [1999] VSCA 117; (1999) 15 VAR 360. We note that in Victoria the Freedom of Information Act 1982 squarely furnishes the State tribunal with a public interest ‘over-ride’ discretion. It provides that the Tribunal on review shall have the same powers as an agency including a power to decide that access should be granted to an exempt document (subject to some exceptions) ‘where the Tribunal is of the opinion that the public interest requires that access to the document should be granted under this Act’: s 50(4).

41 In Hulls case the Victorian Court of Appeal referred to the earlier decision of the Appeal Divison of the Supreme Court of Victoria in DPP v Smith [1991] 1 VR 63, where the Court dismissed an appeal against a ruling of the State tribunal that had relied on the ‘over-ride’ discretion in deciding to order the release of a document exempt on the ground of legal professional privilege.

42 In the present instance the Tribunal sought to reconcile the public interest upheld by legal professional privilege as it relates to the conduct of litigation and another public interest, which might be described as the need for transparency and consistency in administrative decision-making.

43 The Tribunal noted that the dispute now on foot between the parties arises out of an administrative decision-making process, even if that dispute is now cast in the form of traditional civil litigation. We agree with the observations made in the Tribunal below about the nature of the administrative decision-making process, and the importance of transparency in that process.

44 Ideally all the material upon which an administrator bases a decision or material in its possession which is relevant to a decision should be able to be seen and tested by the subject of the decision. In this case the first medical report of Dr Stephenson was obtained by STC while it was in the course of the primary administrative decision-making process. The report was taken into account and was made available to the FOI applicant. The second medical report was withheld in circumstances where the administrative decision was, in effect, under review by way of rehearing in the IRC. In that review the modes of adversarial litigation have been adopted, rather than that of inquiry, and STC runs a risk of an adverse inference being drawn in relation to its non-production of the second medical report.

45 Nor do we have any difficulty with the Solicitor-General’s submissions that STC is, in defending in the IRC its decision to refuse a claim, engaged in the important public responsibility of seeking to protect the funds which it holds in trust for all members of the scheme by ensuring that the fund is not diminished by conceding a bad claim against it.

46 But it remains the case, we consider and as noted by the Tribunal below, that the process now occurring in the IRC is in the nature of an exercise involving the merits review of an administrative decision. That is analogous to work done by this Tribunal. It is the case that many of the administrative decisions that fall to be reviewed in a merits review tribunal will have significant financial implications for agencies. That is not ordinarily seen as a factor which in its own right affects the responsibility to engage in transparent and accountable administrative decision-making.

47 We make these comments in qualification of the general assent which we give to the proposition advanced by the Solicitor-General as to the circumstances in which legal professional privilege should be rigorously upheld in the exercise of the ‘over-ride’ discretion.

Decision

48 The appeal is upheld.

Order

That the decision under appeal be set aside, and the respondent’s application for review be remitted to the Tribunal, differently constituted, for reconsideration.