FALK & ACT HEALTH DIRECTORATE (Administrative Review)
[2012] ACAT 5
•7 February 2012
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
FALK & ACT HEALTH DIRECTORATE
(Administrative Review) [2012] ACAT 5
AT 11/60
Catchwords: ADMINSTRATIVE REVIEW – application under the Freedom of Information Act 1989 – exemption from section 36 (Internal working documents) and section 42 (Documents subject to legal professional privilege) – public interest exemption – onus in relation to claiming legal professional privilege – legal professional privilege in common law: the communication privilege and the litigation privilege – the purpose of persons involved in the decision-making or consultation that led to the creation of document and its communication – Jones v Dunkel inference – Does tender of a document in a previous proceeding operates as a waiver of privilege? – the relevant time at which a claim for privilege is to be determined – evidence relating to dominant purpose of the creation of document- approach to be taken when evidence is unsatisfactory and hardly persuasive
List of legislation: ACT Civil and Administrative Tribunal Act 2008, ss. 39, 68 and 69
Freedom of Information Act 1989, ss. 2, 36, 42 and 59
List of cases: Attorney-General (NT) v Kearney (1985) 158 CLR 500
Australian Competition and Consumer Commission v Visy Industries Pty Ltd (No 2) (2007) 239 ALR 762
Australian Securities and Investments Commission v Australian Lending Centre Pty Ltd (No 2) [2011] FCA 1057AWB Ltd v Cole and Another (No 5) [2006] FCA 1234
Barnes v Commissioner for Taxation (2007) 242 ALR 601
Buzzle Operations (in Liq) v Apple Computer Australia Pty Ltd (2009) 74 NSWLR 469
Dr Falk and ACT Health operating as the Canberra Hospital [2007] AIRC 613Goldburg v Ng (1995) 185 CLR 83
Jones v Dunkel (1959) 101 CLR 298
Kennedy v Wallace (2004) 142 FCR 185
Mitsubishi Electric Australia Pty Ltd v Workcover Authority (Vic) (2002) 4 VR 332 at 341
Re McGarvin and the Australian Prudential Regulation Authority (1998) 53 ALD 161
Re Sullivan and department of Industry, Science and Technology (1997) 49 ALD 743Southern Equities Corp Ltd (in liq) v Arthur Andersen & Co (No 6) [2001] SASC 398
Trade Practices Commission v Sterling [1979] FCA 33
Tribunal: Ms L. Donohoe SC, Member
Date of Orders: 7 February 2012
Date of Reasons for Decision: 7 February 2012
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 11/60
BETWEEN:
DR MICHAEL FALK
Applicant
AND:
ACT HEALTH DIRECTORATE
Respondent
TRIBUNAL: Ms L. Donohoe SC, Member
DATE: 7 February 2012
ORDER
1.The decision of the respondent of 12 April and 16 June 2011 is confirmed in relation to documents 1 to 4, produced to the Tribunal pursuant to section 39 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act).
2.The decision of respondent of 12 April and 16 June 2011 is set aside in relation to document 5, produced to the Tribunal pursuant to section 39 of the ACAT Act.
3.The decision of respondent of 12 April and 16 June 2011 is varied in relation to document 6, produced to the Tribunal pursuant to section 39 of the ACAT Act.
4.Document 5 produced to the Tribunal pursuant to section 39 of the ACAT Act is to be released to the applicant forthwith.
5.Document 6 produced to the Tribunal pursuant to section 39 of the ACAT Act and annexed to these reasons in redacted form, is to be released to the applicant forthwith.
………………………………..
Ms L. Crebbin, General President
For and on behalf of
Ms L. Donohoe SC, Member
REASONS FOR DECISION
INTRODUCTION
This application for a review of a decision of a relevant entity namely, the ACT Health Directorate (ACT Health), was made on 14 July 2011. The Tribunal’s powers in relation to such review are to be found in sections 68 and 69 of the ACT Civil and Administrative Tribunal Act 2008 (the ‘ACAT Act’).
Background to the Application and the Reviewable Decision
On 11 February 2011, a Freedom of Information Act (‘FOI Act”) application was made by the applicant, Dr Falk, to the respondent, ACT Health, requesting the release of copies of documents in relation to three meetings, namely, between:
· Ms Merrilyn Sernack of Clayton Utz (‘CU’), Messrs Doug Jackman and John Mollett, Ms Rosemary O’Donnell and Dr Martin Gallagher of ACT Health on 24 January 2005;
· Ms Merrilyn Sernack, Ms Rosemary O’Donnell, Messrs Tony Sherbon, Tony Clarkson, John Mollett, Bob Cook and Phil Kirkham of ACT Health on 1 August 2005; and
· Ms Merrilyn Sernack, Ms Trish Johnson, Messrs Tony Clarkson and Mark Cormack of ACT Health on 23 September 2005.
It is an unremarkable observation that these documents came into existence more than six years prior to the FOI Act application.
The Deputy Chief Executive of ACT Health, Mr Ian Thompson, initially responded to the application in writing on 12 April 2011. Mr Thompson identified a number of documents as falling within the application.[1] In the first paragraph of his response, Mr Thompson appears to have incorrectly identified the 1st of August 2005 meeting as occurring on the 31st of August. This was later identified as a typographical error. Whilst the applicant’s Statement of Facts and Contentions made a point of this, no point was made of it at the hearing of this matter. Consequently, the Tribunal does not consider that anything turns on this error.
[1] Letter dated 12 April 2005 from Mr Thompson to Ms Bedford (Dr Falk’s legal
representative), T5, page 1, paragraph 3.
Mr Thompson decided to exempt certain documents from disclosure pursuant to sections 36 and 42 of the FOI Act 1989, in respect of which, he enclosed a schedule indicating the status he had attached to each document. Those provisions of the FOI Act provide as follows:
36Internal working documents
(1)Subject to this section, a document is an exempt document if its disclosure under this Act—
(a)would disclose matter in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency or Minister or of the Territory; and
(b)would be contrary to the public interest.
(2)In the case of a document of the kind referred to in section 8 (1), the matter referred to in subsection (1) (a) of this section does not include matter that is used or to be used for the purpose of the making of decisions or recommendations referred to in section 8 (1).
(3)This section does not apply to a document only because of purely factual material contained in the document.
(4)This section does not apply to—
(a)reports (including reports concerning the results of studies, surveys or tests) of scientific or technical experts, whether employed within an agency or not, including reports expressing the opinions of such experts on scientific or technical matters; or
(b)reports of a prescribed body or organisation established within an agency; or
(c)the record of, or a formal statement of the reasons for, a final decision given in the exercise of a power or of an adjudicative function.
(5)Where a decision is made under part 3 that an applicant is not entitled to access to a document because of this section, the notice under section 25 shall state the ground of public interest on which the decision is based.
42Documents subject to legal professional privilege
(1)A document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege.
(2)A document of the kind referred to in section 8 (1) is not an exempt document under subsection (1) of this section only because of the inclusion in the document of matter that is used or to be used for the purpose of the making of decisions or recommendations referred to in section 8 (1).
