Hargreaves v University of New England

[2013] NSWADT 233

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Hargreaves v University of New England [2013] NSWADT 233
Hearing dates:	On the papers
Decision date:	23 October 2013
Jurisdiction:	General Division
Before:	S Montgomery, Judicial Member
Decision:	The decision under review is affirmed.
Catchwords:	access to government information - conclusive presumption - overriding public interest against disclosure - legal professional privilege
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Government Information (Public Access) Act 2009
Cases Cited:	AWB v Cole [2006] FCA 1234 Battin v University of New England [2013] NSWADT 73 Chamley v Sydney Children's Hospital Network [2013] NSWADT 198 Colefax v Department of Education and Communities [2013] NSWADT 75 Commissioner of Taxation of the Commonwealth of Australia v Pratt Holdings Pty Ltd [2005] FCA 1247 Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409 Fitzpatrick v NSW Office of Liquor and Gaming [2010] NSWADT 72 Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357
Category:	Principal judgment
Parties:	Colin Hargreaves (Applicant) University of New England (Respondent)
Representation:	C Hargreaves (Applicant in person) A McAlary (Legal Officer of Respondent)
File Number(s):	133068

reasons for decision

1. GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): This is an application for review of a determination by the Respondent, the University of New England ("UNE"), in regard to an access application under the Government Information (Public Access) Act 2009 ("the GIPA Act") by the Applicant, Mr Hargreaves. In his access application the Applicant sought access to information held by the Respondent relating to the 2012 Elections of the Executive Committee of Postgrads@UNE Inc and the UNE Council. He requested:

1. Regarding the 2012 elections for the Executive Committees of Postgrads@UNE Inc, correspondence between 1 February 2012 and 5 November 2012 from any member of the legal office or the Chief Governance office, especially the Returning Officers, Rhonda Leece, David Ayres and Brendan Peet, to nominees and others that make reference to:

(a) calling the elections

(b) rejection/acceptance of nomination of candidates

(c) the election code of ethics

(d) rejection/acceptance of scrutineers

(e) cancellation and re-running of elections

2. Regarding the 2012 elections for the postgraduate representative on the UNE Council, correspondence between 1 May 2012 and 5 November 2012 from any member of the legal office or the Chief Governance office, especially the Returning Officers, Rhonda Leece, David Ayres and Brendan Peet, to nominees and others that make reference to:

(a) calling the elections

(b) rejection/acceptance of nomination of candidates

(c) the election code of ethics

(d) rejection/acceptance of scrutineers

(e) cancellation and re-running of elections

3. Regarding the 2012 elections for an academic staff member of UNE Council, correspondence between 1 May 2012 and 5 November 2012 from any member of the legal office or the Chief Governance office, especially the Returning Officers, Rhonda Leece, David Ayres and Brendan Peet, to nominees and others that make reference to:

(a) calling the elections

(b) rejection/acceptance of nomination of candidates

(c) the election code of ethics

(d) rejection/acceptance of scrutineers

(e) cancellation and re-running of elections

4. any records (including any correspondence from the Public Officer of Postgrads@UNE, Simon Paul, and from any member of the Legal Office or the Chief Governance Office, especially the Returning Officers, Rhonda Leece, David Ayres and Brendan Peet) that relate to the calling of an AGM by 60 signatories (members of the Postgrads@UNE Inc) and the University bringing pressure to bear on the association's Public Officer not to call the AGM, between I May and 30 June 2012.

1. The Respondent's Right to Information Officer, Dr Carmel O'Brien, determined the access application and identified a number of documents as falling within the scope of the request. Dr O'Brien initially identified 409 records as falling within the scope however her determination dealt with only a small proportion of those documents. She agreed to grant full access to the majority of the information with some material withheld on the basis that it was personal information about a third party and legal professional privilege was claimed in relation to some other material.

1. The Applicant was not satisfied with Dr O'Brien's determination. He raised a number of issues with her and efforts were made between the parties to resolve those issues between themselves. The Applicant applied to the Tribunal for external review of the determination. The matter was listed for planning meetings and the parties took the opportunity to continue their negotiations.

