Hutchinson and Comcare (Freedom of information) - [2022] AATA 2435

Hutchinson and Comcare (Freedom of information) [2022] AATA 2435 (2 August 2022)
AppID:  Hutchinson and Comcare
MatterType:  Freedom of information
Division:FREEDOM OF INFORMATION DIVISION
File Number:2021/4840
Re:Karen Hutchinson
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:2 August 2022
Place:Perth

The Reviewable Decision is affirmed.
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Senior Member Dr M Evans-Bonner
CATCHWORDS
FREEDOM OF INFORMATION – appeal from decision of the Australian Information Commissioner – whether document subject to legal professional privilege under s 42 of the Freedom of Information Act 1982 (Cth) – Tribunal finds that the disputed document is subject to legal professional privilege and therefore exempt – Reviewable Decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 34J
Freedom of Information Act 1982 (Cth) ss 11, 11A(4), 42, 42(1), 42(2), 61(1)(b), 93A(1)
Public Interest Disclosure Act 2013 (Cth)
CASES
Aquila Coal Pty Ltd v Bowen Central Coal Pty Ltd [2013] QSC 82
Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543; 192 ALR 561
Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67
Grant v Downs (1976) 11 ALR 577
Mann v Carnell [1999] HCA 66
Ransley and Commissioner of Taxation [2015] AATA 728
Taggart and Civil Aviation Safety Authority [2016] AATA 327
Waterford v Commonwealth (1987) 71 ALR 673
SECONDARY MATERIALS
Office of the Information Commissioner, FOI Guidelines (combined February 2022)
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
2 August 2022
THE APPLICATION

