EDD v Secretary, Department of Communities and Justice

[2019] NSWCATAD 255

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:	EDD v Secretary, Department of Communities and Justice [2019] NSWCATAD 255
Hearing dates:	11 September 2019
Date of orders:	12 December 2019
Decision date:	12 December 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Dr J Lucy, Senior Member
Decision:	(1)   The disclosure of the names of the applicant and her husband is prohibited. (2)   The respondent’s decision is affirmed.
Catchwords:	ADMINISTRATIVE LAW - Access to information – Client legal privilege – Whether privilege established – Whether the client was the department or the Secretary of the department - Whether the client had authorised Departmental officers to provide instructions on client’s behalf – Whether solicitors purporting to act for Crown Solicitor had authority to do so – Whether legal professional privilege lost on account of fraud
Legislation Cited:	Children and Young Persons (Care and Protection) Act 1998 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Court Suppression and Non-publication Orders Act 2010 (NSW) Crimes Act 1900 (NSW) Evidence Act 1995 (NSW) Government Information (Public Access) Act 2009 (NSW) Government Sector Employment Act 2013 (NSW) Legal Profession Uniform Law Application Act 2014 (NSW) Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) Administrative Arrangements (Administrative Changes—Public Service Agencies) Order 2019 NSW)
Cases Cited:	AIN v Medical Council of New South Wales [2015] NSWCATAP 241 Amcor Ltd v Barnes [2011] VSC 341 Cargill Australia Ltd v Viterra Malt Pty Ltd [2017] VSC 126 Colefax v Department of Education and Communities [2013] NSWADT 75 Darley Australia Pty Ltd v Walfertan Processors Pty Ltd (2012) 188 LGERA 26; [2012] NSWCA 48 Director of Public Prosecutions (NSW) v Stanizzo [2019] NSWCA 12 Equiticorp Finance Ltd (in liq) v Bank of New Zealand (1993) 32 NSWLR 50 Hill v Woollahra Municipal Council [2003] NSWCA 106; (2003) 127 LGERA 7 Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 222 Industrial Equity Ltd v Deputy Commissioner of Taxation (1990) 170 CLR 649 Kang v Kwan [2001] NSWSC 698 Lauvan Pty Ltd v Bega [2018] NSWSC 154 Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 Osborne v The Queen [2014] NSWCCA 17; 238 A Crim R 417 Starr v Superannuation Administration Corporation [2015] NSWCATAD 76 Van Der Lee v New South Wales [2002] NSWCA 286
Texts Cited:	None cited
Category:	Principal judgment
Parties:	EDD (Applicant) Secretary, Department of Communities and Justice (Respondent)
Representation:	Solicitors: Applicant (Self represented) R Jeyasingam , Department of Communities and Justice Legal (Respondent)
File Number(s):	2019/0085948
Publication restriction:	The disclosure of the names of the applicant and her husband is prohibited pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW).

reasons for decision

1. The applicant applied for access to information held by Crown Solicitor’s Office under the Government Information (Public Access) Act 2009 (NSW) (“GIPA Act”). The information was contained in correspondence generated in the course of proceedings which the applicant had brought against the Department of Family and Community Services (“FACS”). The Crown Solicitor acted for FACS in those proceedings.

2. The respondent provided the applicant with access to some information, but refused to provide access to other information because it said it was subject to legal professional privilege. There is a conclusive presumption, under the GIPA Act, that there is an overriding public interest against the disclosure of information which is subject to legal professional privilege.

3. The applicant argued that the respondent had not established that the departmental officers instructing the Crown Solicitor had authority to do so, or that the solicitors at the Crown Solicitor’s Office were authorised to act on the Crown Solicitor’s behalf. It followed, in her submission, that the respondent had not established that legal professional privilege arose.

4. The applicant submitted, alternatively, that if legal professional privilege did arise, it had been lost because the communications she sought had been made in furtherance of the commission of a fraud, in the broad sense.

5. For the reasons which follow, I have upheld the respondent’s claim of legal professional privilege and have affirmed its decision to refuse access to the information sought.

Background

6. The applicant is the mother of five children.

7. In 2014, the applicant was expecting a child with her husband. She had three children from a previous marriage. Until mid-2014, those children were living with the applicant and her husband.

8. Officers of the FACS became concerned about risks to the safety of the applicant’s unborn child. FACS received allegations in May 2014 that the applicant’s husband had sexually assaulted young children. FACS officers were also concerned about the applicant’s mental health.

9. The Secretary of FACS (“Secretary”) assumed the three older children into care on 24 June 2014. The Secretary did this pursuant to an order in writing under s 44 of the Children and Young Persons (Care and Protection) Act 1998 (NSW). The children were then placed on a day-to-day care basis with the applicant’s former husband.

10. On 28 August 2014, an officer of FACS made a “high risk birth alert” informing NSW Health that there were child protection concerns in relation to the applicant’s unborn child. This was done purportedly pursuant to s 245C of the Children and Young Persons (Care and Protection) Act.

11. In September 2014, the Department undertook an internal assessment of what may be the potential risks to the applicant’s unborn child after birth.

12. On 17 October 2014, the applicant and her husband applied for an ex parte interim injunction from the Supreme Court, restraining the Department from removing the child once the child was born. They represented themselves in the proceedings. They obtained that injunction.

13. The applicant gave birth to the child shortly afterwards.

14. On 26 November 2014, FACS decided to close the file on the child. 

15. The Supreme Court proceedings remained on foot. The applicant and her husband sought judicial review of various administrative decisions made within FACS.  The Court ultimately dismissed the summons.

16. An appeal to the Court of Appeal was unsuccessful.

17. The applicant applied to the Department of Justice, on 14 February 2018, for access to the following information under the GIPA Act:

“All correspondence (that is NOT accounts information, filed court documents or briefs to counsel) pertaining to the [named] case (interlock, final and leave ie in the Supreme Court of NSW and NSW Court of Appeal).