Another provision of the FOI Act is relevant. Sect 2 provides as follows:
2Object
(1)The object of this Act is to extend as far as possible the right of the Australian community and, in particular, the citizens of the Territory, to access to information in the possession of the Territory by—
(a)making available to the public information about the operations of agencies and, in particular, ensuring that rules and practices affecting members of the public in their dealings with agencies are readily available to persons affected by those rules and practices; and
(b)creating a general right of access to information in documentary form in the possession of Ministers and agencies, limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by agencies.
(2)The provisions of this Act shall be interpreted so as to further the objects set out in subsection (1) and to ensure that discretions conferred by this Act are exercised as far as possible to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information.
On 6 May 2011, Dr Falk’s legal representatives, on his behalf, requested a review of Mr Thompson’s decision. On 16 June 2011, the Acting Deputy Director of the Canberra Hospital and Health Services,
Ms Barbara Reid (the reviewer), dealt in writing with the applicant’s request pursuant to section 59 of the FOI Act. Amongst other matters in her decision, the reviewer corrected the error in dates made by
Mr Thompson in his written decision of 12 April 2005, advising that the reference to a meeting on the 31st of August 2005 should have been a reference to a meeting that took place on the 1st of August 2005.
The reviewer upheld Mr Thompson’s decision. She expressed her reasoning as follows:
As to section 36 of the FOI Act: ‘….I have determined that the information contained in the documentation would disclose a matter in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative process involved in the functions of Health Directorate. I believe the release of the information would be contrary to the public interest as it does not contain information that relates to public affairs nor does it deal with an issue that is of concern to the public.’
As to section 36(1) (a), the reviewer unfortunately did little more than recite the language of the subsection.
As to section 36(1) (b) and (5), the reviewer purported to state the ground of public interest in relation to which she was maintaining that release of the requested documents would be contrary. It was that the information contained in the documents sought was information of a personal or individual interest to Dr Falk.
As to section 42, she merely paraphrased some of the language of established common law authorities, without having, it seems, any or much regard to the facts and circumstances or the nature of the documents she deemed as covered by the privilege. In particular, and for emphasis, she said:[2]
‘…the information contained in the documentation constitutes legal professional privilege as its dominate [sic] purpose relates to existing or anticipated litigation, or it is a draft provided by a lawyer to a client for the purpose of instructions.’
[2] T 3
Generally speaking, as to the reviewer’s reasoning, there was no attempt by her to relate the operation of the sections or sub-sections to the facts and or circumstances of this request. In Buzzle Operations (in Liq) v Apple Computer Australia Pty Ltd, White J said:[3]
I do not consider that the plaintiffs’ solicitor's own description of her purposes as being “dominant” carries any weight, particularly as she did not address any other purpose that she or her client had in the preparation of the documents…The onus of establishing that the dominant purpose of preparation of the documents was for the first plaintiff to be provided with professional legal services fell on the plaintiffs. In my view that onus has not been discharged…In my view, the formulaic nature of her evidence…and her failure to address other purposes the documents were intended to serve means that her assertion as to her dominant purpose carries no weight.
His Honour’s comments are apposite.
[3] (2009) 74 NSWLR 469 at 477 [22]
The Tribunal presumes that the reviewer had no legal qualifications. However, in accordance with usual procedure, the Tribunal assumes that she took advice from the ACT Government Solicitor (the ‘GSO’) as to her obligations in relation to the FOI Act and responded in accordance with that advice.
Although it is not strictly necessary for the Tribunal to comment upon the earlier decision in respect of which it is now called upon to review, it seems to the Tribunal that the reviewer’s reasons were perfunctory, conclusory and formulaic and paid scant, if any, regard to the objects of the FOI Act set out in section 2. As such, no weight is given to them.
Scope of the request as at hearing
At the hearing of this matter, the applicant, through his counsel, advised the Tribunal that review of the decision in relation to the documents, which came into existence on 23 September 2005 (the third category), would not be pressed.
The section 39 ACAT Act Documents
The respondent provided a schedule of these documents and produced copies of them to the Tribunal pursuant to section 39 of the ACAT Act.
THE WRITTEN SUBMISSIONS
The written submissions filed by the applicant and the respondent, respectively were comprehensive and helpful. When the matter was heard however, some of the matters argued in the written submissions were effectively abandoned. The real focus of the dispute between the parties became as follows:
· Section 36 (1) (b) – the public interest component of section 36; and
· Section 42 – legal professional privilege.
However, it became clear from the oral submissions that the substantial legal dispute related to legal professional privilege.
Section 36
Even though section 36 of the FOI Act was not pursued with great vigour in the oral submissions, it remained, none the less, an issue. Moreover, even though both limbs ((a) and (b)) of section 36 must be satisfied, the Tribunal proposes to deal with both, albeit briefly.
Section 36(1)(a)
It could not be said with any conviction that these documents came into existence in the course of, or for the purposes of, the deliberative process of the respondent. The whole focus of the contents of these documents was an exercise in micro-managing the deteriorating employment relationship between the respondent and the applicant.
Section 36 (1)(b)
The Tribunal is persuaded by the submissions made by Mr Spry of counsel on behalf of the applicant. To rely on the public interest exemption contained in section 36(1), the decision maker must first identify the relevant public interest.
The reviewer said as follows:
‘I believe that release of the information would be contrary to the public interest in that it does not contain information that relates to public affairs nor does it deal with an issue that is of concern to the public.’
On the basis of this statement, if the relevant document does not relate to public affairs, it cannot be a document that discloses information in relation to the functions of an agency or a Minister of the Territory. As such it should not be withheld pursuant to section 36 exemptions.
In assessing whether or not there is a public interest in disclosure of documents, it is relevant, as Mr Spry submitted, to consider whether the applicant had a personal interest in favour of disclosure. There could not, in the Tribunal’s view, be a clearer situation where this applicant had a very personal interest in the disclosure of documents. These documents concerned his employment relationship with the respondent and related to action taken by the respondent in relation to that relationship. This factor weighs heavily in favour of disclosure.[4]
[4] Re Sullivan and department of Industry, Science and Technology (1997) 49 ALD 743
Finally, it was submitted by Mr Spry that another relevant consideration in favour of disclosure of the documents was the length of time between the creation of the documents and the applicant’s FOI request, which was, as the Tribunal has noted some six years. Such a lapse of time is a significant factor in favour of disclosure.[5]
Section 42
[5] Re McGarvin and the Australian Prudential Regulation Authority (1998) 53 ALD 161
It is uncontentious that the law to be applied in cases such as this where questions of discovery or production of documents arises is not statute law, which is applicable when the law of client privilege is to be applied to questions of evidence, but the common law.[6] The common law notion of legal professional privilege contemplates and adopts two privileges, a communication privilege and a litigation privilege.
[6] Barnes v Federal Commissioner for Taxation 242 ALR 601; Australian Securities and
Investments Commission v Australian Lending Centre Pty Ltd (No 2)
[2011] FCA 1057 at [9]
It is a trite observation that the onus of establishing the protection of legal professional privilege lies with the party asserting it.
THE PRINCIPLES
The Communication Privilege
In AWB Ltd v Cole and Another (No 5)[7], Young J summarised the relevant authorities and extracted the principles, which govern the legal advice privilege or the communication privilege at common law.