The Applicant filed an application in this Tribunal on 16 July 2021 seeking review of a decision of the Acting Australian Information Commissioner (Commissioner) dated 21 June 2021 (Reviewable Decision).
The Reviewable Decision was a decision by the Commissioner which affirmed a decision of Comcare dated 3 December 2019 to refuse access to a document dated 29 April 2016 (the Disputed Document). The basis for the refusal was that the document was subject to legal professional privilege and was therefore exempt under s 42 of the Freedom of Information Act 1982 (Cth) (FOI Act).
The Disputed Document is a seven-page letter from a Canberra based law firm called Dibbs Barker. The document is, in my view, accurately described by Comcare in its schedule of documents as “Legal advice from Dibbs Barker to Comcare, dated 29 April 2016”.
I note that unredacted parts of the Disputed Document have been released to the Applicant in a Public Interest Disclosure Act 2013 (Cth) Investigation Report (PID Report) dated 22 September 2016. The PID Report came about because of a complaint of maladministration made by the Applicant to Comcare, which Comcare referred to an investigator. Thus, Comcare no longer presses an exemption under s 42 for the parts of the Disputed Document released in the PID Report.
The parties both consented to a hearing of this application on the papers. I determined that the issue in this application could be adequately determined in the absence of the parties, on 15 February 2022 I made direction under s 34J of the Administrative Appeals Tribunal Act 1975 (Cth) that the matter could be heard on the papers.
ISSUE
The issue before me is whether the Disputed Document is exempt from release under s 42 of the FOI Act.
I note that, pursuant to s 61(1)(b) of the FOI Act, Comcare has the onus of establishing that the decision to refuse access to the Disputed Document is justified.
RELEVANT LAW
Right of access
Section 11 of the FOI Act provides for an enforceable right of access to certain government documents regardless of the reason for seeking access:
(1)Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:
(a)       a document of an agency, other than an exempt document; or
(b)       an official document of a Minister, other than an exempt document.
(2)       Subject to this Act, a person’s right of access is not affected by:
(a)       any reasons the person gives for seeking access; or
(b) the agency’s or Minister’s belief as to what are his or her reasons for seeking access.
Exempt documents
Not all documents held by government are required to be released. Subsection 11A(4) of the FOI Act provides for access not to be given if a document is exempt:
The agency or Minister is not required by this Act to give the person access to the document at a particular time if, at that time, the document is an exempt document.
Legal professional privilege
Section 42(1) of the FOI Act provides that a document is exempt if it is subject to legal professional privilege:
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.
There is no definition of legal professional privilege in the FOI Act.
The concept has, however, been defined by the courts. For example, in Taggart and Civil Aviation Safety Authority [2016] AATA 327 (Taggart) at [21], Deputy President Forgie stated:
Legal professional privilege is a concept known to the common law and its essence was explained in the following passage from Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (Daniels Corporation) [[2002] HCA 49; (2002) 213 CLR 543; 192 ALR 561]:
“It is now well settled that legal professional privilege is a rule of substantive law which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings.”
Further guidance about legal professional privilege in the context of the FOI Act can be found in the Office of the Information Commissioner, FOI Guidelines (combined February 2022) (Guidelines), made pursuant to s 93A(1) of the FOI Act. The Guidelines are a summary of the relevant legislative provisions and case law. I will refer to the relevant parts of these Guidelines below.
Rationale
The Guidelines describe the policy basis for legal professional privilege, at [5.128]:
… The underlying policy basis for LPP is to promote the full and frank disclosure between a lawyer and client to the benefit of the effective administration of justice. …
In Grant v Downs (1976) 11 ALR 577 (Grant) at 586, Stephen, Mason and Murphy JJ gave a more detailed explanation of the rationale behind legal professional privilege:
The rationale of this head of privilege, according to traditional doctrine, is that it promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisors, the law being a complex and complicated discipline. This it does by keeping secret their communications, thereby inducing the client to retain the solicitor and seek his advice, and encouraging the client to make a full and frank disclosure of the relevant circumstances to the solicitor. The existence of the privilege reflects, to the extent to which it is accorded, the paramountcy of this public interest over a more general public interest, that which requires that in the interests of a fair trial litigation should be conducted on the footing that all relevant documentary evidence is available. As a head of privilege legal professional privilege is so firmly entrenched in the law that it is not to be exorcised by judicial decision. None the less there are powerful considerations which suggest that the privilege should be confined within strict limits.
This passage has been cited with approval in subsequent decisions, including Waterford v Commonwealth (1987) 71 ALR 673 (Waterford), per Mason and Wilson JJ at 677.
The test for legal professional privilege
In Ransley and Commissioner of Taxation [2015] AATA 728 at [10], Deputy President Tamberlin QC relevantly explained that common law concepts of legal professional privilege are applicable to s 42 of the FOI Act. The Deputy President explained:
The test to be applied under section 42 of the Act is that which applies under the common law which involves:
(a)         examination as to whether there is a lawyer client relationship;
(b)whether the document in question was created for the dominant purpose of giving or receiving legal advice or for use in actual or anticipated litigation;
(c)         whether the advice is independent; and
(d)         whether the advice is confidential.
In Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67 at [61], Gleeson CJ, Gaudron and Gummow JJ confirmed that the dominant purpose test was preferred over the sole purpose test which was the test stated in earlier cases such as Grant and Waterford.
Whether there is a legal adviser-client relationship
The Guidelines provide the following summary, at [5.130]:
A legal adviser-client relationship exists where a client retains the services of a lawyer for the purposes of obtaining professional advice. The existence of the relationship is usually straightforward to establish where advice is received from an independent external legal adviser. A typical example in a government context is advice received by an agency from a law firm that is on an authorised list of panel firms (including the Australian Government Solicitor).
Similarly, the Guidelines further explain, at [5.131]:
The following factors are relevant to establishing whether a legal adviser-client
relationship exists:
·the legal adviser must be acting in his/her capacity as a professional legal adviser
·the giving of the advice must be attended by the necessary degree of independence
·the dominant purpose test must be satisfied
·the advice must be confidential …
Dominant purpose
In Taggart, Deputy President Forgie summarised some of the relevant authorities about what is meant by “dominant purpose”, as well as the concept of “legal advice”:
22. Reference is made to the “dominant purpose” of the client and the lawyer and Kenny J emphasised in Commissioner of Taxation v Pratt Holdings Pty Ltd that:
“The dominant purpose is not the same as the ‘primary’ or the ‘substantial’ purpose: see Grant v Downs at CLR 678; ALR 580 per Barwick CJ. The ‘dominant’ purpose may be described as the ruling, prevailing, paramount or most influential purpose .... The ‘dominant purpose’ brings within the scope of the privilege a document brought into existence for the purpose of a client being provided with professional legal services notwithstanding that some ancillary or subsidiary use of the document was contemplated at the time ...”
23.The dominant purpose is that of giving “legal advice” or of giving or obtaining legal services. As Young J said in Australian Wheat Board v Cole (No 5):
“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 ...”
24.How that dominant purpose is to be ascertained was considered by Young J in the earlier case of AWB Limited v Honourable Terence Rhoderic Hudson Cole:
“The authorities accept that 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: see Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122; (2004) 136 FCR 357 at [35] per Finn J.
…
Advice needs to be independent
In Waterford at 677, Mason and Wilson JJ explained that there “must be a professional relationship which secures to the advice an independent character …”.
In Aquila Coal Pty Ltd v Bowen Central Coal Pty Ltd [2013] QSC 82 (Aquila), Boddice J, at [10]-[11], also emphasised that the legal adviser must be acting independently:
An independent legal adviser brings a disinterested mind to bear on the subject matter of the legal advice. …
Whether, in any particular case, the relationship is such as to give rise to the privilege is a question of fact. Its determination requires a consideration of whether the professional relationship secures to the advice an independent character ...
Advice needs to be confidential
Paragraph [5.142] of the Guidelines explains that: “LPP does not apply to a communication that is not confidential — that is, known only to the client or to a select class of persons with a common interest in the matter”.
Waiver
A document is not exempt if the person entitled to claim privilege waives it. Subsection 42(2) of the FOI Act provides:
(2) A document is not an exempt document because of subsection (1) if the person entitled to claim legal professional privilege in relation to the production of the document in legal proceedings waives that claim.
In Mann v Carnell [1999] HCA 66, at [28], the majority explained that a person entitled to claim privilege can waive it, including by acting in a manner that is inconsistent with that privilege:
At common law, a person who would otherwise be entitled to the benefit of legal professional privilege may waive the privilege. It has been observed that “waiver” is a vague term, used in many senses, and that it often requires further definition according to the context. Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege ...
CONSIDERATION
I have examined the Disputed Document. I have also had regard to the affidavit of Mr Swainson dated 25 January 2022, who is the General Manager of the Legal Group at Comcare.
I find as follows:
(a)The requirement for there to be a legal adviser-client relationship is satisfied. The Disputed Document is a letter of advice from an external law firm engaged by Comcare which provides legal advice to a Principal Legal Advisor in Comcare’s Claims and Liability Management Legal Team which now forms part of Comcare’s Legal Group.
(b)The advice is also independent in nature. This is evident from the objective and impartial nature of the advice given by an external law firm engaged by Comcare.
(c)The advice is also confidential. I note that the letter is marked “privileged and confidential”. Although such a marking is subjective and not of itself determinative, I also accept Mr Swainson’s evidence in his affidavit that the content of the legal advice is confidential, with access being limited to persons who have a need to know. I also accept his evidence that access to the records held by Comcare’s Legal Group is restricted to the individuals attached to the Legal Group and those exercising key support functions.
(d)There has been no express or implied waiver of privilege by Comcare over the Disputed Document. I accept Mr Swainson’s evidence that it is Comcare’s practice that privilege can only be waived by the General Manager of the business area that requested the legal advice (that is, Mr Swainson) or the Chief Executive Officer (CEO) and that neither of them has waived privilege. I also accept his evidence that no records could be located that would indicate a waiver by the Chief Legal Officer of the former Claims and Liability Management Legal Team, the CEO or any former CEO. I also note that there is no evidence before me of any implied waiver such as a wide distribution of the Disputed Document within Comcare or other conduct inconsistent with privilege.
I also find that the Disputed Document satisfies the dominant purpose test. The dominant purpose of the document is the provision of legal advice and the making of legal recommendations to Comcare based on that advice, with respect to the Applicant’s disputed claim for compensation and her complaint against Comcare’s handling of her claim.
CONCLUSION
I am therefore satisfied that the Disputed Document is subject to legal professional privilege and is exempt under s 42 of the FOI Act.
DECISION
The Reviewable Decision is affirmed.

I certify that the preceding 31 (thirty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member D M Evans-Bonner

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Associate
Dated: 2 August 2022

Date of hearing on the papers:

28 March 2022

Representative for the Applicant: Self-represented

Representative for the Respondent: Ms C Tipene, Sparke Helmore Lawyers

Date of hearing on the papers:	28 March 2022
Representative for the Applicant:	Self-represented
Representative for the Respondent:	Ms C Tipene, Sparke Helmore Lawyers