18. Following discussions between the parties, the applicant agreed to reduce the scope of the information sought to information within the period 1 December 2015 to 31 December 2015.

19. On 20 December 2018, the Department of Justice decided to provide access to some information. It also decided that there was a conclusive presumption that there was an overriding public interest against the disclosure of other information as it was subject to legal professional privilege. It refused to deal with some information, which had previously been subject to an order to produce and determined that some of the information sought was already available to the applicant.

20. The applicant applied for internal review of that decision.

21. The internal review officer affirmed the original decision on 7 February 2019.

22. The applicant applied to the Tribunal for review of the Department of Justice’s decision to refuse access to certain information on the ground of legal professional privilege, on 18 March 2019.

23. The Administrative Arrangements (Administrative Changes—Public Service Agencies) Order 2019 (NSW), which commenced on 1 July 2019, abolished the Department of Justice and transferred the persons employed in that Department to the Department of Communities and Justice (clause 10). Following that administrative change, the Tribunal ordered the name of the respondent in these proceedings to be changed, by consent, to the Department of Communities and Justice.

Non-publication order

24. An order was made under the Court Suppression and Non-publication Orders Act 2010 (NSW), in the Supreme Court proceedings in which the applicant was a plaintiff. That order prohibited publication of the names or other material identifying the applicant and her husband.

25. Publication of the names of the applicant and her husband in these proceedings could have the effect of disclosing their names in the Supreme Court proceedings.

26. In those circumstances, I consider that it is desirable to make an order, under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (“NCAT Act”), prohibiting the disclosure of the names of the applicant and her husband. That order is made of the Tribunal’s own motion.

Relevant legislative provisions

27. There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (GIPA Act, s 5).

28. A person who makes an access application for government information has a legally enforceable right to be provided with access to the information unless there is an overriding public interest against disclosure of the information (GIPA Act, s 9(1)).

29. Subsection 14(1) of the GIPA Act provides:

“14 Public interest considerations against disclosure

(1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1.”

30. Clause 5 of Sch 1 to the GIPA Act provides:

“5 Legal professional privilege

(1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege.

(2) If an access application is made to an agency in whose favour legal professional privilege exists in all or some of the government information to which access is sought, the agency is required to consider whether it would be appropriate for the agency to waive that privilege before the agency refuses to provide access to government information on the basis of this clause.

(3) A decision that an agency makes under subclause (2) is not a reviewable decision under Part 5.”

31. The provisions of the Evidence Act 1995 (NSW) apply to the determination of the question of whether there is a conclusive presumption that there is an overriding public interest against disclosure of information within cl 5(1) of Schedule 1 to the GIPA Act (AIN v Medical Council of New South Wales [2015] NSWCATAP 241 at [20]; Starr v Superannuation Administration Corporation [2015] NSWCATAD 76 at [28]; Colefax v Department of Education and Communities [2013] NSWADT 75 at [26]).

32. Sections 118 and 119 of the Evidence Act provide as follows:

“118 Legal advice

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:

(a) a confidential communication made between the client and a lawyer, or

(b) a confidential communication made between 2 or more lawyers acting for the client, or

(c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person,

for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.

119   Litigation

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:

(a)  a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made, or

(b)  the contents of a confidential document (whether delivered or not) that was prepared,

for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.”

33. The term “client” is defined in s 117 of the Evidence Act to include, relevantly:

“(a) a person or body who engages a lawyer to provide legal services or who employs a lawyer (including under a contract of service),

(b) an employee or agent of a client, …”

34. The term “lawyer” is defined in s 117 of the Evidence Act to mean “an Australian lawyer, a foreign lawyer, or an employee or agent of either of them.”

35. Section 131A of the Evidence Act applies the privileges in ss 117 and 118 to the compulsory production of documents in court. That is relevant because clause 5(1) of Sch 1 to the GIPA Act, set out above, applies to “information that would be privileged from production in legal proceedings on the ground of client legal privilege.”

36. Section 131A of the Evidence Act provides:

“131A Application of Part to preliminary proceedings of courts

(1) If:

(a) a person is required by a disclosure requirement to give information, or to produce a document, which would result in the disclosure of a communication, a document or its contents or other information of a kind referred to in Division 1, 1A, 1C or 3, and

(b) the person objects to giving that information or providing that document,

the court must determine the objection by applying the provisions of this Part (other than sections 123 and 128) with any necessary modifications as if the objection to giving information or producing the document were an objection to the giving or adducing of evidence.

(2) In this section, disclosure requirement means a process or order of a court that requires the disclosure of information or a document and includes the following:

(a) a summons or subpoena to produce documents or give evidence,

(b) pre-trial discovery,

(c) non-party discovery,

(d) interrogatories,

(e) a notice to produce,

(f) a request to produce a document under Division 1 of Part 4.6.”

37. The respondent’s decision to refuse access to the information sought on the ground of legal professional privilege is a reviewable decision pursuant to s 80 of the GIPA Act. That section relevantly provides:

“80 Which decisions are reviewable decisions

The following decisions of an agency in respect of an access application are reviewable decisions for the purposes of this Part:

…

(d) a decision to provide access or to refuse to provide access to information in response to an access application,…”

38. Section 100 of the GIPA Act provides: “A person who is aggrieved by a reviewable decision of an agency may apply to NCAT for an administrative review under the ADR Act of the decision (referred to in this Division as an NCAT administrative review).”

39. The burden of establishing that the decision is justified lies on the respondent in these proceedings: GIPA Act, s 105(1).

Hearing

40. At the hearing, the applicant challenged the decision to refuse access to information on the basis of legal professional privilege on three grounds. These were:

1. The respondent had not established that there was a relationship of lawyer and client, so legal professional privilege did not arise.

