Ferns v Commissioner of Corrective Services (GD)

[2006] NSWADTAP 50

Appeal Panel - Internal

CITATION:	Ferns v Commissioner of Corrective Services (GD) [2006] NSWADTAP 50 This decision has been amended. Please see the end of the decision for a list of the amendments.
PARTIES:	APPELLANT Craig Ferns RESPONDENT Commissioner of Corrective Services
FILE NUMBER:	069016
HEARING DATES:	19/07/2006
SUBMISSIONS CLOSED:	07/19/2006
DATE OF DECISION:	09/26/2006
BEFORE:	O'Connor K - DCJ (President); Pearson L - Judicial Member; Blake C - Non Judicial Member
CATCHWORDS:	adequacy of reasons - leave to extend to the merits
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	053088 & 053281
DATE OF DECISION UNDER APPEAL:	03/07/2006
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:	Ferns v Commissioner of Corrective Services [2006] NSWADT 66 Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456 Hynes v General Manager, Hawkesbury City Council [2004] NSWADT 135 Law Society of New South Wales v General Manager, WorkCover Authority of New South Wales (GD) [2004] NSWADTAP 40 Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 Trade Practices v Sterling (1979) 36 FLR 244 Hynes v General Manager, Hawkesbury City Council [2004] NSWADT 135 Packer v DCT (2001) 179 ALR 462 Lake Cumbeline Pty Ltd and Ors v Effem Foods Pty Ltd (1994) 126 ALR 58 Aveling v UBS Capital Markets Australia Holdings Ltd (No 3) [2005] FCA 1320 Knapp v Harvey [1911] 2 KB 725 West v Conway (1923) 23 SR (NSW) 344 Esso Australia Resources Limited v The Commissioner of Taxation [1999] HCA 67 Vincent Neary v State Rail Authority [1999] NSWADT 107 Cianfrano v Director General, Department of Commerce and anor [2005] NSWADT 28 University of Wollongong v Metwally (No 2), (1985) 59 ALJR 481 Coulton v Holcombe (1986) 162 CLR 1
REPRESENTATION:	APPELLANT N Dawson of counsel RESPONDENT T Anderson of counsel instructed by S Bilbe-Taylor, solicitor
ORDERS:	1. Leave granted to extend appeal to the merits; 2. Application No. 053088. Appeal dismissed; 3. Application No. 053281. Application dismissed, subject to one qualification. Determination varied as to document 2 as set out in para [47] of these reasons

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1 Mr Ferns worked for over five years for the respondent agency. Disciplinary action was taken against him. He was dismissed. He subsequently sued for unfair dismissal. The Industrial Relations Commission affirmed the agency’s decision, though it did make an award of four weeks’ severance pay.

2 Mr Ferns’ original filings in the Tribunal sought review of six determinations made by the respondent agency in response to applications for access to documents made under the Freedom of Information Act 1989 (FOI Act) connected with his dismissal. Some of those applications were resolved without a hearing being required.

3 This appeal relates to two of those determinations. The subject of the appeal is the Tribunal’s decision upholding the agency’s claims for exemption of several documents on the ground of legal privilege: Ferns v Commissioner of Corrective Services [2006] NSWADT 66. (The appeal, like the original applications, has been filed by Mrs Helen Ferns, the mother of Mr Ferns, ‘on behalf of’ Mr Ferns. Like the Tribunal below, we have treated Mr Ferns as the principal party, and references in this decision to ‘the appellant’ mean Mr Ferns.)

4 The FOI Act allows an agency to refuse to disclose matter contained in an exempt document (ss 24, 25(1)(a)). Matter that ‘would be privileged from production in legal proceedings on the ground of legal professional privilege’ is exempt. Clause 10 of Schedule 1 to the FOI Act provides:

‘ 10 Documents subject to legal professional privilege

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

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

5 An appeal may be made on a question of law and, with the leave of the Appeal Panel, may be extended to the merits: Administrative Decisions Tribunal Act 1997 (ADT Act), s 113. The Appeal Panel’s discretion to extend to the merits is not fettered by any need to demonstrate an error of law or an arguable error of law: Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456.