[7] [2006] FCA 1234 at [44]
(1) The party claiming privilege carries the onus of proving that the communication was undertaken, or the document was brought into existence, for the dominant purpose of giving or obtaining legal advice. The onus might be discharged by evidence as to the circumstances and context in which the communications occurred or the documents were brought into existence, or by evidence as to the purposes of the person who made the communication, or authored the document, or procured its creation. It might also be discharged by reference to the nature of the documents, supported by argument or submissions: see Grant v Downs (1976) 135 CLR 674 at 689; Commissioner of Taxation (Cth) v Pratt Holdings Pty Ltd (2005) 60 ATR 466 at [30]; and AWB v Cole at [63].
(2) The purpose for which a document is brought into existence is a question of fact that must be determined objectively. Evidence of the intention of the document's maker, or of the person who authorised or procured it, is not necessarily conclusive. It may be necessary to examine the evidence concerning the purpose of other persons involved in the hierarchy of decision-making or consultation that led to the creation of the document and its subsequent communication: see AWB v Cole at [110].
(3) The existence of legal professional privilege is not established merely by the use of verbal formula: Grant v Downs at 689 per Stephen, Mason and Murphy JJ.............. There will be cases in which a claim of privilege will not be sustainable in the absence of evidence identifying the circumstances in which the relevant communication took place and the topics to which the instructions or advice were directed: communication took place and the topics to which the instructions or advice were directed: Kennedy v Wallace (2004) 142 FCR 185 (Kennedy v Wallace) at [12]-[17] per Black CJ and Emmett J and [144]-[145] and [166]-[171] per Allsop J; see also Southern Equities Corp Ltd (in liq) v Arthur Andersen & Co (No 6) [2001] SASC 398.
(4) Where communications take place between a client and his or her independent legal advisers, or between a client's in-house lawyers and those legal advisers, it may be appropriate to assume that legitimate legal advice was being sought, absent any contrary indications: Kennedy v Wallace (2004) 208 ALR 424 at [65] per Gyles J; affirmed on appeal, Kennedy v Wallace at [23]-[27] per Black CJ and Emmett J. In Kennedy v Wallace, Black CJ and Emmett J inclined to the view that in the ordinary case of a client consulting a lawyer about a legal problem in uncontroversial circumstances, proof of those facts alone will provide a sufficient basis for a conclusion that legitimate legal advice is being sought or given.
(5) A "dominant purpose" is one that predominates over other purposes; it is the prevailing or paramount purpose: AWB v Cole at [105]-[106]; Commissioner of Taxation (Cth) v Pratt Holdings at [30] per Kenny J.
(6) An appropriate starting point when applying the dominant purpose test is to ask what was the intended use or uses of the document which accounted for it being brought into existence: Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357 at [35] per Finn J.
(7) The concept of legal advice is fairly wide. It extends to professional advice as to what a party should prudently or sensibly do in the relevant legal context; but it does not extend to advice that is purely commercial or of a public relations character: Balabel v Air India [1988] Ch 317 at 323 and 330; Nederlandse Reassurantie Groep Holding NV v Bacon & Woodrow [1995] 1 All ER 976 at 983; Three Rivers District Council v Governor and Company of Bank of England (No 6) [2005] 1 AC 610 at [43]-[44], [59]-[60], [114] and [120]; Dalleagles Pty Ltd v Australian Securities Commission (1991) 4 WAR 325 at 332-333; DSE (Holdings) Pty Ltd v InterTAN Inc (2003) 135 FCR 151 at [25]-[71]; and AWB v Cole at [100]-[101].
(8) Legal professional privilege protects the disclosure of documents that record legal work carried out by the lawyer for the benefit of the client, such as research memoranda, collations and summaries of documents, chronologies and the like, whether or not they are actually provided to the client: Daniels at [44] per McHugh J; Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 550 per McHugh J (Propend); Dalleagles at 333-334 per Anderson J; Trade Practices Commission v Sterling (1979) 36 FLR 244 at 245-246 per Lockhart J (Sterling); and Kennedy v Lyell (1883) 23 Ch D 387 at 407; Lyell v Kennedy (No 3) (1884) 27 Ch D 1 at 31 per Bowen LJ; Propend Finance Pty Ltd v Commissioner of Australian Federal Police (1995) 58 FCR 224 per Lindgren J.
(9) Subject to meeting the dominant purpose test, legal professional privilege extends to notes, memoranda or other documents made by officers or employees of the client that relate to information sought by the client's legal adviser to enable him or her to advise: Sterling at 246. The privilege extends to drafts, notes and other material brought into existence by the client for the purpose of communication to the lawyer, whether or not they are themselves actually communicated to the lawyer: Saunders v Commissioner of Australian Federal Police (1998) 160 ALR 469 at 472.
(10) Legal professional privilege is capable of attaching to communications between a salaried legal adviser and his or her employer, provided that the legal adviser is consulted in a professional capacity in relation to a professional matter and the communications are made in confidence and arise from the relationship of lawyer and client: Waterford v Commonwealth (1987) 163 CLR 54 at 96 per Dawson J; see also Deane J at 79-82. Some cases have added a requirement that the lawyer who provided the advice must be admitted to practice: see Dawson J in Waterford at 96; GSA Industries (Aust) Pty Ltd v Constable [2002] 2 Qd R 146 at 150; Glengallan Investments Pty Ltd v Arthur Andersen [2002] 1 Qd R 233 at 245. However, in Commonwealth v Vance (2005) 158 ACTR 47, the Full Court (Gray, Connolly and Tamberlin JJ) did not regard the possession of a current practising certificate as an essential precondition to the availability of legal professional privilege: at [23]-[35]. The same view was taken by Lee J in Candacal at [99], by Gillard J in Australian Hospital Care (Pindara) Pty Ltd v Duggan [1999] VSC 131 at [111], and by Downes J in McKinnon v Secretary, Department of Foreign Affairs and Trade (2004) 86 ALD 780 at [51].
(11) Legal professional privilege protects communications rather than documents, as the test for privilege is anchored to the purpose for which the document was brought into existence. Consequently, legal professional privilege can attach to copies of non-privileged documents if the purpose of bringing the copy into existence satisfies the dominant purpose test: Propend at 507 per Brennan CJ, 544 per Gaudron J, 553-554 per McHugh J, 571-572 per Gummow J, and 587 per Kirby J. In Propend at 512, Brennan CJ added a qualification to this principle: if an original unprivileged document is not in existence or its location is not disclosed or is not accessible to the persons seeking to execute the warrant, and if no unprivileged copy or other admissible evidence is made available to prove the contents of the original, the otherwise privileged copy loses its protection.
(12) The Court has power to examine documents over which legal professional privilege is claimed. Where there is a disputed claim, the High Court has said that the court should not be hesitant to exercise such a power: Esso; see also Grant v Downs at 689. If the power is exercised, the court will need to recognise that it does not have the benefit of submissions or evidence that might place the document in its proper context. The essential purpose of such an inspection is to determine whether, on its face, the nature and content of the document supports the claim for legal professional privilege.
(emphasis added)
The Litigation Privilege
In Mitsubishi Electric Australia Pty Ltd v Workcover Authority (Vic)[8], the view that litigation will be contemplated where it is a real prospect as opposed to a mere possibility, was expressed.