2. If it did arise, it had been waived on account of fraud.

3. Even if had not been waived, the Tribunal had an obligation to consult the person in whom privilege lies to invite a waiver of privilege for the purposes of providing access to the information under the GIPA Act.

41. The applicant provided affidavit evidence, but was not cross-examined.

42. The respondent relied upon an affidavit of Ms Kiri Mattes, a principal solicitor at the Crown Solicitor’s Office. The applicant cross-examined Ms Mattes at the hearing.

43. The respondent relied upon both litigation privilege, under s 119 of the Evidence Act, and advice privilege, under s 118 of that Act.

Was there a relationship of lawyer and client in respect of the relevant communications?

Applicant’s submissions

44. The applicant submitted that the respondent had not established the existence of a lawyer/client relationship in the relevant communications, because there was no evidence that the Secretary had delegated powers to instruct to the FACS officers who provided instructions, and there was no evidence that the solicitors at the Crown Solicitor’s Office were the employees or agents of the Crown Solicitor. This meant, in her submission, that legal professional privilege had not been established.

45. The applicant’s position is that the defendant in her proceedings was the Secretary of FACS, not FACS itself, notwithstanding that she had named the defendant as FACS in those proceedings. As I understand it, the applicant’s submission is that, without a delegation from the Secretary to those instructing the Crown Solicitor, and in the absence of evidence that the instructors were acting as the Secretary’s agent, there was no proper authorisation of the FACS employees to instruct the Crown Solicitor on the Secretary’s behalf.

46. The applicant further submitted that, even if the instruction and advice were authorised, legal professional privilege did not arise because those involved in the communications were either not the proper solicitor for the Crown Solicitor, nor the proper instructor for the Secretary. She says that the persons communicating or copied into emails were strangers to the lawyer-client relationship. The applicant submits that it may be inferred from the presence of strangers that the requisite confidentiality was lacking.

47. The applicant also submitted that, if the communications did not fall within the dominant purpose of litigation advice, there was no legal professional privilege.

Respondent’s submissions and evidence

48. The respondent relied upon an affidavit of Kiri Mattes, a principal solicitor at the Crown Solicitor’s Office. Ms Mattes gave evidence that, by letter dated 22 October 2014, the Crown Solicitor was instructed to provide advice and representation to the Secretary in relation to the Supreme Court proceedings. The letter of instructions was signed by the Director of Legal Services Corporate Services at FACS.

49. The respondent submitted that FACS, as a “body who engages a lawyer to provide legal services,” was the “client” within s 117(1) of the Evidence Act. It said that, under that definition, a “client” included employees of that body (FACS). Therefore, communications with employees of FACS were communications with the “client.”

50. The respondent relied upon s 44(1)(d) of the Legal Profession Uniform Law Application Act 2014 (NSW), which relevantly provides that the Crown Solicitor may act as solicitor for “a body established by an Act.” It said that FACS was a body established by the Children and Young Persons (Care and Protection) Act and that it legitimately instructed the Crown Solicitor’s Office to provide legal services under s 44(1)(d) of the Legal Profession Uniform Law Application Act.

51. The respondent also submitted that the employer of a lawyer is a client if the employer is a State or a body established by law of the State (Evidence Act, s 117(1)). It said that FACS is a body established by the State law and therefore communications between FACS and its lawyers are protected.

Applicant’s reply

52. The applicant objected that the respondent has not produced the letter of instruction so had not established the scope of advice and representation to the Secretary, nor other relevant matters. She also said that Ms Mattes’ evidence that certain solicitors had been allocated day to day carriage of the file was not enough to show that the Crown Solicitor was their “employer” (for the purposes of the definition of “lawyer” in s 117 of the Evidence Act).

52. The applicant said that FACS could not be the client because it was not a juristic entity.

53. At the hearing, the applicant cross-examined Ms Mattes about whether she was employed by the State of New South Wales or the Crown Solicitor. Ms Mattes said that the Crown Solicitor arranged for solicitors to be employed on her behalf, but that it may be the State of New South Wales which employed her. Ms Mattes could not identify her employer with any certainty.

54. The applicant’s submission, as I understood it, was that the respondent had not established that the solicitors in the Crown Solicitor’s Office involved in the relevant communications were “lawyers” acting for the client, because the respondent had not established that they were employees or agents of the Crown Solicitor (within the definition of “lawyer” in s 117 of the Evidence Act).

Identity of the Client

56. I accept the applicant’s submission that the “client” in the relationship between the Crown Solicitor and FACS was the Secretary of FACS.

57. This is principally because I accept the evidence of Ms Mattes that the Crown Solicitor was instructed to provide advice and representation to the Secretary and Minister in relation to the Supreme Court proceedings. The instructions were not from “FACS” as a body, but from its Secretary. I also take into account Ms Mattes’ evidence that it was her understanding that solicitors in her office in December 2015 considered the correct defendant in the Supreme Court proceedings to be the Secretary, even though the applicant had named the Department as a defendant.

58. As the applicant pointed out, the respondent did not produce the letter of instructions. Ms Mattes’ evidence about the letter is therefore hearsay. Whilst the Tribunal is not bound by the rules of evidence (NCAT Act, s 38(2)), it may choose to apply them. Had it done so in these proceedings, it would have had no admissible evidence which directly established the identity of the person or body instructing the Crown Solicitor.

59. The respondent relied upon rule 9 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) as a basis for not producing the instructions. Rule 9 provides:

“9 Confidentiality

9.1 A solicitor must not disclose any information which is confidential to a client and acquired by the solicitor during the client’s engagement to any person who is not:

9.1.1 a solicitor who is a partner, principal, director, or employee of the solicitor’s law practice, or

9.1.2 a barrister or an employee of, or person otherwise engaged by, the solicitor’s law practice or by an associated entity for the purposes of delivering or administering legal services in relation to the client,

EXCEPT as permitted in Rule 9.2.