6 The appellant objects to the Tribunal’s reasons on the ground that it erred in law by failing to give adequate reasons. The appellant has applied for leave to extend the appeal to the merits.

7 At the appeal hearing there was some confusion over precisely what documents remained in dispute, and to which of the two determinations they related.

8 Ultimately, it emerged that Mr Ferns put in issue the determination of the Tribunal as it related to the following documents:

· In the case of application for review in Tribunal file 053088, the documents described in the proceedings as – the fee invoice, and documents 9, 10 and 11 (now in the Appeal Panel envelope marked ‘88A’). Ms Ball’s affidavit filed 22 September 2005 in proceedings No 053088 and 053186 refers to documents 1-8. The fee invoice which was the subject of detailed submissions to the Appeal Panel is one page within a bundle of documents referred to as document 7.

· In the case of application for review in Tribunal file 053281, the documents numbered 1-8 and 12-20 (now in the Appeal Panel envelope marked ‘81A’). Ms Ball’s affidavit filed 24 November 2005 in proceedings No 053281 refers to documents 1-8 and 12-21. The agency objected to documents 19 and 20 being placed in issue, as, in its submission, their refusal had not been in contest in the proceedings before the Tribunal. This objection is dealt with later in these reasons.

9 As to file no 053088, documents 9, 10 and 11 are not referred to in Ms Ball’s affidavit; they were described in the determination as follows:

Document 9: Enclosure to a letter of instruction from Department to investigator dated 19 July 2004 (4 pages)

Document 10: E mail from Department to investigator dated 4 August 2004 (2 pages)

Document 11: Operational log for 9 & 10 August 2004 – attached to E mail from investigator to Department dated 23 August 2004.

10 Also in connection with file no 053088, the notice of appeal asks for the Tribunal’s decision in respect of document 8 to be reconsidered, as it was identified in the respondent’s determination as a ‘two page’ document but it is submitted that only one page was examined in the Tribunal’s decision. The conclusion in respect of document 2 is also put in issue.

11 The net situation, therefore, is that the Tribunal’s decision as it relates to documents 3, 4, 5, 6 and 7 (but for the fee invoice) of file no 053088 is not in issue.

Adequacy of Reasons

12 It is clear law that the Tribunal must give adequate reasons for decision. There is a statutory obligation imposed on the Tribunal: ADT Act, s 89.

13 The Tribunal heard the application for review in September and November 2005 and delivered its decision in March 2006. The reasons for decision consisted of an administrative history of the two applications for access, a short statement of the relevant legal principles (acknowledged by both parties to the appeal as accurate), a brief description of the documents constituting the evidence and submissions, and the substantive reasons.

14 The substantive reasons appear at paras [23]-[25], and are very brief. They need to be read alongside, at least, the description at [14] of the aspect of legal professional privilege seen as relevant to this case, the passages recounting the evidence of Ms Ball, solicitor, being paras [20]-[22]. These passages follow:

‘14 These principles have recently been summarised by the Tribunal and the Appeal Panel in Hynes v General Manager, Hawkesbury City Council [2004] NSWADT 135, and Law Society of New South Wales v General Manager, WorkCover Authority of New South Wales (GD) [2004] NSWADTAP 40 (currently on appeal). So far as they are relevant to these applications they are as follows:

(a) legal professional privilege ‘is that of, and protects the interest of, the client’ (Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 570). It arises from a lawyer/client relationship and applies to “confidential communications” between the lawyer (as legal advisor) and the client where the dominant purpose of the communication is either:

(i) to enable the legal advisor to give or the client to receive legal advice; or

(ii) to be used in pending or contemplated proceedings. In such cases, confidential communications with third parties (non-agent third party) may also be privileged if they are for use in such proceedings (see Hynes supra at [37] and Law Society of NSW supra at [27]); …