1. In his application to the Tribunal the Applicant provided the following background information in relation to his request:

In July 2012, an extraordinary series of events lead up to the cancellation of an election for the postgraduate representative on the University Council, two hours from the end of the voting period and just after I had requested the university ombudsman act as a scrutineer; this is briefly documented in an Appendix to this. In trying to sort out what happened and why, the university's internal solicitor and chief governance officer, Brendan Peet, wrote to me demanding that I provide proof of my claims. As Mr Peet refused to provide any documents to me, it became necessary to make a GIPA Application to the University of New England.

The application requested copies of all documents and emails related to this election and also the elections of the undergraduate and staff representatives on Council which happened at the same time.

...

The original reason for this GIPA application was essentially about the actions of the Brendan Peet, who is the University Solicitor and Chief Governance Officer. As such he is also the Returning Officer for the elections of staff and student representatives to Council. I argue that as a staff member of the university, it is not appropriate for him to claim legal privilege as this means than in his general duties he cannot be investigated.

Brendan Peet, at an ensuing Council meeting, stated that he had received outside legal advice on the cancelling of the election but I understand he has not provided a copy of this to Council and he has refused to provide a copy to me.

It also seems curious that at first I was told that there were far too many documents to provide. Then on the 10th January, I was told there were only 22. When I pointed out the errors in not including documents in addition to emails and that there were a number of emails that had been provided to me by other candidates in the election, the RIO found a further 312 documents and claimed lack of time to process.

After the election was cancelled, another election was called and a candidate ... nominated for this. She asked whether her nomination was OK as she had to go abroad for a wedding and was told by mail that it was fine. However, after nominations closed, Brendan Peet wrote to her stating that her nomination was unacceptable and he did not give her the chance to resubmit. It is believed by many that she was probably the winner of the first election but that was cancelled. All the emails documenting this have been omitted though I have copies from [the candidate] herself.

1. Mr McAlary appeared at planning meetings on behalf of the Respondent. As a result of the negotiations between the Applicant, Mr McAlary and Dr O'Brien almost all the issues in the matter have been resolved. The single outstanding issue relates to the Respondent's claim for legal professional privilege in relation to an opinion ("the advice") held by the Respondent.

1. The Respondent asserts that the advice contains legal advice from a practising legal practitioner retained by the Respondent. The Applicant contends that legal privilege does not attach to the advice because of alleged breaches of law by the Respondent. Alternatively, he asserts that legal privilege has been lost because the University Solicitor revealed its contents.

1. With the parties' agreement I determined that this was a matter that could be determined on the papers, without a hearing.

Applicable legislation

1. I recently considered the applicable legislation in my reasons for decision in Chamley v Sydney Children's Hospital Network [2013] NSWADT 198. In that decision I largely adopted the summary provided by Judicial Member Molony in the matter of Battin v University of New England [2013] NSWADT 73. I adopt that summary in this matter.

1. The objects of the GIPA Act are set out in section 3(1) -

In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by:

(a) authorising and encouraging the proactive public release of government information by agencies, and

(b) giving members of the public an enforceable right to access government information, and

(c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.

1. 'Government information' is given a wide meaning (section 4) being 'information contained in a record held by an agency.' 'Agency' is also defined in section 4. It includes "(c) a public authority." Public authority is in turn defined in Clause 2 of Schedule 4 to mean, among other things, "a body (whether incorporated or unincorporated) established or continued for a public purpose by or under the provisions of a legislative instrument". The Respondent is an agency to which the GIPA Act applies.

1. The Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (section 5). Applicants for access to government information have a legally enforceable right to be provided with access to that information, unless there is an overriding public interest against disclosure (section 9). The GIPA Act overrides other statutory provisions that prohibit disclosure, apart from the 'overriding secrecy laws' that are set out in Schedule 1 (section 11). Schedule 1 sets out information concerning which it is conclusively presumed that there is an overriding public interest against disclosure (section 14(1)).