9.2 A solicitor may disclose information which is confidential to a client if:

9.2.1 the client expressly or impliedly authorises disclosure,

9.2.2 the solicitor is permitted or is compelled by law to disclose,

9.2.3 the solicitor discloses the information in a confidential setting, for the sole purpose of obtaining advice in connection with the solicitor’s legal or ethical obligations,

9.2.4 the solicitor discloses the information for the sole purpose of avoiding the probable commission of a serious criminal offence,

9.2.5 the solicitor discloses the information for the purpose of preventing imminent serious physical harm to the client or to another person, or

9.2.6 the information is disclosed to the insurer of the solicitor, law practice or associated entity.”

60. The letter of instructions was not, on the evidence before the Tribunal, provided to the Crown Solicitor “during the client’s engagement”; it appeared that the Crown Solicitor was engaged by that letter. As the applicant submitted, the letter initiated the engagement and preceded it.

61. The respondent has not identified whether the letter contained information “which is confidential to” the Secretary within rule 9. If so, that information could presumably have been redacted. Further, the provision of the letter to the Tribunal on a confidential basis would not constitute “disclosure… to any person” (see, for example, Osborne v The Queen [2014] NSWCCA 17; 238 A Crim R 417 at [33]).

62. The Tribunal admitted and accepted Ms Mattes’ hearsay evidence about the identity of the persons instructing the Crown Solicitor, which did not support the respondent’s submissions about the identity of the client. However, the Tribunal does not consider that it was satisfactory for the respondent to provide only hearsay evidence on a matter of such significance to the proceedings.

Were FACS officers authorised to instruct?

63. The next question is whether the FACS officers who communicated with solicitors from the Crown Solicitor’s Office properly did so on behalf of the Secretary (as client). It is convenient to set out their employment status.

64. The Public Service of New South Wales consists of those persons who are employed under Part 4 of the Government Sector Employment Act 2013 (NSW) by the Government of New South Wales in the service of the Crown.

65. The Secretary of FACS was the “head” of FACS (Government Sector Employment Act, s 23(1)). A person is appointed to the office of Secretary by the Minister by a contract of employment (Government Sector Employment Act, s 23(4) and (5)). The Secretary was responsible to the Minister for the general conduct and management of the functions and activities of the Department (Government Sector Employment Act, s 25(1)).

66. The Secretary of FACS was entitled to exercise on behalf of the Government of New South Wales the employer functions of the Government in relation to the Public Service senior executives assigned to roles in FACS and in relation to the other employees of FACS (Government Sector Employment Act, s 26(1)(a) and (b)). Those employer functions included “the power to employ persons, to assign them to roles and to terminate their employment” (Government Sector Employment Act, s 26(3)).

67. The definition of “client” in the Evidence Act is inclusive. A “client” is defined to include “an employee or agent of a client” (Evidence Act, s 117(1)). The Secretary of FACS had a role in relation to employees of FACS which was analogous to that of an employer and had general responsibility for the management of FACS and its personnel. In my view, government employees working at FACS are properly regarded as the “client” for the purposes of the Evidence Act when defending proceedings in which the Secretary is named as defendant.

68. If I am wrong about this and employees of a department are not by virtue of that status also the “client” when the client is the head of that department, then I consider that the Tribunal is entitled to rely upon the presumption of regularity to conclude that FACS officers had the Secretary’s authority to instruct the Crown Solicitor in connection with the applicant’s proceedings.

69. Ms Mattes’ evidence is that the letter of instructions was signed by the Director of Legal Services Corporate Services at FACS. The presumption of regularity is that “[w]here a public official or authority purports to exercise a power or to do an act in the course of his or its duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled” (Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154, McHugh JA at 164; see also Darley Australia Pty Ltd v Walfertan Processors Pty Ltd (2012) 188 LGERA 26; [2012] NSWCA 48 at [115]). Where the Director of Legal Services purports to provide instructions on behalf of the Secretary and Minister, it may be presumed that he or she has authority to do so, in the absence of evidence to the contrary. Similarly, where employees of FACS provide instructions following a letter of instructions from the Director of Legal Services, it may be presumed that they are duly authorised to provide instructions, in the absence of evidence to the contrary.

70. The presumption of regularity is rebuttable and “may be displaced by a contrary inference from additional facts however established”: Kingham v Sutton [2002] FCAFC 107 at [58]. In deciding whether the presumption of regularity is rebutted, the inference from the ordinary course of human affairs carries some weight which may vary according to the proved circumstances: Hill v Woollahra Municipal Council [2003] NSWCA 106; (2003) 127 LGERA 7 at [52]. Further, as Gaudron J has observed, “[a]n improper purpose will not lightly be inferred and, by application of a presumption of regularity, will only be inferred if the evidence cannot be reconciled with the proper exercise of the power”: Industrial Equity Ltd v Deputy Commissioner of Taxation (1990) 170 CLR 649 at 672.

71. The applicant relies upon instruments of delegation made by the Secretary to support her submission that the Secretary’s power to defend the proceedings was not delegated to the Director of Legal Services Corporate Services at FACS. She has provided the Tribunal with a number of instruments, but not with the schedules to those instruments (which contain information about the persons to whom powers have been delegated). The instruments are dated 26 July 2013, 29 October 2014, 14 August 2015 and 7 March 2016. Each of these instruments relies upon the Secretary’s power to delegate under s 250 of the Children and Young Persons (Care and Protection) Act. The applicant submits that the particular individual who was the Secretary on the date of the letter of instructions, being 22 October 2014, had not made an instrument of delegation at that time.