20 In these applications the issues relating to privilege are ultimately questions of fact, namely whether the documents are or contain a confidential communication for the dominant purpose set out in para [14(a)(i)] or [14(a)(ii)] above. Accordingly, the critical evidence was that of Ms Ball, who was the person with the most direct knowledge of the circumstances in which the documents in issue came into existence. In this regard I found Ms Ball to be a forthright and truthful witness. It has at all times been her position that the surveillance documents that are common to both applications came into existence solely for the purpose of possible use in the proceedings that the applicant had commenced in the Industrial Relations Commission. As explained above, these proceedings were commenced on 5 May 2004. In cross-examination Ms Ball conceded that, at the time the proceedings had commenced, the respondent Department’s position had been that no decision had in fact been made to dismiss the applicant from his employment as a correctional officer. He had been employed in this position in April 1999 and from October 2000 to December 2002 he had been in the Department’s Drug Dog Detection Unit (“ DDDU ”) as a drug dog handler. He was removed from this unit and transferred to general duties following assault charges having been laid against him. These charges were unrelated to his employment and were subsequently dismissed. The applicant then requested to be transferred back to the DDDU in August 2003. This transfer was refused and the applicant went on leave which was extended to leave without pay. During the early part of 2004, the applicant advised his supervisors that he was willing to return to the DDDU in April 2004. However, the respondent Department advised him that he was not to return to the DDDU and he was directed to return to general duties. This directive the applicant considered to be a constructive dismissal and he commenced proceedings in the Industrial Relations Commission accordingly. These proceedings however, were adjourned in order for the respondent Department to undertake disciplinary enquiries and to make a determination in respect of the applicant’s employment with the Department. On 19 August 2004 the applicant was advised by Luke Grant, Acting Senior Assistant Commissioner Inmate and Custodial Services that he was dismissed on the basis of misconduct.

21 It was Ms Ball’s evidence that she had no involvement in the disciplinary enquiries or the dismissal determination following those enquiries. These she said were dealt with in another area of the respondent Department. Her responsibility only related to the proceedings initiated by the respondent in the Industrial Relations Commission. She was also adamant that the eight surveillance documents, dated between July 2004 and August 2004 came into existence purely for possible use in the proceedings before the Commission and that she had not at any stage provided this information to those persons who were making disciplinary enquiries or the disciplinary determination. Nor to her knowledge had anyone else provided this information.

22 In respect to the other documents Ms Ball said the following:

(a) on 2 April 2004, in the absence of her supervisor, a solicitor and the director of the branch, Ms Parmeter, she received a facsimile from Mr Keith Bennett, the staff officer at the Silverwater Correctional Centre requesting advice on the form of a lawful directive to the applicant in respect of his return to work. That facsimile is document 7. It is also noted that similar advice had been requested earlier on 20 February 2004 (document 2);

(b) that as a result of that facsimile she had a telephone conversation with Mr Bennett and she made a file note of that conversation which is document 6;

(c) on the same day she had another telephone conversation with Mr Bennett about the same issue for which advice had been sought. Again she made a file note of that conversation which is document 5;

(d) on 5 April 2004 she sent an email to Mr Bennett in response to his request for advice of 2 April 2004. That email is document 4;

(e) on 5 April 2004 Mr Bennett responded to Ms Ball’s email of that day. That email is document 3,

Consideration

23 I have considered all the material that is before the Tribunal and I have examined the exempt documents.

24 In respect to the eight surveillance documents, on the basis of Ms Ball’s oral evidence, the respondent has satisfied me that these documents contain confidential communications between the respondent’s in-house solicitors and a third party and that they came into existence for the dominant purpose of use or possible use by the respondent Department in the proceedings the applicant had initiated in the Industrial Relations Commission. Furthermore, there is no evidence to indicate that privilege has been waived. Indeed the evidence is to the contrary. Accordingly, the respondent has satisfied the Tribunal that they are exempt under cl.10 of Schedule 1 of the FOI Act.

