Mangoplah Pastoral Co Pty Ltd v Great Southern Energy

[1999] NSWADT 93

CITATION:	Mangoplah Pastoral Co Pty Ltd -v- Great Southern Energy [1999] NSWADT 93
DIVISION:	General
APPLICANT:	Mangoplah Pastoral Co Pty Ltd
RESPONDENT:	Great Southern Energy
FILE NUMBER:	993044
HEARING DATES:	08/10/1999; 08/11/1999
SUBMISSIONS CLOSED:	08/11/1999
DATE OF DECISION:	30 September 1999
BEFORE:	M B Smith - Judicial Member
PRIMARY LEGISLATION:	Freedom of Information Act 1989
APPLICATION:	Review of decision to refuse access to documents (or part thereof) -
MATTER FOR DECISION:	Principal matter
REPRESENTATION:	Applicant: D D Feller of counsel instructed by Commins Hendricks Respondent: K Rees of counsel instructed by Belbridge Hague
ORDERS:	1. The decision under review is varied so as to include a decision that the applicant is to be given access to all the documents listed in paragraph 8 of the Tribunal's reasons with the exception of the document which is Exhibit GW6.

Introduction
1 This is an application under s 53 of the Freedom of Information Act 1989 (NSW). It seeks review of a decision refusing access to various documents which were brought into existence by employees and agents of the respondent following a fire which involved a power line under the management of the respondent. No objection was taken by the respondent as to the Tribunal's jurisdiction, and it is unnecessary to examine the provisions of the FOI Act or Administrative Decisions Tribunal Act 1997 (NSW) relevant to my jurisdiction.
2 The respondent is a corporation established by the Energy Services Corporations Act 1995 (NSW) as an energy distributor. As such, its “principal objectives” set out in s 8 include “to be a successful business”, “to protect the environment”, “to operate efficient, safe and reliable facilities for the distribution of electricity”, “to be an efficient and responsible supplier of electricity”, and “to be a successful participant in the wholesale and retail markets for electricity”. Its principal functions are described in s 9(2) as:
“(a) to establish, maintain and operate facilities for the distribution of electricity and other forms of energy, and
(b) to supply electricity and other forms of energy, and services relating to the use and conservation of electricity and other forms of energy, to other persons and bodies.”
3 The respondent’s operations are also regulated under the Electricity Supply Act 1995 (NSW), which makes provision for customer contracts and other measures to ensure “a safe and efficient supply of electricity to a customer”. The Act allows the respondent to authorise officers to exercise broad powers of entry onto private premises and otherwise regulates electricity works.
4 The electricity industry has recently been restructured under the influence of competition policies, and the material before me left obscure the boundaries of responsibility for public safety. However, it is clear from the above legislation that the respondent continues to have significant public and governmental responsibilities in relation to the electricity works under its management, and the witnesses before me acknowledged this. Its status as a public authority is confirmed by its subjection to the FOI Act.
5 The respondent supplies energy to a substantial part of southern New South Wales. In the course of these operations, it supplied power to a rural property known as “Barwon” in the Yerong Creek district. On 21 December 1997, in conditions of extreme fire danger, a fire commenced on that property and travelled very quickly over several farming properties and threatened the village of Mangoplah. Fire services established control that night and the next day, but “mopping up” continued, and it was not until 24 December that the fire was declared safely contained. The fire affected some of the respondent’s power lines, and repair of these soon engaged the attention of its ground staff. As will be described below, its staff also became engaged in investigating reports that the fire started in the vicinity of a fallen power line to a shed on “Barwon”.
6 The fire burned through the farming property of the applicant at Mangoplah causing stock loss, destruction and damage to fencing and other structures, and the destruction of valuable hay and pasture and native and planted trees. The applicant’s neighbours also suffered loss including the destruction of one house, damage to two other houses, the destruction of two shearing sheds and a number of machinery and storage sheds, and significant damage to fencing, stock and pasture.
7 On 5 November 1998 solicitors for the applicant lodged a request for access under the FOI Act in relation to broad classes of documents listed in a schedule. These related to the electrical installations at “Barwon”, and included “all file notes, records of telephone conversations, correspondence, reports or other documents concerning the investigation, examination or consideration of a fire at the property on 21 December 1997”.
The documents in issue.
8 The decisions made in response to this request granted access to seven documents, and withheld an unspecified number on the ground of legal professional privilege. These were better particularised after application was made for review by this Tribunal. At the hearing, the applicant did not seek access to one of the documents: an opinion from counsel concerning the FOI application. Nineteen documents remain in contention. Based on a schedule presented by the respondent and the evidence given in a public hearing, they may be described and numbered as follows:
Photographs of the fire scene taken by the respondent’s responsible regional asset manager, Mr Fitzpatrick, and other staff on 22 December 1997. (Exhibit IF1)

Video of the fire scene taken by the responsible works manager, Mr Jenkins, on 22 December 1997. (Exhibit IF6)
Handwritten notes made by Mr Fitzpatrick on or about 23 December 1997. (Exhibit IF3)
Handwritten statement by an on-call linesman, Mr Bowen on or about 24 December 1997. (part Exhibit IF5)
Handwritten statement by an on-call linesman, Mr Watson, on or about 24 December 1997. (part Exhibit IF5)
Unsigned and undated typed statement by Mr Jenkins. (part Exhibit IF5)
Report by Mr Fitzpatrick written on 4 and 5 January 1998. (Exhibit IF8)
Handwritten calculations of an expert made on or about 24 January 1998. (Exhibit IF7)
Aerial photographs of fire scene taken on or before 13 February 1998 . (Exhibit IF2)
Statement of Mr R L Altas, a loss adjuster and private investigator retained by the respondent, dated 16 February 1998. (Exhibit GW1)
Statement of Mr Bowen, dated 24 February 1998. (Exhibit GW2)
Copy of map of fire scene obtained by Mr Fitzpatrick. (Exhibit IF4)
Typed statement of Mr Jenkins dated 11 March 1998. (Exhibit GW3)
Typed statement of Mr Watson dated 6 April 1998. (Exhibit GW4)
Letter from Mr Altas to Belbridge Hague, the respondent’s solicitors dated 22 May 1998. (Exhibit GW5)
Copy of letter from Belbridge Hague to the respondent, dated 26 May 1998. (Exhibit GW6)
Letter from Mr Altas to Bellbridge Hague, dated 5 June 1998 enclosing letters from experts. (Exhibit GW7)
Letter from Mr Altas to Bellbridge Hague, dated 25 June 1998 enclosing an expert report. (Exhibit GW8)