72. Section 250 of the Children and Young Persons (Care and Protection) Act provides:

“250 Delegation by Secretary

(1) The Secretary may delegate to any person any of the Secretary’s functions, other than—

(a) this power of delegation, and

(b) (Repealed)

(2) A delegate may sub-delegate to any person any function delegated by the Secretary if the delegate is authorised in writing to do so by the Secretary.”

73. The power to delegate the “Secretary’s functions” under s 250(1) implicitly refers, in my view, to the Secretary’s functions under the Children and Young Persons (Care and Protection) Act. The proceedings brought by the applicant and her husband in the Supreme Court were judicial review proceedings in which the Court exercised its supervisory jurisdiction. Some of the decisions and actions of FACS officers which were challenged by the applicant and her husband were decisions and actions referable, or purportedly referable, to the Children and Young Persons (Care and Protection) Act. Notwithstanding this, I do not consider that the Secretary’s “function” of defending the proceedings was a function conferred by the Children and Young Persons (Care and Protection) Act or a function to which s 250 of that Act applies.

74. This means that the content of the instruments of delegation, delegating powers under s 250 of the Children and Young Persons (Care and Protection) Act, is not relevant to the question of whether the FACS officers instructing the Crown Solicitor were authorised to do so.

75. The respondent relied upon s 261(1) of the Children and Young Persons (Care and Protection) Act, which provides:

In the absence of proof to the contrary, the authority of the Minister or the Secretary to exercise any function conferred or imposed on the Minister or the Secretary by or under this Act, or to take any proceedings for the purposes of this Act, is to be presumed.

76. Defending judicial review proceedings was not exercising a function conferred or imposed upon the Secretary by or under the Children and Young Persons (Care and Protection) Act. Further, there is no question of the Secretary’s authority to defend those proceedings; the question raised by the applicant is the FACS officers’ authority to defend them on the Secretary’s behalf. Accordingly, s 261(1) of the Children and Young Persons (Care and Protection) Act does not assist the respondent.

77. I do not consider that a delegation is necessary for FACS officers to defend the proceedings on the Secretary’s behalf. The acts done on behalf of the Secretary in instructing the Crown Solicitor and defending proceedings were not done in exercise of a statutory power. It is doubtful whether they were done in the exercise of a power at all. It is sufficient, in my view, that the FACS officers were authorised to provide instructions as to the conduct of the proceedings.

78. The applicant pointed to the fact that the respondent bears the onus of proof in these proceedings and said that the respondent should disclose information about the instructors under the Model Litigant Policy and because there is a “reasonable suspicion that instruction was never properly authorised.”

79. The applicant has not pointed to any circumstances which give rise to a reasonable suspicion that the FACS officers or employees providing instructions were not authorised to do so by or on behalf of the Secretary. Nor does the obligation to act honestly and fairly under the Model Litigant Policy require the Crown Solicitor to disclose the names of the persons instructing the Crown Solicitor. The evidence is not sufficient to rebut the presumption of regularity.

80. I do not accept the applicant’s submission that the Tribunal should find that the FACS employees providing instructions to the Crown Solicitor did not have authority to do so. Applying the presumption of regularity, the Tribunal finds that they did have such authority.

Authority of solicitors to act

81. The applicant also submits that there is no evidence that the solicitors who had carriage of her proceedings at the Crown Solicitor’s Office were authorised to act on behalf of the Crown Solicitor. She acknowledges that there is no reason to suspect that they did not have proper authorisation, but says that the respondent should establish the authorisation, in light of the Model Litigant Policy.

82. “Lawyer” is defined in s 117 of the Evidence Act to mean “an Australian lawyer, a foreign lawyer, or an employee or agent of either of them.” The Crown Solicitor, being the lawyer engaged by the Secretary, is “an Australian lawyer.” The question raised by the applicant is whether the solicitors employed in the Crown Solicitor’s Office were employees or agents of the Crown Solicitor and thus “lawyers” whose client is the Secretary.

83. In December 2015, the Crown Solicitor was the “head” of the Crown Solicitor’s Office (Government Sector Employment Act, s 28(1), Sch 1, Part 2). The Crown Solicitor was entitled to exercise on behalf of the Government of New South Wales the employer functions of the Government in relation to the employees of the Crown Solicitor’s Office (Government Sector Employment Act, s 31(1)).

84. The solicitors working in the Crown Solicitor’s Office were not, strictly, the Crown Solicitor’s employees. However, I am satisfied that they were in a relationship to the Crown Solicitor which was analogous to that of employee and that they were acting as the Crown Solicitor’s agents. The file was allocated to these solicitors. They signed their emails in their name, with their position followed by the words “for Crown Solicitor.” In these circumstances, it may be inferred that the Crown Solicitor as principal granted, and the employed solicitor as agent accepted, authority for the employed solicitor to perform specific tasks on behalf of the Crown Solicitor (see Equiticorp Finance Ltd (in liq) v Bank of New Zealand (1993) 32 NSWLR 50 at 132; Lauvan Pty Ltd and Another v Bega [2018] NSWSC 154 at [218]). I find that the employed solicitors had implied actual authority to act on the Crown Solicitor’s behalf and were acting as the Crown Solicitor’s agents.

85. The presumption of regularity, in these circumstances, is a presumption that solicitors purporting to act with carriage of the matter are in fact properly authorised to so act by the Crown Solicitor. The circumstance that the respondent has the onus in these proceedings does not mean that it is required to prove the employment status of every person communicating on behalf of the Crown Solicitor or the Secretary. It would be different if the applicant had pointed to cogent evidence indicating that a solicitor was not authorised to act on the Crown Solicitor’s behalf. That has not been done.

Confidentiality

86. The applicant also submitted that persons copied into emails were strangers to the lawyer-client relationship and that it could be inferred that the requisite degree of confidentiality was lacking. The privilege in both ss 118 and 119 of the Evidence Act attach to “confidential communications” and “confidential documents.”