25 In respect to the remaining documents, again on the basis of the evidence of Ms Ball and the contents of the documents, the respondent has satisfied the Tribunal that these documents contain confidential communications between the respondent and its in-house lawyers for the purpose of obtaining or giving legal advice about the applicant’s request to return to work.’

15 There is always a special difficulty that affects FOI cases that flows from the nature of the jurisdiction. As is to be expected, the Tribunal is required to conduct its proceedings in a way which does not lead to the revelation of exempt matter. Section 55 of the FOI Act provides:

‘ 55 Procedure for dealing with exempt matter

In determining a review application, the Tribunal:

(a) is to ensure that it does not, in the reasons for its decision or otherwise, disclose any exempt matter, and

(b) is to, where in the opinion of the Tribunal it is necessary to do so in order to prevent the disclosure of any exempt matter, receive evidence and hear argument in the absence of the public, the review applicant and the applicant’s representative.’

16 The Tribunal can not, therefore, articulate in its public reasons to the degree that might normally be expected the basis for its decision. It is open to it, and this sometimes occurs in proceedings in the Tribunal dealing with FOI cases and other cases involving confidential evidence, that a public set of reasons accompanied by a fuller confidential set of reasons is issued (with the confidential part made available to the party relying on the confidential evidence).

17 The reasons are brief. There is a gap in the published text at para [23]. It ends at (e) with a comma, and it seems likely that the text was intended to continue at that point to pick up the other documents in the sequence 1-8 of the documents falling under file 053088. This gap appears in the paper copy issued to the parties, as shown on the Tribunal file. There is no reference to the documents 9, 10 and 11. There is no specific reference to the fee invoice (part of document 7), a matter of particular concern to the appellant; or the other sub-categories of the bundle comprising document 7. In the case of file no 053281, there reference to ‘surveillance documents’ relates, as we understand the material, to documents 1-8 in that sequence. There is no reference to documents 12 to 21.

18 In these circumstances, we think there is a sound basis for the appellant’s submission that less than adequate reasons have been provided. We will not deal with this ground of appeal at length; or the relevant law.

19 As the issues are in a small compass, and the number of documents under notice is not great, our view is that the practical approach is simply to extend the appeal to the merits, with a view to giving fuller, more responsive reasons. We have examined all the documents put in issue, and taken account of the submissions found on the files of the Tribunal below, and those made to us at hearing. There were full submissions provided by the agency as to why the conclusions of the Tribunal were the correct ones.

File Number 053088

The Fee Invoice (part of document 7)

20 The fee invoice is dated 23 August 2004, and was rendered to the agency by a private investigator who undertook covert surveillance of Mr Ferns in connection with the IRC proceedings.

21 Mr Dawson accepted that a surveillance report supplied by an investigator in response to a request by a lawyer acting for an agency in a matter of the present kind may well be protected as a privileged document. But it was not obvious why a mere fee invoice could warrant such protection. He submitted that a fee invoice could not readily be fitted within the categories of legal professional privilege set out by Lockhart J in Trade Practices v Sterling (1979) 36 FLR 244 at 245 and consistently regarded by the Tribunal as providing a satisfactory guide to the coverage of legal professional privilege.

22 Lockhart J dealt in that case with a law enforcement agency’s submission that legal professional privilege had wrongly been claimed in respect of certain documents the subject of a notice of discovery. Lockhart J described the categories of legal professional privilege as follows (citations omitted):

‘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 capacity and 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.

(b) Any document prepared with a view to its being used as a communication of this class, although not in fact so used.

(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.

(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.

(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.

(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.

(g) Knowledge, information or belief of the client derived from privileged communications made to him by his solicitor or his agent.’

23 It was not clear, Mr Dawson submitted, as to how the Tribunal came to its conclusion that the entire contents of the document were protected.

24 We have examined the document. It is in conventional form, and contains the name of the business engaged by the agency, a reference to the nature and duration of surveillance and specifies a fee. The agency submits that the entire document constitutes a communication between its lawyer and a third party in circumstances where the third party had been engaged by the agency on a confidential basis to assist it in connection with legal proceedings. Its contention is that this kind of document is clearly protected by legal professional privilege.