17.In essence, litigation is reasonably anticipated or in contemplation if its initiation is likely or reasonably probable. In Jarman v. Lambert & Cooke Contractors Ltd. the Court of Appeal was concerned, not, as this Court is, with a judge-made rule, but with the English forerunner of s.55(4) of the Evidence Act 1958, whereby nothing in the section is to render admissible "any statement made by a person interested at a time when proceedings were pending or anticipated ...". But, as Denning, L.J. pointed out, the words "pending or anticipated" are the words habitually used in connexion with legal professional privilege. Accordingly, I consider that the decision is of assistance. Sir Raymond Evershed, M.R., having pointed out that the word "anticipate" was used loosely for "expect", stated that he was prepared to accept the view, for which, he pointed out, some authority was to be found in Robinson v. Stern, that by "proceedings were anticipated" was meant "proceedings were regarded as likely", or even "reasonably probable". Denning, L.J.stated that anticipation was a state of mind whereby someone considered that something was likely to happen. There must be a likelihood of them. Hodson, L.J.thought it right to accept the meaning put upon the word by Scott, L.J. in Robinson v. Stern. As a matter of ordinary language the word "likely" imports only that the occurrence under consideration "is a real chance or possibility, not that it is more likely than not": Marks v. GIO Australia Holdings Ltd.and cases there cited; Boughey v. The Queen; and see Czarnikow Ltd. v. Koufos (a case concerning "reasonable contemplation" of damage). In Australian Safeway Stores Goldberg, J. concluded that the concept of anticipated proceedings involved the notion of a reasonable probability or likelihood that such proceedings would be commenced, but it will be apparent that I respectfully disagree with his Honour's elucidation of that notion as being that "more probably than not they will be [commenced]".
18. In its supplementary submissions relating to reasonable anticipation of litigation the first of two alternative submissions by the appellant was that such anticipation was made out on the basis of the possibility of litigation and reliance was placed on the use of the word "possibility" rather than "probability" by Clauson, L.J. in Robinson v. Stern. But that was expressly disapproved by Evershed, M.R., if not also by Denning and Hodson, L.JJ., in Jarman v. Lambert & Cooke Contractors Ltd. Moreover, a mere possibility does not satisfy the requirement of reasonable probability or likelihood: no one would say that an occurrence is likely simply because it is possible. As the passage quoted from Marks v. GIO Australia shows, a "real possibility", in the sense of a substantial possibility, may suffice.
19.In summary, then, as a general rule at least, there must be a real prospect of litigation, as distinct from a mere possibility, but it does not have to be more likely than not.
[8] (2002) 4 VR 332 at 341 [17] - [19] per Batt JA
In Australian Competition and Consumer Commission v Visy Industries Pty Ltd (No 2)[9], Heerey J said:
Reasonable anticipation of litigation - the test
53. In Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526 at 559 Goldberg J said that the concept of anticipated proceedings involves
"the notion that there is a reasonable probability or likelihood that such proceedings will be commenced - not that they will be but rather that more probably than not they will be."
54. Subsequent decisions have adopted a somewhat lower test. In Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority (2002) 4 VR 332 at [19] Batt JA, with the concurrence of other members of the Victorian Court of Appeal, held that there must be a "real prospect" of litigation, as a distinct from a mere possibility, but it does not have to be more likely than not. In Microsoft Corporation v Ben Zhong Fan [2003] FCA 1026 at [73]-[75] Jacobson J preferred the Mitsubishi view, as did Allsop J in Australian Competition and Consumer Commission v Liquorland (Australia) Pty Ltd [2005] FCA 503 at [8].
55. The weight of authority now seems to favour the Mitsubishi "real prospect" test. If necessary, I would prefer that to the Safeway "more likely than not" test. However, for the reasons which will hereafter appear, I am satisfied that the higher standard has been met in the present case.
[9] (2007) 239 ALR 762 at 775 [53] - [54]
That view of the test of reasonable anticipation of litigation, namely, that it must be a real prospect rather than a mere possibility has become preferred in the Federal Court.[10] The Tribunal proceeds therefore upon the basis that it is the test in Mitsubishi which is to be applied to the litigation privilege argument in this case.
THE LEGAL ARGUMENT AT THE HEARING
[10] Australian Securities and Investments Commission v Australian lending Centre Pty Ltd
(No 2) [2011] FCA 1057 [23] per Perram J
Mr Pappas of counsel, who appeared for the respondent, in essence, submitted that the documents in respect of which the exemption had been claimed; firstly, fell well within the dominant purpose test and, secondly, as there had been earlier litigation between the applicant and the respondent; and the relationship between the parties as at early 2005 until mid to late 2005 was strained, to say the least, and that, consequently, future litigation might be reasonably expected; were exempt documents because of the test applicable in support of the litigation privilege.
Mr Pappas relied extensively on Trade Practices Commission v Sterling[11] where Lockhart J said:
[11] [1979] FCA 33
Legal professional privilege extends to various classes of documents including the following:
(a) Any communication between a party and his professional legal adviser if it is confidential and made to or by the professional adviser in his professional capacityand with a view to obtaining or giving legal advice or assistance; notwithstanding that the communication is made through agents of the party and the solicitor or the agent of either of them. See Wheeler v. Le Marchant (1881) 17 Ch D 675 ; Smith v. Daniell (1874) LR 18 Eq 649 ; Bullivant v. Attorney-General for Victoria (1901) AC 196 ; Jones v. Great Central Railway Co. (1910) AC 4 , and O'Rourke v. Darbishire (1920) AC 581 .
(b) Any document prepared with a view to its being used as a communication of this class, although not in fact so used. See Southwark Water Co. v. Quick (1878) 3 QBD 315 .
(c) Communications between the various legal advisers of the client, for example between the solicitor and his partner or his city agent with a view to the client obtaining legal advice or assistance. See Hughes v. Biddulph (1827) 4 Russ 190; 38 ER 777 .(d) Notes, memoranda, minutes or other documents made by the client or officers of the client or the legal adviser of the client of communications which are themselves privileged, or containing a record of those communications, or relate to information sought by the client's legal adviser to enable him to advise the client or to conduct litigation on his behalf. See Woolley v. North London Railway Co. (1869) LR 4 CP 602, at p 604 ; Greenough v. Gaskell [1833] EngR 333; (1833) 1 My & K 98, at p 102; [1833] EngR 333; 39 ER 618, at p 620 ; Corporation of Bristol v. Cox (1884) 26 Ch D 678, at pp 681-682 ; Woolley v. Pole [1863] EngR 691; (1863) 14 CBNS 538; 143 ER 556 ; Seabrook v. British Transport Commission (1959) 1 WLR 509 ; Grant v. Downs [1976] HCA 63; (1976) 135 CLR 674 , and Bray, Principles and Practice of Discovery (1885) pp. 388-389.
(e) Communications and documents passing between the party's solicitor and a third party if they are made or prepared when litigation is anticipated or commenced, for the purposes of the litigation, with a view to obtaining advice as to it or evidence to be used in it or information which may result in the obtaining of such evidence. See Wheeler v. Le Marchant (1881) 17 Ch D 675 ; Laurenson v. Wellington City Corporation (1927) NZLR 510 , and O'Sullivan v. Morton (1911) VLR 70 .