87. Certain emails to and from the Crown Solicitor’s Office and a staff member apparently instructing at FACS are copied to other persons with FACS email addresses. The applicant submitted that there was no proof that persons copied into emails had the necessary delegation.

88. I do not consider that copying FACS officers into emails detracts from the confidentiality of the communications. It is common for more than one government employee to be informed of, and have a role to play, in instructing solicitors in litigation. It is not necessary for each of these persons to have a delegation from the Secretary for the emails to retain their confidential character.

Dominant purpose

89. The applicant said that the documents must fall within the dominant purpose of “litigation advice” to be privileged.

90. Under s 118 of the Evidence Act, evidence is not to be adduced if this would result in disclosure of certain confidential communications or documents made or prepared “for the dominant purpose of the lawyer, … providing legal advice to the client.”

91. Under s 119 of the Evidence Act, evidence is not to be adduced if this would result in disclosure of certain confidential communications or documents made or prepared “for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.”

92. These provisions are applied in the context of the compulsory production of documents by operation of s 131A of the Evidence Act, which is set out above. That is because cl 5(1) of Sch 1 to the GIPA Act is directed towards “information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege).”

93. I am satisfied, on the face of the documents, that these were prepared for one or both of the dominant purposes referred to in ss 118 and 119 of the Evidence Act. I note also the opinion of Ms Mattes that the communications all bear the character of being communications for the dominant purpose of the provision of professional legal services relating to the Supreme Court proceedings.

94. The applicant submitted that the respondent had plans, in December 2015, to file a motion seeking summary dismissal, and that any information relating to the proposed motion would not be for the dominant purpose in s 119 of the Evidence Act. Without identifying whether or not the withheld information relates to such a motion (see GIPA Act, s 107(1)), I do not accept this submission. I am not persuaded that the respondent was considering filing a summary dismissal motion for an improper purpose. I find, on the basis of Ms Mattes’ evidence and the face of the documents, that the solicitors’ dominant purpose throughout the communications was the provision or advice or the provision of legal services relating to the applicant’s proceedings.

95. For these reasons, I do not accept the applicant’s first ground, being that legal professional privilege did not arise. I am satisfied that the requisite lawyer/client relationship existed between the parties, that the solicitors at the Crown Solicitor’s Office and the employees at FACS were authorised to advise and instruct respectively, that the communications between them were confidential and that the “dominant purpose” test is made out.

Was legal professional privilege waived on account of fraud?

96. The applicant contended that the communications over which legal professional privilege is claimed were made in the furtherance of fraud, in the broad sense. She said that the “fraud exception” to legal professional privilege is synonymous with the “illegal or improper purpose exception.”

97. The applicant submitted that the FACS officers’ interference in the care of the applicant’s four eldest children was prima facie fraudulent (in the broad sense) in whole or part, and/or unfairly propagated inaccurate perceptions including that she is a child abuser and an unfit parent.

98. The applicant further referred to the Crown Solicitor’s omission to disclose the delegations for the FACS officials, whose actions were the subject of the applicant’s Supreme Court proceedings, to the court in those proceedings. She submitted that this was prima facie fraudulent, either in the sense of dishonest misrepresentation causing disadvantage to another, or in the broad sense of being unlawful or improper more generally, and/or that it unfairly propagated an inaccurate perception that the relevant delegations were valid.

99. The applicant relied upon a number of circumstances to support her claim of fraud, in the broad sense. She said that, prior to assuming care of her children, the Secretary “did not document the formation of a s 34 jurisdictional fact opinion”; that is, an opinion, formed on reasonable grounds, under s 34 of the Children and Young Persons (Care and Protection) Act that a child or young person is in need of care and protection. The formation of that opinion is necessary before the Secretary takes “whatever action is necessary to safeguard or promote the safety, welfare and well-being of the child or young person” within s 34.

100. The applicant submitted that there is circumstantial evidence to suggest that one FACS official was planning the “assumption order” made on 24 June 2014 (that is, an order under s 44(1) of the Children and Young Persons (Care and Protection) Act assuming the care responsibility of a child or young person by means of an order in writing) before commencing an investigation into her children’s care. She said that an investigation was required by s 30 of that Act. The applicant submitted, further, that a “removal plan” was illegally or improperly purposed.

101. The applicant also submitted that the ambiguity of the “assumption document” raised concerns that it may have transgressed s 307C of the Crimes Act 1900 (NSW) because it misleads the reader into thinking that her children may actually have been abused, when the Department was clear that they had no such suspicion. Section 307C(1) of the Crimes Act makes it an offence to produce a document to another person, knowing that the document is false or misleading, where the document is produced in compliance or purported compliance with a law of the State.

102. The applicant submitted that s 307C of the Crimes Act is also relevant to a temporary placement order under s 49 of the Children and Young Persons (Care and Protection) Act, which was signed by a FACS officer. She said that the document improperly referred to the authority of the former Director-General of the Department of Community Services, not the Secretary of FACS. She contended that the caseworker would have known that the document was misleading.

103. The applicant made various other submissions in support of this ground. Some of these were to the effect that several jurisdictional facts (depending upon the Secretary’s state of mind as to certain matters) had not been established before relevant powers were exercised. She claimed that, as a result of the absence of the requisite jurisdictional facts, the assumption order was unlawful. The applicant made other submissions about the conduct of FACS officers and asserted that the assumption of her children was for an illegal or improper purpose. The applicant described a “chain of events” which, she said, “raises questions as to repeated unlawfulness and lack of ethics of FACS caseworkers in dealing with the applicant.” She submitted that these “events each make out the level of impropriety required to establish the broad concept of ‘fraud’.”