The conduct of the proceedings
9 In preparation for the hearing, the applicant obtained a summons from the Tribunal addressed to the respondent to produce various documents. Through sensible negotiations between legal representatives, the ambit of the summons was narrowed and, by consent, access was given in respect of some of the documents produced to the applicant's legal representatives under a confidentiality undertaking. Curiously, the applicant by this process seems to have discovered further documents which should have been located under the original FOI application. However, the applicant took no point concerning this, and the case was conducted on the basis that only the above documents were in contention for release under the FOI Act.
10 As I made clear to the parties, I had regard only to those documents which were formally put into evidence, including the disputed documents. I have no knowledge as to the contents of any other document produced to the Tribunal under the summons. My findings below are based on the documents tendered, on such parts of the affidavits and annexures as were read, and on the oral evidence of the witnesses which appears in the transcript.
11 Because both sides were represented by competent solicitors and counsel (whom I thank for their assistance) I limited my interventions in the adducing of evidence to some clarification of witnesses’ evidence, including by taking them in open hearing to each of the documents. The respondent did not seek to present any confidential evidence other than the disputed documents themselves. It was evident that both parties made deliberate decisions to narrow the ambit of evidence which they wished to adduce in their respective cases, and did so with a full understanding of the burden of proof on the respondent arising under s 61 of the FOI Act. This section provides that “the burden of establishing that the determination is justified lies on the agency”.
The decision-maker’s powers
12 It is the object of the FOI Act “to extend, as far as possible, the rights of the public: (a) to obtain access to information held by government … by conferring on each member of the public a legally enforceable right to be given access to documents held by the Government, subject only to such restrictions as are reasonably necessary for the proper administration of the Government” (see ss 5(1) and (2)). The Act expressly provides:
5(3) It is the intention of Parliament:

(a) that this Act shall be interpreted and applied so as to further the objects of this Act, and
(b) that the discretions conferred by this Act shall be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, the disclosure of information.”

13 The decision under review is a determination under ss 24(1) and 25(1). These relevantly provide:
24 Determination of applications

(1) After considering an application for access to a document, an agency shall determine:
(a) whether access to the document is to be given (whether immediately or subject to deferral) or refused, and ….
25 Refusal of access
(1) An agency may refuse access to a document:
(a) if it is an exempt document, or
(a1) if the work involved in dealing with the application for access to the document would, if carried out, substantially and unreasonably divert the agency’s resources away from their use by the agency in the exercise of its functions, or
(b) if it is a document that is available for inspection at that or some other agency (whether as part of a public register or otherwise) in accordance with Part 2, or in accordance with a legislative instrument other than this Act, whether or not inspection of the document is subject to a fee or charge, or
(b1) if it is a document that is available from, or available for inspection at, that agency, free of charge, in accordance with that agency’s policies and practices, or
(c) if it is a document that is usually available for purchase, or
(d) if it is a document that genuinely forms part of the library material held by the agency.
(e) (Repealed)
(2) (Repealed)
(3) An agency shall refuse access to a restricted document that is the subject of a Ministerial certificate.
(4) An agency shall not refuse access to an exempt document (including a restricted document that is the subject of a Ministerial certificate):
(a) if it is practicable to give access to a copy of the document from which the exempt matter has been deleted, and
(b) if it appears to the agency (whether from the terms of the application or after consultation with the applicant) that the applicant would wish to be given access to such a copy.
(5) Subsection (1) (a1) does not permit an agency to refuse access to a document without first endeavouring to assist the applicant to amend the application so that the work involved in dealing with it would, if carried out, no longer substantially and unreasonably divert the agency’s resources away from their use by the agency in the exercise of its functions.

14 The general effect of these provisions is to impose a duty to make a determination on the giving or refusing of access as provided by s 24. Section 25(1) then provides the grounds on which access may be refused. Absent a decision to invoke one of these grounds, the decision-maker is obliged to give effect to the “legally enforceable right” of access conferred by s 16. In this context, in my opinion, the use of “may” in s 25(1) means that there is no mandatory duty to refuse access whenever one of the grounds for refusal is capable of being satisfied. In relation to paragraph (a), this means that a discretion is given whether or not to release a document which is found to be an exempt document.
15 The existence of this discretion is confirmed by the contrasting use of “shall refuse access” in s 25(3). Restricted documents are defined in s 6 as special classes of exempt documents which are in Part 1 of the Schedule 1, and include cabinet and executive council documents, and documents affecting law enforcement and public safety. For these documents, Parliament intends no discretion if a Minister certifies the exemption.
16 It follows that a decision-maker who cannot invoke another of the grounds for refusing access listed in s 25(1) is obliged to consider whether a document falls within an exemption provision. He or she cannot refuse access if it does not. If it is exempt, and is not a restricted document which is the subject of a Ministerial certificate, he or she must also consider whether it is consistent with the objects of the Act for the agency to rely upon the exemption and refuse access. If refusal of access appears not to be justified in the broad context of the Act, then the exempt document must be released.
17 This discretion to release most exempt documents is sometimes referred to, inaccurately, as an “override” or “residual” discretion, and later in these reasons I shall say more as to the relevant considerations. In my opinion it is of fundamental significance for the working of the legislation, and the FOI Act will fail to meet its objective to promote open government if the discretion is ignored or not given proper scope by decision-makers.
18 It has sometimes been suggested that the discretion to release an exempt document does not exist or should not be exercised because the Act’s protection of decision-makers on release would not apply. This, in my opinion, misunderstands the effects of ss 64, 65 and 66, which are not so limited but arise in every case where “access to a document is given pursuant to a determination under this Act”. A decision not to claim an exemption but to release an exempt document in response to an application made under the FOI Act must, in my opinion, be a “determination under this Act”.
19 In the present case, the respondent’s decision-makers appreciated that they had a discretion to release an exempt document, since some of the documents which they released are indistinguishable from those whose release was disputed before me. Notably, the respondent released an expert’s report obtained by it on the causes of the fire: that of Mr Cox dated 19 February 1998. The contentious legal issue before me was whether this discretion passed to the Tribunal on review of a decision to refuse access to other documents on the ground of their exempt status. I shall return to this question after addressing whether any of the documents come within the exemption claimed.
The legal professional privilege exemption.
20 The respondent claimed that each of the documents was exempt because it was “a document referred to” in Schedule 1 clause 10 (see s 6). No other provision of the Schedule was relied upon. Clause 10 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.

21 It is clear on the face of the documents in issue that none of them contains information at all likely to appear in any “policy document” as defined in s 6 of the FOI Act. I therefore do not set out that provision nor discuss its application.
22 The interpretation of cl 10 has been complicated by the enactment of the Evidence Act 1995 (NSW). It contains in Part 3.10 provisions establishing statutory privileges, including in Division 1 a “client legal privilege”. For present purposes the relevant provisions are the following:

“Part 3.10 Privileges
Division 1 Client legal privilege
117 Definitions
(1) In this Division:
“client” includes the following:
(a) an employer (not being a lawyer) of a lawyer,
(b) an employee or agent of a client,
…
“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.
…
118 Legal advice
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:
(a) a confidential communication made between the client and a lawyer, or
(b) a confidential communication made between 2 or more lawyers acting for the client, or
(c) the contents of a confidential document (whether delivered or not) prepared by the client or a lawyer,
for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.
119 Litigation
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:
(a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made, or
(b) the contents of a confidential document (whether delivered or not) that was prepared,
for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.