(f) Communications passing between the party and a third person (who is not the agent of the solicitor to receive the communication from the party) if they are made with reference to litigation either anticipated or commenced, and at the request or suggestion of the party's solicitor; or, even without any such request or suggestion, they are made for the purpose of being put before the solicitor with the object of obtaining his advice or enabling him to prosecute or defend an action. See Wheeler v. Le Marchant (1881) 17 Ch D 675 ; Cork v. Union Steamship Co. (1904) 23 NZULR 933 , and In Re Holloway (1887) 12 PD 167 .(g) Knowledge, information or belief of the client derived from privileged communications made to him by his solicitor or his agent. See Kennedy v. Lyell (1883) 23 Ch D 387 and Lyell v. Kennedy (No. 2) (1883) 9 AC 81 . (at p246)
(Mr Pappas’ emphasis bold) (Tribunal’s emphasis bold and italicised)
No evidence was called or adduced by Mr Pappas from the persons who attended the meetings of the 24th of January or the 1st of August 2005. They were respectively:
· Ms Merrilyn Sernack of CU, Messrs Doug Jackman and John
Mollett,· Ms Rosemary O’Donnell and Dr Martin Gallagher of ACT
Health on 24 January 2005; and· Ms Merrilyn Sernack, and Messrs Bob Cook and Phil Kirkham
of CU, Ms Rosemary O’Donnell, Messrs Tony Sherbon, Tony
Clarkson, John Mollet, of ACT Health on 1 August 2005.As it has been observed, there will be cases in which a claim of privilege will not be sustainable in the absence of evidence identifying the circumstances in which the relevant communication took place and the topics to which the instructions or advice were directed.[12]
[12] Kennedy v Wallace (2004) 142 FCR 185 (Kennedy v Wallace) at [12]-[17] per Black CJ and Emmett J and [144]-[145] and [166]-[171] per Allsop J; see also Southern Equities Corp Ltd (in liq) v Arthur Andersen & Co (No 6) [2001] SASC 398
It may be necessary to examine the evidence concerning the purpose of other persons involved in the hierarchy of decision-making or consultation that led to the creation of the document and its subsequent communication.[13]
[13] AWB v Cole at [110].
The respondent did none of this. Instead, Mr Pappas sought to tender a document, which was a statement of a solicitor in the employment of the ACT Government Solicitor now, and not at the relevant time. Therefore, she was not present at the meetings, she was not an employee of CU, had no personal involvement in the dispute or the attempts to resolve the employment relationship dispute between the parties, and could certainly not therefore have been taken to have any firsthand knowledge of the circumstance of, and what transpired at the meetings, which gave rise to the documents produced, which are the subject of the exemption claimed. Her evidence was not relevant and was, for that reason, rejected.
The Tribunal has commented upon the reviewer’s reasoning for claiming legal professional privilege as being perfunctory, conclusory and formulaic and commented further that no weight would be given to that assertion. The respondent, as the Tribunal has noted above, effectively led no affidavit evidence from relevant persons in order to discharge its onus.
The respondent relied instead upon inviting the Tribunal to draw inferences from the skeletal entries in the CU tax invoices to which the Tribunal will turn in due course and upon the submissions of Mr Pappas. Submissions are not evidence. The submissions made on behalf of the respondent, elegant as they were, amounted to no more than verbal formulae and conclusory assertions. In Barnes v Commissioner for Taxation, Tamberlin, Stone and Siopis JJ said:[14]
18. The authorities emphasise the need for focused and specific evidence in order to ground a claim for legal professional privilege. In Kennedy v Wallace(2004) 142 FCR 185 at 189, Black CJ and Emmett J reiterated the principles that verbal formulae and bare conclusory assertions of purpose are not sufficient to make out a claim for privilege: see also National Crime Authority v S(1991) 29 FCR 203 at 211 (per Lockhart J); Grant v Downs(1976) 135 CLR 674 at 689 (per Stephen, Mason and Murphy JJ). Where possible the Court should be assisted by evidence of the thought processes behind, or the nature and purpose of advice being sought in respect of, each particular document. The fact that generalised evidence is not challenged in cross-examination does not mean that such evidence must be accepted, particularly when it is as manifestly inadequate as it is in this case. As in Kennedy v Wallace, mere general assertions of the purpose of creation of the documents are insufficient to discharge this onus. Even though in that case some evidence as to the purpose of particular records was adduced, Allsop J at 216 considered that the onus had not been discharged because the evidence did not permit a conclusion to be drawn as to the dominant purpose of the creation of any particular document or entry in a document. Simply to show that one purpose for creation of the document was to obtain legal advice or assistance is not good enough.
19. In the light of these principles it is clear that the evidence provided by the appellants is manifestly insufficient and does not establish any basis for their claim of privilege.
[14] (2007) 242 ALR 601 at
Ms Merrilyn Sernack and Messrs Bob Cook and Phill Kirkham of CU, Messrs Tony Sherbon, Doug Jackman, John Mollett and, Ms Rosemary O’Donnell and Dr Martin Gallagher of ACT Health, who all attended the meeting on 24 January 2005, are all people who could have given evidence identifying the circumstances in which the relevant communications took place and the topics to which the instructions or advice were directed. No evidence from them was adduced, and no explanation for the absence of such evidence was forthcoming.
In light of that failure, Mr Spry invited the Tribunal to draw an inference which the Tribunal will paraphrase: that evidence from those people, all of whom were variously at either the meeting of the 24th of January or the meeting of the 1st of August 2005, would not have established that the documents produced as a consequence of those meetings attracted either the communication or the litigation privilege; Jones v Dunkel[15]. The Tribunal is attracted to that invitation.
[15] (1959) 101 CLR 298
Next, Mr Spry submitted that, if any legal professional privilege attached to the documents in respect of which the exemption was claimed – the threshold question – then, it had been lost by waiver or inconsistent behaviour on the part of the respondent in not objecting to the tender of a letter by taking a privilege point in earlier proceedings. That letter which was dated 1 February 2005 referred to a meeting that had taken place a week earlier. It was the meeting of the 24th of January 2005. Mr Spry’s submission proceeds upon the basis that because the letter[16]makes reference to a draft letter, which is the subject of a claim for privilege in these proceedings, the privilege has been waived in respect of the draft letter referred to. The Tribunal is not persuaded by that submission. The tender without objection of exhibit A-2 in previous proceedings alone does not evidence intentional waiver of the draft letter to which reference is made in it and nor, in these circumstances, would the Tribunal be prepared to impute an intention to waive privilege in respect of the draft letter.[17] In any event, the Tribunal does not have to consider that submission, if it is satisfied that the threshold question is answered in the negative, in other words, the communication privilege does not apply to the documents in respect of which the exemption is claimed.
[16] Exhibit A-2; T 102
[17] Goldburg v Ng (1995) 185 CLR 83
Mr Spry next submitted that the meeting of the 24th of January 2005 was held for an improper purpose and, that being the case, no privilege can attach to the documents that came into existence as a consequence of it. He relied heavily on AWB v Cole and Another (No. 5) in which Young J said:[18]
[18] at [210] – [212]
210. Communications between a lawyer and client which facilitate a crime or fraud are not protected by legal professional privilege. This principle is often referred to as the "fraud exception" to legal professional privilege, but this does not capture its full reach: Attorney-General (NT) v Kearney (1985) 158 CLR 500 at 515; Propend at 546; Clements, Dunne & Bell Pty Ltd v Commissioner of Australian Federal Police (2001) 48 ATR 650; 188 ALR 515 at [30].