104. The applicant also contended that FACS officials attempted to interfere in the care of the applicant’s fourth child through a plan to assume the care of the baby at birth. She relied on interim orders made by the Supreme Court which she says establish “that the Secretary had no grounds upon which to validly assume the care of the baby at birth.” The declaration, which is in evidence, is carefully worded and is to the effect that, “upon the evidence presently before the Court, and at this point in time,” FACS is not entitled to assume care of the baby.

105. The applicant also submitted that the statutory pre-conditions to the placing of a high risk birth alert by FACS were not met. She invited the Tribunal to make the inference that both the high risk birth alert and a pre-natal report made by FACS were “deliberately unlawful and operated together as a conspiratorial set.”

106. The applicant relies upon other facts or alleged facts in support of her submission that FACS’ conduct in respect of her fourth child was unlawful. I have considered them, even though they are not all set out in these reasons.

107. In relation to the Crown Solicitor, the applicant submitted that the Crown Solicitor did not produce the “true delegations” to the court when requested and expected to do so. In the course of the hearing of the applicant’s Supreme Court proceedings, the judge said to the counsel appearing for the defendant that she could “tender any delegations” “if necessary” in her final submissions. The defendant’s counsel agreed. His Honour said to her that he thought it needed to be made clear how it “falls out” as to “who had responsibility for what.” Counsel then agreed to investigate.

108. The applicant’s evidence is that the delegations were never tendered. She submitted that the failure to tender them created inaccurate perceptions, including that there was no seriously arguable question about the delegations relevant to the trial. The applicant contended that there was no valid delegation.

109. The information to which the privilege claim relates is, of course, contained in the correspondence concerning the applicant’s Supreme Court proceedings, between solicitors in the Crown Solicitor’s Office and others. The applicant submitted that “it is reasonably to be expected that the sought correspondence was directed toward covering up a clear presentation of issues and facts about what had been unlawfully or improperly pursued in the department’s camp, and defeating the applicants’ claim for relief over grievances predicated on the above sequence of impropriety.”

110. For all of these reasons, the applicant’s submission is that the privilege in the communications (if established) has been lost.

111. The respondent’s response to the fraud allegations in its written submissions was short. The respondent said that the applicant has not provided any evidence which would establish fraudulent or improper behaviour of FACS employees and that the privilege has not been lost.

Legal framework

112. The applicant relied upon authorities concerning legal professional privilege at common law in support of her submissions on fraud, such as A-G (NT) v Kearney (1985) 158 CLR 500, as well as upon s 125 of the Evidence Act. For the purposes of cl 5(1) of Sch 1 to the GIPA Act, the loss of client privilege in fraudulent circumstances is governed by s 125 of the Evidence Act. The authorities at common law may be relevant to understanding the meaning of that provision, but it is the statutory test which must be applied.

113. Section 125 of the Evidence Act provides:

“125 Loss of client legal privilege: misconduct

(1) This Division does not prevent the adducing of evidence of:

(a) a communication made or the contents of a document prepared by a client or lawyer (or both), or a party who is not represented in the proceeding by a lawyer, in furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty, or

(b) a communication or the contents of a document that the client or lawyer (or both), or the party, knew or ought reasonably to have known was made or prepared in furtherance of a deliberate abuse of a power.

(2) For the purposes of this section, if the commission of the fraud, offence or act, or the abuse of power, is a fact in issue and there are reasonable grounds for finding that:

(a) the fraud, offence or act, or the abuse of power, was committed, and

(b) a communication was made or document prepared in furtherance of the commission of the fraud, offence or act or the abuse of power,

the court may find that the communication was so made or the document so prepared.

(3) In this section:

power means a power conferred by or under an Australian law.”

114. Section 125 is in Part 3.10 of the Evidence Act and, by operation of s 131A(1), must be applied “with any necessary modifications” when determining whether a document required to be produced is privileged (see Director of Public Prosecutions (NSW) v Stanizzo [2019] NSWCA 12 at [32]).

115. There are some difficulties in applying s 125 of the Evidence Act in the context of the application of cl 5 of Sch 1 to the GIPA Act. The Court of Appeal (Basten JA, Payne JA, Sackville AJA) commented in Director of Public Prosecutions (NSW) v Stanizzo [2019] NSWCA 12 at [33], in the context of a privilege claim made in response to a production requirement, that “[t]o enliven the operation of the section, there must be evidence admitted in the proceeding, not merely an allegation about the fraud, offence or act, or abuse of power.” When an application is made under the GIPA Act, of course, there is no “evidence” or “proceeding” as there would be in a court. However, I will assume that, when an applicant relies upon s 125 of the Evidence Act to counter a claim of legal professional privilege in GIPA Act proceedings before the Tribunal, the Tribunal must be persuaded by evidence that there are reasonable grounds for finding that the alleged fraud or misconduct occurred.

116. It is important to remember that the relevant communications to which it is contended that s 125 of the Evidence Act applies are the communications the subject of the legal professional privilege claim. That is, it is mostly communications between FACS and the Crown Solicitor’s Office which the applicant alleges were made or prepared “in furtherance of the commission of a fraud.” Thus, even if she could establish that certain FACS officers acted in the way she contends, that does not necessarily mean that s 125 of the Evidence Act applies to the information the subject of these proceedings.

117. The term “fraud” in s 125 of the Evidence Act is not limited to legal fraud in the narrow sense but extends to “all forms of fraud and dishonesty such as fraudulent breach of trust, fraudulent conspiracy, trickery and sham contrivances" (Kang v Kwan [2001] NSWSC 698 at [37](11)). The New South Wales position is that actual dishonesty is required (see Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 222 at [63]; Kang v Kwan [2001] NSWSC 698 at [37](9); Van Der Lee v New South Wales [2002] NSWCA 286 at [61]), whereas Victorian decisions have taken the contrary view (see Amcor Ltd v Barnes [2011] VSC 341 at [47] and Cargill Australia Ltd v Viterra Malt Pty Ltd [2017] VSC 126 at [171]-[172]).