25 Both parties referred to an earlier decision of the same Tribunal member (Judicial Member Higgins) in which she dealt with the question of protection of a fee invoice for legal services. She said in Hynes v General Manager, Hawkesbury City Council [2004] NSWADT 135:

‘80 In my opinion, having regard to the principles in paragraphs 43 and 45 above, the tax invoices from Abbot Tout and third parties to Council, do not of themselves attract legal professional privilege. Even if these invoices can be classified as a confidential communication, which is questionable, they were not made for the dominant purpose of obtaining or receiving legal advice or for use in the litigation between Council and Hynes Urban Planners Pty Ltd. They were made for the purpose of identifying the costs of legal services provided to Council by Abbot Tout, and services provided by third parties to Council. That is, they are similar to books of account and bills of account, which are not per se privileged (see Packer v DCT (2001) 179 ALR 462). However, they may be privileged to the extent that they contain or refer directly to a confidential communication that is privileged (see Lake Cumbeline Pty Ltd and Ors v Effem Foods Pty Ltd (1994) 126 ALR 58). For example, where an item specified on the invoice discloses the nature or substance of instructions that were given by the client to the lawyer for the pending or proposed litigation, that item will be privileged. Similarly, if the item specified on the invoice identifies the nature or substance of the advice provided by the lawyer to the client, this item would be privileged. On the other hand, where an invoice refers to a particular meeting or a date on which the person issuing the invoice attended Court or a meeting, these are not matters that would attract legal professional privilege. Once it is determined that a particular item on the invoice is privileged, the next question is whether that privilege has been waived or lost.’

26 Mr Dawson saw this analysis as reflecting the appropriate approach, and submitted that the invoice did not contain any privileged information, or, alternatively, that not all of its contents were privileged.

27 The agency on the other hand drew strength from the recent Federal Court decision, Aveling v UBS Capital Markets Australia Holdings Ltd (No 3) [2005] FCA 1320 (Lindgren J). This decision is one of a series of decisions involving objections to the disclosure of documents or the giving of answers to interrogatories, usually on the basis that the information sought is protected by legal professional privilege. Lindgren J notes, by way of preliminary, at [7]:

‘[I]t is communications that are protected by legal professional privilege, and … when one is considering a document in respect of which that privilege is claimed, the question to be asked is whether the document discloses a privileged communication.’

28 One of the matters discussed by Lindgren J was whether a memorandum of fees rendered by a legal practitioner was privileged. He said:

‘12 Whether a memo of fees discloses privileged communications depends on how much the memo of fees reveals and on all relevant surrounding circumstances, including the knowledge already possessed by the other party, in the light of which he or she will understand the information disclosed by the memo of fees.’

29 He added at [16]:

16 Whether a disclosure would intrude on legal professional privilege calls for a consideration, not only of the surrounding circumstances as mentioned above, but also on the degree of specificity of the disclosure called for. Even in disclosing the memo of fees described at [5] above, the applicant revealed that on 20 May 2002 he sought and received from his solicitors legal advice touching his employer, ‘UBS Warburg’. The respondent will understand even that minimal disclosure in the light of the surrounding circumstances to which I referred. I can only say that in my opinion, interrogatories A11, A12 and B2, which clearly call for further disclosure, fall on the wrong side of the line. It does not matter that they would not require the applicant to disclose who said what to whom, although, in view of the surrounding circumstances known to the respondent, it might well be enabled to draw an inference as to the likely nature of the advice given.