211. The principle encompasses a wide species of fraud, criminal activity or actions taken for illegal or improper purposes: see North J's review of the authorities in Clements at [35]-[44]. The scope of conduct caught by the principle has been articulated in a variety of ways, often without particular precision: Propend at 545. Classic formulations have spoken of communications in furtherance of a "crime or fraud": R v Cox (1884) 14 QBD 153 at 165; a "criminal or unlawful proceeding": Bullivant v Attorney-General (Vic) [1901] AC 196 at 201; "any unlawful or wicked act": Annesley v Anglesea (1743) 17 State Tr 1139 at 1229; and "all forms of fraud and dishonesty such as fraudulent breach of trust, fraudulent conspiracy, trickery, and sham contrivances": Crescent Farm (Sidcup) Sports Ltd v Sterling Offices Ltd [1972] Ch 553 at 565. In Kearney, the High Court applied the principle to deny legal professional privilege to legal advice obtained by the Northern Territory Government which was prima facie a "deliberate abuse of statutory power" to defeat a land claim under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). In his reasons for judgment, Gibbs CJ (with whom Mason and Brennan JJ agreed) stated at 515 that "legal professional privilege will be denied to a communication which is made for the purpose of frustrating the processes of the law itself, even though no crime or fraud is contemplated". Some authorities have expressed the principle as applicable to prevent a "fraud on justice" in a broad sense. The concept of a "fraud on justice" was adopted by Lander J in Gartner v Carter [2004] FCA 258 to deny protection to a communication between a lawyer and client for the purpose of the client putting assets beyond the reach of the legitimate claims of secured creditors: at [130] and [139]-[140].
212. The principle extends to "trickery" and "shams". A "sham" refers to steps which take the form of a legally effective transaction but which the parties intend should not have the apparent, or any, legal consequences: Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2005) 218 CLR 471; see also Beazley v Steinhardt (1999) 106 A Crim R 21; affirmed on appeal in Beazley v Steinhardt [1999] FCA 1255 (Beazley). The recent case of Australian Securities and Investments Commission v Mercorella (No 3) (2006) 58 ACSR 40 provides an example of the denial of legal professional privilege to documents in furtherance of a sham transaction. In that case, creditors of a managed investment scheme claimed privilege over documents relating to securities obtained from the defendant and certain companies in the scheme. The transactions were allegedly entered into so as to advance those creditors' interests over the interests of other creditors to the scheme. Mansfield J found that the communications were prima facie in furtherance of a sham and, as such, were not privileged. After referring to Lander J's decision in Gartner v Carter and Barclays Bank plc v Eustice [1995] 1 WLR 1238, his Honour stated (at [95]):‘It is a short step from those decisions to the present facts, as prima facie found. The [creditors] engaged in the transactions reflected in the Deed, and the granting of the securities within the structures it created, to secure or advance their interests over others who had advanced money to [the first defendant] or to the Scheme. There is a prima facie case that the "restructure' of the advances so that they appear as advances to the partnership of Ajay and Opey is a sham.’
The circumstances said by Mr Spry to give rise to the improper purpose were, as to the 24th of January meeting, that it included such participants as Mr Mollet whose conduct towards the applicant was criticized in an earlier CU investigative report into the treatment of the applicant to which the Tribunal shall return in due course and Mr Jackman and
Dr Gallagher who were the subject of a complaint by the applicant. It was submitted by Mr Spry that these men were all tainted in the relevant sense and that the purpose of the meetings was to cause the applicant detriment.
While the Tribunal does not accept Mr Pappas’ submission that the ‘improper purpose’ test can only be satisfied by conduct amounting to actual fraud or some other criminal and or very serious conduct, nor is it satisfied that the evidence to which the Tribunal will now turn establishes improper conduct. Indeed, as an analysis of the evidence will reveal, it establishes very little, being, as the Tribunal has described above, skeletal in nature. The submissions as to what the evidence must mean by both parties amount to no more than an invitation to the Tribunal to speculate upon it.
The Tribunal makes no adverse comment about the attendance at those meetings by Mr Mollet, Mr Jackman and Dr Gallagher. The evidence does not establish that they were in fact ‘tainted’ or that the purpose of the meetings was in fact to cause detriment to the applicant. While it is not therefore necessary to dwell further upon this question, the Tribunal is however, troubled about the procedural propriety of a meeting being attended firstly, by the person the subject of adverse comment in an independent report in respect of that person’s treatment of the applicant and secondly, by persons who were the subject of additional and discrete complaints made by the applicant.
THE EVIDENCE TENDERED AT THE HEARING
The evidence comprised of documents tendered on behalf of the applicant. They were:
·
A-1 Copy of tax invoice number 3233519 dated 28 January 2005 raised by CU for services rendered by CU to ACT Health
(Mr Jackman) together with covering letter for CU to Mr Jackman and a completed ACT Health Non Purchase Order Related Claim for Payment.
·
A-2 Email communications dated 1 February 2005 from
Ms Sernack to Mr Sherbon re draft letter agreed upon at meeting of 24th January 2005 tendered without objection in earlier proceedings (T doc 102) and email communication dated 1 February from
Mr Sherbon to Mr Mollet re letter and Jackman and Gallagher grievances (T doc 102).
·
A-3 Copy of tax invoice number 3281392, dated 31 August 2005 raised by CU for services rendered by CU to ACT Health
(Mr Jackman) together with covering letter for CU to Mr Jackman and a completed ACT Health Non Purchase Order Related Claim for Payment.
·
A-4 Email communication from Tony Clarkson to
Ms O’Donnell dated 2 February 2005-re complaint by patient L against treatment/management by applicant. (T doc 105). Further email from Clarkson to O’Donnell dated 3 February 2005 re the complaint and the difficulty of running the complaint in the Medical Board (T doc 105).
Before turning to the evidence to which the Tribunal’s attention was primarily drawn, namely, the details contained in the CU tax invoice, it is helpful to understand the nature of the involvement of CU with the respondent and something of the history of the employment relationship dispute.
BACKGROUND TO THE RELATIONSHIP DISPUTE
The applicant had been employed by the Canberra Hospital (“TCH”) as specialist medical practitioner in March 1999. He was summarily dismissed on 10 May 2006. Litigation in relation to his dismissal followed and was heard at the end of 2007 by the Australian Industrial Relations Commission and the applicant was subsequently re-instated.
There was apparently other litigation relating to judicial review that had been conducted in the Territory. The Tribunal was not provided with any relevant evidence about this litigation, except from the Bar table when Mr Spry asserted that this litigation, whatever it specifically concerned, was, for all intents and purposes either almost completed or settled and was not relevant to any of the matters or meetings that occurred on
24 January or on 1 August 2005. Mr Pappas did not contradict his assertion.
In her reasons for decision in the matter before the Australian Industrial Relations Commission, Senior Deputy President Blake made the following observation, which is reproduced here, as it is relevant to the involvement by CU in 2004/05. She said:[19]
‘If TCH had deliberately endeavoured to ensure that the management of Dr Falk’s employment from 2003 to 2006, the management of the matters of complaint against him and the resolution of the outcome of those matters of complaint was as complicated, as ineffective, and as damaging for Dr Falk and TCH as was possible, they could not have been more successful……’
She went on to add:[20]
‘I am critical of Mr Mollet, the General Manager of TCH, in relation to his dealings with Dr Falk, which resulted in great detriment to Dr Falk. An examination of the history of the complaints against Dr Falk and the management of these matters is sufficient to cause an independent observer to doubt the objectivity and motivation of Mr Mollet.’