1. Persons aggrieved by reviewable decisions have a number of options available to press their access applications. First, they may ask the agency to conduct an internal review. A decision made on internal review is a reviewable decision. A person aggrieved may seek a review by the Tribunal (section 100). When this provision is read with section 38 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act"), they confer jurisdiction on the Tribunal to review reviewable decisions under the GIPA Act. Such applications are to be made within 8 weeks of the decision (section 101(1)) or within 4 weeks of the completion of a review by the Information Commissioner (section 101(2)). The Tribunal has power to extend the time for the making of a review application under section 101(3) when it is of the opinion that the person making the application "has provided a reasonable excuse for the delay in making the application." In the present matter the Applicant has set out a detailed explanation for her late application. In the circumstances the date for the making of the application is extended to the date of filing.

1. In any review of a reviewable decision section 105 places the burden of justifying the decision on the agency concerned.

1. The Tribunal's function on review under section 63 of the ADT Act is to make the correct and preferable decisions having regard to the material before it before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drakev Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409.

1. Section 107 sets out the procedure to be followed by the Tribunal in dealing with public interest considerations. It relevantly provides -

(1) In determining an application for ADT review, the ADT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure.

(2) On an ADT review, the ADT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative if in the opinion of the ADT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure.

...

1. Clause 5 of Schedule 1 to the GIPA Act provides -

5 Legal professional privilege

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

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

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

1. In the present case the Respondent's privilege claim is based on an asserted legal advice privilege.

1. The question arises as to whether the common law or the Evidence Act 1995 provisions apply. Judicial Member Molony considered this issue in the matter of Fitzpatrick v NSW Office of Liquor and Gaming [2010] NSWADT 72 and more recently in Colefax v Department of Education and Communities [2013] NSWADT 75. In Colefax v Department of Education and Communities he stated:

24 In Director General, Attorney General's Department v Cianfrano (GD) [2006] NSWADTAP 26 the Appeal Panel held that legal professional privilege for purpose of the Freedom of Information Act 1987 was legal professional privilege at common law, rather than client legal privilege under Division 1 of Part 3.10 of the Evidence Act 1995. In Fitzpatrick v NSW Office of Liquor and Gaming [2010] NSWADT 72 I found that given the subsequent enactment of s 131A of the Evidence Act that , at [70] -

... the test for whether a document would be "privileged from production in legal proceedings on the ground of legal professional privilege" in proceedings in NSW courts, is now determined by the client legal privilege provisions in Division 1 of Part 3.10 of the Evidence Act 1995 and not by the common law of legal professional privilege.

That conclusion is not one with which all other members of the Tribunal have agreed: see for example McGuirk v University of New South Wales [2011] NSWADT 169.

25 Since the commencement of the GIPA Act there have been a number of decisions dealing with the issue of client legal privilege, in which the issue of whether the common law or Evidence Act provisions apply has not been addressed. This is so because the conclusion would have been the same no matter which law was applied.

26 For myself, I consider that the question of whether or not information is privileged from production in legal proceedings on the ground of client legal privilege is to be determined by reference to the client legal privilege provisions in Division 1 of Part 3.10 of the Evidence Act 1995. This is so for the reasons I gave in Fitzpatrick and because the legislature in the GIPA Act has specifically referred to the term "client legal privilege," which is that used in the Evidence Act. In contrast, the Freedom of Information Act 1987 used the term legal professional privilege. The use of the Evidence Act terminology in my view evidences an intention that those provisions apply.

1. I agree with that view. However, as was the case in Chamley v Sydney Children's Hospital Network, in the circumstances of this matter my conclusion would have been the same no matter which law is applied.

1. Section 118 of the Evidence Act 1995 provides:

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

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

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

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

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

1. A 'dominant purpose' is one that predominates over other purposes; it is the prevailing or paramount purpose: Commissioner of Taxation of the Commonwealth of Australia v Pratt Holdings Pty Ltd [2005] FCA 1247 per Kenny J at [30], AWB v Cole [2006] FCA 1234 per Young J at [44]. When applying the dominant purpose test an appropriate starting point 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 per Finn J; AWB v Cole [2006] FCA 1234 per Young J at [44].