23 The difficulty arising from the provisions is they “make significant changes to the law of evidence in relation to client legal privilege” and that in their terms they are “relevantly confined to the adducing of evidence, and that this expression does not in its ordinary and natural meaning extend to ancillary processes involving the pre-trial gathering of evidence” (Akins v Abigroup Ltd (1998) 43 NSWLR 539 at 545). The solution adopted by the Court of Appeal in Akins at 546 is that “the principles of the Act touching client legal privilege apply derivatively to ancillary processes involving the pre-trial gathering of evidence. I acknowledge that this entails recognition that the common law is modified so as to accord with the Evidence Act in this area.”. It is clear from the judgment that “the common law” doctrine which is suggested in this passage to have been “derivatively” modified, is the “doctrine of legal professional privilege”.
24 That there has been a modification of common law doctrine, was not accepted in the Federal Court in Esso Australia Resources Ltd v Commissioner of Taxation (1998) 83 FCR 511, and this case is currently the subject of appeal to the High Court. It was doubted by James J in R v Young [1999] NSWCCA 166 at [344-5], and has received underpinning by the introduction of rules of court which legislate for the application of the Evidence Act tests to pre-trial processes. However, I consider that I am bound to accept that the common law is now as enunciated in Akins’ Case and that I should not await the outcome of the appeal from Esso’s Case. I am confirmed in this approach because, as will appear, the rules on legal professional privilege upon which I have decided the case are those espoused by the respondent, whose claims for exemption I am rejecting. Moreover, I am doing so by application of a principle common to both s 119 and the common law as enunciated prior to the Evidence Act.
25 Akins produces a situation where the common law privilege articulated in Grant v Downs (1976) 135 CLR 674, which was applied at all stages of legal proceedings at the time that the FOI Act was enacted, has now altered in content and is applied in proceedings only at stages when the Evidence Act privilege does not apply either of its own force or pursuant to special rules of court. The question then arises: is cl 10 to Sch 1 of the FOI Act to be interpreted as requiring me to address only the tests of common law privilege, and, if so, as articulated now or as it was articulated at the date of the FOI Act?
26 The applicant did not take the position that cl 10 was devoid of effect because no NSW Court would apply the ground of legal professional privilege as articulated at the time of its enactment. Instead, it argued that cl 10 required me to approach the exemption as if questions of legal professional privilege were being decided in notional legal proceedings conducted before the enactment of the Evidence Act. This may have been the construction of the same words in the ACT FOI exemption taken in Re Spier and ACT Electoral Commissioner (1995) 41 ALD 374.
27 I reject this argument. I do not read the reference to “on the ground of legal professional privilege” as a reference to the precise tests of privilege applied at the date of enactment of the FOI Act, or as at the date of enactment of the Commonwealth FOI Act upon which this provision seems to have been modelled. Plainly the legislature intended to refer to the tests of common law privilege which, at the time of enactment, were labelled and applied by judges under the term “legal professional privilege”. However, Parliament must have appreciated that the continuous process of articulation of common law meant that the doctrine might change in its labelling and its content. The clear object of the exemption in cl 10 was to allow the refusal of access to those documents which would contemporaneously be protected by courts when applying the then current tests of privilege. An ambulatory reading of the reference to “ground of legal professional privilege” is therefore to be preferred (c.f. Attorney-General (NSW) v Brewery Employees Union of NSW (1908 6 CLR 469 at 501, 521,531, 610; Barker v The Queen (1983) 153 CLR 338 at 356; and Brown v The Queen (1986) 160 CLR 171 at 190).
28 I therefore read the reference as being one, at least, to the grounds of common law legal professional privilege articulated in NSW courts as at the date of the determination of the exemption. It may be that an ambulatory interpretation can be taken further, so that the reference also covers new statutory privileges which supersede or serve the same function as the common law privilege and are applied in NSW legal proceedings at any stage. However, I need not decide this.
29 I have therefore accepted the submission of the respondent that whether the documents came within s 10 should be determined by reference to the tests of client legal privilege found in the Evidence Act.
The exemption claimed for legal advice.
30 The respondent relied on the privilege described in s 118 only in relation to one document: listed above as item (xvi). On the evidence presented to me, this was the only piece of correspondence written by the respondent’s lawyer. On its face it contains some professional advice from the lawyer to the client in a letter which I am ready to accept was a “confidential communication”. I am also sufficiently satisfied from the contents of this letter, that the giving of the advice was the “dominant purpose” of this particular communication and that it otherwise satisfies the elements required by s 118(a).
31 I therefore conclude that Exhibit GW6 is an exempt document within cl 10. This finding raises the issue, foreshadowed above, of whether I have power to direct its release notwithstanding this status, and how I should exercise that power. I shall defer discussing these issues until after examining the other documents.
32 The respondent did not claim privilege under s 118 for other documents on the basis that their communication was “for the dominant purpose of the lawyer providing legal advice” to the respondent, notwithstanding that at least some of them were forwarded or addressed to its solicitor by the respondent’s employees and agents in the course of their investigations and in circumstances where they may have been “confidential communications between the client [as defined in s 117(1)] and a lawyer”. However, as will appear below, the purposes of this involvement of the respondent’s lawyer over the relevant period was left somewhat obscure, and on the evidence I would not draw a conclusion that it generally had the dominant purpose of the provision of legal advice. I see no reason to question the respondent’s decision not to rely upon s 118 in relation to the other documents.
The exemptions claimed for anticipated litigation.
33 Exemption for the other documents was claimed solely by reference to the privilege provided in s 119 of the Evidence Act. To establish this privilege the respondent sought to satisfy me that each document or communication was prepared or made for the “dominant purpose” of the respondent being provided with “professional legal services” relating to “an anticipated Australian proceeding in which the respondent may be a party”.
34 For reasons which I shall now explain, I have concluded that the respondent has failed to make out the third of these elements. At no relevant time was there an “anticipated” legal proceeding within the meaning of that term. I have therefore not found it necessary to draw conclusions on the other elements of s 119.
35 Both counsel accepted that the Evidence Act concept of “anticipated proceeding” adopted or replicated the common law concept of “apprehended”, “contemplated” or “anticipated” litigation. This was referred to by Stephen, Mason and Murphy JJ in Grant v Downs (1976) 135 CLR 674 at 682:

“Although to sustain the privilege it is not necessary that the document has been brought into existence on the advice of the solicitor, it is essential that the circumstances are such that the court can subsequently conclude, viewing them objectively, that litigation can be reasonably anticipated – and this at the time when the preparation of the document is undertaken.” (citations omitted)

36 The authors of the Australian Edition of Cross on Evidence, say at paragraph 25235:

“The question whether litigation was reasonably contemplated at the relevant time is one of fact; it is to be determined by reference to objective criteria, and statements of personal belief by participants in the information gathering or litigation preparing process are not conclusive. It must be more probable than not that the proceedings will be commenced, so that a vague apprehension of litigation will not suffice, though it is not necessary that there be a high probability approaching certainty, nor that there be a decision to commence proceedings.”