30 These observations are, we think, directly relevant to the present case.

31 The agency also relied on that part of the decision where Lindgren J struck out an interrogatory that sought information as to the identity of a possible witness. The agency argued that, likewise, the fee invoice should not be disclosed as it would have revealed a third party with whom it had a confidential relationship and chose ultimately not to call in any proceedings. Mr Dawson replied that the ruling relied upon concerned itself not with legal professional privilege but with the proper process to be followed in respect of interrogatories and he had no criticism of the ruling in that context. Lindgren J’s analysis of this issue, we accept, depended on principles developed in relation to the law on the proper scope of interrogatories. He said:

‘18 The applicant submits that he should not be required to answer these interrogatories because they seek the names of witnesses. The authorities establish a general principle that an interrogatory seeking identification of a witness is impermissible: see Knapp v Harvey [1911] 2 KB 725 at 730; West v Conway (1923) 23 SR (NSW) 344 at 347.

19 The general principle applies to interrogatories A6, C2 and C4. The applicant should not be required to answer them. The applicant may wish to call as witnesses the persons to [sic] who would be named in answers to in interrogatories C2 and C4 on the issue of mitigation of loss.’

32 In our view, it is not necessary to resolve the debate about the applicability of these passages in Aveling. We accept that the principles governing administration of interrogatories are not directly applicable. But, in our view, the ordinary understanding of the purpose of legal professional privilege produces the same conclusion.

33 The shield of legal professional privilege is provided by the law so as to uphold a value seen to be of fundamental importance to the conduct of an orderly society – the due administration of justice. ‘The privilege exists to serve the public interest in the administration of justice by encouraging full and frank disclosure by clients to their lawyers’: Esso Australia Resources Limited v The Commissioner of Taxation [1999] HCA 67 at [35] per Gleeson CJ, Gaudron, Gummow JJ. To that end, people are allowed to seek legal advice and prepare for litigation in an environment of strict secrecy.

34 The communications that occur may be between the client and the lawyer or between the lawyer and third parties. In this instance the work undertaken by Ms Ball in engaging and liaising with the investigator was, we think, without doubt, on the evidence, for the purpose of assisting Ms Ball in the giving of legal advice, and for the purpose of possible use in litigation. The communications that passed between Ms Ball and the investigator were all for those purposes. The ‘dominant purpose’ test is satisfied.

35 It is not unusual for investigators to be engaged or other evidence gathered which is not ultimately relied upon in the legal proceedings. Once the investigator is revealed and the investigation activity revealed, then the privilege may well be lost as to some or all of the relevant communications. That has not occurred here.

36 In our view the appropriate approach to the invoice is to examine each of its constituent elements by reference to the considerations we have outlined. Clearly in our view, the agency is entitled to have protected the identity of the investigator and any aspect of the invoice going to the nature and extent of the surveillance undertaken. Lindgren J’s earlier observations in Aveling where he was dealing with legal professional privilege reflect that thinking, as does the approach taken by Higgins JM in Hynes.

37 It might be said that the actual fee charged stands in a different relationship. An amount is mentioned, as is the method of calculation of that total. In many instances there would be nothing problematic about revealing this type of information commonly found in a bill for services. But in this instance, our view is that the revelation of the fee would itself transmit to the applicant information of a protected kind – it would give some insight into the level of surveillance undertaken, and that is a matter over which the agency should be entitled, as we see it, to assert privilege.

38 Consequently, we consider that the whole of the fee invoice should be exempt.

39 We do not see this conclusion as inconsistent with the conclusion reached by Higgins JM in Hynes. The engagement of a lawyer is often a public act, and clearly so in the instance of actual litigation where there is a requirement for the giving of notices of appearance. If an agency’s fee invoice for legal services in connection with litigation is to be withheld in response to a FOI application some category of exemption other than legal professional privilege would, we think, need to be shown to be applicable. See, for example, Vincent Neary v State Rail Authority [1999] NSWADT 107 at [40] and [41]; and Cianfrano v Director General, Department of Commerce and anor [2005] NSWADT 28 at [42].

40 Cases such as Hynes are illustrations of circumstances where the rendering of the fee invoice stands apart from the privileged aspect of the relationship. Lindgren J makes a similar point in Aveling. Both of them note, however, that there may be internal contents of the fee invoice that contain information that conveys the contents of confidential communications between lawyer and client (such as the client’s instructions in summary); if so, this element may well be privileged.