[19] Dr Falk and ACT Health operating as the Canberra Hospital [2007] AIRC 613
(30 November 2007) at [6]
[20] ibid at [16]
It is necessary to refer to these observations and findings, because it is against this background that CU came to be retained. The applicant, perhaps not surprisingly lodged a grievance against Mr Mollet. Following the lodgement by the applicant of his grievance, the respondent retained Mr Cook, solicitor of CU, to conduct an investigation into the allegations of bullying and harassment of Dr Falk by Mr Mollet. That report was completed by August 2004. The report was critical of Mr Mollet.
THE EVIDENCE
It is settled legal principle that the relevant time at which a claim for privilege is to be determined is the time when the document came into existence. The relevant question is whether the document came into existence for the dominant purpose of seeking legal advice or assistance. If the document satisfies that description, then it is privileged from production.[21]
Exhibit A-1
[21] Barnes v Commissioner for Taxation (2007) 242 ALR 601
The Tribunal turns now to the evidence. The entries in A-1 (tax invoice number 3233519) commence on 17 December 2004. There were
34 entries. The documents in respect of which the exemptions are claimed range in time from 16 February to 18 February 2005.
From 17 December 2004 until 21 December 2004, the entries do not greatly inform. They are entries relating to telephone calls to, and in relation to, Dr Alexander who was the then Deputy CEO of ACT Health. They relate to communications by fax and letter between CU and Corrs Chambers Westgarth (‘Corrs’), who apparently then acted for the applicant. They relate also to reviewing material from Mr Bayliss who was and is a senior employed solicitor in the GSO. They involve the drafting of a Deed of Release.
From 5 January to 13 January 2005, the entries involve communications to obtain advice from the GSO relating to an FOI Act request, presumably, made by the applicant. They involve communications between CU and Mr Duffy who was then the Associate Director, Workplace Management Section of TCH, as well as Mr Jackman.
From 13 January to 19 January 2005, the entries involve a review of
Mr Cook’s investigative report of August 2004 as well as a GSO advice, presumably, dealing with the FOI request.
On 19 January, the following entry appears:
‘Telephone Call from Doug Jackman to advise of possible action by Corrs to injunct the appointment of a temporary Director of the Renal Unit and the lodgement by Dr Michael Falk of two further grievances against Doug and the current Acting Director of the Renal unit, and to set up a meeting to discuss.’
Pausing, the grievances lodged by the applicant were against Mr Jackman and Dr Gallagher. Those grievances were the subject of the meeting on the 24th of January.
From 19 January to 24 January, the entries involve drafting a document by Ms Sernack, and its review by a colleague. It is entirely unclear what the advice concerned. However, bearing in mind the time between the 19th and the 20th of January and the later entry of the 21st of January 2005 which reads:
‘Peruse the complaint lodged by Dr Michael Falk against Dr Martin Gallagher and arrange meeting for Monday 24 January 2005 to discuss management of Dr Michael Falk…’
it is unlikely that the ‘draft advice’ referred to on the 19th of January dealt with the ‘complaint’ (the two grievances). The meeting that was in the process of being arranged for the 24th of January concerned the ‘management’ of the applicant certainly against the background of dispute and angst between the parties.
The entries on the 24th of January are the critical entries. They involve relevantly the attendance at the meeting by Ms Sernack and Mr Cook of CU and the drafting of a ‘show cause’ letter. The relevant entry is reproduced as follows:
‘Draft “show cause” letter from Tony Sheldon to Dr Michael Falk following meeting on Monday 24 January with Doug Jackman, John Mollet, Dr Martin Gallagher and Rosemary O’Donnell.’
The 25th of January entries relevantly record and inform the following:
‘Draft letter from Tony Sherbon to Dr Michael Falk rejecting internal review of matters in the two complaints lodged by
Dr Michael Falk on 11 and 12 December 2004.’‘E-mails to and from Doug Jackman and Rosemary O’Donnell regarding response to Michael Falk’s two complaints.’
‘Draft ‘show cause’ letter from Tony Sherbon to Dr Falk following meeting on Monday 24 January with Doug Jackman, John Mollet, Dr Martin Gallagher and Rosemary O’Donnell.’
Conclusion as to evidence in Exhibit A-1
As to this evidence, the Tribunal’s initial view is that the respondent has not discharged its onus because the evidence contained in the entries of A-1 does not permit a conclusion to be drawn as to the dominant purpose of the creation of any particular document or entry in a document. That evidence may have shown that one purpose was to provide instructions to the respondent’s legal advisors and, in the Tribunal’s view, even that is a long bow, but simply to show that one purpose for creation of the document was to obtain legal advice or assistance is not good enough.[22] Prima facie, therefore, and in the light of these principles, it is the Tribunal’s tentative view that the scant evidence relied upon by the respondent is manifestly insufficient and, subject to what the Tribunal proposes to do, to which it will turn shortly, does not of itself establish any basis for the respondent’s claim of privilege.
[22] Barnes v Commissioner for Taxation at [18]
Nor does that evidence show that there was a real prospect that litigation would be commenced. It is simply inaccurate to assert, and there is no evidence to suggest, because there had been litigation in the past and the parties certainly were antagonistic towards each other, that at the time of the meetings in January and August 2005, litigation was on the cards. Had that been the case, one would have expected to see evidence of the preparation of proofs of evidence, draft affidavits and, perhaps, draft tender bundles. There was no evidence of any of this being under way, nor indeed even contemplated, as at January/February or August 2005. Indeed, there does not even appear to be any correspondence dealing with the prospect of litigation.
Exhibit A-3
The entries contained in A-3 (tax invoice no 3281392) range in time from
27 July 2005 until 20 August 2005. There were 139 entries. Compared to A-1. This tax invoice records a dramatic increase in activity and work in relation to the dispute between the parties and/or the resolving of the relationship between the parties by CU. The documents in respect of which the exemptions are claimed range in time from 1 August to
2 August 2005.
The entries up to the 1st of August meeting reveal that Messrs Cook, Kirkham and Ms Sernack of CU were very busy considering various correspondence from the applicant and draft responses from the respondent, considering strategy (in relation to what, the entry does not inform) and dealing with the applicant’s solicitors, sending emails to
Mr Sherbon in relation to correspondence from the applicant’s solicitors, attending to telephone calls and reviewing a draft report of Professor Faull, who had something to do with a complaint that the respondent eventually made on behalf of a patient to the Medical Board, and the applicant’s response to that draft report. One entry dealt with a recent FOI request. As to the purpose of all this work prior to the meeting on the 1st of August, it appears that the focus was to deal with a complaint that the applicant had been upon TCH premises after hours. There was more conferring on strategy. Whatever was meant by that term remains, from the face of the entries, completely unclear. No more than that can be gleaned from the entries. The CU solicitors also drafted a ’pathway table’ for the meeting. It is assumed that this was a reference to an agenda.
The critical entries are as follows:
1 August 2055 Consider content of Dr Falk’s latest response and attend meeting at ACT Health.
1 August 2005 Attend meeting at ACT Health with Tony Sherbon, Tony Clarkson, John Mollet, Rosemary O’Donnell, Bob Cook and Phill Kirkham.