37 The authors cite Goldberg J in Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526, where his Honour said at 559:

Whether legal proceedings are reasonably anticipated requires a consideration of the existing state of facts taken in conjunction with the subject-matter which gives rise to the context in which the document comes into existence or the communication is made. Where legal proceedings are in existence the relevant relationship between the proceedings and the document or communication is clear. Where the legal proceedings are anticipated one needs more than speculation as to the possibility of such proceedings; one needs a probability or likelihood that such proceedings will commence. It is putting it too highly, in my view to say that a decision must have been made by the moving party or authority that such proceedings will be commenced. It is sufficient in my view, that the moving party or authority has made a decision, for example, that subject to being satisfied as to the strength of the case, proceedings be issued or that, short of such decision, it can be reasonably anticipated on the facts as known, that legal proceedings are likely. 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.”

38 This demands less than was argued for by counsel for the applicant before me, who relied upon Warner v Women’s Hospital [1954] VLR 110 and State Government Insurance Commission v Thissen (1993) 60 SASR 444. In the former case, Sholl J applied tests suggested in Collins v London General Omnibus Company (1893) 68 LT 831, which require at the time that documents are made or communicated that “the circumstances were such that no reasonable person could doubt that an action would follow” and “when there is a high probability, amounting almost to certainty, that an action will ensue”. Goldberg J in the ACCC (supra) at 559-560 suggests that this test is inconsistent with Grant v Downs (supra).
39 I have reached my conclusions against the privilege arising, by considering whether in all the circumstances as they stood at the time each document was brought into existence it was “more probable than not” in the sense suggested in the ACCC Case that litigation would be commenced against the respondent arising from the involvement of its power line in the fire. Such an approach was accepted by counsel for the respondent, who referred me to ACCC and to Nickmar Pty Ltd v Preservatrice Skandia Insurance Ltd (1985) 3 NSWLR 44 at 55-56. I therefore need not decide whether the Evidence Act requires the more demanding standard adopted in Warner’s Case.
Litigation was never “anticipated”.
40 I shall discuss the documents chronologically, indicating my relevant findings of fact upon the evidence before me.
41 A director of the applicant, Susan Porter, describes the conditions at the time when the fire occurred as follows:

4. 21 December 1997 was a particularly hot and windy day. The temperature reached in excess of 40 C, the winds were in excess of 60 km/h and the humidity was low. All of those conditions contribute to a high fire danger. Harvesting had been commenced on our property. Because of the prevailing climatic conditions it was decided on the morning of 21 December 1997 not to harvest on that day. This is because it was considered that those conditions constituted a significant fire hazard and therefore that it was not safe to harvest until the conditions abated. Because of the conditions to which I have referred, local authorities declared that all harvesting must cease until the conditions abated. A total fire ban had been declared throughout the Riverina by the Rural Fire Service.

42 This situation is corroborated by other evidence before me, and I find that it was common knowledge for all relevant people at the time of the fire and subsequently. By “relevant people” I include relevant employees and agents of the respondent and of the applicant, and any other persons who conceivably might have an interest in involving the respondent in any litigation.
43 A subsequent report by the incident controller for the Wagga Wagga City Council Rural Fire Service dated 7 January 1998 describes how the fire developed and was controlled. I find that the following events, or at least their general nature, also immediately or soon became general common knowledge for relevant people:

Yerong Creek Brigade responded following a fire report and further reports of a smoke sightings and a request for more information came from the Captain of the Mangoplah Brigade after hours base at Book Book. Other reports were to Lockhart Fire Control and via 000 to New South Wales Fire Brigade at Turvey Park. The timing of these calls was approximately 1600 hours, with the origin being “Barwon”, (in Lockhart Shire) 6 kilometres north of Yerong Creek ….
Given the extreme fire weather the fire travelled very quickly over private farm land. Fuel loads varied from heavy stubble and unstripped crops to medium to low improved pastures. Bulloc Bulloc Hill is the major topographic feature which is steep, lightly timbered and unimproved. At 1830 hours the fire had travelled 17 kilometres and was threatening the village of Mangoplah, with a population of 150. …
Resources from both Local Government Areas were rushed to the scene. It remains unknown the number of small private units but until the fire was stopped, 1.5 kilometres Southeast of Mangoplah at 1930 hours, 55 tankers of various categories were in attendance. These units were supported by the New South Wales Fire Brigade, private and council owned heavy machinery, and neighbouring brigades from other Councils…
The accompanying plot of the fire shows a classical pattern of a fast moving fire, and whilst the front wasn’t wide it was difficult to control until natural features, the oncoming evening, and the use of loaders and graders could stop its advance. The speed of the fire was also the reason for some of the stock losses. …
Containment of the fire continued during the night of the 21st. Milder conditions were experienced but winds were up to 30 KPH created difficulties. More favourable weather conditions the following day enabled firefighters to consolidate on an ever improving position.
Large Redgum and Box trees were a major concern when establishing control lines with heavy equipment working until the 24th December 1997 until the fire could be declared safely contained.
The Section 44 declared emergency was terminated at 2100 hours on 22nd December 1997. In hindsight this may have been slightly premature due to the involvement of 2 Local Government areas and the continuing need for effective mopping up and co-ordination.
Patrols are ongoing with some timber still alight, these being well within the perimeter. …
A general debrief was held on 30th December 1997 and was well attended by brigade representatives and the authorities involved.