118. Privilege is also lost if the relevant communication was made in furtherance of a deliberate abuse of a power (Evidence Act, s 125(1)(b)) and the client, lawyer or party ought reasonably to have known this.

119. The test under s 125(2) of the Evidence Act is whether, relevantly, there are “reasonable grounds” to find that the fraud or deliberate abuse of power occurred and that a communication was made in furtherance of the commission of the fraud or abuse of power.

120. I do not consider that there are “reasonable grounds” to find that a fraud or deliberate abuse of power was committed or that a communication was made in furtherance of the commission of any such fraud or abuse of power.

121. The applicant has pointed to many alleged deficiencies in the exercise of power by FACS officials. Most of these were the subject of her Supreme Court proceedings. Although she was initially successful in obtaining an injunction, her proceedings were ultimately dismissed and her appeal was unsuccessful.

122. Even if she is correct and that, in some cases, officials purported to act without fulfilling the statutory preconditions for the exercise of a power, I am not satisfied that there was an element of dishonesty in the officials’ conduct or that the officials acted for an improper purpose (putting aside the question of whether acting for an improper purpose would in fact constitute a fraud or deliberate abuse of power). That is, the applicant has not established that their actions were fraudulent, in the broad sense.

123. More importantly, there is nothing to suggest that the communications the subject of these proceedings, between FACS officers and the solicitors and counsel representing the Secretary, were made “in furtherance of” a fraud. I reject the applicant’s suggestion that the communications were for the purpose of covering up impropriety. The communications were made in the context of defending proceedings brought by the applicant and her husband. They were part of the normal process of a client communicating with the client’s lawyer, and lawyers communicating with each other, about the client’s position in, and conduct of, the proceedings. It does not follow from the circumstance that the applicant considers that FACS officers had acted improperly in other respects that the communications in the litigation context were made in furtherance of fraud or a deliberate abuse of power.

124. The applicant’s submission that the failure of the applicant’s counsel to produce various delegations to the court was, in the circumstances, a species of fraud must also be rejected. The judge determining the Supreme Court proceedings observed in his reasons that “[t]he plaintiffs at no stage challenged the authority of the Departmental officers to make relevant administrative decisions under delegation from the Secretary of the Department…. None of their delegations to make those decisions was in question.”

125. In circumstances where the applicant and her husband had not challenged the delegations, it did not amount to fraud to fail to produce them, particularly where the defendant’s counsel had not undertaken to do so. Further, even if some valid criticism could be made of counsel acting for the Secretary for failing to produce those documents (which I do not accept), such failure would not necessarily be attributable to the Crown Solicitor. Most importantly, it is the communications the subject of these proceedings which are claimed to have been made in furtherance of the commission of a fraud. There is no evidence that that is the case.

126. There are no reasonable grounds for finding that the information sought by the applicant in these proceedings is contained in a communication made in furtherance of the commission of a fraud (Evidence Act, s 125(1)(a) and (2)). Nor are there reasonable grounds for finding that the relevant communications were made in furtherance of a deliberate abuse of a power (Evidence Act, s 125(1)(a) and (2)).

127. It follows that privilege has not been lost by operation of s 125 of the Evidence Act.

Invitation to waive legal professional privilege

128. The applicant submitted that, pursuant to s 54 of the GIPA Act, the Tribunal is obliged to invite the Secretary to waive legal professional privilege, if it exists.

129. The third ground does not identify any error on the part of the respondent. I have nevertheless decided to deal with it briefly.

130. Section 54 relevantly provides:

“54 Consultation on public interest considerations

(1) An agency must take such steps (if any) as are reasonably practicable to consult with a person before providing access to information relating to the person in response to an access application if it appears that:

(a) the information is of a kind that requires consultation under this section, and

(b) the person may reasonably be expected to have concerns about the disclosure of the information, and

(c) those concerns may reasonably be expected to be relevant to the question of whether there is a public interest consideration against disclosure of the information.

(2) Information relating to a person is of a kind that requires consultation under this section if the information:

…

(b) concerns the person’s business, commercial, professional or financial interests, or…”

131. Section 54 is directed at an agency, not at the Tribunal. Further, even if it applied to the Tribunal, the purpose of consultation is to ascertain a person’s concerns which “may reasonably be expected to be relevant to the question of whether there is a public interest consideration against disclosure of the information.” A person’s “concerns” are different from a person’s decision as to whether to waive legal professional privilege. Section 54(1) has no application to the present situation.

132. I note, for completeness, that sub-clauses 5(2) and (3) of Sch 1 to the GIPA Act tend strongly against the applicant’s contention that the Tribunal is obliged to ask the Secretary to waive privilege. They provide:

“(2) If an access application is made to an agency in whose favour legal professional privilege exists in all or some of the government information to which access is sought, the agency is required to consider whether it would be appropriate for the agency to waive that privilege before the agency refuses to provide access to government information on the basis of this clause.

(3) A decision that an agency makes under subclause (2) is not a reviewable decision under Part 5.”

133. Those provisions make plain that the Tribunal is not entitled to review an agency’s decision as to whether to waive privilege. This strongly indicates that the Tribunal has no obligation to ask a non-party to do so. I note that the respondent is not “an agency in whose favour legal professional privilege exists” under clause 5(2); it is the client (that is the Secretary) in whose favour legal professional privilege exists.

134. The third ground is dismissed.

Orders

135. For the reasons given above, I make the following orders:

1. The disclosure of the names of the applicant and her husband is prohibited.

2. The respondent’s decision is affirmed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Amendments

19 May 2020 - Typographical error on coversheet

Decision last updated: 19 May 2020