Documents 9, 10 and 11

41 Mr Dawson referred to para [26] of his written submissions, and simply requested the Tribunal to form a view, applying the law.

42 In our view, it is clear that these all were confidential communications in connection with the agency’s defence of the case brought by Mr Ferns. This was, at the least, the dominant purpose for their creation. It is true, as Mr Dawson asserted, that some of the material in documents 10 and 11 touch on Mr Fern’s parents, but in our view, this was in a way relevant to the investigation, and within the sphere of the privileged relationship.

Document 8

43 This is a surveillance report consisting of more than one page, and is clearly privileged.

Document 2

44 This is a communication between the investigator and Ms Parmeter. It is clearly privileged, for the same reasons as given in respect of documents 9, 10 and 11.

Review File 053281

Documents 1 to 7

45 Mr Dawson noted that document 8 was no longer in issue as his client had been supplied with it; but he asked the Appeal Panel to consider whether documents 1 to 7 had any characteristics similar to document 8, which was an administrative document. In these public reasons, we are constrained by s 55 as to what we can say about these documents. We have examined each of them. Each of them is a communication involving Ms Ball or Ms Parmeter, both legal officers, connected to the giving of legal advice directly related to, or connected to, the IRC proceedings. They clearly, in our view, fall within the primary category of legal professional privilege.

46 Mr Dawson raised in particular the issue of document 2. It is known to be a fax cover sheet. His client has been provided with the documents that constituted the attachment to document 2. In confidential session, the agency explained that it wished in particular to protect the core text of the cover page. In open session Ms Anderson for the agency referred in broad outline to its place in the sequence of activity.

47 The communication was with Ms Parmeter. We agree with the agency’s submission that revelation of the core text starting, ‘I …’. and ending ‘(see attached).’, would infringe the privilege. In reaching this conclusion, we have proceeded on the basis that the underlying material released to Mr Ferns (which we do not have before us) did not reflect the content of the communication in the cover sheet for which protection is sought and that no waiver has occurred. We are satisfied that the matter to which the exemption should attach is in connection with the giving of legal advice, and the conduct of litigation. The balance of this document can be released. It does not contain any privileged communication.

Documents 12 to 21

48 We have examined documents 12 to 18. They are all of a standard kind – file notes of conversations recording advice, or communications related to various aspects of the case that went to the IRC. They fall into the primary category of legal professional privilege.

49 The agency objected to the Tribunal examining documents 19 and 20. Mr Dawson acknowledged that before the Tribunal his client had instructed him not to press for documents 19 and 20. Ms Anderson submitted, therefore, that in light of the concession this part of the litigation was closed and should not be reopened, citing University of Wollongong v Metwally (No 2), (1985) 59 ALJR 481 at 483 where the High Court said:

‘It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case has been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had the opportunity to do so.’
See further Coulton v Holcombe (1986) 162 CLR 1.

50 We accept that similar principles should apply to hearings by the Appeal Panel. In FOI matters it is commonplace for parties to move positions. One of the objects of the preliminary procedures of the Tribunal in FOI matters (normally the planning meeting) is to see if the scope of the controversy can be reduced. Therefore concessions made in either direction should be carefully made, and treated as final, especially where the party has been competently represented.

51 However, to assist in allaying the concerns raised and as there is no prejudice to the agency given our conclusion, we have examined the two documents. They are of no special moment. We simply note that they are, like many of the other documents to which we have accorded protection, communications of an entirely conventional variety passing between a legal officer, Ms Ball, and an agency officer in connection with the IRC proceeding.

Order

1. Leave granted to extend appeal to the merits.

2. Application No. 053088. Appeal dismissed.

3. Application No. 053281. Application dismissed, subject to one qualification. Determination varied as to document 2 as set out in para [47] of these reasons.

21/11/2006 - delete error second sentence para 20 - Paragraph(s) 20