44 I accept the following evidence from Mr Jenkins as to what led to his recording a video of the scene at the location where the fire started (document (ii)). He was the respondent’s works manager for the area of the fire, and team leader at the respondent’s Culcairn depot, responsible to program and manage works associated in his area (transcript p 48). In that capacity he received a report of the fire on the 21st from Terry Watson, one of the on call linesmen who was attending the fire and requiring assistance. He was told by Mr Watson that the fire “appeared to possibly have been started by a broken electrical service”, and that there were problems restoring power to the areas west of Yerong Creek. He travelled to the area “to find out what had caused it, try to investigate it, contain it, repair it, get everything back to normal” (p 45). He organised line crew and equipment to repair damage to poles at this and other sites and to patrol the line in the vicinity of “Barwon”. At about 8:30 pm he was told that there was a fallen line on “Barwon” and decided to attend there early the next morning to undertake a detailed investigation of the scene of the origin of the Fire. He attended the scene and recorded the video at about 6.30am on the morning of 22 December 1997.
45 In his affidavit Mr Jenkins said that this was not his usual practice at the scene of a bushfire and that he took it “because I anticipated that legal proceedings might eventuate as a result of the fire and that the respondent might be sued. Accordingly, as much evidence as possible should be available to defend the respondent.” In his oral evidence, he explained that he decided to this “because of the very large fire and the damage that it had – would have obviously had caused” (p 46). He thought his employer would be held responsible because “everyone I spoke to said that the service had broken and that’s what started the fire, therefore Great Southern Energy would be liable for the cost of all the damages that occurred” (p 46). He received no instructions to record a video on this occasion, there was no standing instruction for him to do this, and he acted purely on his own initiative (p 47). When he took the video, he intended to pass it on to Ian Fitzpatrick because, although Mr Fitzpatrick was not his immediate supervisor, he was the regional asset manager and managed all the electrical assets in the area (p 47). Mr Jenkins agreed that he had no understanding of what insurance or legal representation arrangements were in effect at the time, and that questions of legal defence and insurance were well outside his province as an employee (p 48-9). The only time he had received any instructions to do with legal liability on the part of GSE was “in regard to vehicle accidents, we were told not to admit liability” (p 49).
46 I have considering all the evidence as to the circumstances leading to Mr Jenkins recording his video in the early morning of 22 December 1997. This evidence includes the written statements of himself, and the linesmen, Messrs Bowen and Watson, and the contents of the video itself. I find that, considered objectively, the evidence does not show that at that time legal proceedings could be “anticipated” within the concept explained by the authorities which I adopted above.
47 In reaching this conclusion, I have taken into account Mr Jenkins subjective belief that his employer “would be held responsible in a Court of law’ (transcript p 56). However, his opinion is not conclusive. He had no evidence that in fact anyone was at that time seriously contemplating commencing legal proceedings involving his employer. The known circumstances at the time supported only a possibility that further investigations of the causes of the fire might uncover evidence pointing to a potential liability of his employer and causing his employer to be sued. At the time that he recorded the video all that was known were some inconclusive facts as to a broken power line found at the scene of the commencement of the fire. These facts do not suggest to me, and indeed Mr Jenkins did not say that they suggested to him, that there was a reasonable basis on which his employer could be held to be responsible for the fire.
48 I reach the above conclusion without taking into account what subsequently happened. However, I am entitled to make some use of hindsight since “account may be taken of predictable developments” (c.f. Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225 at 234). The subsequent investigations and events which I shall narrate below confirm me in my above opinions.
49 I therefore do not consider that the exemption has been made out in relation to the video which is document (ii). I resume the narrative of my findings.
50 In the morning of Monday 22 December, The Border Mail, a newspaper published in Albury-Wodonga carried the front page banner: “40 and BURNING Residents flee the flames”, and a report of this and other fires in the region and in Victoria. It included the following:

At least two homes were destroyed and women and children evacuated from Mangoplah last night as a fire swept out of control between the village and Yerong Creek.
Driven by gale-force winds and temperatures which nudged 40 degrees in Albury-Wondonga and 41 degrees in other parts of the region, the fire burnt on a 6km-wide front over more than 20 kms.
The strong winds were blamed for causing the fire after they brought down a powerline on the Barwon stud. …”

51 A “full report” on page 4 detailed extensive damage to property, and included this passage:

Rural Fire Service regional officer Mr Shane Griffin said the fire might have been sparked by strong winds which brought down a power line about 4.20pm on the Barwon poll dorset stud property owned by Lockhart Shire Mayor Cr Rob Yates.

52 Mr Fitzpatrick read this report at around the time when he was receiving reports from his staff about 8.30am. He says in his affidavit that he “became immediately concerned that Great Southern Energy might be sued by someone affected by the Fire”. He faxed a copy of the newspaper report to and telephoned Mr Gregory Wood, who was the General Manager of Corporate Services. He also spoke to Mr Landon, the respondent’s insurance officer. These people approved of his proposal personally to investigate the fire, and it would seem that he reported back to them at several stages of his investigation.
53 Their accounts of their conversations are to similar effect. Mr Fitzpatrick says in his affidavit that following his conversation with Mr Wood he

“decided, in light of what I considered to be a high risk that Great Southern Energy would be sued as a result of the Fire, to make inquiries and prepare a report to be sent to our solicitors. I thought that such a report would help in defending Great Southern Energy if and when it was sued by someone affected by the fire.

54 A less positive apprehension is stated later in his affidavit, when he explains why he prepared his January 1998 report of his investigations:

The preparation of this report was an unusual step and was only undertaken due to the apprehension that Great Southern Energy might be sued as a result of the Fire, and the need, therefore, for comprehensive investigations of the cause of the Fire to be undertaken and recorded.

55 In the light of his cross-examination, I consider that this paragraph more accurately reflects Mr Fitzpatrick’s opinions at relevant times (see also transcript pp 12, 13, 29, 34, 38, 40). I find that he did not apprehend a probability that his employer would be sued, but only that this was a possibility which warranted his conducting and recording an investigation while events were fresh, so as to have material to be used in defence of his employer if this contingency ever eventuated. I don’t accept that Mr Fitzpatrick thought at the time that litigation was anywhere near probable. Moreover, if I am wrong in this finding, as I shall explain I am not satisfied that the objective circumstances at the time warranted the formation of such an opinion.
56 For the same reasons, I do not accept Mr Woods’ claim in his affidavit that it was his opinion “that it was quite likely” that the respondent would be sued (paragraph 6), nor a response obtained from him in re-examination that he “had high expectation there’d be some sort of action” (p 84). I prefer and find that what he said in evidence in chief: “I said to Ian, there’s a possibility that we may have legal action in this matter” (p 25, see also p 59-60, 78, 84), gives a more accurate impression of his assessment of the risk of litigation. I do not accept that anything near a probability of the respondent becoming involved in legal proceedings could reasonably appear merely upon the report in The Border Mail.
57 During 22 December Mr Fitzpatrick inspected the site and took or directed the taking of photographs which are document (i). His only notes from that time which have been produced are document (iii). He seems to have obtained the map of the fire which is document (xii) from the Fire Service, probably at the “debriefing” on 30 December 1997, and not in March 1998 as he deposed in his affidavit, since it must have been before the Fire Service completed its report on 7 January (see transcript p 21-2).
58 On 23 December he instructed Mr Jenkins to write a written statement and to obtain written statements from the linesmen as to their observations. I accept Mr Jenkins’ account that Mr Fitzpatrick said “We need to investigate the fire. We are being blamed for it and we need to have information in case we – in case of litigation.” (p 53, c.f. p 22-3). This instruction caused Messrs Watson and Bowen to write their statements (documents (iv) and (v)) and at the same time (about 23 December) Mr Jenkins to type a statement which was subsequently lost or destroyed, but was retyped in March 1998 so as to be “dated signed and witnessed” on Mr Fitzgerald’s instructions (document (xiii)) (see transcript pp 53-55).
59 Having obtained, made or initiated the making of the above documents, Mr Fitzpatrick on 4 and 5 January 1998 wrote his own report of events, and recording his own thoughts in relation to the causes of the fire (document (vii)). This report is very significant in reaching a conclusion on whether objectively legal proceedings against the respondent could, at that time, be anticipated as a probability. I am unable to reveal its contents in these reasons. In my opinion Mr Fitzpatrick’s conclusions, and the other material in his report, point against a probability of the respondent being sued rather than the opposite. The effect of the whole contents of his report was, in my opinion, to confirm that the situation continuing into January 1998 was that it was entirely speculative what were the causes of the fire and therefore whether and what legal proceedings might ever occur in the future (see also transcript pp 34, 40-41).
60 To use Goldberg J’s phrase: at this time there was “speculation as to the possibility of such proceedings” but not a “probability or likelihood that such proceedings will commence”.
61 The inconclusive and incomplete state of all investigations into the fire at this time is confirmed by the Fire Service report, which is dated 7 January 1998 and was circulated at around that time. All that it says about the causes of the fire is:

All lands which were subsequently affected were private lands, police and insurance assessors are investigating the fire with some concerns being expressed in relation to who is responsible for power line upkeep at the fire origin.