1 August 2005 Draft referral letter, confer with Bob Cook and settle email to Tony Sherbon for approval.
2 August 2005 Attend sign off on letters regarding Dr Falk
2 August 2005 Email to Doug Jackman re tracking of emails to
TCH
2 August 2005 Telephone from Peter Grills re administrative issue (incl whether Client will fund trip to Sydney to interview Dr Gallagher, request for letter to Corrs Chambers Westgarth of 1 August 2005)
2 August 2005 Telephone call to Doug Jackman seeking instructions on how TCH would refer a complaint to the Medical Board.
(emphasis added)
Conclusion as to evidence in Exhibit A3
As to this evidence in relation to the documents produced as a consequence of the 1 August meeting, the Tribunal considers that the respondent may have discharged its onus, because the evidence contained in the entry emphasised above by the Tribunal may permit a conclusion of sorts to be drawn as to the dominant purpose of the creation of any particular document or entry in a document. That evidence may, but also may not, conclusively show that one purpose was to provide instructions to the respondent’s legal advisors. The position, from a strictly evidentiary basis, is quite unclear.
Approach to be Adopted
However, because the state of the evidence is generally quite unsatisfactory and hardly persuasive, the Tribunal proposes to undertake an inspection of the documents[23]produced pursuant to section 39 of the ACAT Act and to draw, where appropriate, conclusions from the form and content of the particular document.
CONCLUSIONS ON DOCUMENTS
The Documents relating to the 24 January 2005 Meeting
Document 1
[23] Barnes v Commissioner for Taxation at [20]
Notwithstanding the paucity and unsatisfactory nature of the evidence relied upon by the respondent to substantiate why it might be considered to be privileged, the Tribunal is satisfied, on the face of the document, that the communications contained in this document came into existence for the dominant purpose of legal advice (the communication privilege).
Document 2
Notwithstanding the paucity and unsatisfactory nature of the evidence relied upon by the respondent to substantiate why it might be considered to be privileged, the Tribunal is satisfied, on the face of the document, that the communications contained in this document came into existence for the dominant purpose of legal advice (the communication privilege).
Document 3
Notwithstanding the paucity and unsatisfactory nature of the evidence relied upon by the respondent to substantiate why it might be considered to be privileged, the Tribunal is satisfied, on the face of the document, that the communications contained in this document came into existence for the dominant purpose of legal advice (the communication privilege).
Document 4
Notwithstanding the paucity and unsatisfactory nature of the evidence relied upon by the respondent to substantiate why it might be considered to be privileged, the Tribunal is satisfied, on the face of the document, that the communications contained in this document came into existence for the dominant purpose of legal advice (the communication privilege)
The Documents relating to the 1 August 2005 Meeting
Document 5
In the absence of persuasive evidence substantiating why it might be considered to be privileged, this document does not satisfy the dominant purpose test. Additionally, on the face of the document, it is a draft communication between CU and the President of the Medical Board of the ACT, requesting the Board to entertain a complaint by a person who is unrelated to the respondent, and is not a client of CU in purported compliance with a duty of care allegedly owed by the respondent to the putative complainant. It attracts neither the communication privilege nor the litigation privilege.
Document 6
This document is undated. Therefore, it is not clear when it came into existence. However, the Tribunal will assume that it came into existence at about the time of the 1 August meeting. However, in the absence of persuasive evidence substantiating why it might be considered to be privileged, the whole of the contents of this document may not, prima facie, satisfy the dominant purpose test. It is not immediately apparent, on the face of this document, which purpose was dominant.
Moreover, the last entry in the document appears to have been made for an improper purpose which would take it outside the scope of the protection; assuming that it attracted any to begin with which, as the Tribunal has noted above, is doubtful. The improper purpose is, in the Tribunal’s view, an intention on the part of the respondent as evidenced by the clear expression of the entry, to delay and, perhaps, in the process, frustrate in an unacceptable manner; bearing in mind the object of the FOI Act as expressed in section 2 by a litigant who is supposed and expected to be a model litigant; consideration of a legal obligation imposed upon it in the interests of the applicant.
In that sense, it is not unlike the public policy grounds expressed by the High Court in Attorney-General (NT) v Kearney[24], where it was held that the fraud exception was sufficiently flexible to capture a range of situations where the protection of confidential communications between a lawyer and a client would be contrary to the public interest.
[24] (1985) 158 CLR 500 at 514-515
The Tribunal proposes therefore to err on the side of caution and redact those parts of the document that might be said to attract the privilege. That document in redacted form is attached as a schedule to these reasons.
………………………………..
Ms L. Crebbin, General President
For and on behalf of
Ms L. Donohoe SC, Member
Staff-in-Confidence
Re: DrFalk Matter
In attendance:
e Dr Sherbon
e Dr Clarkson
9 Ms O'Donnell
t Mr Mollett
» Mr Jackman
s Mr Cook, Clayton Utz
e Dr Sernack, Clayton Utz
9 Mr Kirkham, Clayton Utz
Apology:
* Mr Bayliss GSO
Action Item
AAT Matter
PID
Referral to Medical Board
Sick leave
Action Required
Follow up with GSO and
get copy of documentation
sent to Corrs Chambers
Westgarth____________
Dr Sherbon to consider whether he can be the decision maker or whether the matter needs to be referred to the C(PA)
Meet with GSO on
handling including any
investigation that is
required______________
Correspondence to be prepared for Chief Executive
Get a record of leave taken since December 03 Obtain names and contact details of those who Dr Falk can be referred to
Action Officer
Mr Jackman
Dr Sherbon, or Mr Jackman
Dr Sherbon
Clayton Utz
Mr Jackman
Mr Jackman, Clayton Utz
Staff-in-Confidence
Re: DrFalk Matter
In attendance:
Dr Sherbon
e Dr Clarkson
9 Ms O'Donnell
• Mr Mollett
» Mr Jackman
9 Mr Cook, Clayton Utz
» Dr Sernack, Clayton Utz
e Mr Kirkham, Clayton Utz
Apology:
* Mr Bayliss GSO
Action Item
AAT Matter
PID
Referral to Medical Board
Sick leave
Action Required
Follow up with GSO and
get copy of documentation
sent to Corrs Chambers
Westgarth_____________
Dr Sherbon to consider whether he can be the decision maker or whether the matter needs to be referred to the C(PA)
Meet with GSO on
handling including any
investigation that is
required_____________
Correspondence to be prepared for Chief Executive
Get a record of leave taken since December 03 Obtain names and contact details of those who Dr Falk can be referred to
Action Officer
Mr Jackman
Dr Sherbon, or Mr Jackman
Dr Sherbon
Clayton Utz
Mr Jackman
Mr Jackman, Clayton Utz
| for further medical advice and basis for this referral | ™~» — | |
| Dr Carney | General contract information for GM | Doug |
| FOI of 20 April | To be action within maximum of statutory time limit | Annette McGorm, Doug ~~ " |
003
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A FILE NO:
APPLICANT:
RESPONDENT:
COUNSEL APPEARING: APPLICANT:
RESPONDENT:
SOLICITORS: APPLICANT:
RESPONDENT:
OTHER: APPLICANT:
RESPONDENT:
TRIBUNAL MEMBER/S:
DATE/S OF HEARING: PLACE: CANBERRA
DATE/S OF DECISION: PLACE: CANBERRA
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
0
12
0