1. Section 117 of the Evidence Act 1995 contains definitions of confidential communication, confidential document, client and lawyer. Relevantly it provides:

(1) In this Division:

client includes the following:

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

(b) an employee or agent of a client,

(c) an employer of a lawyer if the employer is:

(i) the Commonwealth or a State or Territory, or

(ii) a body established by a law of the Commonwealth or a State or Territory,

(d) ...

confidential communication means a communication made in such circumstances that, when it was made:

(a) the person who made it, or

(b) the person to whom it was made,

was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.

confidential document means a document prepared in such circumstances that, when it was prepared:

(a) the person who prepared it, or

(b) the person for whom it was prepared,

was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.

lawyer means:

(a) an Australian lawyer, and

(b) an Australian-registered foreign lawyer, and

(c) an overseas-registered foreign lawyer or a natural person who, under the law of a foreign country, is permitted to engage in legal practice in that country, and

(d) an employee or agent of a lawyer referred to in paragraph (a), (b) or (c).

...

1. It is incumbent on the person asserting the privilege to demonstrate that the dominant purpose for the communication in issue was the provision of legal advice. In the case of GIPA Act reviews, that is consistent with the burden placed on the Agency by section 105(1) of the GIPA Act.

1. In some cases it will be obvious from an examination of the written communication itself that the dominant purpose of the communication was the provision of legal advice. That is the case with the document in issue in this matter. In any event, the material on which the Respondent relies places it beyond doubt.

1. The Applicant provided detailed submissions in regard to the circumstances that lead to his GIPA Act access application. He contends that there have been many legislative breaches by the Respondent in regard to the election process for the Executive Committees of Postgrads@UNE Inc and the UNE Council. His position in relation to those alleged breaches is summarised in the following submission:

So when you consider whether to require the university to release the legal opinion for which they seek legal privilege, I ask you to please consider the many ways in which the university has breached the law and/or worked against the principles behind the law, including the UNE Act and By-laws, the Associations Incorporation Act of NSW and the GIPA Act in addition to the codes of ethics and decision making in public bodies. It is our belief that the university ran the election for postgrad rep on Council corruptly and, if there is anything in the legal opinion that relates to this then it would clearly be in the public's interest to have access to that material despite any claims for privilege.

1. Where clause 5(1) of Schedule 1 to the GIPA Act is satisfied, there is a conclusive presumption of an overriding public interest against disclosure. The Tribunal has no discretion as to whether or not there is an overriding public interest against disclosure.

1. The Respondent has provided a copy of the advice to the Tribunal. I have considered the advice. In my view it clearly falls within the scope of section 118 of the Evidence Act 1995. It is readily apparent from a consideration of the document that it comprises legal advice provided in response to a request by the Respondent. In my view, it is information to which legal professional privilege applies.

1. The overriding context of the advice was the provision of legal advice. The advice contains information the dominant purpose of which is the provision of confidential legal advice from a practising legal practitioner to the client.

1. Having examined the document and considered the Respondent's material, I am satisfied that the advice was created for the 'dominant purpose' of giving or obtaining legal advice. I am also satisfied that the advice was given as independent advice. That is made plain from the contents of the document.

1. There has been no suggestion of an express waiver concerning the advice. The mere reference to the existence of the advice is not sufficient to waive privilege in the advice.

1. The privilege claim for exemption in respect of the document is therefore justified. That being the case it is to be conclusively presumed that there is an overriding public interest against disclosure of that information. The Tribunal has no discretion as to whether or not there is an overriding public interest against disclosure. The Applicant has no statutory entitlement to be provided with government information where there is an overriding public interest against disclosure.

1. In the circumstances, the correct and preferable decision is affirm the decision under review and to refuse access to the document.

Order

The decision under review is affirmed.

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Decision last updated: 23 October 2013