62 It is also significant to consider what other employees of the respondent were doing at around this time. On the afternoon of 22 December, Mr Landon, who was Mr Woods’ subordinate in relation to insurance matters, wrote a memo to Barry Shepherd in the electricity industry “risk managers office” which said:

I have been requested by Brian Burton via Ian Fitzpatrick and Barry Hails to advise that although the fire at Yerong creek may have been as a result of an Act of God it is extremely important that the site from which the fire appears to have started not be destroyed before specialists can do investigations.
It is therefore essential that the insurer takes the necessary steps to protect our and their position as there is little doubt that the quantum will exceed the deductible and the shed may well provide this evidence. I believe that it may have already been partially demolished before we visited the site this morning.”

63 A further memorandum on 23 December advised the risk managers office that the respondent had appointed Mr Ross Altas “in respect of the above incident”, and that “Ross has attended our Office in Albury this morning to obtain basic information from Ian Fitzpatrick and myself and is now travelling to the site to carry out his investigation and interviews” (Ex 5).
64 The above memoranda suggest that the respondent at this time was concerned by an unquantifiable possibility of being sued, and that there were prospects that investigations could make this possibility recede rather than develop into a probability. The respondent kept the risk manager, and thereby its insurer, informed of the situation, but neither of these bodies took any steps to become actively involved in the matter (see transcript p 44-51, 54-56). One inference is that the risk manager and insurer agreed with an assessment of the respondent’s claims advisors which did not identify a present substantial threat of litigation. No other evidence was led from Messrs Landon, Shepherd or Altas, as to their opinions of the probability of a claim being made against the respondent, notwithstanding that an assessment of the risk of litigation would seem to be more within their responsibilities and experience than Mr Fitzpatrick’s, which was quite limited (see transcript pp 12, 31-3, 42-3). I conclude that their evidence would not have advanced the respondent’s case.
65 An objective assessment of the risk of litigation in late 1997 and early 1998 as less than probable is not inconsistent with the evidence as to the employment of Messrs Belbrige Hague. Mr Woods in his affidavit says that:
“on 23 December 1997 I instructed that an investigator be retained by Great Southern Energy to make inquires about the likely cause of the Fire. I intended to send the results of the investigator’s inquires to solicitors for Great Southern Energy in due course to be used by them in defending Great Southern Energy from any claims made in relation to the fire.

On 24 December 1997 I contacted Belbridge Hague Solicitors and retained them to act on behalf of Great Southern Energy in relation to the Fire.

66 There was evidence that the products of the respondent’s investigations were forwarded to the solicitors from time to time. The respondent did not call evidence to clarify what its solicitors were retained to do in relation to this material at the relevant time, and objected to cross-examination of Mr Woods directed at the above paragraphs of his affidavit. I allowed some cross-examination, but the respondent in reply neither produced written evidence of the retainer nor called the solicitor (who was present at the hearing) to give evidence in either open or closed hearing. From all the evidence, I conclude that during the period that the documents in contention were produced and sent to Belbridge Hague, that firm’s general retainer in relation to the fire was no more than to act as a repository for material which might be relevant to conducting a defence in the future, if and when any litigation were commenced. I find that this retainer is explained more by an inaccurate belief on the part of Mr Woods that it would be enough to protect the documents from a possible future process of compulsory discovery, than that he perceived a probability of future litigation and a present need for legal assistance to prepare a defence. In this respect it is significant that Mr Woods agreed without hesitation with the proposition that “the principal reason of your contacting Belbridge Hague was to try and get privilege attached to any documents that may be generated” (p 66). He said “the other reason was to make sure we had a history of the event” (p 85). I draw the above conclusions more confidently because no evidence was led of any legal advice being given that there was or is any likelihood of legal proceedings against the respondent. The respondent had the opportunity to call such evidence, if necessary, in a closed hearing.
67 On all of my above findings, my conclusion is that the documents for whose making Mr Fitzpatrick was responsible were not brought into existence or communicated in relation to legal proceedings which were “anticipated” within s 119 of the Evidence Act, and I reject the claim for exemption in relation to documents (i), (iii), (iv), (v), (vii), (xii) and (xiii).
68 Of the remaining documents, numbers (vi), (viii), (ix), (xi), and (xiv) are aerial photographs, expert calculations and revised statements of Messrs Jenkins, Bowen and Watson made or procured by Mr Altas, a loss adjuster and private investigator who was employed by the respondent on 23 December 1997 as indicated above. Mr Altas wrote a report in February 1998 on his investigations which is document (x), and in the letters sent in May and June 1998 which are documents (xv), (xvii), and (xviii) he up-dated his report and forwarded additional documents to the respondent’s solicitor.
69 I cannot reveal the contents of these documents in these reasons. I conclude that none of them was made or communicated at a time when litigation was objectively to be “anticipated”. I consider that Mr Altas’ own investigations over this period tended to diminish rather than increase the possibility of legal proceedings being taken against the respondent. There is evidence that at this time investigations were being made on behalf of property owners, but the effect of Mr Altas’ report is that their suspicions were being directed towards persons other than the respondent.
70 The respondent did not explain why it did not call Mr Altas to give his own opinions as to the probability of legal proceedings. In this respect, the technical report of 19 February 1998 on the origin and cause of the fire commissioned by the respondent from Simon Cox, Forensic Consulting Services Ltd should be noted. Its conclusions were:

In summary, the rupture of the fuses in the machinery shed and the response of the 100 amp circuit breaker after the fire started were both compelling evidence that the fire was not as claimed. Rather, the evidence supported a conclusion that the fire commenced in the shed or immediately to the east of the shed, in a stack of discarded hay.
Unfortunately, my examination of the debris for evidence of the fire cause was prevented by Mr Yates who, following discussions with his legal advisers, requested that we leave the property. Should this matter proceed further, it is recommended that an aerial photograph of the fire damage be obtained and used to make a more precise determination of the point of ignition using the meteorological conditions and relative fire spread data.

71 The fact that Mr Altas forwarded some or all of his reports and investigation material to the respondent’s solicitors does not establish a probability of litigation. As I have found above, the solicitor’s retainer was only to receive investigatory material to meet a speculative contingency that legal proceedings might be commenced or threatened in the future.
72 There are two further aspects of the evidence which confirm me in my conclusion that it could not, at the time that any of the documents in issue were made or communicated, be predicted that legal proceedings were probable and more than a speculative possibility. The first is that the last documents came into existence at around the time that an expert study of the damaged electrical supply line was being conducted by Prof Blackburn on behalf of Unisearch Ltd, for the NSW Police Service. Prof Blackburn’s findings and conclusions were unknown at the time, and his report is dated 10 December 1998. It was only then, on the material before me, that the possibility that the fire was started by electrical malfunction gained serious substance. Even then, the report and the evidence before me left obscure whether liability for the hypothesised malfunction could be seriously alleged against the respondent.
73 Secondly, there is no evidence before me that such an allegation, or any other claim of substance, has ever been made against the respondent. Mr Wood agreed that no legal proceedings had ever been commenced and that he had not heard suggestion by anyone that any proceedings were in contemplation (page 77). Ms Porter, on behalf of the applicant, deposed in her affidavit sworn on 22 April 1999:

“My mother and I, together with a number of other farmers, who suffered damage as a result of the fire have made various enquiries in relation to the origin of the fire. This has been done in order to ascertain if there are any prospects of recovery of the losses which have been suffered by us. There appears to be a general consensus that the origin of the fire was because of the failure of an electrical cable, however, it remains uncertain as to why the electrical cable failed. …”

74 The respondent made no request to cross-examine Ms Porter or her solicitor who also swore an affidavit read in the proceedings, in order to dispute the suggestion in this paragraph that the property owners are not, even now, in a position to decide to threaten or take legal proceedings against the respondent. On the material the parties chose to put before me, I find that at no time has there been a possibility amounting to a probability of the nature suggested by the authorities cited above that any person would commence legal proceedings involving the respondent.
75 I therefore reject the claims for exemption by reference to s 119 of the Evidence Act for the balance of the documents other than document (xvi) as explained above. No other exemption was claimed in respect of any of the documents. I therefore find that there was no power to refuse access to them on the ground provided in s 25(1)(a). The decision in respect of them should be varied so as to include a decision which gives access to these documents. The question of an “override” discretion does not arise for these documents.
The Tribunal’s power to review the override discretion.
76 However, I have found that one document, the solicitor’s letter which is document (xvi) was an “exempt document” within cl 10 of Sch 1. It is not a restricted document which is the subject of a Ministerial certificate. The question of the Tribunal’s power to consider the override discretion therefore arises.
77 Prior to the transfer of external review jurisdiction from the District Court to this Tribunal, the answer was clear. Section 55 of the FOI Act conferred a merits review function on the District Court, but expressly excluded from the Court’s consideration the exercise of the override discretion. In a provision repealed at the time of transfer, it said:
“55(5) This section does not operate so as to enable the District Court to determine that access to an exempt document is to be given.”
78 The District Court’s position replicated the limited external review provided under Commonwealth FOI legislation, in which s 58(2) of the Commonwealth FOI Act expressly removes the Administrative Appeals Tribunal’s power “to decide that access to the document, so far as it contains exempt matter, is to be granted”. In contrast, the Victorian FOI Act takes a different course. Section 50(4) gives its review tribunal “the same powers as an agency or a Minister in respect of a request, including the power to decide that access should be granted to an exempt document [other than Cabinet, Bureau of Criminal Intelligence, or exempt personal documents] where the Tribunal is of opinion that the public interest requires that access to the document should be granted under this Act”. This provision has given rise to an extensive jurisprudence which is summarised in Kyrou (ed) “Victorian Administrative Law” at [2498].
79 The benefits of external review reaching into all elements of a primary decision to withhold release are apparent. In particular, it must have the tendency to encourage agency decision-makers to address their full discretion to release documents and to discourage them from thinking that their role is merely to locate at least one exemption which, in its terms, is capable of application to a document. Recent commentators on the operation of FOI legislation in Australia, including some Ombudsmen, have detected and complained of such thinking as a common occurrence.
80 However, did the NSW Parliament intend to place the Administrative Decisions Tribunal in a position similar to the Victorian Tribunal when it repealed the express bar in s 55(5) of the NSW Act and moved jurisdiction from the District Court to a specialist administrative review tribunal? This was performed by amendments to the FOI Act in Sch 5.16 to the Administrative Decisions Legislation Amendment Act 1997 (NSW), which passed through the Parliament concurrently with the ADT Act itself.
81 The amended FOI Act now in s 53 gives “a person who is aggrieved by a determination made by an agency or Minister under section 24” an unqualified right to “apply to the Tribunal for a review of the determination”. This provision causes the determination to be a “reviewable decision” within s 8 of the ADT Act, which can be the subject of an application for review under s 55 of the ADT Act, and which the Tribunal must review in accordance with s 63 of the ADT Act.
82 The amendments to the FOI Act which replaced Division 2 of Part 5 also addressed some special procedural aspects of the Tribunal’s review proceedings in FOI matters. In my opinion none of these is to the effect of the repealed s 55(5). What appears now as s 55 was previously s 55(6), and addresses a different concern. A special modification to the Tribunal’s usual substantive review power was included, but this related only to its consideration of restricted documents (see s 57(1)).
83 In my opinion the amendments to the FOI Act suggest that Parliament expected that the Tribunal otherwise would perform its usual function of merits review as provided by the Administrative Decisions Tribunal Act. An inference arises from the repeal that it intended that external merits review should no longer be restrained by the previous special limitation (c.f. Mathieson v Burton (1971) 124 CLR 1 at 26).
84 The substantive function of the Tribunal provided by s 63(1) of the ADT Act is “to decide what the correct and preferable decision is having regard to the material then before it, including … any applicable … law”. In effect, this provision adopts jurisprudence developed in relation to the Commonwealth Administrative Appeals Tribunal, and requires the Tribunal to address the merits of the decision made by the primary decision-maker by reference to the same legal parameters as governed the primary decision (c.f. Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 per Bowen CJ and Deane J at 68, Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225 at 234; Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 at 18 – the change from “correct or preferable” is, in my opinion, without significance).
85 Consistent with this jurisprudence, absent any special limitation on the Tribunal’s review function in applications under the FOI Act, it has the function by reason of s 63 of the ADT Act – indeed the duty – when reviewing a determination under ss 24 and 25 of the FOI Act to consider all issues arising in the case in relation to whether a document should be released. As indicated above, once a ground for refusal of access arises under s 25(1)(a) the issue arises whether to exercise the discretion to release an exempt document which is not a restricted document the subject of a Ministerial certificate. The decision under review must have, or must be taken to have, addressed this discretion before determining to refuse access on the ground of an exemption. The Tribunal must also address it.
86 The only legislative provision which might appear to interfere with this conclusion is not in the FOI Act. It is s 124 of the ADT Act, which provides:

124 Application of Act to exempt documents under Freedom of Information Act 1989
(1) General rule
Except as provided by this section, nothing in this Act requires or authorises any person or body to disclose any exempt document to another person or body.
(2) Disclosure to person or body other than Tribunal
The provisions of the Freedom of Information Act 1989 continue to apply to the disclosure of exempt documents to any person or body other than to the Tribunal as if this Act had not been enacted.
(3) Disclosure to Tribunal
If a provision of this Act requires or authorises any person or body to disclose any document to the Tribunal in relation to any proceedings before it and that document is an exempt document:
(a) the Freedom of Information Act 1989 does not prevent the disclosure of the document to the Tribunal, and
(b) the Tribunal is to do all things necessary to ensure that the document is not disclosed to any person other than a member of the Tribunal as constituted for the purpose of the proceedings unless the person or body disclosing the document to the Tribunal consents to the further disclosure.
(4) Certificates by Director-General of The Cabinet Office concerning cabinet documents
The Director-General of The Cabinet Office may certify that a document is an exempt document because it is a cabinet document. Any such certificate:
(a) is conclusive of that fact, and
(b) authorises any person who would otherwise be required under this Act to lodge the document concerned with (or disclose it to) the Tribunal to refuse to lodge the document with (or disclose it to) the Tribunal.
(5) Definitions
In this section:
“disclosure” of a document includes the following:
(a) the provision of copies of the document,
(b) the granting of access to the document,
(c) the disclosure of the contents of the document.
“document” includes a part of a document.
“exempt document” means an exempt document within the meaning of the Freedom of Information Act 1989.

87 There are some difficulties in deciding the scope and intention of this provision. The Explanatory Notes do not assist. The section is not, in its terms, directed at placing a special limitation on the Tribunal’s review function in its FOI Act jurisdiction. In its context and terms it appears to be directed at procedures common to all jurisdictions and at preserving the operation of the FOI Act in areas of government which may become involved in any of Tribunal’s jurisdictions. Its objective is to prevent parties using an application to the Tribunal to circumvent the procedures for obtaining access to documents under the FOI Act. Section 124(3) provides an agency with a special ground for resisting inspection of exempt documents produced to the Tribunal pursuant to ss 58 and 84. What is clear, is that its restraints on the Tribunal are confined to a provision “in this Act”, i.e. the ADT Act, which otherwise “requires or authorises” disclosure of an exempt document.
88 The Tribunal, when determining under s 63 an application for review of a determination under ss 24 and 25 of the FOI Act, is not considering the exercise of a power found in the ADT Act but the exercise of a power conferred by the FOI Act. It is the FOI Act and not the ADT Act which authorises a determination to disclose an exempt document. If the Tribunal determines that the previous exercise of that power did not produce the “correct and preferable” decision, and directs under s 63(3)(d) that the decision-maker substitute a decision for release, then it is not invoking a power of disclosure given by the ADT Act. Nor in my opinion, would it be doing so if pursuant to s 63(3)(c) it decided to set aside the reviewable decision and substitute a decision for release of the document. If either of these actions can be described as an exercise of a power of disclosure, then that power of disclosure is a power found in the FOI Act. The Tribunal is not exercising a power of disclosure “required or authorised” in a provision of the ADT Act within the language or intent of s 124.
89 I therefore have concluded that I have the duty to consider whether the respondent was justified in refusing access to document (xvi) in the context of a conclusion that the document is an exempt document falling within cl 10 of Sch 1. How should this discretion be exercised?
Consideration of the override discretion.
90 In general, whether there is occasion to exercise the override discretion must depend upon the particular exemption and the circumstances of the case. The statutory criteria for some exemptions themselves bring into balance all public interest considerations which could favour release or justify withholding. Other exemptions have more limited criteria. For these, satisfaction of the criteria provides a justification for withholding the document, but does not complete the decision-making. The decision-maker must decide whether there is something about the information itself or the surrounding circumstances which, bearing in mind the objects of the FOI Act and the rationale for any exemption which has been satisfied, persuades him or her that the exemption should not be claimed. The touchstone is whether withholding the document is “reasonably necessary for the proper administration of the Government” (s 5(2)(b)).
91 Framing the question in this way produces a need to locate special or overriding circumstances or interests before an exempt document is released, but only in the sense that some reason particular to the circumstances should be found for not claiming the exemption. I would not see the question as necessarily suggesting that such a release would be rare, unusual or exceptional. In some areas of government, there may be many documents which fall within an exemption but, for example, whose public interest in release is overwhelming, or whose potential for relevant damage is so obviously remote as to leave disclosure totally innocuous.
92 The exemption in cl 10 is an example of an exemption whose tests do not require a general balancing of public interests for and against disclosure. The criteria of legal professional privilege normally raise only a factual inquiry as to the circumstances in which a document came into existence or was communicated. Once satisfied, there is almost no room for a countervailing public interest in disclosure (c.f. Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 514, 521, 545, 556, 563, 591). The privilege raised by the common law and the Evidence Act is absolute, carrying an in-built public interest rationale (see Propend Finance (supra) at 527, 551, and 583), but it is a rationale which is not necessarily consistent with the objectives of the FOI Act.
93 Moreover, the application of the test of legal professional privilege in an abstract context, and not in the context of specific legal proceedings under the control of a court, means that it may operate more restrictively of disclosure than would in practice occur in legal proceedings. This particularly arises from the qualification in relation to waiver of the privilege, which the nature of the proceedings or their conduct by a party may compel (c.f. Telstra Corporation Ltd v BT Australasia Pty Ltd (1998) 85 FCR 152 at 167). Voluntary waiver of the privilege is also more likely to occur in the context of particular legal proceedings than in the contemplation of hypothetical legal proceedings as is required by cl.10.
94 Cl 10(2) recognises by its exception relating to “policy documents” that the context of government and the objects of the FOI Act make it inappropriate to allow exemption for legal professional privilege in relation to a significant class of documents. The clause does not attempt any other general exception. However, the above considerations lead me to think that it is an exemption where the discretion to release in the particular circumstances may have particular relevance. I consider that a decision-maker who concludes that a cl 10 exemption could be claimed should usually also consider the broader justification for claiming it. Some examples of considerations which may or may not be relevant are: whether release is consistent with the requirement that public authorities act as “model” litigants; any special disadvantages facing claimants against government; whether the document is innocuous by reason of its stale or trivial contents; the need to clear the air from suspicions of significant impropriety in government; or the need to expose significant impropriety.
95 I accept that caution is appropriate before some of these judgments could be arrived at. They may not be able to be reached merely on examination of the document itself. The difficulty of predicting the significance of a document in future litigation which is anticipated but whose ramifications and issues are unclear must be borne in mind. Even where current litigation is involved, it may be better to err on the side of maintaining the exemption unless an applicant for release can demonstrate that maintaining the privilege works a particular injustice not outweighed by another public interest.
96 Applying the above discussion to the present document, I have found nothing in the evidence which causes me not to accept the exempt status of the letter as providing sufficient justification for a refusal to release it. The legal advice it contains was entirely proper and lifting its confidentiality would not, in my opinion, serve any significant public interest. Reading it, it seems quite possible that its release would be totally innocuous, but I have not been sufficiently informed of all the surrounding circumstances so as to be satisfied that I should set aside the respondent’s decision to refuse access. I shall therefore leave standing the respondent’s decision in relation to this document